March 8th, 2012 by Robert Franklin, Esq.
Another father’s child has been kidnapped by her mother and once again the Hague Convention on the Civil Aspects of International Child Abduction is proving itself utterly incompetent to deal with the situation. Read about it here (Stuff.co, 3/7/12).
Keep in mind that the Hague Convention has one job to do – return internationally kidnapped children to their parents. And yet time and again, it completely fails to do so.
Three years ago, New Zealand dad, Simon Maddison and his wife Vicki took their daughter Emma to Denmark to receive treatment for a health condition. Vicki is Danish. After the treatment, she and Emma stayed on while Simon returned to New Zealand assuming they’d be following shortly. They didn’t. Slowly the realization came to him that they weren’t coming back.
So he filed suit under the Hague Convention which is supposed to return children within 60 days of the suit’s being filed. As we see almost invariably, that didn’t happen. Three years later, Simon Maddison is still waiting for the Danish court to rule.
Complicating matters somewhat was the report of a hostile and apparently unqualified psychologist who opined that Emma should not be reunited with her father “in her best interests.” The theory seems to have been that Emma had been with Vicki long enough that it would be upsetting to her to see her father.
Mr Maddison lost the case because a report by a senior child psychologist deemed it a grave risk to return Emma to New Zealand because of her psychological wellbeing if she was removed from her mother.
I suppose it never occurred to the psychologist that, if that were the criterion for child custody, the Hague Convention would never have been written, much less ratified by 87 countries. It’s the old – and I thought outmoded – concept that the parent who possesses the child must have custody of the child. As I’ve said before, that notion is distressingly akin to the property law concept of adverse possession. Under adverse possession, anyone who possesses and uses real property for a long enough time gains ownership of that property.
For years, it seemed that the same held true for mothers who kept children away from fathers. Courts routinely held that, if they did so long enough, the father had no right to the child nor the child to its father.
Although courts are less inclined to do that now than they were, say, 15 years ago, it still happens fairly frequently, particularly in adoption cases.
In Maddison’s case, the New Zealand authority regulating the psychology profession ruled that the psychologist’s opinion was too flawed to support removing a little girl from her father.
But in September 2010, he received notice that his complaint to the psychology board had been upheld and they agreed the report was lacking in proper rationale, methodology and sound conclusions.
That was 18 months ago, and still Denmark has done nothing to return a child illegally taken by her mother. My guess is that, when the Danish court gets around to ruling, they’ll do the same thing the psychologist did – cut the dad out of his child’s life because she hasn’t seen him in so long. Because of that, Emma’s “best interests” will require that she not have a father. We’ll see.
It’s astonishing that courts continue to rule that way in kidnapping cases. Much social science shows that parental kidnapping is child abuse and courts should view it as such. But when it comes to fit fathers like Simon Maddison, they seem always to be willing to ignore the plain fact that wrenching a child from its father can be calamitous to the child’s well-being.
Meanwhile, Maddison has gone broke fighting to get Emma back into his loving arms.
“I’ve spent tens of thousands of dollars, it’s broke me. This has ruined me. I don’t care about the money but psychologically it’s killing me inside.”
Still, the Danish court remains intransigent, which is strange since, according to the Convention, there’s little or nothing for it to decide.
“The abduction was proven, her residence was proven and the only other thing that needed to be proven was the [psychology] report, which was proved inconclusive. Denmark should be following up on this. They need to uphold their obligations,” he said.
But they’re not, which leads me to believe they’ll decide that too much time has passed for Emma to be reunited with her dad.
Two years later the case is still ongoing and Mr Maddison says he would do everything he could for his “wee girl”.
“I deserve my daughter and it has taken over my life. My daughter is a victim in this and so am I.”