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.

International Child Abduction – A Growing Legal Maze?

The recent case of Marianne Grin in Russia has drawn attention to international child abduction and the legal failings relating to these cases.  After losing custody, the mother of four took her children to Russia, from their home in Italy, and is refusing to return them to their father. Like many child abduction cases, it has an international dimension – the children have dual American/Russian citizenship and are Italian residents. As the complexities of international child abduction continue to grow, within an increasingly globalised world, there is a growing  need for laws to govern these issues arising from cross border relationships.

The Grin case is scarily similar to that of Elke Mellersh. Ms Mellersh abducted her children in the previous year and fled to Turkey, she then committed suicide after taking their lives in November 2011. She had disappeared along with her children, fearing they would be taken from her, after the German courts had declared her  mentally unstable, and had taken steps to revoke her custody. Like the Italian courts, the German courts strongly favour the mother in custody battles and it is not easy for the mother to lose custody. In Germany, women gain exclusive custody in almost 100% of cases where children are under the age of 6, and in cases with older children this drops no lower than 95%.

As in the Grin case, the reporting of the  story was radically different in Turkey, the ethnic home country of Ms Mellersh, than it was in the UK. Despite also being a German case, the story went largely unreported in Germany, where privacy laws prevent newspapers from covering suicide cases. Ms Mellersh, like Ms Grin, also appeared to be escaping from court rulings she disagreed with. In both cases, allegations of abuse levied against the father, and numerous other people, were proven by the courts to be unfounded. She was a German citizen with Turkish heritage, the children were dual nationals of both Germany and Britain. None of them had ever lived in Turkey, but like Grin she had tried to reinvent herself as a “persecuted mother” fleeing to her home country. She was portrayed as such in the Turkish media, which took a nationalist stance and sensationalised the case without addressing or seeking factual information.

The most painful thing about this case is the possibility that theirs deaths could have been prevented. Undoubtedly, there were huge failings in Germany and in Turkey, where the children had been kept illegally for some time before their deaths. What would have happened if their whereabouts was known earlier? Would the Turkish authorities have complied with both German and international laws to protect the children? Would the Turkish authorities have taken or attempted to take the necessary steps to ensure their safe return? There are several laws in place which applied to the Mellersh case, such as the Hague Convention Against Child Abduction. The difference in the Grin case is that the whereabaouts of the children is known and these laws can still be enforced. Turkey which is also part of the Hague Convention is notably slow at complying with the convention effectively in such cases. Russia can still prove that it is able to implement relevant legislation and uphold the convention and it’s values by returning the children to Italy.

In his article in the Huffington Post, Harris Silver raised the issue of the importance of laws within and between countries? I agree that these laws are hugely important, especially in a world where transnational cooperation is becoming an essential part of legal practice. In relation to child abduction, international treaties are often essential due to the cross border nature of a growing number of these cases. That said, the application and enforcement of these laws is vital if they are to be effective in applying to those it seeks to protect.