BBC Radio 4: Focus on International Child Abduction

The BBC Radio 4 Face the Facts programme gives an introduction to international child abduction cases affecting parents in the UK. It focuses on signatories to the Hague Convention and on the difficulties in dealing with non-Hague Convention countries. The programme features stories of individual parents as well as legal experts on international child abduction – Lord Justice Thorpe and barrister Jacqueline Renton.

A recording of the programme is available here.

Update on the Grin Case: Petition to the US Secretary of State

There have been new developments in relation to the Grin case. A petition has been launched addressing US Secretary of State Hillary Clinton, in an effort to help bring home four American children abducted by their non-custodial mother and illegally taken to Russia. The children were living in Florence, Italy with their custodial father before they were abducted by their mother, who lost custody a year earlier when she was found to be psychologically unfit to be a parent.

The family is now urging the US State Department to help by working with the Russian Foreign Minister to read the court documents and understand the severity of the situation and to get these children safely back home to Italy. This petition is a desperate attempt to accelerate the process of returning the children from Russia.

You can sign the petition here.

Children In A Legal Vacuum: International Child Abduction

Many of us take on work or studies in a foreign country, and some of us end up having a family with someone of a different nationality. All great for international understanding? Well usually. But if the relationship breaks down, this type of globally mobile lifestyle brings new challenges for the family courts. Where do you file for a divorce? What about custody and visitation? What if the custody battle turns acrimonious?

With the increase in transnational marriages, international parental child abduction has become a serious problem that affects both individual states and the international community.  Parents who feel unfairly treated by the family courts may  “forum shop” taking the kids into a new legal jurisdiction that will be more likely to rule in their favour, thus sparking a re-run of their custody case. The Hague Convention on International Child Abduction is designed specifically to prevent this border-hopping between nations; signatory countries agree to accept decisions already made in another jurisdiction and to promptly return abducted children to their place of habitual residence.

The UN Convention on the Rights of the Child also obliges states to ensure that national borders are not used to prevent children from having contact with their family. Signatory states commit to ensuring the continuity of a child’s life when a substantial part of it resides in another country.

Yet it is one thing to accept that is in the child’s best interests to maintain contact with their family and promptly return home; it is another to actually carry this out.

While international legal conventions are designed to regulate cross-border disputes and harmonise legal proceedings, these are not always enforced with appropriate urgency and are frequently evaded or blatantly disregarded. Although parental abduction has been defined as amounting to child abuse, the rights of the child are sadly often ignored in international abduction cases, with nationalistic posturing taking precedence.

Families living abroad are away from the steadying influences of friends and extended family, and may also slip through society’s safety nets of schools, doctors, social workers and counsellors. Who is going to follow up on a family that has moved abroad? Who will bother to find out the background of a family newly arrived in a country? If you don’t speak the language, how can you seek advice and counselling? National laws governing family issues must be adapted to the changing international culture and to reflect the ease of international travel and the transnational nature of many modern families.

US-Italy-Russia

The recent case of the Grin/McIlwrath children highlights the numerous failings of the Russian authorities to work together with their Italian counterparts to protect the children involved. Grin, a Russian-born US citizen who was living in Italy, abducted her four children from their American custodial father in Florence. She travelled to Russia with the children despite Italian court rulings which removed her custody rights and indicated that the children were at risk if they remained with her. Her children have since been placed in Chabad-Lubavitch institutes/orphanages in St Petersburg at her request “for their own safety”.

The plight of the children, who are fluent in both English and Italian, has not even been acknowledged by the Russian authorities. It appears that the obligation of the state to ensure their safety and well being, and contact with their family and friends in Italy in the US, has been completely overlooked since they have been moved into a new jurisdiction, despite the fact that Italy, the US and Russia are all signatories to the Hague Convention.

Russian authorities have similarly done nothing to end the children’s isolation from family and friends, nor ensured they are safe from the risks identified in the Italian court proceedings.

Canada-Poland

In a parallel case two Canadian boys, Alexander and Christopher Watkins, were abducted by their Polish mother after her custody was revoked due to child-neglect. The boys were taken via the US and into Germany where the trail went cold. The Canadian authorities voiced serious concerns about the safety of the children and the ability of the mother to care for them, an Interpol red notice was issued and the mother was put on Canada’s most wanted list. When the children were finally located in Poland, the father immediately applied to have the boys returned home. At the December hearing in Poland the judge ruled that the children are now settled in Poland and should not be returned to Canada. This is despite the boys’ school in Poland independently suing the mother for child neglect. The appeal will be heard on May 16th 2012.

Leaving the children in the care of a demonstrably neglectful and potentially abusive parent is a clear breach of the Convention on the Rights of the Child. Refusing to return the children to the custodial parent is a violation of the Hague Convention. That Poland as an EU member state is not being held accountable for the misapplication of these laws and agreements as well as blatantly ignoring Interpol red and yellow notices raises concerns for the quality of European law.

Although both cases have a non European element they both involve EU borders. The issues of cross-border problems arising from divorce or family problems should be tackled more effectively within the EU. While there is often talk of the unification of laws in the EU there is a clear lack of co-operation when it comes to family law. In a region in which members of EU states can move freely between and within numerous jurisdictions the legal tools must exist to deal with the resulting problems of this freedom of movement.

It’s not clear why the Hague Convention is largely ignored in many states, possibly it is percieved by the national judiciary as meddling from outside, maybe it’s just a sign of the general distrust of and reluctance to co-operate with another country’s legal systems, or it could just be plain nationalism: siding with the parent of the same nationality.

If the unification of laws in the corporate sector is moving ahead, why are the laws governing our private lives being left behind? The creation of networks such as Interpol, Europol and various UN initiatives have offered little assistance in addressing problems arising from transnational familial relationships, especially those involving children. While numerous national and international legal measures have been created to uphold the rights of the child, their application has been limited. The enforcement of existing laws and international agreements has not been enough to protect children from the dangers of international child abduction.

Immediate action is essential in cases of child abduction because of the age and vulnerability of the children compounded by the volatility of a parent who is putting their own child through the trauma of abduction. Yet both Poland and Russia have failed to act on these cases, posing a serious risk to the children involved. The person posing the greatest danger to an abducted child is the abductor.

This article is also available on the Huffington Post.

Nationalism and International Child Abduction: Russian Court Rejects Forum Shopping

There have been further developments in the case of Marianne Grin, previously reported here. On April 12, 2012 the Russian court in St. Petersburg , rejected an application by Grin to initiate proceedings which would allow her to have the children living with her in Russia.  The court ruled that the Italian court retains the proper jurisdiction to determine the issues that Grin was still in the process of litigating, when she abducted the four children from their custodial father in Italy last year.

The recent decision is already being hailed as evidence of the increasing sophistication and independence of the Russian judiciary. This goes against the stereotypical view that Russian courts will seize jurisdiction in international cases in order to favour Russian citizens in disputes.  See, for example, the comment by Dimitry Litvinski, a Russo-Franco practitioner in Paris: http://blog.pravo.ru/blog/3421.html  Litvinksi observes that the Russian judge showed proper regard to international legal norms, the competence of a foreign court to decide issues that were before it, and little tolerance for opportunistic forum shopping.

The decision may also may be motivated primarily with the interests of Russian citizens in mind.  In international child abduction cases, Russian courts are known to favour Russian parties.  Theoretically this would allow the few Russian parents who manage to abduct their children, to be successful in keeping them in Russia once they arrive, regardless of any foreign rulings.

International abduction cases are relatively rare, as they involve illegal conduct of the abducting parent.  Thus, for every foreign parent who is unable to secure the return of a child because of the nationalistic reputation of Russian courts, there are many more law-abiding Russians who are divorcing in foreign countries and who suffer as a consequence.

Given the absence of an effective means to secure the return, foreign courts will often prevent Russian parents from taking a child to visit their grandparents.  Thus, the Grin decision actually helps Russian parents living abroad, as they may cite it as evidence that a foreign decree regarding children will be honoured.  Unfortunately, the grounds on which Grin’s application was rejected were narrower than the court might have ruled.

In many child abduction cases the issue of “forum shopping” is becoming more prevalent in a world where travel and access to information is at our fingertips. The abducting parent may “forum shop” for the country most likely to favour/allow their illegal actions concerning their child e.g. failing to apply the Hague Convention. The evident forum shopping by Grin did not escape the court’s attention.  She was simultaneously participating in proceedings in Italy, where she had been filing the same charges against the father since 2009.  After receiving an adverse interim determination, Grin submitted her application to the Russian court in 2012. The court observed, perhaps with a smile, that Grin had not even registered the children at a Russian address until February 2012, just weeks before the judgment was issued.  The court noted that none of the children had previously lived in Russia.

In rejecting Grin’s application, the court rightly noted the danger of potentially inconsistent determinations between the same parties on the same issues in two different countries. So the earlier proceeding must go first.  But in reaching this conclusion, the court relied on a bilateral convention between the countries for the recognition and enforcement of judgments in civil cases.  While the existence of the convention no doubt reinforced the grounds for rejecting Grin’s claim, it would have been better had the judge simply adopted the view that earlier-filed proceedings on the same issues between the same parties should always be given precedence.

Consequently, Russian citizens going through a divorce in a foreign country may claim reliance on this ruling only where they can point to the existence of a similar bilateral agreement. Without such an agreement, a foreign court would – and should – remain skeptical as to whether a Russian court would enforce a foreign ruling.

As for the Grin case itself, the real outcome may spoil the good news in court.  The decision has still not led to the return of the children to Italy and neither the father or the remaining family have been able to communicate with them.  Due to other concerns expressed about her state of mind, it is not surprising to learn that Grin, having broken the laws of Italy, has now started ignoring the laws of Russia as well.