WWaasshhiinnggttoonn UUnniivveerrssiittyy GGlloobbaall SSttuuddiieess LLaaww RReevviieeww Volume 4 Issue 2 January 2005 IInntteerrnnaattiioonnaall PPaarreennttaall CChhiilldd AAbbdduuccttiioonn:: CCoonncceeppttuuaalliizziinngg NNeeww RReemmeeddiieess TThhrroouugghh AApppplliiccaattiioonn ooff tthhee HHaagguuee CCoonnvveennttiioonn Barbara E. Lubin Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Family Law Commons, and the International Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Barbara E. Lubin, International Parental Child Abduction: Conceptualizing New Remedies Through Application of the Hague Convention, 4 WASH. U. GLOBAL STUD. L. REV. 415 (2005), https://openscholarship.wustl.edu/law_globalstudies/vol4/iss2/8 This Note is brought to you for free and open access by Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. INTERNATIONAL PARENTAL CHILD ABDUCTION: CONCEPTUALIZING NEW REMEDIES THROUGH APPLICATION OF THE HAGUE CONVENTION INTRODUCTION Family law issues that were once exclusively resolved within the national arena are now demanding international application.1 Marriages and families have been traditionally local in character, but as international relationships and marriages increase, so do international divorces and custody disputes.2 Family law is laden with cultural values and presumptions about gender roles and what is best for children.3 In Islamic law, for instance, fathers and mothers have different preordained roles in their children’s lives than in Western cultures.4 In Mexico, mothers are the presumptive best caretakers for young children.5 In addition to cultural standards infiltrating family law is the infusion of nationalism, which may create a subconscious presumption in favor of the decision-maker’s home country.6 1. See PAUL R. BEAUMONT & PETER E. MCELEAVY, THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION 2 (1999). 2. See id. 3. Thomas Foley, Note, Extending Comity to Foreign Decrees in International Custody Disputes Between Parents in the United States and Islamic Nations, 41 FAM. CT. REV. 257, 258 (2003). The legal institutions of various cultures around the world define the best interests of a child differently. The religious and social values of a society dictate the answers to legal questions of custody, parental authority, upbringing, permissible social behavior of minors, and degrees of freedom . . . U.S. custody law, which focuses on the needs of the child and each parent’s ability and willingness to meet those needs . . . [is distinguished from] custody law in Islamic nations, where social and religious values of Islam answer questions of parental authority and fitness. Id. (internal citations omitted). 4. Id. at 260–61. Even though the father has ultimate legal custody of his children, it is lawful that the mother has physical custody during their “years of dependency,” which last until the age of seven for boys and nine for girls. After this point, the child starts his or her spiritual upbringing under the guardianship of the father . . . Id. (internal citations omitted). It is important to note, however, that “[a]part from Burkina Faso, no Muslim nation has ratified or acceded to the Hague Convention.” Id. at 261. Therefore, specific issues posed to international custody disputes between Western democracies and Islamic nations are beyond the scope of this Note. 5. Whallon v. Lynn, 230 F.3d 450, 456 (1st Cir. 2000). “Mexican law [has a] preference in divorce cases toward placing what is called ‘custody’ of a child under age seven with the mother.” Id. 6. See Elisa Pérez-Vera, Explanatory Report, in 3 HAGUE CONFERENCE ON PRIVATE 415 Washington University Open Scholarship p415 Lubin note book pages.doc4/26/2005 416 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 4:415 Familial decisions, such as where to live and raise children, are generally retained in the family unit. Ideas of family autonomy generate state deference in child-rearing decisions, and parents are presumed to represent their child’s best interests.7 When family units break down, however, deciding where children will be raised is a choice wrought with competing interests. Rather than a unified familial interest, each person’s interest is conceptualized as being independent once the marital relationship breaks down. Within the context of deteriorating family relationships is the possibility of parents abducting their own children. Parental abduction is recognized as a much different phenomenon than stranger kidnapping, in that it is often fueled by distinct motivations.8 The Hague Convention on the Civil Aspects of Child Abduction (Hague Convention)9 was drafted in 1980 to combat the perceived INTERNATIONAL LAW: ACTES ET DOCUMENTS DE LA QUATORZIEME SESSION 426 (1982) [hereinafter Pérez-Vera Report]. On this point, the Pérez-Vera Report notes: It can happen that such a decision is the most just, but we cannot ignor (sic) the fact that recourse by internal authorities to such a notion involves the risk of their expressing particular cultural, social etc. attitudes which themselves derive from a given national community and thus basically imposing their own subjective value judgments upon the national community from which the child has recently been snatched. Id. ¶ 22. The significance of the Pérez-Vera report is described as being an: . . . Explanatory Report on a text which is destined to become positive law, that is to say a text which will require to be cited and applied, must fulfil (sic) at least two essential aims. On the one hand, it must throw into relief, as accurately as possible, the principles which form the basis of the Convention and, wherever necessary, the development of those ideas which led to such principles being chosen from amongst existing options. Id. ¶ 5. 7. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Skinner v. Oklahoma, 316 U.S. 535 (1942) (recognizing the right to family autonomy in the United States). 8. See Pérez-Vera Report, supra note 6, ¶ 13. The Pérez-Vera Report distinguishes stranger kidnappings as: [T]he person who removes the child . . . hopes to obtain a right of custody from the authorities of the country to which the child has been taken. The problem therefore concerns a person who, broadly speaking, belongs to the family circle of the child; indeed, in the majority of cases, the person concerned is the father or mother. Id. ¶ 13. 9. Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (entered into force Dec. 1, 1983) [hereinafter Hague Convention]. As of August 2004, there are seventy-five Contracting States to the Convention. Status Table of the Hague Convention on the Civil Aspects of International Child Abduction (Aug. 2004), at http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=24 (last visited Nov. 5, 2004). See Pérez-Vera Report, supra note 6, ¶ 37 (noting that the scope of the Convention “is designed to regulate only those situations that come within its scope and which involve two or more Contracting States . . . [T]he applicability of the Convention’s benefits will itself depend on the concept of reciprocity which in principle excludes it being extended to nationals of third countries”). In the United States, the implementing legislation is the International Child Abduction https://openscholarship.wustl.edu/law_globalstudies/vol4/iss2/8 p415 Lubin note book pages.doc4/26/2005 2005] INTERNATIONAL PARENTAL CHILD ABDUCTION 417 problem of nonprimary caretakers internationally abducting their children.10 The drafters of the Hague Convention viewed non-primary caretaker abduction as especially harmful to children,11 and, as a result, undergirding the Hague Convention is the assumption that abducted children are removed from a place that they consider “home,” and taken somewhere to which they are not similarly acclimated.12 The drafters sought to minimize potential harm to the child and to the child’s relationship with the primary caregiver.13 The Hague Convention focuses on protecting children from abduction which, in itself, was viewed as harmful to children14 and adopted the dual approach of creating a disincentive for would-be abductors, while remedying abductions as swiftly as possible.15 The Hague Convention is premised on presumptions about parental abductors that are proving to be inaccurate. In fact, contrary to the non- primary caretaker abductions that were envisioned, the majority of cases having relevance to the Hague Convention today arise when primary caretakers abduct their own children.16 The well-intentioned Hague Convention, meanwhile, focuses myopically on non-primary caretaker abductions. Although there should not be a primary caretaker exception to Remedies Act, 42 U.S.C. §§ 11601–11610 (1994) [hereinafter ICARA]. 10. See BEAUMONT & MCELEAVY, supra note 1, at 3. 11. Id. at 8–9. 12. See Pérez-Vera Report, supra note 6, ¶ 12 (describing the outcome from a child being abducted internationally, “the child is taken out of the family and social environment in which its life has developed”). 13. See id. 14. Id. The struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. Id. ¶ 24. 15. See Press Release, Fourth Special Commission Meeting, Hague Conference on Private International Law, A Child has a Fundamental Right to Maintain Contact with Both Parents (Mar. 2001), at http://hcch.e-vision.nl/index_en.php?act=publications.details&pid=2264&zoek=press%20 release (last visited Nov. 5, 2004) [hereinafter Hague Conference Press Release]. 16. See BEAUMONT & MCELEAVY, supra note 1, at 10. Several explanations might be put forward which could help account for this apparently dramatic transformation in the typical profile of an abducting parent from non-custodial father to a custodian who is very often the mother . . . Recent years have seen a more inclusive approach being taken with regard to the roles played by parents in the aftermath of a failed marriage or relationship . . . . It remains to be seen whether the original stereotype might be confirmed in relation to Contracting States which for religious or other reasons embody a principle of patriarchal pre-eminence. Id. (internal citations omitted). Washington University Open Scholarship p415 Lubin note book pages.doc4/26/2005 418 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 4:415 the Hague Convention’s application, unintended effects of the convention must be addressed as application of the Hague Convention produces a negative and disparate impact on women. One example is in the context of career-motivated international relocation. International relocation by families is highly correlated with the husband’s career;17 however, application of the convention may make it impossible for the woman to leave the new country lawfully with her children.18 A second example of a negative disparate impact affecting women is in the context of victims of domestic violence fleeing internationally with their children, a scenario the convention does not seem to take into account.19 The combination of highly gender-correlated factors in the application of the current Hague Convention creates a disparate impact that disadvantages women. Primary caretaker abductions do not necessarily cause the same detriment to children.20 Returning the child to the place from which she was abducted may, in fact, be in the child’s worst interest where return entails separation from the primary caretaker.21 Women often abduct for their own safety, and returning the child may be contrary to the child’s interest as well as public policy.22 It is imperative that the Hague Convention remain current to address today’s trends rather than yesterday’s presumptions. Because the underlying aim of the convention is to protect children and their most crucial emotional attachments, certain adjustments are needed to best provide for that aim and promote just outcomes upon application of the convention. In Part I, this Note discusses the pre-convention difficulty in applying the “child’s best interests” standard to international disputes. This Note then discusses how the lack of a uniform legal standard prompted the drafters to remove the forum-shopping incentive from parental abduction. In Part II, this Note explains the underlying aims and goals of the 17. Annual Transferee Demographic Survey, 17 RUNZHEIMER REPORTS ON RELOCATION 1–2, May 1998. 18. See infra notes 115–31 and accompanying text. 19. See infra notes 132–47 and accompanying text. 20. BEAUMONT & MCELEAVY, supra note 1, at 11. “It might also be suggested that if the abductor exercises the primary parenting role in the relationship it will, in his or her view, be entirely natural to leave with the children.” Id. 21. See id. at 7–13 (discussing the differences experienced by children depending on whether they are abducted by their primary caretaker or by someone else). 22. See Merle H. Weiner, The Potential and Challenges of Transnational Litigation for Feminists Concerned about domestic Violence Here and Abroad, 11 J. GENDER SOC. POL’Y & L. 749, 765 (2003). “Published figures indicate that seventy percent of the abductors are now mothers, typically the child’s primary caretaker. Often these mothers are victims of domestic violence, and they are fleeing transnationally with their children in order to escape . . .” Id. (internal citations omitted). https://openscholarship.wustl.edu/law_globalstudies/vol4/iss2/8 p415 Lubin note book pages.doc4/26/2005 2005] INTERNATIONAL PARENTAL CHILD ABDUCTION 419 Convention and how they are applied. Part III provides analysis of the Hague gender-based disparate impact that results from the convention. Tension exists between keeping the Hague Convention intact and making changes to alleviate its negative impact on women. Part III also presents two proposals. The first proposal evaluates habitual residence from a holistic view of the child’s life rather than from the time immediately preceding the abduction. The second proposal excepts international abductions in an attempt to escape domestic violence from operation of the summary return mechanism. Finally, this Note reiterates the pressing need to reform the Hague Convention in order to actualize the important goal of protecting children while not hurting women. I. PRE-CONVENTION APPLICATION OF THE “CHILD’S BEST INTERESTS” Prior to the Hague Convention, no uniform international legal standard existed for resolving cases of alleged wrongful removal23 and internationally dispossessed parents frequently faced insurmountable hurdles to having their children returned.24 International law was ill- equipped to deal with parental child abduction, leaving many dispossessed parents without a remedy.25 The legal standard often employed was 23. Hague Convention, supra note 9, pmbl. The Hague Convention provides a legal standard for wrongful removal as follows: The removal or the retention of a child is to be considered wrongful where: a) It is in breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Id. art. 3. See also 51 Fed. Reg. 10,494, 10,503 (Mar. 26, 1986). “Generally speaking, ‘wrongful removal’ refers to the taking of a child from the person who was actually exercising custody of the child. ‘Wrongful retention’ refers to the act of keeping the child without the consent of the person who was actually exercising custody.” Id. 24. See BEAUMONT & MCELEAVY, supra note 1, at 3. First, the child had to be located; then, faced with a “legal kidnapping,” courts were in most instances unwilling to take any action without first investigating what was in the individual child’s best interests. This inevitably led to lengthy, drawn-out proceedings and, although their aim was to find the most appropriate solution for the child, the greater the period of time which elapsed the less likely that the child would in fact benefit from being returned. Id. (internal citations omitted). 25. See Pérez-Vera Report, supra note 6, ¶ 68. The report notes: [I]n terms of statistics, the number of cases in which a child is removed prior to a decision on its custody are quite frequent. [T]he possibility of the dispossessed parent being able to recover the child in such circumstances, except within the Convention’s framework, is practically non-existent, unless he in his turn resorts to force, a course of action which is always harmful to the child. Id. Washington University Open Scholarship p415 Lubin note book pages.doc4/26/2005 420 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 4:415 referred to as the “child’s best interest,”26 which is arguably tied to subjective, culturally biased judgments.27 No global consensus exists, as notions differ regarding the degree of autonomy and self-determination a child should be afforded.28 Further, the differing ways of conceptualizing children’s rights evoke disparate responses.29 As a result, the child’s best interest approach is the subject of much criticism.30 The drafters of the Hague Convention felt the subjective child’s best interest approach offered forum-shopping incentives to abductors.31 The perceived problem arose when an abductor wrongfully removed a child to a different forum and, once there, attained the court’s jurisdiction to adjudicate the custody dispute. The drafters viewed such jurisdiction as false in that the child had no ties to the country other than as an abduction destination.32 Further, where jurisdiction is “false,” the child’s best interest approach, infused with cultural bias, often resulted in the resolution of the custody dispute in favor of the abducting parent.33 “[C]ourts tended to rule that the child’s country of habitual residence was altered by the abduction, making the country to which the child had been abducted the child’s habitual residence.”34 The drafters sought to set a uniform standard that 26. See id. ¶ 22. “[I]t must not be forgotten that it is by invoking ‘the best interests of the child’ that internal jurisdictions have in the past often finally awarded the custody in question to the person who wrongfully removed or retained the child.” Id. 27. Id. 28. See id. ¶ 24, citing the Parliamentary Assembly of the Council of Europe, 31st Ordinary Session, Recommendation 874 on a European Charter on the Rights of the Child (Oct. 4, 1979), at http://assembly.coe.int/Documents/AdoptedText/ta79/BREC874.pdf (last visited Nov. 5, 2004). “Children must no longer be regarded as parents’ property, but must be recognised [sic] as individuals with their own rights and needs.” Id. at 3. 29. See Pérez-Vera Report, supra note 6, ¶ 21. 30. See id. [T]he legal standard “the best interests of the child” is at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard. How can one put flesh on its bare bones without delving into the assumptions concerning the ultimate interests of a child which are derived from the moral framework of a particular culture? The word “ultimate” gives rise to immediate problems when it is inserted into the equation since the general statement of the standard does not make it clear whether the “interests” of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age. Id. (internal citations omitted). 31. See Pérez-Vera Report, supra note 6, ¶ 14 (describing wrongfully disposed parent’s disadvantage, even when proceedings were initiated in a timely fashion). “[T]he abductor will hold the advantage, since it is he who has chosen the forum in which the case is to be decided, a forum which, in principle, he regards as more favourable [sic] to his own claims.” Id. 32. Pérez-Vera Report, supra note 6, ¶ 11. 33. See supra note 3 and accompanying text. 34. Laura C. Clemens, Note, International Parental Child Abduction: Time for the United States to Take a Stand, 30 SYRACUSE J. INT’L L. & COM. 151, 155 (2003). https://openscholarship.wustl.edu/law_globalstudies/vol4/iss2/8 p415 Lubin note book pages.doc4/26/2005 2005] INTERNATIONAL PARENTAL CHILD ABDUCTION 421 would be in the children’s collective best interests by removing this forum-shopping incentive for abductors. Thus, the subjective case-by-case analysis of the child’s best interest standard largely abrogated.35 Replacing the manipulable “child’s best interest” standard is the Hague Convention’s inflexible denial of jurisdiction in the abducted-to country to so much as hear the merits of the underlying custody dispute, unless one of the very narrow exceptions applies. II. THE HAGUE CONVENTION AND ITS APPLICATION A. The Goals of the Hague Convention International child abduction, for purposes of private international law, is defined as the “unilateral removal or retention of children by parents, guardians or close family members.”36 It is a distinctly different problem than kidnapping by a stranger,37 and perceived abductors were typically non-custodial/non-primary caretaker parents.38 The stereotypical scenario envisioned at the time the Hague Convention was ratified paints a picture of an estranged father removing his child to another country, with the mother and child terribly distraught until the status quo ante is restored.39 Undergirding the convention is the assumption that the abducted child removed from a place that she considers “home,” and taken somewhere that she is not similarly acclimated.40 35. See BEAUMONT & MCELEAVY, supra note 1, at 13 (noting the conceptual change from the individual child’s best interests, to the best interests of children as a whole). 36. Saniya O’Brien, The Trials and Tribulations of Implementing the Hague Convention on International Child Abduction: Improving Dispute Resolution and Enforcement of Parental Rights in International Arena, 35 GEO. WASH. INT’L L. REV. 197, 197 (2003) (internal citation to BEAUMONT & MCELEAVY, supra note 1, at 1). 37. Id. 38. BEAUMONT & MCELEAVY, supra note 1, at 3. “When work began on the Child Abduction Convention it was commonly perceived that parental abductions were perpetrated by fathers dissatisfied with an access award they had or were about to receive in a divorce settlement.” Id. 39. Id. at 9. Indeed, it has been recognized by Adair Dyer, former Deputy Secretary General of the Hague Conference, that in the 1970s when the Convention was being prepared the paradigm case was that of the father who became so frustrated with being denied access to his child or children after the court had granted sole custody to the mother, that he stole the child, went abroad, and then underground. Id. (internal citations omitted). 40. See Pérez-Vera Report, supra note 6, ¶ 12 (describing the outcome from a child being abducted internationally). “[T]he child is taken out of the family and social environment in which its life has developed.” Id. Washington University Open Scholarship p415 Lubin note book pages.doc4/26/2005 422 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 4:415 The two related goals of the Hague Convention were to create disincentives to international parental child abduction and to return in a timely manner children who were wrongfully removed.41 The drafters sought to remove the forum-shopping incentive from would-be abductors by denying jurisdiction to hear the custody dispute in the abducted-to forum.42 Therefore, the Hague Convention specifically aims at remedying wrongful removals, and does not allow contracting States to hear the merits of the underlying custody dispute.43 The drafters thought removing the great differences in international legal systems was essential.44 Courts generally strive toward uniform global interpretation and application of the treaty and often look internationally for guiding precedent.45 The convention, therefore, strives to promote a uniform international standard of denying jurisdiction in abducted-to states in order to dissuade potential abductors and quickly remedy abductions that have already occurred. Seeking to protect children from the harmful effects of abduction, the drafters conceptualized a convention that would not only deter potential abductors, but would also provide an efficient remedy for past abductions.46 The drafters determined “[t]he principle underpinning the convention is that a child is legally entitled to be in contact with both parents.”47 The corollary of the child’s rights are the parents’ rights. Frequently, one parent has custody rights while the other has legally enforceable access rights.48 Although the Hague Convention ultimately 41. See id. ¶ 11 (recognizing “that the situations envisaged are those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child”). 42. See id. ¶ 16. [S]ince one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any practical or juridical consequences. Id. 43. See id. ¶ 19. “[T]he Convention rests implicitly upon the principle that any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal . . .” Id. 44. Id. ¶ 22. 45. See Walsh v. Walsh, 221 F.3d 204, 221–22 (1st Cir. 2000) (holding in dictum “[A] court’s interpretation of a treaty will have consequences not only for the family immediately involved but also for the way in which other courts—both here and abroad—interpret the treaty”). 46. Pérez-Vera Report, supra note 6, ¶ 17 (stating that while the prompt return of the child answers to the desire to re-establish a situation unilaterally and forcibly altered by the abductor, effective respect for rights of custody and of access belongs on the preventive level, in so far as it must lead to the disappearance of one of the most frequent causes of child abductions”). 47. See Hague Conference Press Release, supra note 15. 48. Pérez-Vera Report, supra note 6, ¶ 26. [T]he rule concerning access rights also reflects the concern to provide children with family https://openscholarship.wustl.edu/law_globalstudies/vol4/iss2/8 p415 Lubin note book pages.doc4/26/2005 2005] INTERNATIONAL PARENTAL CHILD ABDUCTION 423 adopted access rights for non-custodial parents, it was noted that there is a school of thought that thinks it is not in the child’s best interest to remain in contact with both parents when they are separated.49 B. How the Hague Convention Functions The drafters of the Hague Convention sought to remedy a specific type of parental abduction, specifically abduction by the non-custodial parent.50 The international case law has demonstrated that, in actuality, it is frequently the primary caretaker who is the abductor.51 The case law portrays a different story than what was originally anticipated. It is frequently the primary caretaker (and often the mother) who wants: to return to her country of origin after a failed marriage; to escape an abusive situation; or to simply be close to her family while raising her children.52 Therefore, a great number of the abductions falling under the convention are far removed from those hypothesized by its drafters. The Preamble of the Hague Convention makes the child’s right gainst being removed paramount.53 Included in this right are protections against being uprooted and replanted in a foreign country.54 relationships which are as comprehensive as possible, so as to encourage the development of a stable personality. . . . [A]ccess rights are the natural counterpart of custody rights, a counterpart which must in principle be acknowledged as belonging to the parent who does not have custody of the child. Id. 49. Id. However, opinions differ on this, a fact which once again throws into relief the ambiguous nature of this principle of the interests of the child. In fact, there exists a school of thought opposed to the test which has been accepted by the Convention, which maintains that it is better for the child not to have contact with both parents where the couple are separated in law or in fact. Id. 50. See supra note 16 and accompanying text. 51. BEAUMONT & MCELEAVY, supra note 1, at 9. “[I]n an overwhelming number of cases the abductor was vested with custody right over the child.” Id. 52. See id. at 3–4; see also Kerri Smetzer Mast, Note, The Application of the Fundamental Principles Exception of the Hague Convention on the Civil Aspects of International Child Abduction, 17 EMORY INT’L L. REV. 241, 245–46 (2003); Merle H. Weiner, Navigating the Road Between Uniformity and Progress: The Need for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 33 COLUM. HUM. RTS. L. REV. 275, 277–78 (2002) (considering solutions and implications of altering remedy of return in recognition of the actual demographics of abductors being primary caretakers). 53. Hague Convention, supra note 9, pmbl. The Preamble of the Hague Convention states: The struggle against the great increase in child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests Washington University Open Scholarship