T H C P C HE AGUE ONVENTION ON ARENTAL HILD A : I T „M “ BDUCTION MPLICATIONS OF HE ISSING P C RIMARY ARER By Anna Mondekova Submitted to Central European University Department of Gender Studies In partial fulfillment of the requirements for the degree of Master of Arts in Gender Studies n o cti e oll C Supervisor: Judit Sándor D T Second Reader: Anna Loutfi e U E C Budapest, Hungary 2013 Abstract In this work I analyze application of the Hague Convention on Parental Child Abduction (1980) in growing number of maternal abduction cases today. These often respond to a different and largely gendered set of factors, such as domestic violence or financial vulnerability due to caretaking responsibilities. In the gender-legal analysis of the Convention, I demonstrate that these factors are not provided necessary attention in the original text since maternal abductions were not anticipated by the drafters of the Convention. This contributes to further disadvantaging of the primary carers, mainly in their choices regarding life and residence of the child after separation of the parents. Selected cases of abductions by mothers from Poland, Hungary, the Czech Republic and Slovakia show largely homogeneous practices across the region. Such unchallenged compliance however narrows the already limited possibilities to address the role of the primary carer in the Convention and eventually to respond to the growing incidence of maternal abductions. n o ecti oll C D T e U E C ii Acknowledgements Above all I would like to express my gratitude to my supervisor Judit Sándor for her help, patience and support in the writing process. I am very grateful for the inspiration and insights which helped me develop and shape my argument. I would also like to thank John Harbord for all the valuable comments and advice throughout the year since he has been the witness of my struggles as well as progress. My CEU friends, Jennifer, Sahar and Ghazaal did a wonderful job on encouraging and supporting me in the process. I also want to thank a dear friend of mine, Katarina Azab, who has been the main inspiration for my topic and who is most likely the strongest and bravest mother I know. A special thank you goes to Mostafa B. Naguib for the everyday support, motivation and push when necessary, and without whom this thesis probably would not have been possible. n o cti olle C D T e U E C iii Table of Contents Introduction .............................................................................................................................. 1 Methodology .......................................................................................................................... 4 Legal analysis of gender bias ............................................................................................. 5 Data sources ....................................................................................................................... 5 Limitations ............................................................................................................................. 6 1. International parental child abduction and emergence of the maternal abductor ........ 8 1.1 International parental child abduction .............................................................................. 9 1.2 Worldwide statistics ....................................................................................................... 10 1.3 The changing face of parental child abductions ............................................................. 11 1.4 Why mothers abduct ....................................................................................................... 14 1.4.1 Child abduction and domestic violence .................................................................. 15 1.4.2 The role of the primary carer ................................................................................... 17 1.5 Abductions by mothers in Central and Eastern Europe ................................................. 20 2. The 1980 Hague Convention on the Civil Aspects of International Child Abduction: analysis of the main objectives and definitions .................................................................... 24 2.1 General overview ........................................................................................................... 25 n o 2.2 Framing the main objectives .......................................................................................... 27 cti e oll 2.2.1 Deterrent function ................................................................................................... 28 C D T e 2.2.2 Promotion of access ................................................................................................ 29 U E C 2.3 Habitual residence as in the best interests of the child ................................................... 30 2.4 Grounds for appeal ......................................................................................................... 33 2.4. 1 Responding to the risk of harm .............................................................................. 35 iv 3. Analysis of the court cases involving mother abductors from Poland, Hungary, the Czech Republic and Slovakia ................................................................................................ 37 3.1 Analysis of selected cases .............................................................................................. 39 3.1.1 Habitual residence and the right of access .............................................................. 41 3.1.2 The risk of harm and the challenge of evidence ...................................................... 45 3.1.3 Incorporating the primary carers ............................................................................. 52 Conclusions ............................................................................................................................. 55 Bibliography ........................................................................................................................... 57 Appendix 1 .............................................................................................................................. 61 Appendix 2 .............................................................................................................................. 62 n o cti e oll C D T e U E C v Introduction As a result of globalization and people moving relatively freely across the globe, temporarily or migrating for a lifetime, international marriages have become a largely commonplace practice. This shift has necessarily added a new layer to the practice of family law, going beyond national levels and arriving with new legal instruments to address the complex situations when such marriages fail. In this context, international parental child abduction emerges as one of the most problematic issues, followed by a need for an adequate response beyond the national level. The 1980 Hague Convention on the Civil Aspects of International Child Abduction1 (hereafter referred to as “the Hague Convention” or the “Convention”) was designated to provide precisely the much needed response to the growing incidence of children who are wrongfully removed or retained by one of the parents. Beaumont and McEleavy identified the Convention as a “ground-breaking instrument within the realms of private law.”2 Yet, as they along with others point out,3 new issues and challenges have surfaced since its ratification in 1980, the most important being the rapidly changing ratios of mothers and fathers abducting, with mothers becoming the majority abductors in the signatory-states, even sole abductors in some.4 The original paradigm of the non-custodial father abducting to gain more control over the life and cultural/religious on upbringing of the child is thus being replaced by mother abductors, who are in most cases also cti e oll the primary carers of the children. Fulfilling its deterrent function, the Convention helped C D T e decrease numbers of the would-be father abductors. Yet it did not foresee, that in cases of U E C 1 Convention on the Civil Aspects of International Child Abduction. http://www.hcch.net/upload/ conventions/txt28en.pdf (accessed June 2, 2013). 2 Paul R. Beaumont , and Peter E. McEleavy, The Hague Convention on International Parental Child Abduction, (New York : Oxford University Press, 1999). 3 Beaumont and McEleavy, Lubin, Bruch, Buck, Norris 4 Anne Tuohey, Living in Limbo: The experience of International Parental Child Abduction, (Melbourne: International Social Service Australian Branch, 2005) http://www.iss-ssi.org/2009/assets/files/Mediation/ISS Australia_Living in Limbo.pdf (accessed June 2, 2013). 1 abductions by the primary carers, a more sensitive approach might be required to ensure a fairer case resolution with respect to wellbeing of the child. The function and the different relationship of the child and the primary carer, who in most cases is the mother,5 are not recognized and as such not incorporated in the text. This further reflects in the rulings where the abducting mothers are left with two options, returning the child alone, or returning together with the child. This might be specifically difficult in the context of domestic violence at the place of habitual residence. Therefore, the main question in my study is whether the Hague Convention on Parental Child Abduction (unintentionally) contributes to shaping of an unfavorable position of the primary carer and if yes, how this plays out in cases of maternal child abductions. In order to elicit answers to these, I will first analyze the specific elements of the Hague Convention which are believed to be working towards disregarding of the primary carers. Secondly, I will examine how the absence of the primary carer in the Convention reflects in the case resolutions of maternal child abductions in Poland, Hungary, the Czech Republic and Slovakia. In my analysis, I will show that by not considering the often gender-specific motivations for abduction and by insisting on reestablishing of the child’s status quo ante without recognizing the primary carer as a crucial component of it, the Convention contributes to n disadvantaging of the primary carers and further limits their decisions regarding the life and o cti e oll residence after separation of the parents. And thus, the main hypothesis of this paper is that, C D T e as a result of being disregarded in the original text, mothers as primary carers are often U E C disadvantaged by the Convention. This further translates into strict and typically insensitive court rulings. The importance of a more sensitive and primary-carer inclusive approach will 5 Pamela Laufer-Ukules, "Selective Recognition of Gender Difference in the Law: Revaluing the Caretaker Role," Harvard Journal of Law & Gender, 31 (2008): 1-66. 2 be emphasized also in respect to growing numbers of maternal abductions in the Convention- signatory countries. In the following chapter, a theoretical background on some of the main factors contributive to the shift in parental abductions paradigm will be explored to outline the different and sometimes uneven position the primary carers occupy in the host countries, often as a result of caretaking responsibilities or domestic violence. In the analytical part, which is divided into two chapters, I will argue that mothers as the primary carers, unlike the non-custodial fathers three decades ago, remain without necessary response in the framework of the Convention. I will also demonstrate that this further reflects in a position of disadvantage when making decisions regarding life and residence of the primary carer and the child. In the first part of the analysis, in chapter two, the objectives as designed in 1980 and the concept of habitual residence will be explored to uncover the vacuum when it comes to addressing the role of the primary carer. It will be argued, that the current framing of the main objectives of the Convention, the prompt return of the child to the place of habitual residence and promotion of access, respond directly to the main motivations of the abducting non-custodial parents, yet do not take primary carers into consideration. Finally, in chapter three, selected court cases of maternal abductions as recoded in the official International Child Abduction Database (hereafter referred to as the “INCADAT”),6 will n demonstrate the largely uniform approach when it comes to the abducting primary carers. The o cti e oll county selection (Poland, Hungary, the Czech Republic and Slovakia) follows expectations C D T e regarding similarities in application of the Hague Convention mainly tied to the geographical U E C location, cultural and religious context, parallel historical developments as well as increase in abductions with the European Union accession in 2004. Moreover, all four countries report 6 International Child Abduction Database.. http://www.incadat.com (accessed June 2, 2013). 3 significantly higher number of maternal abductions, hence a need exists for a more substantial examination of the issue in the region. The main contribution of this study is an analysis of the absence of the primary carer within the framework of the Convention, therefore not recognizing the different function and relationship attached to it. This absence further reflects in a failure to sufficiently and sensitively respond to the scenarios of maternal abductions. It will be argued that these might be qualitatively different and not necessarily opposed to the best interest of the child. Insisting on the original and often quite ineffective definitions and objectives, the Convention presently tends to bring about uneven results for mothers and fathers. Methodology This thesis is primarily concerned with utilization of the Hague Convention in cases of child abductions by the primary carers, and with implications of its current design in the new context of maternal abductions. Therefore, I will primarily use gender-legal approach to demonstrate, how the absence of the primary carer in the framework of the Convention deprives the mothers of the possibilities to make more substantial decision regarding the future of the child, and consequently their own future. Special attention will be dedicated to n the context of domestic violence which is seen as marginal in the framework of the o cti e oll Convention, and since in majority of the analyzed cases the mothers reported risk of harm, C D T e this also contributes to further disadvantaging of the position of the primary carer. U E C 4 Legal analysis of gender bias As outlined earlier, the analytical part is divided into two major sections to provide more substantive grounds for formulation of the findings:  Chapter two: close reading of the Hague Convention, namely of its objectives as only responsive to the early parental child abduction scenarios with fathers as the main abductors  Chapter three: analysis of selected court cases from Poland, Hungary, the Czech Republic and Slovakia as recorded in INCADAT and examination of the responses of the national courts in terms of issuing of the return order despite the appeals made by the abducting primary carers. Issuing of the return order and dismissing the appeals made by the mothers despite the reported context will be identified as the main factor in assessing how the status of the primary carer is disregarded. Data sources Regarding selection of the cases, the International Child Abduction Database7 (hereafter referred to as “INCADAT”) will serve as the main source as it contains some of the important n o court rulings along with description of the cases and the legal proceedings. The database has cti e oll C been established by the Permanent Bureau of the Hague Conference to provide access to some D T e U of the main decisions taken by national courts in respect of the 1980 Hague Convention. As E C for search criteria, the four countries have been chosen as the requested state8 and the search 7 INCADAT, is used by judges, Central Authorities, legal practitioners, researchers and others interested in this rapidly developing branch of law. INCADAT has already contributed to the promotion of mutual understanding and good practice, essential elements in the effective operation of the 1980 Convention (International Child Abduction Database.. http://www.incadat.com (accessed June 2, 2013). 8 The country the child has been removed to or retained in 5