This essay is a continuing work in progress, as the dynamic of mediation continues to expand into many areas. It is a work in progress as we work to broaden our understanding of parental abductions and not only how mediation can be used in resolutions, but also how we can use prevention screening more thoroughly and comprehensively in conjunction with child custody agreements. It is a work in progress as we work to understand the costs, both financial and emotional, that are borne by the victims of parental abductions and our legal system. It is a work in progress as we understand the limitations of treaties, such as The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, when dealing with international parental abductions.
Dispute resolution with regard to international parental abduction cases is currently in the embryonic stages and requires further discussion and input from professionals, parents, advocates, and policymakers. Treaties and bilateral agreements that aim to deter parental abduction are myopic, as this area requires more than a legal lens. Currently, it requires input and perhaps an open consultation process with entities including but not limited to diplomats, government policymakers, and domestic violence advocates. The area of dispute resolution also needs more input and adjustments from multi-disciplinary professionals and an interdisciplinary approach that can be used as an effective tool for families and children.
Mediation has increased in frequency in the western world and can be utilized when drafting the initial parenting/divorce agreement. However, changes are necessary to improve The Hague Convention on the Civil Aspects of International Child Abduction (hereafter known as The Hague Convention), as there are many flaws. For example, this treaty does not take into consideration the best interests of the children. It also does not identify whether there is any domestic violence at home. Furthermore, it does not identify which of the parents, if either of them, may be a perpetrator of violence.
It is not yet understood and recognized that when children are taken from their home illegally by a parent and/or family member, this is a form of family violence. The degrees of violence can vary, and requires more in-depth dialogue, locally and internationally.
Canada has no bilateral agreements on this subject and thus must reply of The Hague Convention, when children are illegally retained to, or from Canada. However THC application is the intersection, where international legalities, jurisdictions, and citizenships issues, along with mental health challenges, substance abuse, child welfare, and domestic violence, can become entangled. Children are always in the middle of this conflict. This area touches on a plethora of diverse issues, cultures and family dynamics, and it is more than a legal issue. It is also important to acknowledge that culture, family traditions and mental health issues, can be interwoven, which can have a cascade effect on the children, extended family and the community.
Therefore, lumping all of the different the cases together under one category is not just. Parents abduct their children for different reasons; under different circumstances; and because of different personal characteristics, parental capabilities, and resources.
Furthermore, when children are returned home under a Hague order, the litigation is usually never over. There are different variables that can determine if a case is suitable for mediation. The likelihood of parental compliance is an important variable. In addition, there are distinct factors that can both determine if the conflict will escalate and identify the potential consequences of escalation. Mediation can be an important tool during this time.
In addition, there are many different variables that can both determine if the conflict will escalate and identify the potential consequences of escalation. Mediation can be an important tool during this time.
The Hague Convention on the Civil Aspects of International Child Abduction (1980) does not differentiate or take domestic violence into consideration. Using the courts for ongoing litigation in the hopes that children will have a meaningful relationship with both parents may actually place the children in the middle of long-term legal and parental conflict.
For the purposes of this short essay, there are seven different parental characteristics (or styles) that may potentially trigger parental abduction. The level of violence can vary, and the children’s safety and security is compromised. The Hague Convention (1980) needs to be revamped and also needs to address domestic violence cases. Canada will also need to do more to protect children.
The following delineates the characteristics of the seven parental personalities.
1 Revengeful parent (RP): These cases may involve a parent removing children from their home and going to another province and/or country. The revengeful parent can exhibit manipulative behavior and ask for the children to visit family and/or relatives in his/her home country. The RP can also obtain visitations outside the country and with the intention of never returning the children to their home. This requires a lot of planning and waiting for the right moment to act. Holiday visits may prompt an abduction.
The revengeful parent is driven by immense hate for his or her former spouse and/or partner and is not invested in the well-being of the children. The RP may be completely unaware of how his/her actions impact the children.
The RP is skillful, and children may be told the other parent is dead and/or does not want to see the children. This can be devastating to children. In cases like this, children change schools, homes, and countries.
The RP may have family and/or community, new partners, and friends who enable him or her and help increase the parental conflict. The RP does not do well with compliance with judgments and/or agreements. There may be ongoing litigation after the involuntary return of the children. The ongoing coercion and litigation can keep the conflict in the forefront of the children’s lives, which can undermine their development. Some, perhaps only a few, of these cases may be suitable for mediation. The remainder may be better suited to different dispute resolution processes. The system needs to explore what is best for the children in order for them to grow up without having to spend their childhood and adolescent years in the middle of a conflict. The safety and security of the children are paramount over having a meaningful relationship with both parents. It may not be possible to have a relationship with both parents equally after the children have been returned. This may take some time. However, the children’s safety and security must be the first priority.
An example of a revengeful parent that comes to mind involves a Greek father who took his sons from a Commonwealth country and brought them to Greece in the 1980s. There have been several attempts to reunite the adult children and their mother, but until now, it has not happened. The father forbids his sons to have any contact with the mother. He threatens to disinherit them if they speak with her. It has been thirty years since the mother has seen her children. Cases like this one are disheartening.
2. Mental health issues (MH): This category can include parents of either gender, or one or both parents may suffer from serious mental health issues. The lack of effective mental health treatment can slowly impact the parents, marriage, and family and impair the ability to co-parent, whether the parents are separated, cohabitating, or married.
At the time of conflict, transition, and/or separation, the MH parent may develop a distorted view of reality, panic, and then abduct the children and go on the run. The children are not safe and experience major uprooting and confusion. This can have a huge impact on the psychological development of the children. The MH parent can be on the run for years and with no understanding of how the children have been affected by his or her actions. The children are usually told that the other parent does not love the children or want to see the children. This can lead to severe brainwashing of the children, which is a serious concern.
In some of these MH cases, marital and parental conflict may trigger childhood issues and/or serious, untreated mental health issues that may have not been recognized by the partner. Some MH parents can appear to be high-functioning at work, similar to the RP.
In this category, sometimes mothers take the children, and this usually may be triggered during or after the separation, divorce, and/or parental conflict. The consequences of children having an MH parent can range from mild to severe. Thus, the children are not always safe when taken by a MH parent. The brainwashing against the other parent can also range from mild to severe. Thus, when children are ordered back to their home, the adjustment can be difficult. It also brings to light the question of whether a relationship with the abducting parent is beneficial to children after they have been ordered home by a THC order. There is a need for intervention to assist the parent(s) and their children.
This requires meaningful input and dialogue from professionals and family mediators across Canada.
One example that come to mind is a mother who flees Canada and goes to Mexico with her four children. In this case, the father withdrew The Hague application and tried to communicate with the mother. He was very fearful that she would harm the children. The mother’s grandfather had raped her as a young child for several years. After the couple had their fourth child, the 28-year-old mother changed. Slowly she was exhibiting signs of “not being herself”. She took the four children and went to her grandfather’s home, and in a different country.
The negotiations to have mediation took time, and the father preferred to work with family and community members to help his wife return home. This family had a positive outcome, and the children were voluntary returned home after eighteen months.
3. Lack of family support (LS) parents is the next category. Here, parents have little support with their children. This category may involve parents who are married and/or living with a partner, and after having children, they experience a huge shift in their relationship. New parents may have some difficulty adjusting to the changes in demands and the lack of respite time. The parents may make attempts to adjust to their new life, and then reality slowly sinks in. Raising children is labor-intensive, especially when combined with parents’ undefined expectations, which may contribute to stress and friction for the parents.
The adjustment time to parenthood may take longer for some of the LS couples. In this case, women from foreign countries may want to go home to be around their family in order to receive help and some much-needed respite time.
Here, mediation can help diffuse the conflict before it escalates. Parents need to work together and adjust to their new life as a family. The adjustment to parenthood and full-time work can be difficult without support. Additional stress for both parents is added when they don’t have stable jobs. Furthermore, LS parents lack assistance with their daily routines, which can help them maintain a healthy relationship and or marriage. A support system can ease some of the daily pressures of work and can contribute to maintaining healthy families.
One example is a young couple from France who moved to Quebec after their third child was born. Both parents worked, and after one year, the mother quit her job and went to France for an extended stay with her parents. The husband recognized that they needed help. They lived apart for almost five months, after which the mother and children returned to Canada. They came to family mediation, feeling conflicted and overwhelmed. The mother and children returned to France, and the father eventually moved back, after they divorced.
Couples may not recognize that as parents and individuals they have different values, nationalities, and expectations. Mediation can help diffuse conflict and assist with communication, problem solving, and identifying potential solutions. Young parents do not always recognize the work involved in raising children, and support can help the family and children.
4. Domestic Violence (DV) Parents: Some of these cases can involve mothers escaping from domestic violence with their children. The research is very limited, and we know little about the actual percentage of women running from violent partners who are faced with litigation and THC.
Canada needs to do more with domestic violence prevention, but there are very few advocates for domestic violence in parental abduction cases.
Currently, we do not know how many children have been returned home through The Hague Convention Treaty to a DV parent. It is conceivable that there are some women, perhaps 50 percent, at least — who are actually fleeing a violent home. In the way the treaty currently functions, it is not possible to take this into consideration. The consequences for the children are significant and dangerous when they are returned to a home with violence.
One family that I am reminded of includes a young Japanese mother. A Canadian man, after serving jail time in the USA, returned to Canada. That year, he met the mother, then a young student from Japan. They married and had two children. The father was abusing both alcohol and drugs, and the mother did not. During the third year of marriage, the women fled to Japan. She has been in hiding for several years.
5. Relocation Parents (R): Relocation and change can be difficult on marriages. Many parents may need to move in order to keep their job. However there a few parents that may use, relocation as a diversion in order to avoid dealing with some of the marital (or family) issues that are percolating. Thus, issues may remain unsolved and continue to grow after the family has relocated to a new country. This is not the case for everyone who relocates to a new country, but in some cases, this may be a relevant factor. Relocation is challenging when parents move without making attempts to resolve some of their marital issues.
One example involves a Canadian family with two young children living in Germany. They decided to separate. Their jobs were hectic, and their work environment was different from that of Canada. The mother wanted to return to Canada after three years, but the father wanted to stay in Germany. The mother took the two children and moved to Canada. She transferred to a new position making less money. The father applied for an order through The Hague Convention. The mother was two months pregnant when she left Germany, and the third child was born in Canada. Thus, the application did not cover the third child. After two years, the two older children were returned to Germany, and the youngest resides with his mother.
The family came to family mediation two years after, the two older children were returned to Germany. The parents realized that they missed all three of their children. The parents made changes slowly, as they became aware of the impact the divorce had on the children. This was not an easy case.
Mediation can assist the parents to better communicate effectively with each other, as this helps to lessen misunderstandings. In the event that parents are not able to communicate, this can become more challenging when only one parent wants to relocate.
6. Hook-ups (HU): The hook-up parents, bring different challenges to the family unit and the raising of children. In these cases, the parents have almost no history with one another and/or do not trust each other. They have almost no shared experiences, except for having conceived a child together. This may want to raise the child together, but the differences between them can be huge. It is not uncommon that one parent may exert power over the other parent. It is not surprising that some of the parents are also using The Hague Convention to resolve their custody disputes.
The issues with HU parents and families seem to be getting more challenging as time passes.
One such example that I am reminded of is a young Canadian man in his twenties who traveled to Chile and met a young woman in one of the villages. They had an on-and-off relationship and have two children. He is 27, and she is 19 years old. He returns back to Canada, and they communicate over the Internet. After he breaks up with his American girlfriend three years later, the father returns to Chile. He accompanies the mother (his girlfriend again and now mother of his two children) and the children to Canada for a short visit. The mother has a visitor’s visa, but they all four stay in his apartment for a few weeks. In the meantime, the father goes to court and obtains sole custody of the two children.
In this situation, the mother is considered a flight risk and has the potential to abduct the children from Canada. She now has supervised visitations. The mother is a visitor to Canada. However, the children’s birth certificate lists both parents’ names, and the children are also Canadian citizens. HU families are experience many difficulties, and their children will encounter new challenges.
7. Enmeshed in Conflict Parents or The Passionate Fighters (PF): Here the parents may (one or both) may suffer from a personality and or mood disorders. For the scope of this essay, I prefer not go into the DSM details and diagnosis. The PF parent(s) may have an array of additional mental health issues, which affect their parenting behavior and certainly impacts children. Here the parents may be in an enmeshed conflict relationship, and both parents can occasionally, if not frequently, forget about their children. These are variations within this category of parents and some cases can be extreme. We are aware people cope with changes in life is a variety of different ways. However the Passionate Fighter Parents, may thrive and or need the conflict. One of the parents may take the children and to another country, without understanding the consequences and the needs of their children. These parents may be more self-centered, at times, continue to infuriate each other, and adding fire to the tiniest of issues. It is not uncommon neither PF parent may have the ability to care, raise and nurture their children.
I am reminded of a Canadian couple, where parental impairment was high. The father was suffering from undiagnosed schizoaffective disorder. The father’s affect and interpersonal relationships were deteriorating. The more negative consequences the father encountered at work, the worse his behavior became at home. He was married to a young women with borderline personality tendencies and with mild paranoid ideations. They fought constantly and in front of their two children. After seven years of marriage, the mother booked a flight, on a credit card, and took the children with her. She met a man online and who lived in a sunny Caribbean country. She had many difficulties connecting with people and was suspicious of everyone. She believed, her neighbor was out to get her and needed to leave the country. She stayed in the Caribbean for three months, and returned home. The father filed a Hague application the day after the mother retuned home. The applications was rejected, but the problems began to grow. Eventually, Child Services became involved, because both parents were neglecting the children. The parent’s symptoms became worse, and both refused any kind of therapeutic intervention.
I hope these short case examples demonstrate some of the different types of family circumstances that The Hague Convention handles. They are all currently placed in the same category, yet they require different approaches, and perhaps mediation can assist the families before the problems escalate and the children are forgotten.
The Hague Conference on Private International Law has little control over how each of its signatory countries maintains, updates and delivers justice. It offers no differentiation in parental impairment, and the welfare of the child is never taken into consideration. In addition, the treaty does not have a uniform prevention policy on child abduction, nor does it take domestic violence into consideration. Additional resources are necessary to address the impact of globalization and to contend with multiple jurisdictions, choices of law, domestic violence screenings, and inadequate agreements/judgments family dispute situations.
The Hague treaty is thirty five years old, and perhaps it is time to make changes. This will require to move forward with meaningful changes in Canada, for all the parties involved, and especially the children
The Hague Convention on the Civil Aspects of International Child Abduction. (1980, Oct. 25).T.I.A.S. No. 11670.
Moderator: Carrie Menkel-Meadow Panelists: Pro: We are A Field with Juliana Birkhoff Con: We are Not a Field with Peter Adler Introduction: (CMM) Let us start by asking, why do...By Carrie J. Menkel-Meadow