INTERNATIONAL LAW

International child abductions: There’s more to the story

 

law.miami.edu/

A few days ago Japan passed legislation that brings it one step closer to joining the international community’s approach to remedying international child abduction. Japan can now ratify the Hague Convention on the Civil Aspect of International Child Abduction and is expected to do so.

This is good news for the U.S. government as it has been pressuring Japan to join the Convention for some time. After all, Japan is the last G7 country to do so. It is also good news for many left-behind U.S. parents whose children now live without their agreement in Japan. Japan’s actions give them well-deserved hope.

Japan’s legislation is notable for another reason as well. It contains important and unique guidance to its courts concerning how to adjudicate allegations of domestic violence. Japanese judges must consider whether returning the child would risk violence to the child’s other parent and thereby cause serious psychological harm to the child. If it would, the child need not be returned in an expeditious proceeding pursuant to the Hague Convention.

As a signatory to the Convention later than many, Japan’s law is able to reflect some of the hard lessons learned by other nations about child abduction over the last 35 or so years. Indeed, international “abductors” are typically mothers who are the child’s main caregiver and often claim to be fleeing for safety.

Japan’s attention to domestic violence here is consistent with the Convention. The Convention allows a court to refuse to return a child if the return would cause a “grave risk of psychological or physical harm to the child or otherwise place the child in an intolerable situation.” Japan’s law ensures that its courts take seriously this “grave risk” defense and how domestic violence impacts children. In Japan, a Hague proceeding should not cause children more harm than good. That is what the Convention drafters had in mind when they provided defenses.

The U.S. should follow Japan’s lead and give serious thought to how it might better protect the safety of children. In 2010, the U.S. State Department pointed out that “many” judges in the United States hearing these cases are “disinclined” to rule that domestic violence perpetrated against the mother is harmful to the child, and consequently return children to their mothers’ abusers. The State Department also noted that these cases raise “significant issues related to the safety of the child and the accompanying parent.”

Currently, in the United States, domestic violence victims have to prove the “grave risk” defense by “clear and convincing evidence,” a standard that is much higher than the normal burden of proof. In addition, the law doesn’t require courts to hold hearings to assess the parties’ credibility. So, some judges don’t.

The law doesn’t require that judges hearing these disputes have any training on domestic violence and its effect on children. Thus, many don’t and dismiss the violence as irrelevant. Foreign nations are trusted to protect domestic violence victims, even though our State Department’s Human Rights Reports caution otherwise. Judges rely on promises by the batterer that he won’t abuse his victim if she returns with the child, even though he breaks them time and again.

To top it all off, some judges make some domestic violence victims pay the batterer’s attorney’s fees (sometimes hundreds of thousands of dollars) if she can’t prove the “grave risk” defense by this high burden of proof. Yet, no judge can order her batterer to pay her attorney’s fees if she prevails on the “grave risk” defense.

With this legal framework, why wouldn’t an abuser use the Convention to further his abuse of the victim when she flees? After all, our State Department will even help him find free legal counsel as is its policy for all “left behind” parents. Unfortunately, the “taking” parent, even if she is an indigent domestic violence victim, does not have the same benefit afford to her. The U.S. Congress has never held a hearing on these problems. Instead, resolution after resolution condemns all international child abduction, calling it child abuse.

Congress needs to get the other side of the story and fix its laws so that they take into account the prevalence and grim reality of domestic violence. Thankfully, U.S. Rep. Ileana Ros-Lehtinen has agreed to hold a briefing on the topic on June 19. If we don’t fix the law at home, the United States will continue to give batterers a tool to regain control over the other parent who flees with the child for safety. No country should enable a batterer. It should instead allow the truth to emerge for the benefit of the child.

Donna Coker and Zanita E. Fenton are law professors at the University of Miami School of Law, and Merle H. Weiner is a Philip H. Knight law professor at the University of Oregon School of Law.

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