Savoie: Hague Convention Countries Fail to Keep Their Promise to Abducted Children

July 23, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I’ve written a good bit on international child abduction, covering various aspects of the phenomenon. I’ve written about abduction from the child’s viewpoint, from that of mental health professionals, left-behind parents and, of course, the Hague Convention on the Civil Aspects of International Child Abduction. Now Tennessee attorney Amy Savoie adds her valuable insights from the perspective of a practicing lawyer.

Savoie holds a Ph.D. from Dartmouth and practices patent law, but does pro-bono and consulting work in child abduction cases and others regarding children’s rights. She’s published two pieces in the Nashville Bar Journal dated May, 2015 and July 15, 2015. What Savoie’s work adds that’s most important (at least to me) is her emphasis on the practicalities of international child abduction. Her goal is to instruct lawyers and judges in how to spot a parent who’s likely to kidnap a child and how to prevent that from happening.

So her first article details the personality traits and behaviors of parents who present a risk of abduction. That’s important information for lawyers representing parents and judges who may be called on to adjudicate claims of incipient abduction. Risk factors are:

Threats to abduct the child or previous attempts to abduct the child.

According to Savoie, the Boston Bar Association found that, in 80% of abduction cases, the abducting parent had previously made threats to do exactly that. And the FBI, the American Bar Association and the National Center for Missing and Exploited Children all list previous threats as a prominent risk factor.

Ties to a foreign country and/or lack of ties to the child’s home state.

That of course is an obvious risk factor. When parents are of different cultures or have significant ties to other countries, then the risk of abduction increases from what it would otherwise be. That risk factor is even greater if the parent has an extended family or other support group in the foreign country.

Personality disorders… Traits to watch out for include an “unwillingness to share parenting, an enmeshed relationship with the child, and a sense of superiority to the court’s orders,” as well as an impulsive temperament. Also, it is not uncommon for a would-be parental abductor to exhibit narcissistic, paranoid-delusional and/or sociopathic traits.”

This pretty much speaks for itself. Parents who see themselves as the only source of legitimate parenting and who are happy to ignore court orders are obviously some of the most likely to abduct their kids, particularly if the court seems bent on enforcing the targeted parent’s time with the child.

History of withholding visitation.

This is common among a great percentage of custodial parents. Indeed, it’s one of the banes of the non-custodial parent’s existence. Of course not every parent who limits visitation goes on to be an abductor, but such a history may reflect the type of “superiority to court orders” referred to previously.

Means and opportunity.

If a parent believes he/she may be a target of an abductor, then it’s wise to figure out whether the other parent has the financial means to carry out such a plan. Does he/she have the money, a “portable” job or extended family in another state or country? Does he/she speak a foreign language, travel abroad frequently, etc.?

To emphasize the importance of being on the lookout for child abduction by a parent, Savoie rightly points out that doing so is child abuse. That’s true irrespective of the abductor’s motive in taking the child. He/she may truly believe that the abduction is necessary to shield the child from harm, but that doesn’t lessen the harm to the child.

In the American Journal of Forensic Psychology, Dr. Deirdre Rand explains that “an abducting parent views the child’s needs as secondary to the parental agenda, which is to provoke, agitate, control, attack or psychologically torture the other parent… Post-divorce parental abduction is considered a serious form of child abuse [whereby] the child becomes psychologically depleted and emotionally crippled.”

In short, parental abduction of children is a serious form of child abuse and lawyers and judges should be on the lookout for the risk factors in parents who may stoop to kidnapping a child.

In Part Two of her work on parental abduction, Savoie continues with the motivating factors for abductors with reference to cultural anthropologist Melissa Haviv whose field is parental child abduction.

In describing the motivation that drives these parental abductors to do what they do, Ms. Haviv explains that some parents abduct their children because they fear losing custody or visitation, or because they “confuse” their own frustration with the other parent to mean that the other parent would be “bad” for the child as well.5 Other abductors seekrevenge.6, 7

Studies out of Canada suggest that revenge against the other parent “is a powerful abduction motivator,” abductors want retaliation. They feel that if they can’t have the child full time…then the other parent shouldn’t have the child, either,” 8 and a recent FBI report explains, “Most non-custodial parental abductors want retaliation. They feel that if they can’t have the child full time…then the other parent shouldn’t have the child, either.”9

The length of time a child is away from the targeted parent is directly related to the amount of trauma the child experiences from the abduction.

For their physical and emotional safety, parentally kidnapped children should be recovered as quickly as possible. The National Criminal Justice Reference Service (NCJRS) notes that, in children studied, “the length of [a child’s] separation from the left-behind parent greatly influenced the emotional impact on the abducted child.”10 Abductions lasting only a few weeks were not found to be extremely emotionally traumatic because the children did not give up hope of seeing the other parent again.

“Victims of long-term abductions, however, fared much worse. They were often deceived by the abducting parent and frequently moved to avoid being located…

What all of that means of course is that the legal system must act quickly if it is to protect the child from deep and lasting emotional trauma. And, Savoie points out, that is exactly what the Hague Convention is designed to do, but fails.

It’s a point I’ve made countless times. Even in signatory countries in which the court system is at least supposedly capable of handling matters of abduction, time and again those courts take unconscionable periods of time to decide cases.

That of Italian Tomasso Vincenti comes to mind. His wife, Australian Laura Garrett, abducted their four daughters to Australia and it took the courts there an astonishing three years to return them to Italy where they’d lived all their lives. That case highlights what is one of the signal failings of courts adjudicating Hague Convention cases — their willingness to ignore the obvious.

In the great majority of cases, there is only one question to be answered — “what is the children’s country of habitual residence?” That is, have they been taken to a country that’s not where they usually live or have they been retained in such a country. Once their country of residence is determined — a fact that should be ascertained easily and quickly — the case should be decided in that country, unless the courts there are unable to do so.

In the Vincenti case, Australian courts did exactly what the Hague Convention is designed to prevent. Garrett claimed Vincenti abused the children and the Australian courts spent three years figuring out that he did no such thing. What they should have done is decide the obvious — that the girls had always lived in Italy – and return them there. Italian courts are fully capable of hearing and deciding allegations of child abuse and Garrett should have been required to bring those claims there. Had Australia required her to do so, the children would have been back with their father in a matter of weeks or months instead of years and the attendant trauma would have been far less than it has been.

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Treaty”) is a treaty intended to ensure that its signatory nations “respect each other’s custody laws,” and to provide a civil remedy for the return of abducted children.18 Hague Treaty members represent that they “agree” that if a child is kidnapped to a foreign country in violation of another parent’s parental rights, the child should be returned to his or her country of habitual residence. Despite its promising provisions, however, the goal of the Hague Treaty — the prompt return of abducted children — is too often not realized in actual practice.

The fact is that too many countries, despite being a signatory nation, demonstrate an unwillingness or inability to abide by the Hague Treaty’s provisions.19

Because countries routinely fail to abide by the convention they signed, attorneys and judges need to step in and prevent child abduction. That means reading the signs and issuing orders to stop an abduction before it occurs.

Thanks to Amy Savoie for a fine, informative and, above all, urgent pair of articles on an all too common phenomenon that the legal system does a poor job of handling.


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