Study on Child Abductions to Third Countries Prepared for the JURI Committee

The author of this post is Costanza Honorati, professor of EU Law at the University of Milan Bicocca.

The JURI Committee of the European Parliament has commissioned and recently published an interesting Study on Parental Child Abductions to Third Countries. The Study is delivered by long-term expert Marilyn Freeman (University of Westminster), and builds on a number of desk or evidence-based research studies and handbooks she and her colleague and friend Nicola Taylor (University of Otago) have run over recent years.

As stated in the title, the focus is on abduction from the EU to non-EU Countries, both when such a Country is a Contracting Party to the 1980 Hague Convention, as well as when such Country is not bound by the Convention. The Study instead does not cover abduction within the EU – which is dealt with by the Brussels II ter Regulation which complements the 1980 Hague Convention – nor abductions from third Countries to the EU. The author points out the need for further research in this latter direction, where very little legal research is to be found.

The study sets off briefly recalling why international abduction is so detrimental to children and highlighting consequences and long-term effects of such event on their lives. Though this is generally well-known, it is not inappropriate to refresh the reasons for the drafting of the 1980 Hague Convention through the personal experience of affected children, who have become adults.

The 1980 Hague Convention applies when the abducted child is habitually resident in a Contracting State and is removed or retained to another State which is also a Contracting Party to the Convention. This situation sets the scene for a general assessment of the Convention itself and to clarify a position which is strongly felt by the author: though this is a powerful and successful instrument, there is a strong need to ‘nurture’ the Convention in order to keep it serving the best interests of children in a contemporary society. The Hague Convention is now 40 years old and is facing critical challenges. Building on empirical data collected through several research projects conducted in recent years by both the above mentioned academics, some topics are selected which require further study and, possibly, some kind of review and update.

These cover:

• re-balancing of an uneven playing field for the competing parents, based on the different access to public funding and level of skill and specialization of judicial and non-judicial experts existing in different countries;
• better management of abductions which occur against a background of domestic violence – an issue that was widely discussed also in the context of the 8th Special Commission in October 2023;
• ensuring speed and efficiency of return proceedings;
• promoting and strengthening the role and participation of children in return proceedings, in view of the wide divergence in practice within Contracting States;
• managing the delicate issue of enforcement – expanding on how to secure a more holistic solution through international mediation and how to make more stable voluntary arrangements by incorporating the agreement in a judicial decision.

It is in Chapter 4 that the Study briefly explains how abduction to a country which is not a Contracting Party to the Convention can be dealt with. Not surprisingly, the focus is on what happens in Islamic Law countries, given that only a few of them (eleven, among which Morocco, South Africa and Tunisia) have ratified the 1980 Hague Convention and that some of these are perceived as safe-heavens by abductors.

A brief analysis shows how neither recurring to local laws (often based on Sharia principles that have a build-in bias in respect of foreign parents), nor relying on the very few and often inadequate bilateral international agreements (a summary list of which is provided) can provide for a satisfactory solution. Along the same lines, diplomatic effort, often the only route to assist if not solve in more delicate cases, is judged ineffective. Interestingly, this conclusion is based on a US-German case of the late Nineties. Finally, it is warned that re-abduction is also not a viable route, as is shown with a case example from Lebanon.

In such a legal framework, a positive note is played by the Malta process – an international exercise started in 2004 with the aim of improving co-operation in cross-border disputes involving children where the relevant international legal framework is not applicable – and by the use of mediation, as long as this is run by mediators specialized in international abduction cases. Because of the long-standing tradition of sulh (Alternative Dispute Resolution) in the Muslim world, an appropriately led and run mediation may prove the most effective path in abduction cases in Islamic Law countries which are not Contracting Parties to the 1980 Hague Convention.

On a more general note, the Study clearly supports and speaks in favor of the 1980 Hague Convention, which is seen as the most effective and powerful instrument to prevent and solve this unlawful and highly detrimental unilateral practice.

This belief is however not blind of the inconsistencies and needs that a long-standing instrument shows in current times. Instead, the Study advocates for further action to be taken in order to up-date the convention .

As the Author puts it:

The Convention’ offers the best available protection against abduction in that it deters some abductions and provides an agreed mechanism for the prompt return of abducted children. Both these outcomes help to avoid some of the trauma associated with abduction. The high number of Contracting States to ‘the Convention’ demonstrates its widespread appeal which is critical for its success.

However, ‘more’ needs to be done to help ‘the Convention’ meet the challenges it faces and to avoid it slipping from being a successful instrument of protection into an instrument of harm to those it seeks to protect. This study suggests ways in which that ‘more’ may be achieved, highlights the positive role which the European Parliament has played to date, and advocates its continued involvement to maintain its leadership in this field.

A list of  recommendations is provided at the end of the paper. These include:

• more evidence-based research on several topics, including: i) effects of abduction occurred against the background of domestic violence; ii) prevention and iii) support for abducted children and their families;
• more collaboration among key actors (such as the HCCH, the EP Coordinator on Children’s Rights, specialist academics/researchers, mediators, and NGOs) to ‘address, consider and report on issues relating to the required nurturing of the Convention’. Interestingly the author suggest that the EP Coordinator on Children’s Rights could be an appropriate forum to coordinate these efforts;
• Continued efforts by the HCCH to expand membership of the 1980 Hague Convention;
• continued efforts, including through the Malta Process, to engage with countries which remain outside of the 1980 Hague Convention and to the use of specialist mediation in appropriate cases.

The 1980 Hague Convention is a powerful instrument and a great success. The family and society pattern that was at its background when it was drafted has however greatly changed and, in some respect, the convention appears to be at odds with todays needs. A revision of the international treaty may appear unrealistic, but something should be done. It will be a long way, but the journey should be started somewhere. The wise and balanced views expressed in this Study should be given careful consideration.