International Child Abduction and the Legitimacy of International Law

Alicia Dodge, Government Law Review Member 

I.  Background

      The vast advancements in technological capabilities have greatly changed traditional jurisdictional principles.  No longer is it sufficient for a state’s laws to only apply to persons and property solely within its territory, a concept known as the “territorial principle.”1  A state’s jurisdiction must now be able to extend extraterritorially in order to comport with the technological advancements of today.  States have realized this necessity, sparking the prevalence of international law documents aimed at resolving disputes between states.  However, international law also raises questions of internal legitimacy in regards to political, judicial, and societal differences between states.

II.  The Hague Convention on the Civil Aspects of International Child Abduction

   Increased divorce rates coupled with advancements in technology, which make travel much easier, spurred the need for an international treaty to regulate child abductions.2  The resulting document is known as The Hague Convention on the Civil Aspects of International Child Abduction (hereinafter The Hague Abduction Convention), the purpose of which is to establish judicial guidelines for states to follow after a child has been wrongfully abducted.3  Time is of the essence in child abductions, as the abductors typically will attempt to drag out the process, lengthening the time that the child is separated from the parent.  The signatory countries are bound to follow the treaty, making the return much smoother and expedited.  In order to maintain the legitimacy of international law, the states must comply with their treaty obligations or risk damaging their reputation with other states.4  According to UN Charter Article 2(2), “[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them . . . .”5  In order to state a claim under The Hague Abduction Convention, it must be demonstrated that

    [The] child was habitually [a] resident of the country from which the child was abducted; [the] petitioning parent had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and at the time of wrongful[] removal, [the] petitioning parent was exercising those rights.6 

The petitioner bears the burden of proof by a preponderance of the evidence, and then the responding party may attempt to prove an affirmative defense to oppose the child’s return.7  There are four such affirmative defenses, two of which must be proven by clear and convincing evidence, which are “that ‘there is a grave risk that the child’s return would expose the child to physical or psychological harm[,] . . .’” or that the return would violate fundamental human rights norms.8  The other two affirmative defenses require proof by a preponderance of the evidence, and they “are either that judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment, or that the Appellant was not actually exercising custody rights at the time of removal.”9

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