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International Parental Kidnapping
Article 13 of the Hague Convention provides three important defences. The first is that the custodial parent acquiesced in the removal or retention of the child. Thus, Robert could argue that Rachel had agreed to let Leora stay with him, not just for the summer, but permanently. In such a situation, the actual evidence presented to the court, such as return airline tickets and school registrations, will be important in determining the outcome.
The second defence is that the child's return would expose the child to a grave risk of harm or an intolerable situation. So, if Robert could, for instance, adduce evidence that if Leora were returned, she would be abused before he could take appropriate action in a New York court, then the Hague Convention would not require a court to order Robert to return Leora.
The third such defence is if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Thus, if Leora says that she would like to continue living with Robert, and she is old enough to make such a decision, then a court need not order Robert to return Leora. This defence is the subject of great controversy, as different countries have different standards about at what age a child is old enough to make such a decision. In Canada, a rough rule of thumb is that a court will take into account the views of teenagers. However, German courts have taken into account the views of six and seven year olds, which is an age when many Canadians would think a child is too vulnerable to manipulation by his or her parents.
Another important section dealing with defences is Article 12 of the Hague Convention. Under this Article, if the custodial parent waits more than one year to start an action, and the other parent demonstrates that the child is settled in its new environment, then a court need not order the child's return. In Rachel's case, starting an action within a year is not much of a problem. However, had Rachel not known where Leora was, she could easily have spent a year trying to locate her. In that case, it would be much likely that Leora would be returned.
Another defence is found in Article 20 of the Hague Convention, which provides that a court may refuse to order a child's return if the child's return would violate the fundamental freedoms or human rights of the country in which the court is located. Obviously, this would not apply in Rachel's case, as the United States is a democratic country. However, it could be used be someone objecting to the return of a child to a country where, for instance, a military coup had occurred.
Pursuant to Article 11, the Hague Convention sets a goal of completing Rachel's legal case within six weeks. This is often more optimistic than realistic. However, the United Kingdom has set up a special court in which such cases are heard, and they successfully complete the cases within six weeks.
One problem with the Hague Convention is the costs involved. Legal, travel, expert witnesses and other costs may run up to $100,000.00 or more, especially if translators are required. Article 26 of the Hague Convention allows countries to implement a "loser pays" rule. However, under Article 42 of the Hague Convention, countries are allowed to opt out of this and Canada has done so. Thus, Rachel may not recoup her legal costs even if she were successful in having Leora returned. However, Rachel would be eligible for legal aid in Ontario on the same basis as if she were a resident of Ontario.
The Hague Convention is a mechanism by which a kidnapped child may quickly be returned to his or her custodial parent. This prevents a magnification of the already devastating effects on the child of a parental kidnapping. On paper, the Hague Convention looks quite good and accomplishes everything that it sets out to accomplish. However, given that one party has already demonstrated a lack of good faith and respect for the law, it is rare that the process works smoothly. The kidnapping party can use the defences in the Hague Convention to thwart the return of the child, or at least dramatically increase the other party's legal costs and the amount of time before the child is returned. Despite these difficulties, the Hague Convention has been a success. Statistics from the United States, the United Kingdom and Australia show that the rate of return for children kidnapped to Hague Convention countries is significantly higher than for non-Hague Convention Countries. Although it is not perfect, the Hague Convention provides a way to get a lot done. Certainly, in a situation like Rachel's, it is her best chance for getting Leora returned quickly.