“The law, sir? The law is a ass.” – Mr. Bumble, Oliver Twist.
Or maybe judges are.
I wrote recently about David Shubert of Colorado who’s been fighting for years to get his two children back from Australia to which his wife abducted them. He successfully pursued a case under the Hague Convention on the Civil Aspects of International Child Abduction, forcing his wife to return to the U.S. with the kids.
That effort went for nought when a Colorado judge scrupulously noted that (a) the mother had violated many of the statutory considerations for deciding custody, (b) David had violated none and then gave custody to the mother. She promptly returned to Australia where ever since she’s prevented David from seeing or speaking with his kids, all of which violate his rights under the court order.
In short, he’s done nothing but right, she’s done nothing but wrong, but the U.S. court has rubberstamped her original abduction. Her situation now is exactly what it was when she abducted the children, only now she has court approval.
In that piece I noted that some 75% of abducted children are never returned to the non-abducting parent or to their country of origin.
This case suggests one reason for that. In Mr. Bumble’s timeless statement, “the law is a ass.”
But again, it may be less the law than the judges. Consider this:
A man and a woman, both from Nigeria met and married in the United States in 2000. He had dual American and Nigerian citizenship and she apparently had Nigerian only. In 2003 they had a child and in 2005 they had another.
In February of 2009, the mother took the children to Nigeria and informed the father that they were staying there for good. In April 2009, the father contacted the United States Department of State and “a child abduction case was opened on April 22, 2009.”
What the opinion doesn’t mention is that the “case” was not one under the Hague Convention because Nigeria is not a signatory to that treaty. My guess is that the “case” consisted of diplomatic overtures to the appropriate Nigerian agency to try to get the children returned. Whatever the case, it wasn’t successful.
Then on July 3, 2010, the mother brought the children to England to visit her brother. The father learned of her presence in a country that has signed the Convention, alerted the State Department and, on July 22, 2010 filed an action in England under the Convention. She and the children were forced to remain in England during the pendency of the Convention case there.
I probably don’t have to tell you that the learned English judges decided that the mother’s abduction of the children is perfectly alright under the Convention. To say the least, their “reasoning” is remarkable.
There are two “reasons” for their conclusion. The first is that the father didn’t file his case under the Hague Convention for more than a year after the children were abducted. The reason that’s important is that, once a year has passed, a judge can find an abduction to have been unlawfully done, but still not order the children returned to the non-abducting parent if they are “settled” in the new country.
So it’s interesting that not once during the entirety of a long and tedious opinion does it occur to any of the judges why the dad didn’t file a Hague Convention case within a year – the mother was in Nigeria. Nigeria has never signed the Convention. Trying to file a Convention case there would have been utterly fruitless; Nigeria has no courts to deal with Convention cases and no reason to enforce a treaty it hasn’t signed.
Into the bargain, everything the father could do, he did well within a year. He opened a case with the State Department within two months of learning of the abduction. He filed a Hague Convention case within three weeks of learning of the children’s presence in England. In short, once there was a Convention case to file, he filed it promptly.
But the learned judges noticed none of that. They were in a hurry to get to the second “reason” for denying this father his rights under the Convention – that the children were “settled” in Nigeria. Under the Convention, if over a year has passed and the children have become “settled” in their new country, a court need not return them to their country of origin.
To the learned judges, the children were settled in Nigeria. And that must be called an odd conclusion since the court’s decision was handed down on February 16, 2011 by which date they hadn’t been in Nigeria for over six months.
The older child was five years, 2 1/2 months old when he/she was abducted. The younger was three years, 5 months old. After their abduction, they spent one year and 4 months in Nigeria before going to England where they spent 6 1/2 months awaiting the outcome of the court decision.
Somehow, to the learned judges, that all means that the children are “settled” in Nigeria even though they haven’t set foot in the place for over six months and have spent the great majority of their young lives in the U.S.
The judges have read the Convention. I know this to be a fact because they quote parts of it. They’ve read it; they just don’t know what it means. That too is odd because its language is pretty plain. Here’s part of the preamble:
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access…
Here’s what that means. The interests of children are most important in abduction cases. Abduction harms children, so we’re trying to protect them from the harmful effects of that. We also want to protect the rights of access of the non-abducting parent.
The learned judges did neither. They rewarded the abduction by the mother thereby continuing the “harmful effects of their wrongful removal.” They also failed to protect the father’s “rights of access” to the children.
The Convention goes on to say that it has two objectives:
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Again, the judges accomplished neither; the children will never be returned to their country of origin or to their father. And the father’s rights of custody and access in the United States have not been respected by England.
It’s a poor record by any measure. The Convention clearly sets out two overarching goals and two objectives with which to meet them. The judges failed on all four. They were able to do so only by ignoring what must be clear to anyone with the ability to read – the father filed suit as soon as he could and well within a year; if the children were “settled” anywhere, it was with him in the United States.
It’s almost as if the judges had a pre-conceived goal of keeping the father out of the lives of his children. But surely that couldn’t be true. Only an ass would do that.