Patching Up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA

Abstract

SUMMARY IMAGE FORMULA4 I. INTRODUCTION The 1980 Hague Convention on the Civil Aspects of the Child Abduction1 is not always part of international litigation symposia, where the focus is more likely to be on strictly commercial matters. But it is especially fitting to include this subject in a symposium issue honoring Professor Russell Weintraub. Professor Weintraub's IMAGE FORMULA7 international litigation casebook2 is one of the few-if not the only-international litigation texts to include material on the Abduction Convention.3 And his choice is wise: the Abduction Convention is not only an important international treaty in its own right-- raising numerous issues of interpretation and highlighting the need for harmonization in treaty interpretation-but it also offers insight into the operation of private international treaties and international cooperation more generally. My paper offers some general observations about the Abduction Convention with suggestions for its improvement. Those improvements take two forms: first, a recommendation for a protocol to the Convention itself to take account of developments that may not have been anticipated by the original negotiators of the treaty; and second, recommended statutory changes in the U.S. implementing legislation, the International Child Abduction Remedies Ace (ICARA), in order to improve the operation of the Convention within the United States. II. SOME INITIAL OBSERVATIONS WITH RESPECT TO INTERNATIONAL CHILD ABDUCTION Before turning to the Abduction Convention itself, it is useful to set the Convention within the context of U.S. law more broadly dealing with international custody disputes and the problem of international child abduction, in particular. The Uniform Child Custody Jurisdiction Act5 (UCCJA) and the more recently enacted Uniform Child Custody Jurisdiction and Enforcement Act6 (UCCJEA) create the domestic framework for exercising jurisdiction over child custody cases and enforcing orders in the United States. The new UCCJEA expressly reaches international cases as well7 but can only regulate the U.S. side of the equation: that is, the Uniform Acts provide rules for the exercise of jurisdiction in international custody cases in the United States, but they can do nothing to require enforcement of the resulting judgments abroad. And while these statutes cannot directly regulate the jurisdiction in foreign courts, the Acts do set the standards for when a foreign custody order can be enforced in the United States. The federal Parental Kidnaping Prevention Act8 (PKPA) introduces a federal full faith and credit standard buttressing the enforcement obligations among the states of the United States, but it has no application in international cases. The International Parental Kidnapping Crime Act9 (IPKCA) provides for criminal penalties for removal or retention of a child from the United States with intent to obstruct the lawful exercise of parental rights. However, this federal criminal remedyIMAGE FORMULA11 even when the United States is able to prosecute the abductor--does not necessarily effectuate the return of the child.10 Finally, it is worth noting the existence of a more recent Hague Convention-the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children11-often referred to as the 1996 Protection of Children Convention. This 1996 Convention is the international corollary to the UCCJA and UCCJEA and would establish international standards for the exercise of custody jurisdiction and the enforcement of custody orders.12 The 1996 Protection of Children Convention has recently entered into force, having now been ratified by four countries. 13 III. RECENT PROBLEMS UNDER THE ABDUCTION CONVENTION As things stand-and until there is any acceleration in ratifications of the 1996 Protection of Children Convention-the principal and most effective tool for dealing with international child abduction14 is the Hague Abduction Convention, which was finalized in 1980' and entered into force in the United States in 1988. …