STUDIES IN PRIVATE INTERNATIONAL LAW 4 KA *HART=? PUBLISHING Material com direitos autoraisPublished in the United Kingdom by Har. Publishing Ltd 16C Worcester Place, Oxford, OX1 2W Telephone: +44 (0)1865 517530, ‘ax. +44 (0)1865 510710 E-mail: mall@haripub.co.uk Website: htip:/www.fiartpub.co.uk Published in North America (US and Canada) by Hart Publishing €/o Intemational Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 903 260 8832 E-mail: orders@isbs.com Website: http:/'www.isbs.com © Thalia Kruger 2011 Thala Krugec as asserted her right under the Copyright, Designs and Patents Act 1986, to be identified as the author of this wor All rights reserved, No patt of ths publication may be reproduce, stored in a etreval system, or transite, In any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or tinder the tems agreed with the appropriate reprographic rights organisato nuities concerning reproduction ‘which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above British Library Cataloguing in Publicetion Data Data Available ISBN: 978-1-84946-156-6 ‘Typeset by Hope Services, Abingdon Printed and bound in Great Britain by ‘TH International Ltd, Padstow, CornwallTABLE OF CONTENTS Series Editors’ Preface Preface List of Figures List of Tables 1 The Research Project and Book Structure 1 Introduction IL Methodology A. Methodology for the Quantitative Research B Methodology for the Qualitative Research. C Actual Files and Prevention Files ILL Respect for Privacy IV Limitations of the Research A Archival Data B Lack of Court Files - C No Analysis of Criminal Proceedings Files D Incomplete Representativity E_ Only Two Years: Longitudinal Data Missing F No Control Group G Focus on One Country V Structure of this Book 2 Terminology 1 The Child I Custody and Access II Care and Contact IV Residence A Habitual Residence B Principle, Secondary and Alternate Residence V_ Parenta-Authort = VI Parental Responsibility VIL International Child Abduction VIN Abducting Parent IX Left-behind Parent 3 The Child 1 Tntrodves¢—$£- @$1 ti £$£____W_____ I Age of the Child A Mean Age of the Abducted Child B Sixteen and Seventeen-Year-Olds I Correlation between Country to where Child is Abducted and His or Her Age TV Gender of the Child V Nationality of the Child A. Dual Nationality B Nationality of the Child in Cases of Abduction to Belgium ae Nea atta Ge VI Country of Birth of the Child A Country of Birth in Cases of Abduction to Belgium B Country of Bisth in Cases of Abduction from Belgium Material com direitos autoraisb VII Other Characteristics of the Child VII The Child and Family Conflict IX The Child’s Place in the Legal Proceedings A The ‘Best Interests of the Child” B Hearing the Child X Conclusion The Family 1 Introduction IL Relationship between Parents IIL Age of the Parents IV Nationality of the Parents A Dual Nationality B Nationality/ies of the Abducting Parent in Cases of Abduction to Belgium C Nationality/ies of the Abducting Parent in Cases of “Abduction from Belgium D Nationality of the Left-behind Parent in Cases of Abduction to Belgium E, Nationality/ies of the Left-behind Parent in Cases of Abduction from Belgium V Country of Birth of the Parents A Country of Birth of the Abducting Parent in Cases of Abduction to Belgium -B Country of Birth of the Abducting Parent in Cases of Abduction from “Belgium C Country of Birth of the Left-behind Parent in Cases of Abduction to Belgium D County of Birth of the Left-behind Parent in Cases of Abduction from Belgium VI Sen the Nationalities and Countries of Origin of the Parents VII Size of the Family VIII Parental Authority and Perceptions of it A The Difficulties in Law and Practice of the Exercise of Parental Authority B Application to International Child Abduction Instruments C Knowledge of Third Parties, Including Local Authorities, of the Parental Authority over a Child IX Residence of the Child A Alternate Residence as Preferred System in Belgium X Respecting the Contact Arrangement A Risk Factor for International Child Abduction B Bad Advice Due to a Bad Track Record C Well-respected Contact Rights Before Abduction XI Conflict and Sources of Suess in the Family A. Knowing the Other Parent; Stability of the Relationship C Difficulty in the Parents’ Relationship and Roles in the Family D Individual Mental or Psychiatric Difficulties B Living in a Foreign Country Disagreement between Parents about Some Aspect of the Child’s Life, Especially Illnesses and Disorders G New Partners H Role of Grandparents | Debts in Belgium XII Family Conflict and Parental Alienation XIT Conclusion ‘The Abduction 1 Number of Abductions IL Relationship of the Abductor to the Child A General B Abductions from Belgium C Abductions to Belgium — D Abductions where Belgium was neither the Country of Origin nor Destination Material com direitos autoraisE_ Response to the Fact that there are More Mother Abductors F Disrespect of Contact Rights: Mothers/Fathers Il Mother/Father Abductors Compared to the Status of the Parents’ Relationship IV Abduction and Parental Authority V_Abducting Parent and Residence of the Child VI Preparation for the Abduction A The Well-planned Abduction B The Unplanned Abduction © Abduction Linked to Holidays D Preparation and Children E Beating the Law VII Number of Children Abducted Together VIII Destination of Abduction A Countries to which Children were Abducted from Belgium B Countries from where Children were Abducted to Belgium C Destination of the Abduction Compared to Nationality and Country of Birth of the Abducting Parent D Other Possible Links between Abducting Parent and Country of Destination IX Conclusion ‘The Quest for Return I Introduction IL First Reactions A Contacting Authorities or Institutions B Amicable Solution C Police II Legal Proceedings: General Overview IV The 1980 Hague Convention _ A Entry into Force and States Party. B Scope of Application C Mechanism D Use in Practice - V Legal Proceedings: Brussels II bis Regulation A Enty into Force and States Bound B Scope of Application C Mechanism Regarding International Child Abduction D Use in Practice a E. Free Access to Justice and the Role of the Public Prosecutor in Return Proceedings VI Combination of Brussels IT bis and Hague Child Abduction Convention (1980) A Application of the Exceptions to Return B Six Week Turnover Time for Returns C Direct Communication between Judges D Mutual Trust between Judges of Different Legal Systems E, Judgments on Substance after Return Proceedings VII Luxembourg Convention A Entry into Force and States Party B Scope of Application © Mechanism D Use in Practice VIII Bilateral Protocols with Morocco and Tunisia, IX Hague Child Protection Convention (1996) A Entry into Force and States Party, B Scope of Application -C Mechanism X Enforcement of Return Orders A Enforcement, Force and Due Care Material com direitos autoraisB The Tales of Two Left-behind Mothers C A Particular Rule under the Brussels II bis Regulation XI The International Nature of the Phenomenon and Related Difficulties. -A The Confrontation of Legal Systems B Finding the Child C Cooperation between Belgian and Foreign Authorities D Parallel Proceedings E Conflicting Judgments F Lack of Sufficient Knowledge about the International Legal Instruments XII The Role of Professionals in Child Abduction Cases A Lawyers B Coordination between Authorities and Institutions in Belgium C Judges D.The Police XIII The Inadequacies of the Available Legal Remedies A Costs B Suange Outcomes : C Discrimination between Mothers and Fathers XIV Situations where No Legal Instruments are Available A In Practice B Media C Politicians D Counter-abduction XV Criminal Proceedings XVI Amicable Solution A Mediation and other Means of Out-of-Court Settlement 'B Neutrality of the Mediator C Willingness on Both Sides D Time and Money E, The Risks of Mediation F Central Authorities’ Role G Mediation in an International Context XVII Long Duration of the Proceedings A General B Duration of Abductions to Belgium Duration of Abductions from Belgium D Timing of Each Step of Hague and Brussels II bis Proceedings E Time between Abduction and Request with the Central Authority F Time between Request with Central Authority and Institution of Court Proceedings G Time between Institution of Court Proceedings and Judgment H_ Time between Request with Central Authority and Finelisation of File XVIIL Practical Difficulties Regarding the Return - XIX Conclusion Life While the Child is Away I Introduction IL Knowledge of the Whereabouts of the Child and the Abducting Parent II Keeping Contact with the Child while He or She is Away IV Psychological, Emotional and Moral Support V Schools VI Conclusion Aftermath 1 Introduction TL Return A Return in Closed Cases B_ Return and Manner in which the File was Closed. Material com direitos autoraisC Cases that had been Open for More than a Year D Returns for Abductions to Belgium: Breakdown According to Part of the World from where the Child had been Abducted E Returns for Abductions to Belgium: Breakdown According to Applicable | ‘Legal Instrument F Returns for Abductions from Belgium: Breakdown According to Part of the World to where the Child had been Abducted — G Returns for Abductions from Belgium: Breakdown According to Applicable Legal Instrument III Outcomes A General B Abductions to Belgium: Outcome Compared to Applicable Legal Instrument C Abductions from Belgium: Method on how Solution was Reached Compared with Applicable Legal Instrument D Mediation TV Re-adaptation of the Child A Catching Up B Coming Out of a Period of Instability C Residues of the Family Conflict and Brainwashing | D Children’s Own Views E Therapy v Rec ccaano of other Members of the Family VI. New Residence and Contact Arrangements after Retum A. New Residence Arrangement _B New Contact Arrangement VII Real Contact between Parents and Children after Abduction A Contact with the Abducting Parent after Return B Contact with the Left-behind Parent in Cases of Non-return Contact with the Left-behind Parent if the Child Lives with the Abducting Parent after Return VIII Psychological, Emotional and Moral Support IX Schools -X Conclusion 9 Prevention of International Child Abduction 1 Introduction IL Different Views on Prevention IL The Left-behind Parent’s Surprise IV Failed Attempts at Prevention V The Issuing of Travel Documents A Parental Authority and the Issuing of Travel Documents B Blacklisting VI Passports, Borders and the Schengen Zone VII The Role of the Police in Preventing International Child Abduction VIII Training of Professionals and Spreading of Information IX Warning Signs: When Are Preventive Measures Appropriate? X Grandparents XI Schools XII Conclusion 10 Conclusion Annexes I List of Variables Used for Quantitative Analysis IL Consent Form for Interviews ILL Structure of Interviews with Parents IV Structure of Interviews with Professionals -Y Policy Recommendations that were made on the Basis of the Research Results Material com direitos autoraisBibliography Index Material com direitos autoraisLIST OF FIGURES Figure 1: Age of Children at the Time of Abduction Figure 2: Age of Child at Time of Abduction where there is Only One Child in the Family Figure 3: Relationship between the Parents: Various Categories Figure 4: Relationship between the Parents: Still Together or Separated Figure 5: Age of the Abducting Parent Figure 6: Age of the Left-behind Parent Figure 7: Number of Children in Families where Abductions took Place Figure 8: Number of Abductions to and from Belgium, Abductions where Belgium was neither the Country of Habitual Residence nor of Destination, and Contact Cases Figure 9: Relationship between the Abducting Parent and the Child Figure 10: Part of the World to which the Child was Abducted from Belgium Figure 11: Person(s) With Parental Authority over the Child at the Moment of ‘Abduction Compared to Abductor Figure 12: Abducting Parent and His/Her Relation to the Child Figure 13: Abductions by Primary Caretakers or One of the Primary Caretakers Figure 14: Whether or not All Children in the Family were Abducted Together Figure 15; Part of the World to which the Child was Abducted from Belgium Figure 16: Legal Instrument Applicable in Country to which the Child was Abducted irom Belgium Figure 17: Part of the World from where Child was Abducted to Belgium Figure 18: Legal Instrument Applicable in Country from where Child was Abducted to Belgium Figure 19: Relationship of the Abducting Parent to the Destination of the Abduction Figure 20: Type of Legal Procedure used in Abductions to Belgium Figure 21: Type of Legal Procedure used in Abductions from Belgium Figure 22: Time between the Abduction and the Request with the Central Authority Figure 23: Time between Request with Central Authority and Institution of Court Proceedings Figure 24: Time between Institution of Court Proceedings and Judgment Figure 25: Time between Request with the Central Authority and Finalisation of the File Figure 26; Way in which Solution was Reached (for Closed Cases) Figure 27: Part of the World from where the Child was Abducted to Belgium Compared to Return Figure 28: Legal Instrument Applicable in Country from where the Child was ‘Abducted to Belgium Compared to Retum Figure 29: Part of the World to which the Child was Abducted (from Belgium) ‘Compared to Return Figure 30: Legal Instrument Applicable in Country to which the Child was Abducted Compared to Return Figure 31: Outcomes for Abductions from another Country to Belgium Figure 32: Way in which Solution was Reached for Abductions from Belgium to ‘another CountryLIST OF TABLES Table 1: Country to where Child was Abducted and Relation of Abductor to Child ‘Table 2: Parents’ Relationship and Relation to Abducted Child Table 3: Parental Authority in Families before Abduction Table 4: Relationship between the Parents, Residence Arrangement, and Relation of the Abducting Parent to the Child Table 5: Parts of the World to which Children were Abducted Table 6: Legal Instrument Applicable in Country of Destination Table 7: Parts of the World where Children were Abducted from (to Belgium) Table 8: Legal Instrument Applicable in Country from where Children were Abducted Table 9: Time between Abduction and Retum per Legal Insirument (Abductions to Belgium) Table 10: Belgium) Table 11: Outcome in Relation to Legal Instrument Applicable (Abductions to Belgium) Table 12: Outcome in Relation to Legal Instrument Applicable (Abductions from Belgium) ime between Abduction and Return per Legal Instrument (Abductions from1 The Research Project and Book Structure I. Introduction For one abduction, fifteen people are affected ... the time has come to start taking this problem seriously. It will grow exponentially in the years to come. The abduction of children by one of their parents to another country is a problem with many faces. No two cases are the same. In some instances a mother returns with her children to ‘her’ country, without the consent, or sometimes even without the knowledge, of the father. In other cases a parent flees with his or her children from the country of residence, where he or she is not happy. Sometimes a parent takes the child to huri the other parent. Some parents believe that their children will be better off in another country or without their other parent. Some people fice from debts. Whatever the reasons for abducting a child, it causes great distress, anxiety, confusion, sadness and trauma. The left-behind parent suffers, as do other family members and relatives. The ultimate victim is, however, the child. He or she is ripped away from a familiar environment (including school or nursery school, friends and sports clubs), often without preparation and without explanation. While it is accepted that persons can assume their individual freedom to live with their partners, separate from them, migrate and relocate to other countries, this should not violate the fundamental rights of the child to maintain contact with both parents. Children should be protected from family conflict that escalates to the extent where it jeopardises their natural development. For these reasons, the international abduction of children by one of their parents should be countered in all possible ways. The purpose of this book is to communicate the results of research conducted in Belgium on international child abduction by parents in 2007 and 2008. Abductions to and from Belgium were investigated. While the research focused on Belgium, this phenomenon is international by its nature. In every abduction at least two countries are involved. Comparative material is introduced where available. | believe that the results are of interest to a broader public than just Belgium. Many of the results correspond to the findings of a similar research project done in Hungary’ and to international research. II Methodology A Methodology for the Quantitative Research For purposes of the quantitative analysis, more than 700 files were examined. These were administrative files that were held in the archives of the Ministry of Justice (specifically the Central Authority for Mutual Legal Assistance in Civil Matters, whose competences include international child abduction), the Ministry of Foreign Affairs and Child Focus. Files that were open in 2007 or 2008 were taken into account. The notion of an ‘open’ file is an administrative one and could very well differ depending on where the file is kept. Files are closed for different reasons. At Child Focus, for instance, if a parent no longer wishes or needs the intervention of Child Focus, the file will be closed. It may well be that this person’s file is still open at the Central Authority and that the situation has not yet been resolved. The Central Authority would generally close a file at the end of the proceedingsbased on the relevant Convention. This includes the enforcement of the decision that a child should return. For instance, if a judgment in 2006 ordered the return of the child, but the child had not yet returned by 2007, the file would be considered open. Thus, such file would be part of the dataset on which this research was based. A file can also be closed on the basis of the final (including appeal where relevant) judgment that the child should not be returned. Files at the Ministry of Foreign Affairs tend to stay open for a long time. As these files do not concem legal proceedings, but rather diplomatic negotiations, finding appropriate solutions often takes a long time. In many instances the child has not returned, but the Ministry continues to assist in the negotiation of visits of the left- behind parent to the child or of the child to the left-behind parent In considering whether the file should be included in the analysis, the ‘open’ classification given by the institution where the file was held was respected. This was the only way in which to ensure consistency in the selection of files. The selection of the files took some effort. While Child Focus’s database allows selection of all files that were open during a particular year, the Ministries have different ways of classifying cases. The Central Authority and the Ministry of Foreign Affairs Classify files on the basis of the year of opening. This means that the files to be included in the research had to be sought in various places. Of the 700 files plus, 667 were finally retained for the analysis. Others were excluded, because they were abductions within Belgium (thus not across an international border), or because it emerged that the ‘child’ was older than 18, or because the file was closed before 2007. The number of files was significantly higher than what had been expected beforehand. However, care should be taken not to divide this figure by two for a total number of abductions per year. Some of the files had been open for a long time. In the final dataset, the following files have been included per institution: Focus. try of Foreign Affairs, + 443 of the Central Authority. When seeing these figures, it becomes clear that there are many files dealt with by more than one institution. Most of the overlaps were with Child Focus. Parents can open a file at Child Focus and at the Central Authority, or at Child Focus and at the Ministry of Foreign Affairs. A protocol of cooperation exists between Child Focus and the Central Authority. According to this protocol, when a parent contacts Child Focus reporting the abduction of his or her child, Child Focus contacts the Central Authority in order to inform it. In cases where the Central Authority would be competent (because the child had been abducted to a state with which Belgium has legal ties in the sense of a Convention), Child Focus encourages the parent to contact the Central Authority so that a file can be opened there in order to start retum proceedings under the relevant legal instrument. There are fewer overlapping files between the Central Authority and the Ministry of Foreign Affairs. This is a result of a clear division of tasks among the ministries. The Central Authority has a mandate under several international conventions and agreements. These include the Hague Convention (1980), the Luxemburg Convention (1980) and the bilateral agreements with Morocco and Tunisia. Therefore, if a child is abducted to one of the countries in which return proceedings are possible according to an international legal instrument, the file will be opened at the Central Authority. The Ministry of Foreign Affairs, on the other hand, has a different mandate. Its authority encompasses the seeking of diplomatic solutions. This way of solving conflicts regarding child abduction is most often used when no legal instruments are available In this sense, the Ministry of Foreign Affairs deals with abductions to countries with which Belgium has no international agreement. However, it may happen that the legal process has run its course, but that the return of the child is still lacking. In such cases, the Ministry of Foreign Affairs occasionally attempts to assist through its network of diplomats. In such instance, there might be an overlap in files between the Central ‘Authority and the Ministry of Foreign Affairs. In order to obtain an accurate picture of the child abduction cases in Belgium, it was important to find the overlapping files and ensure that every incidence of child abduction was recorded only once. In order to respect the privacy of the persons concemed, and to be in compliance with the Belgian legislation on privacy, it was notappropriate for Child Focus and the ministries to exchange lists of the files they had in their archives. The chosen method was to work through an intermediary. This role was taken up by Mr Baudouin Vanderhulst, Honorary Ambassador.' He was provided with lists of the cases and he compared them. In this way he was able to ensure that every case was taken up in the data to be analysed only once. Files were coded according to a list of 90 variables. These variables included information on the following: + The abducting parent, including his or her relationship to the child, age, nationality/ies, place of birth. + The left-behind parent, including his or her relationship to the child, age, nationality/ies, place of birth. + The child(ren), including their date of birth, nationality/ies, place of birth. + The family situation, including the principal residence of the child, the contact arrangements for the other parent, the way in which this situation was established (eg by judgment), the primary caretaker factually. + The abduction, including the date, the countries from where and to which the child was abducted. + The retum and proceedings leading to the return, including mediation. + The situation after the closing of the case (whether or not the child has returned), including the (new) residence and contact arrangements for the child and the way in which the solution was reached.> B Methodology for the Qualitative Research ‘While coding the data at the Central Authority, at the Ministry of Foreign Affairs and at Child Focus, a number of files were chosen where it was deemed appropriate for the parents to be interviewed. Only the closed files were taken into account for this selection, as interviews in such files could address the entire sequence of events, including the rewrn or non-return and the aftermath of the abduction, including the altered family life. The criterion of a ‘closed’ file is not entirely clear, as has been explained above (concerning ‘open’ cases).° In instances where the child had returned, a case could be considered closed. On the other hand, a parent could decide to abandon the proceedings and to resolve the situation. A file could be closed for this reason, A judgment refusing the return of the child might also cause the closure of a case, although this is not necessarily so. As has been explained above with regard to the cases at the Minisuy of Foreign Affairs, a parent might continue to search for other solutions, such as visitation rights in the country where the child now lives. In some instances, therefore, the case stays ‘open’ for a long time. Often, the proceedings on the return have been completed, while criminal proceedings are still pending. It might also be that custody or parental authority proceedings are still going on in Belgium or in a foreign country. In these cases, the administrative files at Child Focus and the ministries might be closed. These files were deemed appropriate for interviewing. However, in this category of cases, it seemed too sensitive a time to interview both parents in the same case. In cases where the tensions were still high, the emotional interests of the family should outweigh the objective of obtaining research results. An interview, even one with carefully formulated questions asked from as neutral a standpoint as possible, might cause emotions to flare up. Care was therefore taken not to interview both parents in the same file in such situations. Some of these parents were concerned that their ex-partners should not be aware of their involvement in the study. They were of course assured of the anonymous nature of the analysis and report. The selection of interviewees was not done by computer, but manually. There were several reasons for such manual selection rather than random computer selection. First, each case is different from the other. There are many objective elements that can vary (for instance the number of children in the family, whether the mother or father was the abductor and the destination of the abduction). While these objective elements could have been identified by computer selection, there are a number of elements that were not taken up in the coded data, but that were relevant for the selection. These could not have been identified by computer. They include the language(s) that the parent speaksand the possibility of communication between the parent and the interviewer on sensitive issues such as the parent’s personal experiences. The final check about whether it would be appropriate to take an interview in a particular case was left to the person who had handled the file (case manager). This person often possessed (subjective) information that was not included in the file. He or she in some cases also knew whether there had been further developments in the file after it had been closed. In one case, for instance, a second abduction was taking place when the taking of an interview was considered. The case manager’s information led to a decision not to take the interview. A case manager would also have information about how severe the media attention was to a particular file, whether a parent is able to talk about what has happened and so forth. ‘Another reason for not working with computer selection was that the coding took a long time. Manual selection had the practical advantage that some interviews could take place before all files had been coded. This was necessary for logistical reasons: due to the structure of the funding, the research had to be completed within one year, while it took a lot of time to get privacy clearance before we could start with the coding of the files. Therefore, it was not possible to wait for the completion of the coding before starting the interviews In selecting files for interview, attention was paid to finding files that represented the differences between the cases. Care was taken to select abduction cases from and to Belgium, to include cases where countries from different parts of the world were involved, and to interview mothers and fathers. It was considered important to interview not only left-behind parents. However, there were many practical hurdles to get hold of abducting parents. In most cases one would have to obtain their contact details from the left-behind parent, who was generally the person who had opened the file with one of the ministries or with Child Focus. This also means that the left-behind parent would have to agree to his or her ex- partner being interviewed. In many cases parents were not prepared to ask this of the ex-partner. Relationships were often still strained. In one case, the left-behind parent did agree, but the abducting parent did not wish to take part in the study. In many cases the abducting parent did not live in Belgium. It has been possible to interview only two abducting parents, or presumed abducting parents. One of them had herself opened a file with Child Focus when she arrived in Belgium. The other one had moved to Belgium with the permission of the child’s father, but he subsequently introduced return proceedings. These proceedings were not successful and the retum of the child ‘was not ordered. This mother therefore cannot be accurately regarded as an abducting parent. However, she had been involved in legal proceedings and she could provide a perspective of the impact of the proceedings on her and her son that was certainly worth including in this study. Child Focus also wanted to interview 16 or 17-year-olds who had been abducted. However, several members of the Steering Committee at various occasions raised objections to this idea. The members stated that it would only be permissible to interview a minor if both parents agree. In most instances, parents participating in the study did not want their ex-partners to be aware of such participation. Most were not inclined to provide their contact details. The result was that the possibility of interviewing the minors was excluded. Moreover, some members of the Steering Committee were worried that an interview might be too traumatising for the young people. It is deplored that the voices of the child victims could not be heard in the course of this research. Ultimately, 25 parents were interviewed. In order to get to this number, the case managers had attempted to contact 68 persons (48 by Child Focus, 14 by the Ministry of Foreign Affairs, and six by the Central Authority). Some of these people could not be reached because their contact details were no longer correct. Others declined to participate. Some parents were not interviewed because the abduction had taken place a long time ago. An interview did not seem appropriate in these cases, because the legal framework had changed too much since the time of the abduction, Time can also alter the way in which parents recollect and recount the facts. Therefore, in order to ensure consistency in the results, the time of the abductions should not differ too much. (These files had been open for a long time after the abduction, which explains how they were taken into consideration in the first place.) Of the 25 interviewed parents, 15 were fathers and 10 were mothers. 23 were left- behind parents and two were abducting parents. Three cases concerned abductions toBelgium and 22 abductions from Belgium. Of the 22 abductions from Belgium, there were nine files involving countries where the Brussels II bis Regulation’ applied, six where The Hague Convention applied, one concerning Tunisia and one concerning Morocco (with which Belgium had bilateral protocols), and five involving countries with which Belgium had no international accord or protocol. One of three of the abductions to Belgium was from a country where the Brussels Il bis Regulation applied, one from a country where The Hague Convention applied and one from a country with which Belgium had no international accord or protocol. The interviews were taken in the language and at the place that the parents chose. Most parents preferred to have the interviews taken at their home, where they were sure that they would be able to talk freely. A few interviews were taken in cafés in the vicinity of where the parent lived, The remaining interviews were taken at Child Focus. In some of the interviews other family members were also present. This was most often a partner, in most cases a person who had lived through the abduction with the parent. These persons were sometimes called upon by the parent to add or complete their recollections. The interviewer focused mainly on the parent, but allowed the intervention of the other persons. In three events the children that had been abducted ‘were present at the beginning or at the end of the interview. In two of these cases they were not involved in the entire interview and they were not present when the questions were posed. In the third they were in the same room during the interview. Out of all the interviews, 21 were taken by the author (researcher in the project), while Hilde Demarré (project manager) took the remaining four. The interviews were semi-directive. A list of 10 points was drawn up.* The list contemplated a chronological interview. This had the result that the questions were not always posed in the same manner: if parents moved from one answer to the next, they were not interrupted and the question was not posed explicitly. Throughout this book, a number of direct quotes have been used from the interviews with parents. The purpose of these quotes is to let the voices of the parents be heard, rather than presenting the reader with a version that has been filtered by the researcher. These quotes have been left in their original form and have not been changed to comply with standards of written language. The reason for this choice is to permit the reader to sense the silences and difficulties that parents sometimes experienced when recalling events linked to the abduction. To ravens the interviews of parents, it was decided to include interviews with a number of professionals that work in the field of international child abduction. Such interviews were not part of the original plan of the research, but were included after the suggestion by the Hungarian partner, Kék Vonal. Given the limited period for the research project (the quantitative and qualitative parts of the study had to be completed in one year), the interviews with professionals provided an efficient way of collecting data from people with years of experience. Twenty interviews were taken with professionals: three practising lawyers, two judges, four officials working with the public prosecution at various levels, one person working with the High Commission for Justice,’ three persons working with parents’ organisations, two psychologists (one working with the Central Authority and one working as a therapist and as a researcher), one person of the federal police and one former ambassador. Two focus group interviews were taken: one with three persons working in the Ministry of Foreign Affairs on intemational child abduction and one with three persons working on child abduction in the Central Authority. A telephone interview was taken with a person working with a local authority (responsible for issuing passports and maintaining the population registry). These interviews, like those with the parents, were semi-directive. A general structure of 10 points was drawn up.!° The interviewer was flexible and allowed respondents to spend more time on a particular issue. The expertise of the professionals remained the main guide for the structure of the interviews. In the analysis of the interviews with professionals, fewer direct quotes are used. The author distilled the important elements from the interviews. For these interviews the exact words seemed less relevant: these interviews were not taken in order to hear personal feelings, but rather experiences gained by having dealt with a number of cases of international child abduction. C Actual Files and Prevention FilesIn some cases parents phone the Central Authority, the Ministry of Foreign Affairs or Child Focus in order to ask advice about an abduction they fear will take place. These parents are given advice on steps they could take. Child Focus opens prevention files in such cases. In 2007, 152 prevention files were dealt with and 207 children were involved in these files. In 2008, 157 prevention files were dealt with and 220 children were involved in these files. These files were not used as part of the dataset; only cases where an abduction did in fact occur were included, However, the list of prevention files was compared in order to determine whether a parent in a case where an abduction took place had previously contacted Child Focus in order to obtain advice on prevention. III Respect for Privacy Child Focus had filed an application with the Belgian Privacy Commission concerning the research project on which this book is based. The Commission responded by giving recommendations, which were meticulously followed in order to guarantee the respect of the privacy of the persons whose data were included in the research and the persons who were interviewed, as well as the abducted children and their families. The Privacy Commission stated that according to the Belgian legislation on privacy,"' the later use of data that were collected for other purposes may be used for scientific purposes. However, anonymous data should be used. If this is not possible, the data should be coded. In the case of the current study, it was necessary to compare the files held at the ministries and those held at Child Focus in order to avoid including the same file more than once in the dataset. It was also necessary to be able to select files for interviewing: thus, the data would have to be linked to the name of a person so that he or she could be contacted to ask permission to take an interview. For these purposes, the data were coded. Since data were collected at two ministries and at Child Focus, they had to be coded before transmission to the researcher. The data of the Central Authority (Ministry of Justice) and the Ministry of Foreign Affairs were coded by an intermediary organisation (honorary ambassador Baudouin Vanderhulst). Before starting this coding, Mr Vanderhulst had also filed an application to the Privacy Commission and had received recommendations. (‘These recommendations, as far as the qualitative study is concemed, were comparable to those received by Child Focus.) The Central Authority formalised the arrangements ensuring the protection of the privacy by entering into a contract with Mr Vanderhulst and with Child Focus. The Belgian legislation also provides that certain requirements have to be met when data are transmitted electronically. The transmission of information in this study took place by the filling in of paper sheets. These paper sheets were sent to Child Focus by normal post, or handed over. Child Focus had the responsibility of typing the codes into computer files which permitted the analysis. The Privacy Commission admitted that it would not be feasible to contact all the persons whose data were relevant for the quantitative analysis in order to inform them of the study. Regarding the qualitative analysis, the Privacy Commission stated that the prior permission of all respondents had to be asked Vefore they could be interviewed. Persons were contacted by the person who managed their case (at one of the ministries or Child Focus). This person explained the purposes of the study to the potential respondents and asked whether they wished to participate. If they consented, their names and contact details were communicated to the researcher, who then contacted them to arrange an interview at a time and place that suited them. Before starting with the interview, the parents were again told what the purpose of the study was. They were given a copy of the privacy rules for the qualitative part of this study. The interviewer explained to them that their information would be analysed and taken up in the Report in an anonymous way and that they could withdraw or change statements made by them if they so wished. They were also asked to sign a consent form? and they were provided with a copy of the privacy rules Child Focus had formulated for this research project. Names and other details that would have made the parents or children identifiable, have been changed in the analysis.IV Limitations of the Research This research project has covered an area that has never been as extensively researched in Belgium. However, the project has a number of limitations and it is appropriate to announce them upfront in order to avoid unjustified conclusions by the reader. A Archival Data In the first place, the data used for the quantitative analysis were all of an archival nature. This means that only the data available in the files could be analysed. These files had been opened not for research purposes, but with a practical objective in mind, namely collecting documentation necessary for the return of the child. The limitation of working with archival data is mainly relevant for the quantitative analysis. When investigating 667 files, it is impossible to find information that is not contained in the files. Moreover, when coding data, care was taken not to interpret information that was unclear. When collecting data by way of surveys, the questions were posed in such a way that they solicited the exact information that the researcher needed. On the other hand, the exact answer to the question a researcher would have liked to have asked may not be available in archival data. Then it does not suffice to deduce what seems the most likely situation. One can only use information that is indeed in the file. Thus, certain information that would be interesting from a researcher’s point of view was simply not available. For instance, it might have been relevant to investigate the number of years that the parents had had a relationship before the children were bom, before thé abduction took place, or before separation, and to regard the number of years between the separation and the abduction. A study done in the Netherlands found that abductions occur more frequently in families where the children were bom soon after the commencement of the parents’ relationship.’ While such finding is both interesting and relevant, this research project did not have access to such information ona large scale and we could therefore not draw conclusions on this matter. Other information that was not available includes the severity of the conflict that existed in the family and the way in which parents dealt or attempted to deal with such conflict. Whether or not the parents had attempted mediation (formal or informal) was not always known. Some of this information could be obtained in the interviews, but only for a limited number of cases. (Only 25 parents were interviewed, and the information obtained cannot be regarded as representative for the 667 cases included in the dataset.) Moreover, even for the categories for which information was available, the files were not always complete. For instance, the nationalities and ages of the abducting and left-behind parents were not always taken up in the files. Or, where a parent had more than one nationelity, a case manager might have taken up only one of the two in the file: the one that was relevant from the point of view of seeking a solution. The same is true for the periods of time between the various steps in the legal proceedings, ie the time between the abduction and the application with the Central Authority, the time between the application and the sending of the file to a Central Authority in another country, and the time before legal proceedings were instituted These moments were not always mentioned in the files, and the persons coding the information had to look for the information in various documents, but could not always find the exact timeframes. B Lack of Court Files The data have been collected only from the files held by the Ministry of Foreign Afiairs, the Central Authority (hosted by the Ministry of Justice) and by Child Focus. It was not possible within the ambit of one year (o investigate the files held by the various courts in Belgium that deal with international child abduction. Just to get the authorisation to have access to these files would have been a cumbersome process that would have taken a long time. The institutions where files were investigated have the role of assisting the public in finding a solution for the child abduction. However, nothing prevents a person from directly instituting return proceedings under the Hague Convention at a court in thecountry to which the child has been abducted. Such cases would not be known to the institutions and would therefore not form part of our dataset. C No Analysis of Criminal Proceedings Files ‘The research project did not include an investigation into how many persons were prosecuted for international child abduction. Neither the court files nor the files with the police or public prosecution were investigated. Such a study would have raised privacy concerns and would have taken a long time, especially if police files had to be considered. Some of the investigated files contained information on criminal law proceedings. This was not taken into account in the study. In this matter the researchers meticulously adhered to the Belgian privacy legislation. In some cases the resolution of the abduction came about because the abducting parent was arrested. This information was included in the dataset as reason for closing the file. No other information on criminal proceedings was taken up in the quantitative analysis. Some parents in their interviews referred to the criminal law proceedings. Many of the professionals gave their viewpoint about the advantages and disadvantages of taking recourse to criminal proceedings. These elements were taken up in the analysis of the qualitative part of the study. D Incomplete Representativity The fact that neither court nor police files were included, means that it would be false to claim that all cases of international child abductions to and from Belgium in 2007 and 2008 were included in the dataset. Moreover, it is also possible that a case was solved by mediation or negotiation, without any of the institutions being contacted. These cases do not form part of the dataset either, ‘As we do not know the number or the percentage of cases that have not been taken up in the dataset, the results cannot claim to be representative. E Only Two Years: Longitudinal Data Missing ‘The quantitative study was based on cases that were open in 2007 and 2008. Therefore, no longitudinal data were included. This means that we cannot predict trends; it cannot be deducted from this study whether there is an increase in the number of international child abduction case: Moreover, a precise profile of the families in which international child abductions tend to take place cannot be drawn up, as available information about these families relate only to a certain moment in time. We know whether the parents were still living together or were separated, but we do not know their history: how long they had been together, how long they had been living in the country from where the child was abducted, etc. We have only a snapshot of their lives, and not the entire context. In addition, the impact of the abduction on a child cannot be investigated in a study like this one. In order to see the long-term effects, one would have to conduct @ longitudinal study. The same parents would have to be contacted after a number of years in order to see where they are living, what the contact between parents and children is like, and whether the children managed to adapt to whatever their situation was after the abduction (whether they returned or not). Longitudinal studies are becoming increasingly difficult due to strict privacy legislation. The information collected for this analysis had to be destroyed after the finalisation of the project. Therefore, in order to conduct a longitudinal study, researchers would have to start all over again and they would have to get specific recommendations from the Privacy Commission regarding the further archiving of data for later use. F No Control GroupAnother limitation of this research project is that only cases in which children were abducted were considered. There was no control group. This means that one cannot draw up a profile of the at-risk family: we do not know which characteristics occur more frequently in families where abduction takes place than in families where no abduction takes place (even if there is severe conflict). In order to determine in which families the risk of child abduction is higher than average, families where an abduction had taken place would have to be compared to similar families where there was no abduction. G Focus on One Country The research project concerned child abductions to and from Belgium and to and from Hungary. As has been explained, the analyses were done separately, although coordinated. This book is based on the findings of the research done in Belgium. It is clear that child abduction is an international problem — by definition a child is taken from one country to another, or the child is retained in a county other than that of his or her habitual residence. The findings are therefore, strictly speaking, not only national. Information obtained about issues such as the duration of procedures and the difficulties relating to enforcement come from the various countries represented in the files. ‘At the same time, findings concerning the age of the child and the size of families where abductions tend to take place, are in line with international studies. This information has also been compared with that of our Hungarian colleagues, and the results were strikingly similar, despite different methodologies. Where relevant, these other studies will be referred to. V Structure of this Book This book has grown out of a research report. While the report presented the analyses of the quantitative and qualitative data separately, in the book the results are presented in a more integrated way. The largest part of the book is made up by the research results. These results are explained as carefully as possible. Where appropriate, the reasons behind certain findings are explored. However, in a matter as sensitive as child abduction, I have taken great care not to formulate hypotheses that cannot be substantiated by the available evidence. Of course, the research results have to be placed against the relevant legal background. Therefore, the relevant international, European and Belgian legislative provisions are explained. Where appropriate, 1 also mention the legal rules of other countries, because these rules sometimes provide better answers. Some of the experts that were interviewed also referred to legislation applicable in other countries that they find apt. The second chapter is devoted to terminology, in order to provide a clear framework at the outset. In the third chapter, the child is placed at the centre. The chapter deals with questions such as which children are abducted, and how these children experience the abduction. It also explores the child’s place in the legal proceedings. The fourth chapter focuses on the family. Issues such as the relationship between the parents and the size of the family are discussed. The family’s situation before the abduction is also regarded: in some cases the parents were already divorced for some time, in other cases they were in the middle of divorce proceedings and yet in others the parents were still living together at the moment of the abduction. The abduction itself is the subject of chapter five. Questions about the preparation and the circumstances of the abduction itself are considered. Chapter six deals with the quest for the return of the child, including issues such as the duration of the procedures and enforcement. In some cases the abduction takes more than 10 years to solve; in others no solution is ever found. The seventh chapter explores the situation while the child is away. It considers issues such as contact between parent and child while they live in different countries. Chapter eight focuses on the aftermath of the abduction. Once the child hasreturned, a lot remains to be done, especially concerning the re-adaptation of the child and the family. Also, cases where the child never returns have a clear aftermath where people have to adapt to their new lives. The last chapter before the concluding chapter deals with the issue of preventing international child abduction. The goal of prevention was one of the reasons that prompted this research project: Child Focus and sister organisation Kék Vonal have both in the meantime published prevention guides for professionals working with families where there is a risk of international child abduction. The focus throughout these chapters is not on a particular legal instrument Although much can be said about the particular exceptions to return under the 1980 Hague Convention, this matter will not be discussed in this book. I will refer to the legal rules, both international instruments and relevant national rules, and their application, but such legal overview will be set in the light of the social reality and therefore the purely legal analysis will not be exhaustive.'* * A mother whose children had been abducted by their father. ® Research project by Kék Vonal, a Hungarian non-governmental organisation (NGO) working with childcen’s rights. This project was part of the Belgian one done in 2009-10 and also co-funded by the European ‘Commission. "The research report was not published, > For instance, N Lowe, ‘A Statistical Analysis of Applications made in 2003 under the Hague Convention of 25 October 1980 on the Civil Aspects of Intemational Child Abduction, Part 1 - Overall Report’, Preliminary Document No 3, Part 1 on Intemational Child Abduction (2008), available at www-hcch.nev/indexen.php? act=publications dletailsSpid=44498edtid=2. This work was done on a voluntary basis, 5 Fora full list of the variables, see annex I ® See subsection A entitled, ‘Methodology for the Quantitative Research’ above. * Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and ‘enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] 01 1.338/1 (‘Brussels Il bis Regulation’). © See annex Il. © Conseil supérieur de la justice / Hoge Raad voor de Justtie. © See annex IV. 4 Loi du 8 décembre 1992 relative a Ia protection de la vie privée a I’égard des traitements de données & caractére personnel and Arrété royal dy 13 fevrier 2001 portant exécution de fa Loi du 8 décembre 1992 relative a Te protection de ta vie privée’ a Tegard des. trattements de” données’ caractere_ personel. See ‘www privacycommissionbe. ® See annex Il © “B de Hart, Internationale kinderontvoering. Oorzaken, preventie en oplossingen (Uuecht, Nederlands Centrum Buitenlanders, 2002) 34. “ Itis not the purpose of this book to deal with all the legal rules and case law exhaustively: such discussion ccan fil. a book by itself, A lot has heen written on these topics, see the bibliography for references. Similarly, this book does not have the ambition to discuss the psychological and sociological literature on the topic of Intemational child abduction, see the bibliography for a non-comprehensive list of references.Terminology It is appropriate to set out the use of certain terminology at the outset of this book. When choosing the terminology, account has been taken of international instruments as well as national law. I The Child The legal term most often used to refer to a child is ‘minor’. National law determines the age upon which young people cease to be ‘minor’ and become ‘major’. In most countries, this is at the age of 18.' (In several African countries children become major only when then turn 21.2) ‘According to the Belgian private international law rules, as well as those of many European continental countries, a person’s status (including whether he or she is minor or major) is determined by the law of his or her nationality.’ A 20-year-old national of Burundi living in Belgium will thus be regarded as minor and not major." When we consider the problem of international child abduction, however, it is not sufficient to regard only the status of the young person involved. A child of 16 years or older has a clear will of his or her own which cannot be disregarded. Therefore, one cannot deal with a 16-year-old in the same way as a two-year-old when considering abduction. A young child is still very dependent on his or her parents and will normally go along if a parent says so. The child will get into a car, board an aeroplane, often without realising what is happening. The older children get, the less this is true. A 16- year-old has a much greater comprehension and ability to make his or her own choices He or she would have been aware of the moving to a different country and probably consented or even, in some cases, instigated the move. In practice we find that it is most often young children that are abducted.* It is not appropriate to set the judicial wheels in motion in order to get the child back, without considering the child’s own will Therefore, The Hague Convention on the Civil Aspects of International Child Abduction (1980)’ and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (concluded in Luxembourg in 1980)® have limited their application to children under the age of 16° The Brussels Ii bis Regulation’ does not contain this age restriction for its application. With regard to Issues of parental responsibility generally, this of course makes sense. A 17-year-old is still a minor (in most countries) and needs the help of a paeatts sign contracts, conduct bank accounts, etc. Generally, he or she still lives with is or her parent(s), who has to make decisions regarding the school and so forth. When it comes to child abduction, the route that the Hague Convention has taken seems to be the correct one. The procedures for returning a child should apply only until the age of 16. However, this is not mentioned explicitly in the Regulation. This solicits the question as to the correct legal position: if a 16-year-old is abducted from ‘one EU Member State to another, can return proceedings be instituted? Some scholars and practitioners say yes, because a 16-year-old is a ‘child’ and the Brussels [I bis Regulation applies, and it does not specify that return proceedings cannot be initiated. They complete their argument with the consideration that if abduction proceedings cannot be initiated, a legal gap is created. This legal gap, according to them, relates to the jurisdiction. If the courts of the country to which the child has been abducted do not have jurisdiction, how can the situation ever be rectified? The courts of the State to which the 16-year-old was abducted cannot obtain jurisdiction through the abduction; the obtaining of a habitual residence in that Statewould have to be accompanied by either acquiescence by all persons with custody, or in cases where after a year no return has been requested, the request for return had been withdrawn, the case had been closed, or a judgment on custody that does not entail the return of the child had been issued by the court of the habitual residence (before abduction).!' Thus, if no retum proceedings can be instituted and there is no acquiescence, the new State cannot obtain jurisdiction for the first year and until the court of the habitual residence has issued a judgment not entailing retum. This is perceived as the gap, insofar as the new State cannot gain jurisdiction. Thus, the State where the 16-year-old is present cannot be asked to order a return, but at the same time, it cannot obtain jurisdiction to deal with the substance of the matter. ‘Other scholars and practitioners say no, the return of the 16-year-old cannot be requested, even if he or she were abducted from one EU Member State to another.!? Their argument is that the Brussels II bis Regulation does not contain its own rules on the return of abducted children, but only complements those of the Convention for purposes of intra-EU cases. They say that the Regulation cannot complete the Convention where the Convention does not apply. In practice, the demand for retum is in fact based on the Hague Convention. A Central Authority working with that Convention might have difficulty using the procedures in some cases only until 16 and in others until 18. Regarding the gap argument, the response of the no-camp is that the habitual residence will, legally speaking, remain in the State from where the 16-year-old was abducted. The cours of that State will therefore have jurisdiction to rule on parental responsibility. The gap then consists in the fact that the court where the 16-year-old is present cannot make a ruling, but another court can. The Brussels IL bis Regulation also contains rules on the recognition and enforcement of judgments. Thus, the judgment should be able to be enforced in the State where the 16-year-old is. If, according to the judgment, the primary residence should be with the left-behind parent, then the enforcement would consist in obtaining the return of the 16-year-old. Thus, the broader context of parental responsibility rules still exists according to this view; it is only return proceedings that are not applicable. In light of these secure arguments, the approach that Brussels II bis only applies to abductions when the child is younger than 16 is preferred. II Custody and Access The term ‘custody’ can have many different meanings. To a non-lawyer, it usually refers to the person with whom a child lives. Traditionally, this term was used in combination with ‘access’, When parents divorce, the court would attribute custody to ‘one parent and access to the other. In other words, the child lives with one parent most of the time (this parent has custody) and sees the other parent (who has access rights) at frequent intervals. ‘The Hague Convention and the Brussels II bis Regulation use the term ‘custody’ in a broader sense.'* For purposes of these instruments, ‘rights of custody’ include rights relating to the care of the person of the child and, in particular, the right to determine the child’s ‘place of residence’."* This last issue, namely the right to determine the child’s place of residence, is part of what is now often referred to as ‘parental authority’ or ‘parental responsibility’ (see below). Custody rights can be obtained by operation of law, by a judicial or administrative decision, or by an agreement with legal effect under national law." Whether or not unmarried fathers have custody by operation of law varies from one country to the next. In some countries (such as Belgium) no distinction is made between married and unmarried fathers. In many other countries unmarried fathers have to obtain a judgment conferring custody on them. Thus, unmarried fathers living in such countries would only be considered as having custody under the Hague Convention if the requirements under national law have been complied with. ‘The European Court of Justice has confirmed that an unmarried father’s possession of rights of custody depends on national law.'® If the national law of the habitual residence of the children (before the abduction) determines that the unmarried father obtains custody rights only by way of Judgment (as is the case in Irish law, according to the judgment), he does not have such rights on the absence of a judgment. The fatherthus cannot initiate return proceedings in terms of the Hague Convention (complemented by the Brussels II bis Regulation"’). The term ‘rights of access’ according to the Hague Convention and the Brussels II bis Regulation, includes the right to take the child for a limited period of time to a place other than the child’s habitual residence.'® This definition does not pretend to be exhaustive, but it seeks to indicate that taking the child somewhere can be part of the rights of access. In the cases that concem us, Fights of access might Include the right to take a child to another country for a holiday. III Care and Contact These terms have become preferred to ‘custody’ and ‘access’ in some legal systems because of their softer and more child-centred approach. The parent with care is the one where the child resides most of the time. Contact is a broad term to describe a relation between the child and the parent with whom he or she does not primarily reside. It can include broad access rights, periodic visitation, or long-distance communication where the parent and child cannot see each other frequently. Contact with a grandparent, other relative or close friend may also fall into this category.'? IV Residence The term ‘residence’ is relevant for our purposes on two fronts. First, the habitual residence of the child is relevant in order to determine the application of the Hague Convention and of the Brussels I] bis Regulation. Habitual residence refers to the place where the child generally lives, has attachments such as friends, youth movements, social clubs, sports, ete and where he or she goes to school. Second, residence refers to the home of the parent (or other guardian) with whom the child mainly lives. In this context, one sometimes refers to primary and secondary residence. In some countries, mention is no longer made of the concepts of custody and access, or care and contact when referring to the place where children mainly live. One rather speaks of primary residence and secondary residence. This terminology indicates that the child has contact with both parents and resides with both, to some extent. An arrangement, according to which the child lives mainly with one parent and spends every other weekend with the other parent, will be referred to under these terms. This is the situation in Belgium. A Habitual Residence Habitual residence is a term that is of great importance in child abduction cases: the Hague Convention provides for the return of a child who has been wrongfully removed from his or her habitual residence or who is wrongfully retained in a country other than that of his or her habitual residence. The Brussels I] bis Regulation also refers to the ‘habitual residence’ of the child? The European Court of Justice has ruled that the concept of habitual residence should, in the application of this Regulation, be interpreted with the context and objectives of the Regulation in mind, and not according to national law.?* Habitual residence is hard to define and there is no global agreement on a common definition. It is the place where a person resides primarily and has the centre of his or her professional and social activities. This is not always easy to determine in practice.?* Questions arise particularly where families move, especially In times of conilict. A parent might dispute the fact that the child had obtained a new habitual residence by moving, especially at a time of family conflict. If the habitual residence itself is in dispute, one cannot assess whether a removal from that county is wrongful or not. It happens in these situations that courts of different countries come to a different conclusion with respect to the habitual residence of the child and thus issue conflicting judgments, leading to more conflict and to problems of recognition and enforcement.A habitual residence does not have to be a legal residence. For Belgium this is explicitly stated in the code on private international law.” B Principal, Secondary and Alternate Residence The classical way in which the courts in many countries resolve the residence of the children of divorced parents, is that the children stay with one parent and see the other parent every other weekend, usually including both weekend days and an overnight stay. When the children are younger, the intervals tend to be shorter, for instance every week. When the parents live far from each other, or in different countries, this classical system is hard to implement. While there are incidences where children cross borders every other weekend (eg between Belgium and France, the Netherlands or Germany), more frequently the child lives mainly with one parent and sees the other parent for extended periods during holidays, in some cases even all holidays. Principal residence refers to the place where the child resides most of the time. Secondary residence is the place where the child resides for shorter periods of time. This can be for half a week or for a weekend, depending on whether or not the child is already legally obliged to attend school. It is also possible that a child never stays over at a parent’s house, while that parent Still sees the child. In such cases it is more appropriate to speak of contact rights. In Belgium, since the entry into force in 2006 of new legislation, alternate residence is promoted.*4 This means that a judge, upon the request by one of the parents, will explicitly consider whether the child can live alternately with the mother and father after their separation. In practice this usually means that the child lives one week with the mother and one week with the father. The residence is completely equal and it is not possible to say which of the places is the child’s principal and which is the secondary residence, In France,”° Germany and the Netherlands,”° the possibility of alternate residence also exists. However, in these countries this system does not have a preferred status when a court considers the residence for children after the divorce of their parents.2” In Germany, the system is never imposed on parents: it will only be instituted when both parents agree. It is therefore not as common In these counties as it is becoming in Belgium. The system of alternate residence has also been subjected to harsh criticism in Belgium. This will be discussed in chapter four.?* In the Netherlands, new legislation requires all parents filing for divorce, legal separation or the separation of a registered partnership to draw up a parenthood plan.”* ‘The plan should cover the way in which parents will divide the care and education tasks of their children after separation, the way in which information will be transferred to each other, and maintenance. The purpose of the legislation Is to encourage parents to think about their parenthood after separation in order to limit conflict. V Parental Authority Generally, this term refers to the authority to take decisions concerning a child. The most common examples are: choosing the school the child will attend and giving permission for him or her to participate in certain sports or camps organised by the school or sports club. It includes signing financial documents on behalf of the child, applying for passports, etc. One of the important elements of parental authority is, of course, the decision as to where the child lives. This includes moving to another country. Parental authority can come about in three main ways, namely by judgment, by operation of law, or by agreement between the parents (if the agreement has legal effect under national law). Often, this authority is shared between the parents. Whether or not parental authority is automatically shared by both parents, also if they are not married or divorced, is determined by national legal systems and can vary among the systems. When both parents share the parental authority, this generally means that they have to take the decisions concerning the life of the child together. Thus, before the child is moved from one school to another, both parents have to give their permissionLikewise, before a child moves from one country to another, both parents have to give their permission. When one parent moves abroad with the child without the permission (or sometimes even without the knowledge) of the other parent, this is regarded as child abduction. VI Parental Responsibility This is the term that is used by the Brussels II bis Regulation, as well as by the 1996 Hague Child Protection Convention.” It essentially encompasses the same elements as ‘parental authority’, but can be broader. According to the Regulation, the concept includes all rights and duties relating to the person or property of a child.’ Like ‘parental authority’, it can arise by judgment, by operation of law, or by agreement with legal effect.” According to the Regulation, it includes both rights of custody and rights of access.3 This term shifts the focus. Rather than focusing on the parent exercising authority over a child, it emphasises the fact that children have rights to special care, protection and assistance, including to be looked after and to be educated™ and that parents have to ensure that these rights are respected. Parents thus have duties towards their children and not only rights. This idea also changes the way in which one speaks of access or contact. Rather than saying that a parent has a tight to have contact with his or her child, we cather say that a child has a right to contact with both parents.°° VII International Child Abduction The topic of this book is the abduction of children by their own parents. This means that one of the parents moves with a child to another country without the consent of the other parent, assuming that this other parent has a right to (co)determine the residence of the child. A certain degree of disagreement exists on terminology, especially when one parent has ‘custody’ and the other has ‘access rights’ combined with ‘parental authority” or ‘parental responsibility’. According to some authors the convention cannot be applied to obtain the return of the child who has been abducted by the parent with ‘custody’ if the other parent had only ‘access rights’ combined with ‘parental authority’ or ‘parental responsibility’.*° The’ statement in the Brussels II bis Regulation that ‘parental responsibility” includes both ‘rights of custody’ and ‘rights of access?” is not helpful, as it does not solve the question of the exact ambit or ‘parental responsibility’ for non-custodial arent Peas iusibeen explained in the paragraphs above, residence arrangements for children vary in different states and there is not always a clear line to be drawn between ‘custody’ and ‘access’, or between ‘care’ and ‘contact’, for instance in cases where children live alternately with their mother and father, or where they have ‘primary residence’ with one parent and ‘secondary residence’ with the other For purposes of this research, the perspective has been taken that taking the child to another country without the permission of a person with parental authority amounts to abduction, and also if the latter person had access rights only. While I realise that this is not a universally accepted approach, it is closest to the practice of Belgium, where the data were analysed. This discussion in itself, in my view, indicates to a certain extent the inadequacies of the law to deal sufficiently with the problem of international child abduction. Of course a legal framework is important. However, the root of the problem is family disputes and parents not respecting the children’s rights to contact with the other parent. On this point, awareness and respect need to be cultivated and parents have to be assisted to resolve their conflicts with regard to the essential rights of children. The abduction can consist of taking the child to another country, or of retaining the child after a lawful visit in a country other than that of the habitual residence of the child. The Hague Convention uses the terms ‘wrongful removal’ and ‘wrongful retention’.°° In fact, these words more appropriately describe the wrongdoer’s actions: it is not always a kidnapping, but it can be that a parent simply does not allow a childto return after a lawful visit. In fact, the wrongful retention of the child is a frequent form of child abduction: a parent takes the child for a holiday and never returns. This holiday can either take place in a country in which the parent is already living, or in another country. It often happens that this is a country where the abducting parent has strong ties, for instance he or she is originally from that country, or his or her parents live there. “International’ thus refers to the crossing by the child of a border: he or she is moved to or retained in a country other than that of his or her habitual residence. Various other ‘intemational’ elements are irrelevant. For instance, the nationalities of the parents and of the child are of no consequence. If, for instance, a Belgian couple lives in Thailand with their Belgian child for a limited period of time, if one parent decides, without the consent of the other parent (with parental authority) to ‘return home’ with the child, this is considered child abduction. The term ‘abduction’ is not seen by all to be the appropriate one for the problem under consideration. Some think that this term has too strong a criminal connotation. In this sense, one of the judges that was interviewed in the course of this study said that the word ‘abduction’ is not a good one. It sounds severe and it provokes a parent to defend his or her actions, saying that he or she did not ‘abduct’ his or her own child.*" It is, however, the legal term and therefore it is used in this book as well. VIII Abducting Parent The term ‘abducting parent’ is used to refer to the parent who has wrongfully removed or wrongfully retained the child. As will be seen in the analysis of the results, this is most often the child’s mother or father.4! However, in some cases a child is abducted by a grandparent who has parental responsibility for the child. An abducting parent can be the parent with whom the child had his or her principal or secondary residence or one of the parents in a case of alternate residence. It can also be a parent who had contact rights only. IX Left-behind Parent ‘The left-behind parent is the other parent: the one staying behind in the country of the child’s habitual residence. This parent has not consented to the removal or retention of the child. In this sense his or her parental authority or parental responsibility is being denied by the abducting parent. A leit-behind parent can be a parent where the child had his or her principal or secondary residence, or alternate residence. It can also be a parent who had only contact rights with respect to the child. This is also the case in Belgium: see art 388 of the Belgian Civil Code 2 See in general A Bergmann, M Ferid and D Heinrich (eds), Internationales Ehe- und Kindschaftsrecht (Frankfurt-am-Main, Verlag fir Atandesamtswesen GmbH, 1980-present looseleai). > Belgian Code on Private International Law, Act of 16 july 2004, Moniteur belge 27 July 2004, art 34 # E Joyme, J Pauwels and W Pintens, ‘Burundi in Bergmann et al, Internationales Ehe- und Kindschaftsrecht (1980), ® See chapter three section entitied “Age of the Child” below. ® ‘See the Explanetory Report on the 1980 Hague Child Abduction Convention by E Pérez-Vera, Acts and Documents of the Fourteenth Session (1980), tome Ill, Child abduction, also available ~ at ‘wiww.hiech.netindex_en. php?act=publications. detailsSepid=27798edtid=3 449-450. This Convention was negotiated by the Hague Conference on Private International Law. For the full text see www.licch.nevindex_en, php ect~conventions.text&cid=24 ® This Convention was concluded under the auspices of the Council of Europe. See www.coe.int. © Hague Convention art 4 and Luxembourg Convention at La. © Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L93B/1 (The ‘Brussels Ik bis Regulation’. ‘Y Brussels II bis Regulation art 10. + ‘This is the argument supported by the Belgian Central Authority. (This emerged from the interview with persons working with the Central Authority.) See generally M Freeman, ‘Rights of Custody and Access under the Hague Child Abduction Convention —“A Questionable Result?” ‘ (2000) 31, California Western International Law Journal 39-12. See also SE Reynolds, “International Parental Child Abduction: Why we need to Expand Custody Rights Protected under the Child Abduction Convention’ (2006) 44 Family Court Review 464-77. "Hague Convention art 5; Brussels I bis Regulation Art 2(9), 8 Hague Convention art 3. © Case C-400/10 JMcB v LE, not yet reported in ECR (judgment of 5 October 2010). © On the interface between the Hague Convention (1980) and the Brussels 11 bis Regulation, see chapter 6, section entitled ‘Combination of Brussels 1! bis and Hague Child Abduction Convention (1980) °® Hague Convention att 5; Brussels I bis Regulation art 2(10), See the Hague Conference on Private Intemational Law’s “General Principles and Guide to Good Practice ~ ‘Transfrontier Contact Concerning Children’ (2008), especially xxvi. Brussels IL bis Regulation arts 8 and 10. 21 Case C-523107 A [2009] ECR 1-2805 [35]. 2 See N Lowe and G Douglas, Bromley’s Family Lav, 10t edh (Oxford, Oxford University Press, 2007) 633-39; T Vivatvaraphol, “Back to Basics: A Child's Habitvial Residence in International Child Abduction Cases ‘under the Hagute Convention’ (2009) 77 Fordham Law Review 3325-66. 2 Belgian Code on Private Intemational Law, Act of 16 July 2004, Moniteur belge 27 July 2004 art 4§ 2(1). > Lei du 18 juillet 2006 tendant d privilégier I’hébergement égalitaire de l’enjant dont les parents sont séparés et réglenentant l'exécution foreée en matiére d'hsbergement enfant; Moniteur belge 4 September 2006. This system is also gaining support in other countries such as Australia; see L, Sweet and C Power, ‘Family Law as @ Determinant of Child Health and Weltare: Shared Parenting, Breastieeding and the Best Interests of the Child” (2009) 18 Health and Sociology Review 108-18. * Introduced by Act of 4 March 2002. See att 373-2-9 of the French Civil Code. % K Boele-Woelki, ‘Verblijfsco-ouderschap: Regel of Uitzondering?” (2006) 28 Tijdschrift voor Familie- en Jeugdrecht 303, 2”” See ibid and the reaction by J Zander to Bocle-Woelki’s editorial, (2007) 29 Tijdschrift voor Familie en Jeugdreche 69. 2’ See chapter four, section entitled ‘Alternate Residence as Preferred System in Belgium’ 2 Wet van 27 november 2008 tot wijziging van Bock 1 ven het Burgerlijk Wetboek en het Wetbock van Burgerlike Rechtsvordering in verband met fet bevorderen yan yoorigezet ouderschap na scheiding en het fafschaffen von de mogelikheid tot het omzetien van een huwelik in een geregistreerd partnerschop, Staatsblad 2008, 500. This Act entered into force on 1 March 2009. See also F Ihili, ‘Het Verplicht Ouderschapsplan in Grensoverschrijdende Zaken’ (2009) 118 Familie- en Jeugdrecht 323-28. ® Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and measures for the Protection of Children (1996). 31 Brussels II bis Regulation art 2(7); 1996 Hague Child Protection Convention art 1(2) ® Brussels Il bis Regulation Art 2(7), © iid. i See the UN Convention onthe Rights ofthe Child of 20 November 1989, especialy the preamble and ats 3 an $= UN Convention onthe Rights of the Child art 93}, refering to ‘tho rgh of the child who is saparated from ‘one or both parents to maintain personal relations and direct contact with both parents on a regular basis...” See also, on the use of terminology, Lowe and Douglas, Bromley’s Fanily Law (2007) 369-70. They expiain that talking of ‘parental rights’ ampunts to a misleading use of ordinary language. In this repor, the terms are used as they appear in national law oF in international instruments, % On this debate see A Bucher, ‘Réforme en matigre d’enlvement d’enfants: la loi suisse” in G Venturini, and S Bariatti, New Instruments of Private International Law. Liber Fausto Pocar (Milano, Guiffre Editore, 2009) 181-197; M Bailey, “The Right of a Non-Custadial Parent to an Order for Retum of a Child under the Hague Convention’ (1996) 13 Canadian Journal of Family Law 287-19, * Brussels Il bis Regulation art 2(7). 88 Hague Convention att 1 ® See the Explanatory Report on the 1980 Hague Child Abduction Convention by E Pérez-Vera, Acts and Documents of the Fourteenth Session (1980), tome Il], Child abduction, also available at ‘www-hicch.net/index_en.php?act=publications.detailsSepid=27798cdtid=3, 441, “© Seo also B de Heart, Internationale Kinderontvoering. Oorzaken, Preventie en Oplossingen (Utrecht, Nederlands Centrum Buitenianders, 2002), who prefers to use the term ‘kindermeename’ (the taking of chilcren) see 13. *" See chapter five, section entitled ‘Relationship of the Abductor to the Child,ee: The Child I Introduction The main victim of international child abduction is the child. As will be seen in figures 1 and 2 below, most often small children are abducted. Having to move between countries takes a child out of his or her trusted environment, school, circle of friends and everything that is familiar. Some of these children adapt to their new environment and then have to return to the country of their habitual residence, to undo the wrongful removal or retention. After the return the child has to re-adapt, and sometimes re-learn a language he or she had forgotten, not having spoken it for several months, in some cases even a year or more. This chapter focuses on the child. It gives a statistical overview of the abducted children that were part of the dataset. It also focuses on information obtained from the interviews with parents. Unfortunately, children could not be interviewed in the course of this study. Therefore we have only the versions of the parents and of professionals having worked with abducted children. While this chapter gives information about the child, the child is of course central to the entire book. Therefore, in the chapters on the abduction itself (chapter five), on the quest for the return (chapter six), on the family’s life while the child is away (chapter seven) and on the aftermath of the abduction (chapter eight), the perspective of the child will be kept in mind. II Age of the Child A Mean Age of the Abducted Child In the 667 files which were analysed, 886 children were concerned. The ages of the children varied between zero and 17. Child abduction really touches young children: the mean age of abducted children is six. Moreover, 65% of all children are aged seven or younger, while 83.5% are 10 or younger. This finding is similar to that in Hungary. According to research conducted there by Kék Vonal, 54% of the children were under the age of six.‘Mean =6,02 100,04 N=886 80,05 2 § 6004 3 a 2 irs 40,05 2005 t 84 0 5 10 9 Figure 1: Age of Children at the Time of Abduction In cases where there is only one child in the family and that child is abducted, the mean age is even lower: 4.48. In 76.9% of the cases, the child was seven or younger. A similar trend is found when one looks at cases in which two or more children were abducted. If two children were abducted, the mean age of the younger was 4.94. In cases where three children were abducted together, the mean age of the youngest was 4.55. Where four children were abducted together, the mean age of the youngest child was 5.63. Ic is also interesting to note that the mean age of children abducted by their mother is lower than that of children abducted by their father. The mean age of the children that were abducted by their mother was 5.46 and that of children abducted by their father was seven. It makes sense that very small children (for instance babies) are more likely to be abducted by their mother, as these children might be physically more dependent on their mother.Mean =4,48 60,0"} 90,.0- 40.0-| Frequency 10,0-| ° 5 10 5 20 Figure 2: Age of Child at Time of Abduction where there is Only One Child in the Family B Sixteen and Seventeen-Year-Olds It has to be remembered here that, under the Hague Convention, only the return of children under the age of 16 can be requested." In cases where the Hague Convention is applicable, a file is not opened if the child is 16 or older at the time of the abduction. When a child reaches the age of 16, the file is closed, even if the child had not yet returned. On the other hand, Child Focus and the Ministry of Foreign Affairs have files for children up to 17 years of age and the bilateral protocols that Belgium has with Morocco and Tunisia are also applied until that age. Taking this into consideration, the number of 16 and 17-year-olds in the dataset is small, and maybe smaller than the number of these young people abducted in reality. Ill Correlation between Country to where Child is Abducted and His or Her Age ‘The research results did not point out any significant relationship between the age of the child and the country to which he or she is abducted. This had been investigated, in order to determine whether smaller children might more often be abducted to further destinations, or the opposite. However, we have not found any relevant correlation. IV Gender of the Child No significant difference was found between boys and girls. Of the abducted children, 50.6% were girls and 49.4% were boys. Nor is there a significant difference in the tendencies of mothers to abduct girls or boys, or fathers to abduct boys or girls. The fact that no correlation was found between the gender of the child and the abduction confirms the point that when working toward the prevention of child Materialabduction, one should not focus too heavily on the child. It is the family as a whole that should be addressed. A family conflict can get out of hand due to many factors and the child is just one of those. V Nationality of the Child ‘The nationalities of abducted children varied greatly, as the following sections show. A Dual Nationality According to the information in the dataset, at least 30% of the children had dual nationality. This figure might be higher in reality: the different nationalities of the children had not always been taken up in the files, either because it was not known to the case manager, or because it was not immediately relevant for purposes of opening a file and requesting the return of the child. This high number of dual nationals is important when one is seeking tools to prevent international child abduction. Where children have two nationalities, the institutions of two countries can issue identity documents such as passports for them. Thus for these children, it does not suffice to inform only the local authority issuing passports. One would also have to contact the embassy of the other country if one is worried about child abduction. However, a foreign embassy will not necessarily heed the demands and instructions of parents with a different nationality, local authorities or even courts. This is an important aspect that is often overlooked by parents and professionals alike. B Nationality of the Child in Cases of Abduction to Belgium Note that where information was available on dual nationality, both nationalities were taken into account in the figures below. This explains why the percentages below do not add up to 100. Of the children that were abducted from another country to Belgium, 35.8% were Belgian. 17% had French nationality and 17% had the nationality of the Netherlands. 8.2% of the children had the nationality of the United Kingdom. 6.3% were Moroccan, 4.4% Polish and 4.4% Turkish. Figures of the other nationalities were smaller. It is Clear from the analysis that many of the children abducted to Belgium had Belgian nationality. The second most frequently occurring nationalities were those of Belgium’s neighbouring states. The nationalities of children in other cases were diverse. It is, however, apparent that immigrant populations in Belgium were represented in the statistics. C Nationality of the Child in Cases of Abduction from Belgium Of the children who were abducted from Belgium to another country, 78.8% had Belgian nationality. 7% were French and 4.3% had the nationality of the Netherlands. 4% of the children were Moroccan and 2.5% were Lebanese (although this figure is inflated because six of the children were part of the same family and were abducted together). 2.1% of the children were Turkish and 1.7% were Spanish. 1.6% had the nationality of the Democratic Republic of Congo, while 1.4% were German, 1.4% Italian 1.3% Polish and 1.3% were Tunisian: As above, some of these children had dual nationality. In these cases, both nationalities have been taken into account in the figures below. This explains why the percentages do not add up to 100. Thus, we see that while many children are Belgian or have the nationality of one of the neighbouring states, the nationalities in other cases are quite diverse. The high incidence of Belgian nationality can be explained by the fact that the abductions often concem small children. These are often children born in Belgium and having some te with Belgium (eg at least one of their parents is Belgian and so they also obtain Belgian citizenship upon birth).aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.No, you must not mix tp the problems of adults and children. [. . .] If you don’t get along, you must find solutions so that the child can fove his father and his mother. 1 can tell you that just now, I called his mother to tell her on which day he will return, Atleast, I phone her. T don’t mix matters up. IX The Child’s Place in the Legal Proceedings A lawyer said that cases of intemational child abduction often raise conflicting elements, such as the law as opposed to the wishes of the child. He said that judges can be faced with situations in which they see the child flourishing in his or her new environment, while the law dictates that the child should return. Children that are abducted are often involved in a wide series of legal proceedings. First, there are the proceedings concerning the parental authority over them and their residence. These proceedings are sometimes conducted in parallel in two different countries, especially when the counties are not both bound by an international convention or European legislation. Other possible proceedings are those concerning the return of the child, under the Hague Convention or the Brussels II bis Regulation.’ During proceedings concerning children, emphasis is placed on the ‘best interests of the child’, Linked to that, there is much discussion on hearing the child in legal proceedings. A The ‘Best Interests of the Child’ The concept of the ‘best interests of the child’ is used in many legal instruments, such as the UN Convention on the Rights of the Child,* the Brussels IT bis Regulation,® the Hague Child Protection Convention® and the Charter of Fundamental Rights of the European Union,’ The 1980 Hague Child Abduction Convention refers in its preamble to the ‘interests of children’. The phrase Is often read in case law and in legal literature. It represents an ideal that is not controversial: everyone should guard over the best interests of children, as they are not yet in a position to ensure their own rights. ‘However, as soon as one seeks the practical implementation of the best interests of the child, one runs into difficulties. One of the professionals that was interviewed explained this difficult application by saying that there are at least three parties that rely on this notion: both parents and the public prosecution. Their interpretations of what is in the particular child’s best interests often differ. The concept is thus used without any underlying consensus.* When parents are involved in a dispute over with whom their child should reside, each of them often truly believes that the child is better off with him or her rather than with the other parent. Moreover, a practicing lawyer explained that this notion becomes even more difficult to apply in an international context. National prejudices are then added to the difficult conflict that is already at hand. Some people argue that returning the child to the country from which he or she had been abducted, is not always in his or her best interests. it is true that the Convention is sometimes used to retum a child to parents where the child has a secondary residence (in the case that the child was abducted by the primary caretaker). This has also led to criticism of the Convention:’ it is linked ta the realisation that more primary caretakers abduct their children than non-resident parents.'° ‘On the other hand, the lawyer explained, the Hague Child Abduction Convention has given an interpretation of what the bests interests of the child are. It is in children’s interests not to be abducted. Therefore an action of abduction should be reversed (the child should be returned). The Hague Convention compels parents to follow the correct legal proceedings, ie get permission from the Court before moving to another country. By doing so, the Hague Convention takes account of the interests of children more broadly, and not only of a specific child in a specific case. Moreover, the Hague Convention does not consider elements linked to a particular country, but upholds a general rule that the courts of the habitual residence of the child should hear matters of parental authority and the residence of children. In this way the Hague Convention of course works towards a structural solution, ie the prevention of international child abduction. The purpose is that parents should ultimately be aware that it serves no purpose to abduct a child, because the child willaa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.be sought in another European Union Member State, they have to explicitly justify in the judgment why the child has not been heard. Hearing the child is a sensitive issue that must be approached with care by all involved. A child who has been abducted, or who is in the eye of a heavy family storm, might be caught in a loyalty conflict. The child might feel responsible to protect one of the parents, he or she might not feel comfortable expressing his or her true feelings, or might be confused about those feelings. In many cases the child is manipulated or brainwashed. In cases where the child has been abducted some time before, the child might not have had contact with the left-behind parent for a number of months, and thus might have a false image of that parent. ‘Arguments both for and against hearing the child in abduction cases have been put forward during the interviews with parents and professionals. The arguments against hearing the child include that the child might be manipulated. A father whose child had been abducted said: So my ex wanted the judge to hear Eric when he was 8 years old so that he could choose; she probably newt enous hte her So te hao ehooie betes is mom a ad She hb no ADIMY empathise. This father understood the difficult position the child was in. After the conflict that had existed in this family, the father did not see it as appropriate to ask his son to choose between his parents. A left-behind mother said: And on a certain moment the Central Authority heard from Denmark that they were going to hear Anja ‘which | found unjustified, because I said that the child might be stirred up. You won't expect the child to say that she wants to return to her mother. She was brought up there fin Denmark], she gors to school there she has her friends there. He has totally alienated her from me, because a year has passed that she has not seen her mother, not heard from her, knew nothing of her .. . Now you are not going, to expect the child to say to the judge that she wants to come back to me. ‘This mother Jater said that she was in fact in favour of a child being heard, but that the judge should take into account that a child can be manipulated. One can see clearly from this quote that this mother was scared of losing her child because of what the child herself would say, while she was convinced that the child’s words would be influenced by the father’s views. For this reason some parents and professionals alike believe that it is not appropriate to hear a child: they argue that a child, even at the age of 14 to 16 years can still be influenced easily. Moreover, children of this age are not mature enough to decide on their own future. One mother told of her son that had stayed with his father after a vacation. He then lived on a boat and did not complete his schoo! education. Having seen the turn that his life had taken, she was of the view that his future should not be left in his own hands entirely, even though his views might be asked. Judges and psychologists warned against giving the child the idea that he or she may choose what will happen, in the minds of the children often translated to choosing between mom and dad. This aggravates the conflict of loyalty that children of divorced or divorcing parents already feel and it can give them a sense of responsibility which they are too young to assume. ‘Moreover, the return proceedings do not lead to the ultimate ruling of where a child will live: that decision remains with the judge of the child’s habitual residence. A judge said that it is hard to explain to a child what the exact meaning of the return proceedings are, while parents do not even always see the distinction between the proceedings clearly. A child might go to the wouble of telling the judge something about his or her life, but a judge in return proceedings has little scope to refuse return and might well be obliged to order the return of the child, despite his or her story, as the judge in another country has to rule on the substance of the matter, Judges often feel ill-equipped to hear a child. They are in fact asked to do the work of a social worker or psychologist, while they do not have the tools to identify signs that indicate that a child has been manipulated. Judges should be trained to specifically hear children that have been manipulated or brainwashed, phenomena that are not unique to child abduction, but that also occur in other cases in which the conflict is severe, It is not necessary that the judge him or herself hears the child: one could alsa ask a social worker or psychologist to hear the child and report to the judge. There have been some training sessions for judges on this topic, but additional sessionsshould be arranged. International sessions in which judges exchange their experiences would possibly also be helpful. ‘AS a judge had explained, it is important not to place an extra burden on the child. It is vital to really have the interests of the child at heart and this might not always mean hearing the child. Parents and professionals have, understandably, expressed their reluctance for children to be heard. As a next logical step, it can be said that where children are heard, special care must be taken. A judge said that when hearing a child she takes great care to explain to the child that he or she does not have to make the decision, but that that is the parents’ job in the first place. If they cannot come to an agreement, the judge has to decide, She tells children that, if they are unhappy with the decision afterwards, they should not be mad at themselves or their parents, but at the judge. This cautious approach should be welcomed. Furthermore, as an official from the public prosecution said in an interview, the way in which children are heard should be considered. If a judge hears the child him or herself, this must be done in a separate room. A judge can also ask a psychologist or social worker to hear the child. This can be done in a room with toys, where there is a kind soeephete: He said that professionals are trained to see when a child has been manipulated. Some children want to be able to tell their side of the story to the judge. A mother had Hague return proceedings instituted against her in Belgium, but as she had moved to Belgium with the consent of the father, the application was dismissed. In this case her son, who was 14 at the time of the proceedings, wanted to be heard in court. He wanted to be able to express his views. However, this did not happen. The lawyer said that it would not be necessary to hear the child because the case was strong enough as it stood. In this case, whether or not the child would be heard was decided in a utilitarian way: the case was strong enough without the child’s testimony. However, other factors must be attributed due weight as well: the child’s interests must be seen in a broader light than only winning a particular procedure. Tn conclusion, I would like to return briefly to Eric’s story, referred to above. He was heard and indeed expressed quite vehemently that he wanted to stay with his mother and said negative things about his father. The German judge (probably experienced in the hearing of children) saw through what the child said and came to the conclusion that he was being manipulated by his mother. The child now lives with his father and has regular contact with his mother. This solution that the judge opted for has the advantage that the child now has both his mother and his father, while the mother prevented contact with the father after she had abducted him to Germany. This indicates that with the correct attitude, the right amount of time attributed, and the required training, hearing the child can lead to a fair and lasting solution. X Conclusion ‘The most significant finding is the tender age of children who are abducted. Whatever the nationality or health situation of the child, being taken away from one of his or her parents is most often an unhappy event for a child. If one adds to this the long duration of abductions, the experience becomes traumatic for these children. The notion of the “best interests of the child’ is used broadly, by different parties, sometimes even requesting opposite things. The ‘best interests of the child’ is no magical formula, but has to be regarded for every case. The child should be central when this concept is used. When there is a dispute about the best interests of the child, a psychologist or social worker should be called upon to assess the situation. Alternatively, in very contentious cases, one should consider appointing a separate lawyer for the child, who can guard over his or her interests. This is of course an expensive option. The idea of the ‘best interests of the child’ should under no circumstances be used by a parent to obtain his or her own goals. * See chapter two, section entitled ‘The Child” 2 'See chapter four, section entitled ‘Disagreement between Parents about some Aspect of the Child’s Life,especially Illnesses and Disorders’ Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and ‘enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] 05 L338/1 (The ‘Brussels Il bis Regulation’) +" ‘The 1989 UN Convention on the Rights of the Child art 3(1) states: ‘In all actions concerning children, Juhether undertaken by public or private social welfare institutions, courts of lav, administrative authorities or legislative bodies, the best interests of the ehild shall be a primary consideration.” * Brussels Il bis Regulation recital 12 and art 15. © Hague Convention of 19 October 1995 on Jurisdiction, Applicable law, Recognition, Enforcement and Co- gparation in Respect of Parental Responsibility and Mesures forthe Protection of Children preamble and acts 8 7 “The wording of art 24(2) of the Charter of Fundamental Rights of the European Union is similar to that of art 3(1) of the Convention on the Rights of the Child. Article 24(2) siates: ‘In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must bea primary consideration.” Note that this Charter only entered into force with the Lisbon ‘Treaty, ie on 1 December 2009. Thus, it was not yet in force when the cases analysed in the course of this research were dealt with ® See also Th M de Boer and R Kotting, ‘Kinderontvoering en bet belang van het kind’ in De kant van het Kind, Liber Amicorum Prof Mr Miek de Langen (Arnhem, Gouda Quint, 1992) 301-13. "See, eg A Bucher, ‘Réforme en matidre d’enlévement d’enfants: la loi suisse’ in G Venturini and § Bariatti New Instruments of Private international Law. Liber Fausto Pocar (Milano, Guilfre Editore, 2009) 181-97, explaining several cases where this problem was felt quite acutely and led to public outcry. He also explains the response of Switzerland, proposing an amendment to the Convention. © See chapter five, section entitled “Abducting Parent and Residence of the Child” "| Tribunal de la Jeunesse / Jeugdrechtbank "2 The Youth Protection Act of 8 April 1965 (Loi Relative @ la Protection de la Jeunesse) art S6bis. "Information obtained from a telephone interview with Andcea Schulz, head of the Germany Central Authority "The Children Act (1989) § 1(3)(@). JF SeN Lowe and G Douglas, Bromley s Family Law, 10th edn (Oxford, Oxford Univesity Press, 2007) 481-82. The authors question whether this rule of English law is human rights compliant. '© UN Convention on the Rights of the Child (1989) art 12(2). This provision states that children must have the opportunity to be heard in judicial and administrative proceedings affecting them ‘either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rales of national law’ Charter of Fundamental Righis of the European Union art 24(1). "Hague Convention (1980) art 13. "© Brussels Il bis Regulation art 11(2) 2 Charter of Fundamental Righis of the European Union art 24(1). 8! Brussels II bis Regulation arts 41(2)(c) and 422(@) % ibid art 23(b), 2 ibid recital 19,The Family I Introduction This chapter is devoted to the families in which abductions have taken place. The focus is on the situation before the abduction: the relationship between the parents, the age and nationalities of the parents, the size of the family, the parental authority over the child, and the child’s residence. In the last instance it is important to look at the conflict that existed among the members of the family, usually between the parents, before the abduction. The research results give a picture of the families in which abductions took place. However, these families have not been compared to other unhappy families.! What we learn should therefore not be generalised. II Relationship between Parents The relationship between the parents at the time of the abduction is known for 634 (95.1%) of the 657 files. In 2.4% of the cases, the parents never lived together, nor were they ever married. In 7.3% of the cases, they had a relationship that was not officialised, ie they were living together, but were not married nor did they have a registered partnership. There was only one case (0.2%) where the parents had a registered partnership. This might be explained by the fact that the institution of registered partnership has existed in Belgium since 2000,? and is at this stage still much less common than marriage or informal living together. The parents were married in 20.2% of the cases. The parents were divorced in 27.8% of the cases. In 18.5% of the cases, they were separated but still married. In some of these cases, divorce proceedings had been instituted by the time the abduction took place. Sometimes the abduction happened just before the divorce judgment (which would also contain the ruling on the residence of the child). Information on whether or not divorce proceedings were pending is not available in all files. The mere fact that divorce proceedings had been instituted is not in itself relevant in my view. Most often the breakdown of the relationship is something gradual and whether or not a formal step has been taken, it is not the most important issue. In 22.7% of the cases, the parents were separated from a relationship that had not been officialised. In four cases (0.6%), the parents were separated from a registered partnership. In three cases (0.4%), one of the parents was deceased.Count a 5 $ # & 3 : s € a 8 @ ¢ & g ¢ ge #8 8 zB 8 a G2 3h z & z # “3 @ & 3 e 73 2 3 = i & 3 g a 8 a 4 @ & g 2 z a Figure 3: Relationship between the Parents: Various Categories When combining the different situations, we see that in 27.6% of the cases the parents still had a relationship, while they were separated in 69.6% of the cases (see figure 4 below). It emerged from the interviews that there were cases in which one parent (later the abducting parent) thought that the relationship was beyond repair, while the other parent did not see it in such a gloomy way. Thus, the abducting parent decided more or less unilaterally to end the relationship. In one case the left-behind mother said that there were tensions, but not a word had been spoken of divorce until the father called her from the airport in another country to where he had taken the children without her knowing. In the cases where the parents were already separated, the interviews pointed out that often the communication was not very goodNever lived together and never married & One parent deceased Still together © Separated Figure 4: Relationship between the Parents: Still Together or Separated III Age of the Parents The mean age of abducting parents was 34.13, the youngest being 17 and the oldest 60. Mean 04,13 N= Figure 5: Age of the Abducting Parent Material com direitos autoraisaa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.Ata certain moment. .. the crude situation was, I could not say it in another way, yes, literally, he simply did not want to be with me anymore. And that was actually very clear. And then i, well, at the ime, because I knew that I would go and live on my own, but financially, practically, in Belgium the wages are much higher, the rental costs much lower. rally have no captal of my own, You can do much more with a normal income in Belgium than in Italy. Plus, day care, well, all sorts of things. [.. .] Gradually, as the months passed, the idea grew that if really war futare for my son tat would make him happy, Because in everything I always thought that I cannot do that, take the child out of a mom-dadi situation, On the ather hhand, we had rows ina way that though that Ido not wan 10 do tis to my son either But then gradually Treally became convinced that I could best look after my son by leaving. And that required unbelievable effort on my part, ‘This mother’s story vividly indicates the battle that she was going through, being very unhappy and seeing no other way out. Unfortunately, we could not find many abducting parents to interview, either because we did not have their contact details, or because they were not willing to be interviewed, or the left-behind parents did not want us to interview them. However, this account convinced me that abducting parents often remove or retain their child because they are really unhappy in their situation. D Individual Mental or Psychiatric Difficulties In one case, the abducting mother had depression, according to the father. He said that she was not happy in Belgium and never managed to make a satisfactory life for herself in this country. In another case, the mother more specifically had post-natal depression (again, according to the father). She had two children with only one year age difference According to the father, she had never really got over the depression since the birth of the first child. The depression was reinforced by losing her father about a year after the birth of her second child. Because of the distance to Australia, where her father was terminally ill, and because of having to wait for sufficient funds to buy a plane ticket, she did not manage to make her way to Australia before her father died: he died while she was on her way by plane. The father thought that she also blamed him for not having seen her father in time. He thought that she had wanted to make amends with her father, since they had never had a good relationship, but then never managed to do this. At the time when the father was interviewed, the children were with the father, and he was bringing them up with the help of his own mother. The children’s mother was still away, had little contact with her children and, according to the father, was still struggling with putting her own life back on track. Another mother had borderline personality disorder. This had been diagnosed and the left-behind father explained the unpredictable and erratic behaviour that resulted. She had gone to a psychiatrist and was given medication, which helped a lot. However, this interfered with her contraceptive pill and she became pregnant. While pregnant, she could no longer take the medication and she relapsed after 10 days. She did not receive therapy during her pregnancy, nor after the child was born. The father explained that the mother exaggerated certain matters, often overreacted and sometimes took the smallest comment on his part totally out of proportion. She was impulsive and unpredictable at times. She had left their home 18 times in 18 months. Three of these times she went to Morocco. The other times she went to women’s refuges. She always returned after two or three days, until the time when she abducted the child. This time, after some conflict over New Year, she arranged her and the child’s departure to Morocco (including obtaining a passport) in only seven or eight days. Her track-record indicates how unstable she was and how this finally led to the abduction, The father explained that the situation was unlivable; that the relationship was impossible. I had not heard this mother’s account, but it is clear that both she and the father suffered. The child was still a baby when all of this happened and it is not possible to say what the influence was on the child. The father was afraid of a recurrence of the abduction, These three accounts of mental illness tell of severe circumstances. However, these interviewees had not been deliberately chosen and these facts only emerged from the interviews. It is possible that the prevalence of depression, post-natal depression and other mental or psychiatric problems is indeed high; this research study does not have figures on this matter. However, irrespective of how often the heart of the problem is psychiatric, what can be said is that this is a source of conflict that has to be identified and addressed at the appropriate time, ie before it gets out of hand.aa You have either reached a page that is unavailable for viewing or reached your viewing limit for this book.abducted wanted to advise parents to make sure that the mother (or the parent that might abduct the child) is respected and is happy in Belgium so that she does not fee! the urge to leave. In this father’s view, this included allowing the mother to travel with the children to her country for holidays of two months, even if there was a risk. A former ambassador who was interviewed, said that it is important to make sure that a parent coming from a different country is happy in Belgium. He said that the more integrated a person is in Belgium, the smaller the chance tat he or she will leave. He said that a parent should encourage an immigrant partner to learn the language and to pursue professional activities in Belgium. He said that such encouragements and assistance should carry on, even after divorce. F Disagreement between Parents about Some Aspect of the Child’s Life, Especially Illnesses and Disorders In two cases the parents had severe disagreements about medication the child needed. One parent thought that the medication was essential while the other parent was of the opinion that this was exaggerated and that there was nothing ‘wrong’ with the child. In one of these cases, the medicating parent was the abductor, in the other case the non- medicating parent. In one of these cases, the left-behind father said: So, he supposedly had all kinds of illnesses, but in the end it became clear that it was nothing. That was always a subject of discussion and then he was not allowed to come and visit me because I had not given his medication. Also because I wasn’t really convinced about... his illness. Come-on, there was nothing wrong with him, Similar to the situations of illnesses, a lefi-behind mother explained that her son had Attention Deficit Disorder and an autistic spectrum disorder. This was diagnosed in Belgium and the child’s education was adapted. The father, however, did not believe this. In Spain, to where he had abducted the child, the diagnosis was that there was nothing wrong with the child. He went to a normal school. The mother even thought that the dispute on the medical condition of her son was the main reason for the abduction Looking back on this dispute and its consequences, she said: ‘And then itis this powerlessness, because I very often felt that, the powerlessness, since the beginning, in the sense of my child is being abducted, I did nothing wrong, he is asking custody. OK, every Tather and every mother fights for his or her child, but simply the powerlessness that [always felt and I always had to prove myself, that I am a good mother and I can’t help it if doctors decide what is the matter with my child. I’m nota doctor, | also notice that there is something wrong with my child, but what? If the doctors, Various doctors, say this and that is the matter with your child, then T am not going to say hey, that fs not crue, he does not have that condition, And the father, he always had serious doubts about this, and I don’t know ‘whom he bribed over there in Spain to claim that there is nothing wrong with his child Another mother, similarly, said that her son went to a special school. The abducting father, however, had put him in a regular school in another country. Here again, one can see that the parents disagreed about what was best for the child and on what the child really needed. It was striking how often this type of conflict arose in the interviews, while it was not at all researched in the quantitative analysis, and no ground for selection of interviewees. While there is not representative data, it is clear that the differences in parents’ views on how to deal with a specific prablem of the child or with the child’s education can cause great conflict. This is something that is difficult to deal with, as both parents seemed Convinced, it appeared from the interviews, that they were acting in the best interests of the child and that the other parent was either being irresponsible or was overreacting. Moreover, this is a type of difficulty that cannot be predicted or thought through before having children: it is something that only arises at the time. It is therefore understandable that this can lead to conflict. G New Partners The interviews pointed out that in a number of cases the abduction was instigated by the abducting parent’s new partner. This does not mean that the new partner