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| International Child Abduction and the Escape From
Domestic Violence |
MERLE HOPE WEINER
University of Oregon
School of Law
Fordham Law
Review, Vol. 69,Iss. 2, P. 593, 2000 |
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Abstract:
The article examines the application of the
Hague Convention on the Civil Aspects of International Child
Abduction to individuals who flee transnationally with their
children to escape domestic violence. The article argues that the
Hague Convention fails these abductors and their children, and then
proposes reform.
The article begins by demonstrating that
the Hague Convention is based upon an incomplete image of child
abduction. Reformers envisioned the typical abductor as a male
noncustodial parent, and believed that children uniformly were
harmed by abduction. Given this image, reformers adopted "a remedy
of return" that results in the quick return of the child to the
child's habitual residence, typically the place from where the
abductor has just fled. Recent evidence suggests, however, that the
vast majority of abductors are women who are the children's primary
caretakers, and many of these women are fleeing from domestic
violence. Abduction impacts these children differently from what the
drafters had envisioned. Also, these abductors encounter profound
safety and fairness issues when the remedy of return is ordered.
The article next assesses how these abductors fare when
faced with a Hague Convention petition for their children?s return.
The case law demonstrates that the domestic violence victims face
enormous difficulty defeating these petitions. Their domestic
violence is typically not relevant to the prima facie elements of a
Convention case or to the Convention defenses. While the article
highlights some of the more helpful case law, and suggests some
potential interpretations of the Convention that would aid domestic
violence victims, it ultimately recommends a broader solution to the
problem than this case-by-case approach.
The article
ultimately recommends a two-pronged solution. First, there should be
a total defense to the Convention's remedy of return for battered
women who are forced to flee a country and settle abroad with their
children. Second, there should be a procedure similar to that found
in the United States' Uniform Child Custody Jurisdiction and
Enforcement Act for those women who voluntarily go to a foreign
country, and then flee to escape from domestic violence. The
procedure would allow these victims to litigate issues of custody
from the country to which they fled, and delay the return of the
children until the abductor lost the underlying case for custody. At
this time, the proposed solution appears to be the best hope for
addressing domestic violence victims' concerns without undermining
the Convention.
Note: Note:
This is a description of the paper provided by the author.
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Contact
Information for MERLE HOPE WEINER (Contact Author)
Email address for
MERLE HOPE WEINER
University of Oregon School of Law
1515 Agate Street
Eugene , OR 97403
United
States
541-346-3857 (Phone)
541-346-1564 (Fax)
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