UN Hague Convention Frequently Violated
Do Penalties Apply to Those Countries That Avoid Obligation?
Sep 8, 2009
The UN Hague Convention on the Civil Aspects of International Child Abduction is an important treaty for every country to sign. According to the Convention language, signatories have the desire 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 . . . ." However, a number of countries seemed to have signed the Convention for no purpose other than for appearances.
Continuous Violations By Brazil
Brazil is one of the most frequent violators of the Convention. According to Kirk Semple in the February 24, 2009 NY Times article "Court Battle Over a Child Strains Ties in 2 Nations" there are presently around 50 unsolved Convention cases between the United States (U.S.) and Brazil. The U.S. State Department, within the last three years, "has faulted the Brazilian Courts for erroneously treating Hague cases as custody disputes, unnecessarily delaying cases and demonstrating an unfair bias toward Brazilian citizens, especially mothers."
This unnecessary delay actually rewards the kidnapping parent insofar as the local court can now charge that the child's best interest is to remain in the country. Article 12 of the Convention allows this reasoning and illustrates the need for parents, who have lost their child to international kidnapping, to file with the Central Authority of the destination country within a one year period. "The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year . . . ., shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment," reads Article 12 of the Convention.
This is the argument made by Brazil in the Sean Goldman case. The child was taken by his mother to Brazil in 2004. The father argues that he did commence Convention hearings within the one year period. Brazil argues against this, but what makes the situation even worse is the fact that the child's mother recently passed away. The local court still gave guardianship to the step-father, so that the child could be near his sister and grandparents, according to the NY Times article. Since the mother was a Brazilian citizen, the child automatically became one as well, complicating matters further.
"The child should be returned to the father in the U.S. Some countries disregard Hague when it comes to their own nationals, especially well to do, well-connected ones like the late mother's husband, who has taken control of the Goldman child," stated David L. Levy, President of the Children's Rights Council (CRC), an international non-profit organization that advocates for a child's right to have access to both parents, in a personal communication dated September 4, 2009.
Is Punishment Possible?
The Convention doesn't discuss any form of punishment. It is left completed between the arguing parties to settle. In addition, the UN International Court of Justice doesn't appear to hear abduction matters. However, New Jersey Congressman Chris Smith (R-N.J.) has recently introduced a bill to economically punish Brazil, according to Don Dahler in the June 4, 2009 WCBSTV.com article "NJ Dad Vows to Fight For Son Stuck in Brazil." This doesn't sound like a bad idea, especially since pressure by both President Obama and Secretary of State Clinton is not working.
Improvements to Application of the Convention Essential
An International Forum on Parental Child Abduction: Hague Convention Action Agenda [National Center for Missing and Exploited Children, 1999] was held in 1998. This report, written by Nigel Lowe, states the need for changes. The report urges every country to adopt the Convention's principles. "Yet, in too many cases, the Hague Convention appears not to be working as originally intended, and too many cases remain unresolved. It is abundantly clear that problems exist," states the report. Interpretation and uniformity are at least two of the problems mentioned within this report. In addition, at least two of the remedies requested include increased access of the child to the non-custodial parent and pro bono legal support for victim families.
Every nation that ratifies this Convention must believe in the document and act accordingly to its procedures. Otherwise, the signature is for appearances only and no actual consideration is given to the protection of children. Many nations that violate the Convention only consider their own nationals. This thought process goes against the very creation of the document, which is for nations to follow procedures that will protect the best interests of a child. Something which can't occur when favoritism takes place. Please see related articles "Singapore Overdue on Ratifying Hague Convention" and "Why Fear U.S. Ratification of UN Convention?"
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