International Child Abduction: The Inadequacies of the Law 9781472565624, 9781849461566

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series editors’ preface This book is the first in a trilogy on international child abduction that will be published by Hart in the Studies in Private International Law Series. The other two relate to mediation and to the impact of the EU Regulation that deals with child abduction (Brussels IIa). This book encompasses all aspects of international child abduction through the lens of an empirical study of the open files on abductions to and from Belgium in 2007 and 2008. It sheds light on the operation of the Hague Child Abduction Convention of 1980, on Brussels IIa (referred to in the book as Brussels IIbis), on the bilateral agreements that Belgium has with Morocco and Tunisia, and on cases of child abduction where no international instrument applied. However, the book is not a piece of traditional, analytical legal scholarship. It does not engage in a systematic legal analysis of the provisions of the Hague Convention, of Brussels IIa, or of the Bilateral agreements. Instead the book reveals to us the stories of the left-behind parents, a few of the abducting parents, and many of the professionals involved (eg lawyers, judges, psychologists, and people working for Central Authorities). As a result it greatly enhances our understanding of the effects that international child abductions have on people. It helps those of us who are private international lawyers to contextualise the work we are doing and to be challenged to engage with and understand the human suffering involved. Insights are given as to how the levels of human suffering can be reduced but the author does not impose her ideas: much is left to the reader to draw his or her own conclusions from the rich diet of empirical material presented in terms of statistics and extracts from interviews. Whilst the statistical information presented by the author is sometimes nuanced and must be studied in the context of the author’s detailed discussion in the text, some notable facts that struck us as readers are highlighted here. 70 per cent of abductions in the survey were done when the parents had already separated (p 42); 65 per cent of abductions were done by mothers (a figure broadly consistent with other empirical research findings) (p 75) but in abductions to the Middle East and North Africa a large majority were by fathers (p 78); 75 per cent of abductions were done by the parent with whom the child principally resided (p 84); 52 per cent of abductions took place during holiday time (p 91); 60 per cent of abductions were done in families with only one child (p 50) but where families had more than one child the abducting parent abducted all the children in 91 per cent of the cases (p 94). The interviews revealed that in several cases abductions were done when only one parent had wanted the child to be born (p 62), that mental illness is associated with some cases of abduction (p 65), and that in some cases abductions follow on clashes between parents about the child’s

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Series Editors’ Preface

education or health care (p 68). The success rate for Hague Convention cases where the child had been abducted from Belgium and returned to Belgium as a result of Hague proceedings was 67 per cent and the average length of the abduction in cases in which the child was returned was 11 months (p 115). Perhaps surprisingly the success rate for the Brussels IIa Regulation in the same category – cases where the child was abducted from Belgium and returned to Belgium as a result of Brussels IIa proceedings – was lower at 65 per cent with an average length of the abduction being 14 months (p 117–18). This superior performance of the Hague Convention over Brussels IIa is also recorded at p 185-86. Amazingly, and inexplicably, the best return rate and duration figures were for cases where there was no international instrument applicable, ie 76 per cent and 6 months (p 152–53). However, the overall statistics on duration of abductions show Brussels IIa as marginally better than the Hague Convention but both with an average of between 7 and 8 months whereas the cases with no legal instrument had an average of 20 months (p 167). Encouragingly, counter-abductions took place in only 7 out of 382 abduction cases (p 154). However, the book is not just a rich mine of statistical information. It often gives us insights into the minds of abducting and left-behind parents and the impact on the children. On page 204 an abducting mother records how her 14-year-old-child learnt that abduction is a wrongful act that may not have any punishment and attributed this to his assertion that he could do what he wants because society would not punish him. Thalia Kruger concludes from her interviews with parents that society needs to give more support to families that have been through an abduction after the child has been returned (p 211). One of her final conclusions is to reinforce the findings of earlier research that enforcement of return orders remains one of the most difficult issues in child abduction cases and that ‘creativity is necessary to find adequate solutions’ (p 229). This book is another important piece in the puzzle of understanding the phenomenon of parental child abduction and how global society should respond to it. It is also rooted firmly in the context of one European country, Belgium, and how it responds to international child abduction. The research is meticulous and therefore the data is reliable and illuminating. Paul Beaumont Jonathan Harris 

Preface This book is based on the results of a research project commissioned by Child Focus, in cooperation with the Katholieke Universiteit Leuven and the Université Catholique de Louvain. The project was funded 75% by the European Commission. The Belgian Ministry of Justice also contributed financially. The author was the main researcher in that project, but the ultimate result would not have been possible without the efforts of others. First of all, the project was managed by Child Focus, a Belgian non-governmental organisation working with missing and sexually exploited children. The project manager, Hilde Demarré, ensured the smooth running of the research and assisted with some of the interviews and the coding of the data. Child Focus’s Chief Executive Officer, Kristine Kloeck, Chief: Study and Prevention, Ellen Stassaert, and that department’s administrative assistant, Muriel Michiels, supported the research. The academic partners, Professor Marie-Claire Foblets of the Katholieke Universiteit Leuven and Professor Sylvie Saroléa of the Université Catholique de Louvain provided valuable advice, especially with regard to the methodology. They read and commented on previous versions of the research report and book. The Belgian Ministries of Justice (Central Authority for mutual legal assistance in civil matters, of which international child abduction forms a part) and Foreign Affairs were closely involved in the research. The ministries could not be involved in the project as formal partners. However, their cooperation was an indispensable part of the study. They provided data from their administrative files to complement the data assembled at Child Focus. Particular thanks go to Josiane Paul, Karlijne van Bree and Salomé Petter. In order to comply with Belgian privacy legislation, the involvement of an intermediary organisation was necessary. Mr Baudouin Vanderhulst, honorary ambassador, took this role upon himself on a voluntary basis. Without his hours of toil, this project would have been impossible. Apart from the project partners, a Steering Committee, composed of people who had broad knowledge and/or practical experience of international child abduction, advised the researcher at various meetings. Its members were Daniel Bernard (Magistrat de Liaison for Belgium in Morocco), Hanne Claus (case manager at Child Focus), Sabine De Bauw (Judge at the Court of Appeal, Ghent), Kristine Kloeck (Chief Executive Officer of Child Focus), Anne Leclercq (public prosecutor), Julien Magotteaux, previously Sigrun Debaillie (State Department of Family Affairs), Josiane Paul (Central Authority for mutual legal assistance in civil matters, situated within the Ministry of Justice), Salomé Petter (Ministry of

viii Preface Foreign Affairs), Silvia Pfeiff (Advocate), Nicolas Sauvage, previously Eimear Long (legal officers at the Hague Conference on Private International Law), Karlijne Van Bree (Central Authority for mutual legal assistance in civil matters, situated within the Ministry of Justice), Baudouin Vanderhulst (Former ambassador to Algeria; intermediary for purposes of the transfer of data), Karin Verbist (Advocate). The unit on civil justice within the European Commission’s Directorate General (DG) on Justice, Freedom and Security was invited to participate in the Steering Committee, but declined on the basis that the European Commission co-financed the project and it could therefore not be involved in this manner. This book includes views and opinions that I have developed in the course of doing the research and analysing the data. They in no way bind the institutions represented in the Steering Committee. The comparative legal research was enhanced by the papers the third year law students of the KU Leuven wrote for the tutorial of Foundations of the Law (2009). The information was complemented with the aid of Andrea Schulz, Head of the German Central Authority and Edward Devereux, a barrister in London. A similar study to this one was undertaken simultaneously by Kék Vonal, a Hungarian non-governmental organisation. While the research teams were in contact with each other, the studies were primarily conducted independently. The Hungarian project was the subject of a separate research report. Where possible, the results of the Hungarian research have been included in this book by way of comparison. These results were not published in their entirety, due to privacy constraints. My father, Albert Kruger, as always, read my work and corrected errors. Eric, Dagmar and Kobe accepted me into their family that had been broken up but not shattered by the separation of dad and mom. They created the space I needed to complete this work. In the last instance, a warm word of thanks goes to all the participants who were willing to be interviewed. These include professionals who took the time to share their knowledge and insights, and parents who gathered their energy to explain some of the most difficult experiences they have lived. Thalia Kruger, Leuven, December 2010 [email protected]

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 from 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

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List of Figures

Figure 28: Legal Instrument Applicable in Country from where the Child was Abducted to Belgium Compared to Return 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 Return per Legal Instrument (Abductions to Belgium) Table 10: Time between Abduction and Return per Legal Instrument (Abductions from 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)

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.1

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 hurt the other parent. Some parents believe that their children will be better off in another country or without their other parent. Some people flee 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. I believe that the results are of interest to a broader public than just Belgium.   A mother whose children had been abducted by their father.

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2 Introduction Many of the results correspond to the findings of a similar research project done in Hungary2 and to international research.3

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 concern 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 2   Research project by Kék Vonal, a Hungarian non-governmental organisation (NGO) working with children’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. 3  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 International Child Abduction, Part I – Overall Report’, Preliminary Document No 3, Part I on International Child Abduction (2008), available at www.hcch.net/index_en.php?act=publications.details&pid=4449&dtid=2.

Methodology 3 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: •  297 of Child Focus. •  71 of the Ministry 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 return 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

4 Introduction abduction was recorded only once. In order to respect the privacy of the persons concerned, 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.4 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 return 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.5

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 return 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).6 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 Ministry of Foreign Affairs, a parent might continue to search for   This work was done on a voluntary basis.   For a full list of the variables, see annex I.   See subsection A entitled, ‘Methodology for the Quantitative Research’ above.

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Methodology 5 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

6 Introduction 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 return 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

Methodology 7 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 Regulation7 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 II 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.8 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 complement 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 7   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 L338/1 (‘Brussels II bis Regulation’). 8   See annex III.

8 Introduction 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,9 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 international 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.10 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.

  Conseil supérieur de la justice / Hoge Raad voor de Justitie.   See annex IV.

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Respect for Privacy

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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,11 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 concerned, 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 before they could be interviewed. Persons were contacted by the person who managed their case (at one of 11   Loi du 8 décembre 1992 relative à la protection de la vie privée à l’égard des traitements de données à caractère personnel and Arrêté royal du 13 février 2001 portant exécution de la Loi du 8 décembre 1992 relative à la protection de la vie privée à l’égard des traitements de données à caractère personnel. See www. privacycommission.be.

10 Introduction 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 form12 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.

  See annex II.

12



Limitations of the Research

11

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 born, before the 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 born soon after the commencement of the parents’ relationship.13 While such finding is both interesting and relevant, this research project did not have access to such information on a 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 nationality, 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 Affairs, the Central Authority (hosted by the Ministry of Justice) and by Child Focus. It was not possible within the ambit of one year to 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. 13   B de Hart, Internationale kinderontvoering. Oorzaken, preventie en oplossingen (Utrecht, Nederlands Centrum Buitenlanders, 2002) 34.

12 Introduction 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 cases.



Limitations of the Research

13

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 a 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 country 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.

14 Introduction 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, I 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.



Structure of this Book

15

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.14

14   It is not the purpose of this book to deal with all the legal rules and case law exhaustively: such discussion can fill a book by itself. A lot has been 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 international child abduction, see the bibliography for a non-comprehensive list of references.

2 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 18.1 (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.3 A 20-year-old national of Burundi living in Belgium will thus be regarded as minor and not major.4 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

  This is also the case in Belgium: see art 388 of the Belgian Civil Code.   See in general A Bergmann, M Ferid and D Heinrich (eds), Internationales Ehe- und Kindschaftsrecht (Frankfurt-am-Main, Verlag für Atandesamtswesen GmbH, 1980–present looseleaf). 3   Belgian Code on Private International Law, Act of 16 July 2004, Moniteur belge 27 July 2004, art 34. 4  E Jayme, J Pauwels and W Pintens, ‘Burundi’ in Bergmann et al, Internationales Ehe- und Kindschaftsrecht (1980). 1 2



The Child

17

are abducted.5 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.6 Therefore, The Hague Convention on the Civil Aspects of International Child Abduction (1980)7 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)8 have limited their application to children under the age of 16.9 The Brussels II bis Regulation10 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 parent to sign contracts, conduct bank accounts, etc. Generally, he or she still lives with his 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 II 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).11 Thus, if no return 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   See chapter three section entitled ‘Age of the Child’ below.   See the Explanatory Report on the 1980 Hague Child Abduction Convention by E Pérez-Vera, Acts and Documents of the Fourteenth Session (1980), tome III, Child abduction, also available at www.hcch.net/index_en.php?act=publications.details&pid=2779&dtid=3, 449–450. 7   This Convention was negotiated by the Hague Conference on Private International Law. For the full text see www.hcch.net/index_en.php?act=conventions.text&cid=24. 8   This Convention was concluded under the auspices of the Council of Europe. See www.coe.int. 9   Hague Convention art 4 and Luxembourg Convention art 1a. 10   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 L338/1 (The ‘Brussels II bis Regulation’). 11   Brussels II bis Regulation art 10. 5 6

18 Terminology issued a judgment not entailing return. 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.12 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 return 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 courts 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 II 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.13 For purposes of these instruments, ‘rights of custody’ 12   This is the argument supported by the Belgian Central Authority. (This emerged from the interview with persons working with the Central Authority.) 13  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.



Care and Contact

19

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’.14 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.15 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.16 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 Regulation17). 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.18 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 concern us, rights 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   Hague Convention art 5; Brussels II bis Regulation Art 2(9).   Hague Convention art 3.   Case C-400/10 JMcB v LE, not yet reported in ECR (judgment of 5 October 2010). 17   On the interface between the Hague Convention (1980) and the Brussels II bis Regulation, see chapter 6, section entitled ‘Combination of Brussels II bis and Hague Child Abduction Convention (1980)’. 18   Hague Convention art 5; Brussels II bis Regulation art 2(10). 14 15 16

20 Terminology see each other frequently. Contact with a grandparent, other relative or close friend may also fall into this category.19

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 II bis Regulation. Habitual residence refers to the place where the child generally lives, has attachments such as friends, youth movements, social clubs, sports, etc 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 II bis Regulation also refers to the ‘habitual residence’ of the child.20 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.21 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.22 Questions arise particularly where families move, especially in times 19   See the Hague Conference on Private International Law’s ‘General Principles and Guide to Good Practice – Transfrontier Contact Concerning Children’ (2008), especially xxvi. 20   Brussels II bis Regulation arts 8 and 10. 21   Case C-523/07 A [2009] ECR I-2805 [35]. 22   See N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 633–39; T Vivatvaraphol, ‘Back to Basics: A Child’s Habitual Residence in International Child Abduction Cases under the Hague Convention’ (2009) 77 Fordham Law Review 3325−66.

Residence 21 of conflict. 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 country 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.23

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.24 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.

23   Belgian Code on Private International Law, Act of 16 July 2004, Moniteur belge 27 July 2004 art 4 § 2(1). 24   Loi du 18 juillet 2006 tendant à privilégier l’hébergement égalitaire de l’enfant dont les parents sont séparés et réglementant l’exécution forcée en matière d’hébergement d’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 a Determinant of Child Health and Welfare: Shared Parenting, Breastfeeding and the Best Interests of the Child’ (2009) 18 Health and Sociology Review 108–18.

22 Terminology In France,25 Germany and the Netherlands,26 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.27 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 countries 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.28 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.29 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.   Introduced by Act of 4 March 2002. See art 373-2-9 of the French Civil Code.  K Boele-Woelki, ‘Verblijfsco-ouderschap: Regel of Uitzondering?’ (2006) 28 Tijdschrift voor Familie- en Jeugdrecht 303. 27  See ibid and the reaction by J Zander to Boele-Woelki’s editorial, (2007) 29 Tijdschrift voor Familie- en Jeugdrecht 69. 28   See chapter four, section entitled ‘Alternate Residence as Preferred System in Belgium’. 29   Wet van 27 november 2008 tot wijziging van Boek 1 van het Burgerlijk Wetboek en het Wetboek van Burgerlijke Rechtsvordering in verband met het bevorderen van voortgezet ouderschap na scheiding en het afschaffen van de mogelijkheid tot het omzetten van een huwelijk in een geregistreerd partnerschap, Staatsblad 2008, 500. This Act entered into force on 1 March 2009. See also F Ibili, ‘Het Verplicht Ouderschapsplan in Grensoverschrijdende Zaken’ (2009) 118 Familie- en Jeugdrecht 323–28. 25 26



Parental Responsibility

23

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.30 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.31 Like ‘parental authority’, it can arise by judgment, by operation of law, or by agreement with legal effect.32 According to the Regulation, it includes both rights of custody and rights of access.33 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 educated34 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 right to have contact with his or her child, we rather say that a child has a right to contact with both parents.35

30   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). 32   Brussels II bis Regulation Art 2(7). 33  ibid. 34   See the UN Convention on the Rights of the Child of 20 November 1989, especially the preamble and arts 3 and 28. 35   UN Convention on the Rights of the Child art 9(3), referring to ‘the right of the child who is separated 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 Family Law (2007) 369–70. They explain that talking of ‘parental rights’ amounts to a misleading use of ordinary language. In this report, the terms are used as they appear in national law or in inter­ national instruments.

24 Terminology

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’.36 The statement in the Brussels II bis Regulation that ‘parental responsibility’ includes both ‘rights of custody’ and ‘rights of access’37 is not helpful, as it does not solve the question of the exact ambit or ‘parental responsibility’ for non-­ custodial parents. As has been 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’.38 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. 36  On this debate see A Bucher, ‘Réforme en matière d’enlèvement d’enfants: la loi suisse’ in G Venturini, and S Bariatti, New Instruments of Private International Law. Liber Fausto Pocar (Milano, Guiffrè Editore, 2009) 181–197; M Bailey, ‘The Right of a Non-Custodial Parent to an Order for Return of a Child under the Hague Convention’ (1996) 13 Canadian Journal of Family Law 287–19. 37   Brussels II bis Regulation art 2(7). 38   Hague Convention art 1.



Abducting Parent

25

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 ‘international’ 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.39 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.40 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.41 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.

39   See the Explanatory Report on the 1980 Hague Child Abduction Convention by E Pérez-Vera, Acts and Documents of the Fourteenth Session (1980), tome III, Child abduction, also available at www.hcch.net/index_en.php?act=publications.details&pid=2779&dtid=3, 441. 40   See also B de Hart, Internationale Kinderontvoering. Oorzaken, Preventie en Oplossingen (Utrecht, Nederlands Centrum Buitenlanders, 2002), who prefers to use the term ‘kindermeename’ (the taking of children), see 13. 41   See chapter five, section entitled ‘Relationship of the Abductor to the Child’.

26 Terminology

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 left-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.

3 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.

28

The Child

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.

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. It 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.



The Age of the Child

29

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.1 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.

  See chapter two, section entitled ‘The Child’.

1

30

The Child

III  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 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



Nationality of the Child

31

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 concern small children. These are often children born in Belgium and having some tie with Belgium (eg at least one of their parents is Belgian and so they also obtain Belgian citizenship upon birth).

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The Child

VI  Country of Birth of the Child As it is difficult to determine a person’s origin objectively, a variable was created for the place of birth of the parents and the child. While a place of birth might be random, it often indicates some attachment the family has to that place.

A  Country of Birth in Cases of Abduction to Belgium Of the children abducted to Belgium, 12.7% were born in Belgium. 15.1% were born in France and 13.3% in the Netherlands. 7.8% of the children were born in Morocco and 7.8% in the United Kingdom. 4.8% of the children were born in the United States, 4.2% in Spain, 3.6% in Germany and 3.6% in Portugal. 3% were born in Poland, 2.4% in Italy and 2.4% in the Democratic Republic of Congo. The figures for other countries were small. The trend noticed here is similar to that seen in the analysis of the nationalities of abducted children. Relatively speaking, fewer children were born in Belgium. As these figures concern abductions of (generally speaking) young children, it should not come as a surprise that not many of them were born in Belgium.

B  Country of Birth in Cases of Abduction from Belgium The vast majority of these children (76.8%) abducted from Belgium had been born in Belgium. 2.8% of the children were born in France and 2.6% in the Netherlands. 1.3% were born in Germany, 1.3% in Italy, 1.1% in Romania and 1.1% in the United States of America. 1% of the children were born in the Democratic Republic of Congo, 1% in Spain and 1% in the United Kingdom. The figures for other countries were small. These trends are similar to those found when analysing the nationalities of the abducted children.

VII  Other Characteristics of the Child In the quantitative study, it was not possible to research all aspects of a child’s life, for instance his or her physical and mental health. First, this information was not always available in the files. Moreover, this is not a factor that was at all considered before the research was conducted (ie at the time when variables were identified for the quantitative analysis). However, it had emerged from a number of the interviews that parents had severe disagreements about the way in which they should deal with a particular



The Child and Family Conflict

33

health or behavioural problem of the child. This issue will be dealt with below, in the context of conflict within the family.2 In my view, the relationship between such problem a child might have and abduction is not a direct one, but an indirect one: it only features to the extent that it is a source of disagreement and conflict between the parents. The problem can cause stress, insecurity and sometimes even anxiety with the parents and these emotions can easily cause or aggravate conflict.

VIII  The Child and Family Conflict The analysis of the research results has pointed out that abductions are the result of family conflicts. This issue will be discussed further in the next chapter. The way in which children are dragged into family conflicts is cause for concern. While child abductions are the culmination of conflict between the parents, the child becomes the victim. Sometimes deliberately and sometimes unconsciously, many children become ransoms at the hands of a parent. Several professionals working with international child abduction referred to this problem during their interviews. Some of the parents also saw this. Two fathers emphasised the import­ ance of liberating children from the conflict between their parents. One father said it in this very clear way: No, you must not mix up the problems of adults and children. [. . .] If you don’t get along, you must find solutions so that the child can love his father and his mother. I can tell you that just now, I called his mother to tell her on which day he will return. At least, I phone her. I don’t mix matters up.

IX  The Child’s Place in the Legal Proceedings A lawyer said that cases of international 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 countries are not both bound by an international convention or European legislation. Other possible proceedings are 2   See chapter four, section entitled ‘Disagreement between Parents about some Aspect of the Child’s Life, especially Illnesses and Disorders’.

34

The Child

those concerning the return of the child, under the Hague Convention or the Brussels II bis Regulation.3 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,4 the Brussels II bis Regulation,5 the Hague Child Protection Convention6 and the Charter of Fundamental Rights of the European Union.7 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.8 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 return 3   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 L338/1 (The ‘Brussels II bis Regulation’) 4   The 1989 UN Convention on the Rights of the Child art 3(1) states: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ 5   Brussels II bis Regulation recital 12 and art 15. 6   Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children preamble and arts 8, 9, 10, 22, 23, 28 and 33. 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) states: ‘In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a 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. 8   See also Th M de Boer and R Kotting, ‘Kinderontvoering en het belang van het kind’ in De kant van het kind, Liber Amicorum Prof Mr Miek de Langen (Arnhem, Gouda Quint, 1992) 301–13.



The Child’s Place in the Legal Proceedings

35

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:9 it is linked to the realisation that more primary caretakers abduct their children than non-resident parents.10 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 be brought back to the place of his or her habitual residence where the dispute will be resolved.

B  Hearing the Child The requirement of hearing the child is different in the various countries and might also differ depending on the particular procedure at hand. In Belgium, children are not heard often in legal proceedings. In domestic cases which are brought before the youth court11 and which concern the child or his or her property, he or she has to be heard from the age of 12.12 However, other courts do not have the obligation to hear children, but may do so. Children are therefore not heard as a matter of course in divorce proceedings, even though they may be heard. The obligation to hear the child does not apply to return proceedings either, because these cases are brought before the courts of first instance in five jurisdictions, and not before the youth court. In the Netherlands, the Civil Code states that a child should be heard from the age of 12. However, in Germany, judges have an obligation to always hear children. This applies to children as young as three and in all proceedings which concern children, including custody cases and return proceedings. Judges have to 9   See, eg A Bucher, ‘Réforme en matière d’enlèvement d’enfants: la loi suisse’ in G Venturini and S Bariatti, New Instruments of Private International Law. Liber Fausto Pocar (Milano, Guiffrè 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. 10   See chapter five, section entitled ‘Abducting Parent and Residence of the Child’. 11   Tribunal de la Jeunesse / Jeugdrechtbank. 12   The Youth Protection Act of 8 April 1965 (Loi Relative à la Protection de la Jeunesse) art 56bis.

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The Child

personally hear children. These judges are under no obligation to follow training, but many family judges do follow training out of a sense of responsibility. The hearing of the child by the judge is in addition to the report by the Youth Welfare Office (obligatory in custody cases, but not in return proceedings).13 In England, judges have discretion as to the age from which they will hear children. The matter of hearing the child is taken up in the welfare checklist of the Children Act.14 It is not in all cases mandatory to apply this checklist. For instance, if a residence arrangement is not contested, it will not be applied.15 The result of the different approaches can make enforcement more difficult, even within the European Union. Let us now turn to the rules in the international instruments. The UN Convention on the Rights of the Child guarantees the right of a child who is capable of forming his or her own views to express those views freely in all matters affecting the child. A child shall be given the opportunity to be heard in any judicial and administrative proceedings affecting the child.16 This right was also taken up in the Charter of Fundamental Rights of the European Union.17 Regarding return proceedings, the Hague Convention provides that a return should not be ordered if the child objects to the return, and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.18 Thus, the Convention opens the possibility of hearing the child without placing an obligation on contracting states. The Brussels II bis Regulation goes further: it prescribes a positive duty for courts to hear the child unless it appears inappropriate considering his or her age.19 This is in line with the Charter of Fundamental Rights of the European Union, which enshrines the right of children to express their views. Such views must be taken into consideration in matters which concern the children.20 The Charter leaves some discretion to the Member States’ courts using the phrase ‘in accordance with their age and maturity’. Thus, there is no harmonisation of the age from which children have to be heard. In cases where a certificate will be sought under the Brussels II bis Regulation, the child has to be heard, unless this is inappropriate having regard to the child’s age or degree of maturity.21 Also, even in cases where there are no certificates, 13   Information obtained from a telephone interview with Andrea Schulz, head of the Germany Central Authority. 14   The Children Act (1989) s 1(3)(a). 15   See N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 481–82. The authors question whether this rule of English law is human rights compliant. 16   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 rules of national law’. 17   Charter of Fundamental Rights of the European Union art 24(1). 18   Hague Convention (1980) art 13. 19   Brussels II bis Regulation art 11(2). 20   Charter of Fundamental Rights of the European Union art 24(1). 21   Brussels II bis Regulation arts 41(2)(c) and 42(2)(a).



The Child’s Place in the Legal Proceedings

37

recognition or enforcement may be refused under the Regulation if the child had not been heard and if this is an infringement of the fundamental principles of procedure of the Member State where recognition is sought.22 These rules in some instances act as an incentive for judges to hear children. The Regulation explicitly states that it does not intend to modify national procedures with regard to the hearing of children.23 However, in practice it seems that the only possible way forward is for the laws of Member States to converge, or approach each other on this topic. If not, enforcement problems will continue to exist. In Belgium, judges feel compelled to hear children more often. They also realise that if they do not hear the child and there is a possibility that recognition or enforcement will 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 knew that he would choose her. So Eric had to choose between his mom and dad. She has no ability to 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 I 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 [in Denmark], she goes 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 later 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   ibid art 23(b).   ibid recital 19.

22 23

38

The Child

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 school 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 trouble 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 also 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

Conclusion 39 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 atmosphere. 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. In 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

40

The Child

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.

4 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 import­ ant 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 fami­ lies.1 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 667 files. In 2.4% of the cases, the parents never lived together, nor were they ever mar­ ried. 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 partner­ ship. There was only one case (0.2%) where the parents had a registered partner­ ship. This might be explained by the fact that the institution of registered partnership has existed in Belgium since 2000,2 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 1  As Leo Tolstoy famously wrote in Anna Karenina (1877), ‘Happy families are all alike; every unhappy family is unhappy in its own way.’ 2   See the Belgian Act of 23 November 1998, Loi instaurant la cohabitation légale, Moniteur belge 12 January 1999. The Act entered into force on 1 January 2000.

42

The Family

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 reg­ istered partnership. In three cases (0.4%), one of the parents was deceased.

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 leftbehind 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.



Age of the Parents

43

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 old­ est 60.

Figure 5: Age of the Abducting Parent

44

The Family

Figure 6: Age of the Left-behind Parent

The left-behind parents’ ages differ slightly, the mean being 37.13, the youngest 19 and the oldest 68.

IV  Nationality of the Parents The nationalities of the abducting and left-behind parents and of the children varied greatly. In total, more than 100 nationalities were represented in the data­ set. There were also people who were stateless and others who were recognised political refugees.

A  Dual Nationality A great number of the persons taken up in the dataset had dual nationality. Although this information was not available in all files, at least 17% of abducting parents had two nationalities. For left-behind parents, this figure was lower, but still noteworthy at 11%. The significant presence of dual nationality is relevant when one tries to get a full picture of the phenomenon of child abduction. It confirms the hypothesis that child



Nationality of the Parents

45

abduction particularly takes place in situations where couples are of mixed nation­ ality. This does not mean that having a partner of a different nationality is a risk factor for having one’s child abducted. Rather, it means that when couples of differ­ ent nationalities struggle, the difficulties in the relationship need to be addressed urgently and seriously. Couples should seek professional help before it is too late and explicitly address the issue of whether the expatriated parent would return to his or her home country if the relationship were to break up. They should consider the question of the residence of the children after separation and the way in which the children will be able to keep contact with both parents. Note that, in the figures below, the various nationalities of persons have been taken into account. This explains why the figures below do not add up to 100%.

B  Nationality/ies of the Abducting Parent in Cases of Abduction to Belgium The nationality/ies of the abducting parent are known for 114 cases in which the child was abducted to Belgium. In 45.6% of the cases, the abducting parent had Belgian nationality. In 11.4%, he or she had the nationality of the Netherlands. In 7% of the cases, the abducting parent was French, in 7% he or she was Moroccan, and also in 7% he or she was Polish. In 4.4% of the cases, the abducting parent had Turkish nationality. Other nationalities occurred in fewer cases.

C  Nationality/ies of the Abducting Parent in Cases of Abduction from Belgium In 429 of the abductions from Belgium, the nationality/ies of the abducting par­ ents are known. In 36.8% of the cases, the abducting parent had Belgian national­ ity. In 9.1% of the cases, the abducting parent had French nationality. In 6.3% he or she was Moroccan. In 5.1% he or she had Turkish nationality. In 3.6% of the cases, he or she had the nationality of the Netherlands and in 3.5% that of Tunisia. In 2.8% the abducting parent was Polish and in the same amount of cases Russian. In 2.6% of the cases, he or she had German nationality and in 2.4% Italian nation­ ality. Other figures were smaller.

D  Nationality of the Left-behind Parent in Cases of Abduction to Belgium In 110 cases of abduction to Belgium, the nationality/ies of the left-behind parent are known. In 8.2% of these cases, the left-behind parent had Belgian nationality. In 15.5% he or she had French nationality, and in 9.1% the nationality of the Netherlands. In 6.4% he or she was Moroccan. In 5.5% of the cases, the left-behind

46

The Family

parent had Polish nationality and in the same amount of cases the nationality of the United Kingdom or that of the United States of America. In 4.5% he or she had Spanish and in 4.5% Turkish nationality. Other nationalities were represented in fewer cases.

E  Nationality/ies of the Left-behind Parent in Cases of Abduction from Belgium The nationality/ies of the left-behind parent are known in 428 cases where the child was abducted from Belgium. In 77.3% of the cases, the left-behind parent had Belgian nationality. In 4% he or she was Moroccan. In 3.5% of the cases, the left-behind parent was French, in 3% Dutch and in 2.3% Turkish. Figures for other nationalities were lower.

V  Country of Birth of the Parents The place of birth does not necessarily reflect a parent’s attachment to a place, but it is sometimes a place where one still has family or friends. It might, despite nationality, be a place someone sees as ‘home’. In order to have more precise information on the country of origin of abducting and left-behind parents, research would have to be done by way of questionnaires. Research by question­ naire would be able to test a parent’s attachment to a particular place and the sentiment of calling a place ‘home’.

A  Country of Birth of the Abducting Parent in Cases of Abduction to Belgium In 112 abductions to Belgium, the country of birth of the abducting parent is known. In 35% of these the abducting parent was born in Belgium. In 8% of the cases, he or she was born in Morocco. In 7.1%, he or she was born in the Democratic Republic of Congo, also in 7.1% in the Netherlands and in another 7.1% in Poland. The abducting parent was born in France in 5.4% of the cases and in Turkey in 4.5%. Figures for the other countries were smaller.

B  Country of Birth of the Abducting Parent in Cases of Abduction from Belgium In 419 abductions from Belgium, the country of birth of the abducting parent is known. In 18.4% of the cases, the parent was born in Belgium. In 6.4% of the



Country of Birth of the Parents

47

cases, the abducting parent was born in France and in the same amount of cases in Morocco. In 6% he or she was born in Turkey. The abducting parent was born in the Democratic Republic of Congo in 3.6% of the cases and in Tunisia also in 3.6%. In 2.9% of the cases the abducting parent was born in Germany and in the same amount of cases in Poland. The abducting parent was born in Italy and in Algeria in 2.4% of the cases each. Figures for other countries were smaller.

C  Country of Birth of the Left-behind Parent in Cases of Abduction to Belgium Of the abductions to Belgium, information on the country of birth of the leftbehind parent is known for 109 cases. In only 6.4% of the cases, the left-behind parent was born in Belgium. Thus, in cases of abductions to Belgium, the leftbehind parent most often did not have a connection to Belgium. Where he or she did have such connection, it is probably because a Belgian family lived as expatri­ ates in a foreign country and one of the parents decided to return with the child. One father who was interviewed explained his and his wife’s plans. They had decided to spend a year in Asia with their small daughter. They both had their own projects to pursue there. They had followed courses and done research. After the first year had passed, the father wanted to stay longer, but the mother wanted to return. The father’s viewpoint was that they should complete their projects and that this possibility had been foreseen from the beginning. The mother, on the other hand, wanted to return. A period of conflict ensued and this resulted in the mother secretly planning her return to Belgium with their child. The country which was represented most in the dataset was France: 14.7% of the left-behind parents were born there. This number indicates once again the prominence in abduction files of other European Union countries, especially of neighbouring countries. In 8.3% of the cases, the left-behind parent was born in Morocco. In 5.5% of the cases, the left-behind parent was born in Poland. 4.6% of the left-behind par­ ents were born in the Democratic Republic of Congo, and the same amount each in the Netherlands and Turkey. In 3.7% of the cases, the left-behind parent was born in Italy, Spain, the United Kingdom, or the United States.

D  Country of Birth of the Left-behind Parent in Cases of Abduction from Belgium Information on the country of origin of the left-behind parent is known for 400 abductions from Belgium. In 59.8% of these cases, the left-behind parent was born in Belgium. Thus, the parents that are left-behind in this country have most often also been born here. This figure is not surprisingly high; on the contrary, one might have expected it to be higher. It indicates that some people of foreign

48

The Family

origin having moved to Belgium also become the victim of the abduction of their children. Some of these parents might have obtained Belgian citizenship, others live here as expatriates, eg for a few years due to an employment contract. 3.8% of the left-behind parents had been born in Morocco and the same num­ ber in Turkey. These countries make for the largest number of immigrants in Belgium and therefore the fact that they are most highly represented after Belgium itself is not surprising. The left-behind parent was born in the Democratic Republic of Congo in 3.3% of the cases. He or she was born in France in 2.5% and in the same amount of cases in the Netherlands. In the last instance, we see again the presence of the neighbouring countries.

VI  Differences in the Nationalities and Countries of Origin of the Parents In 48.9% of the cases, the parents had the same nationality or country of origin. (Cases in which the country of origin of one parent coincided with a nationality of the other parent have also been taken into account in this calculation.) In the remaining 51.1%, the dataset does not point out that there is a common nationality or country of birth. However, it is possible that some of these parents do have a common nationality, but that this information was not available in the files from which the information was taken. As has been explained, the case man­ agers are not always aware of dual nationality, or this might not be relevant for their purposes, and therefore the information is not always taken up in the files. While the conclusion we can draw from these numbers is limited, we do see that in a noteworthy number of the cases (even if it is less than the 51.1% that have been found) parents have different backgrounds. This can lead to difficulties. During the interviews, several parents explained that the fact that they were in an international or inter-cultural relationship made things more complicated. One left-behind mother had become quite bitter and said that Belgian nationals should be warned and protected against becoming involved in relationships with immigrants. However, others had a more nuanced view. One mother explained that being part of an international couple is not in itself the problem, but when the relation­ ship is not going well, the fact of being an international couple, of being an expat, aggravates the conflict. She added that conflicts in an international relationship have to be addressed in a timely manner; otherwise they might result in abduc­ tion, as they did in her case. The presence of different nationalities might also bring along cultural differ­ ences and sometimes religious ones. Parents can, for instance, have different perceptions about the education of their children, a matter with a heavy cultural and religious component.



Size of the Family

49

For reasons of privacy, we were not able to examine religious and cultural ele­ ments in the quantitative part of this research project. However, some of the interviews provided valuable insights. Cultural differences seem less important before than after the birth of chil­ dren.3 Issues such as circumcision, christening, the names of the children, and their education can cause tensions that did not exist before. If these matters are not addressed in a timely and appropriate manner they may escalate and in the worst case scenario a child is abducted to another country. Similarly, religion or culture can become more important after the break-up of a relationship, serving as a form of support, or an anchor in unknown waters. One mother explained the impact of her son’s father’s religion. His religion was not very important to him when they lived together, but it became essential after the divorce. (He was Jewish.) Thus, when the child visited his father after the divorce, the father always spoke about religion. The child did not like this and was not used to it. In this case, the different religions did not lead to the abduction, but it did change the father’s relationship with the child, and it caused conflict. It should not be thought that cultural differences exist only with respect to countries outside the European Union. A Belgian mother who lived in Italy explained her views on the Italian ‘macho’ culture.4 Moreover, a lawyer who was interviewed said that cultural differences even underlie the concept of parental responsibility and its joint exercise. She said that in some legal systems it is seen as self-evident that the child lives with the mother after divorce, unless there are exceptional circumstances. This is not the case in Belgium, where the legislation gives preference to not only the joint exercise of parental authority, but also alternate residence of the child after divorce. This fact might move foreigners to abduct their children, to get out of the Belgian system, so to speak. She told the story of a mother from another European country who considered abducting her child back to her country rather than risking the Belgian court ordering alternate residence.

VII  Size of the Family Abductions occur more often in small families than in large ones. This makes sense from a purely logistical point of view: it is much easier to organise and exe­ cute the abduction of a single child than of six children. Information on the size of the family is available for 658 files. 3   See H Amin, Reunited in the Desert (London, John Blake, 2007), explaining her relationship and family life before and after her four sons were abducted from Bali to Saudi Arabia by their father. See also B de Hart, Internationale kinderontvoering. Oorzaken, preventie en oplossingen (Utrecht, Nederlands Centrum Buitenlanders, 2002). 4   See section entitled ‘Difficulties in the Parents’ Relationship and Roles in the Family’ below.

50

The Family

Figure 7: Number of Children in Families where Abductions took Place

In the majority of cases, namely 60.3%, there was only one child in the family. 26.6% of the families comprised two children. In 8.4% of the families there were three children, in 3.5%, four children, and in 0.6% each five and six children. The results of Kék Vonal’s study in Hungary were that in 55.8% of the cases there was only one child in the family. Thus, one sees the same trend. However, a direct comparison is not appropriate, because judicial files were investigated for that study, and the number of files was smaller than for the Belgian study.

VIII  Parental Authority and Perceptions of it Of the 667 cases, information on the parental authority is available in 632 cases. In the majority of these cases, namely 87.8%, the authority was shared between the parents. Of these cases, the parents were separated in 64.8% of the cases and still together in 32.5% of the cases (23.8% married, 8.2% informal living together, 0.2% registered partnership). Data for the remaining 2.7% were missing. In 9% of the cases, the mother had exclusive parental authority. Of these cases, the parents were separated (legally or factually) in 86% of the cases. Included in this figure are couples that were still married, but factually separated (some of them in the process of getting divorced legally as well): they account for 14%. In



Parental Authority and Perceptions of it

51

only 1.8% of the cases they still had a relationship. In 1.7% of the cases (represent­ ing one case), the father was deceased and thus the mother had exclusive parental authority.5 For the remaining 10.5% of the cases, data were missing. In only 2.7% of the cases, it was the father who had exclusive parental author­ ity. The parents were separated in 94.1% of these cases. For the other 5.9% of the cases, data were not available. In one case another relative had parental authority. In two cases, such authority vested in someone not related to the family. This can be a natural person or an institution. These statistics are in line with the Belgian legislation, which gives preference to shared parental authority, whether or not the parents are married and whether or not the parents are living together.6

A  The Difficulties in Law and Practice of the Exercise of Parental Authority According to Belgian law, both parents share the parental authority over their children. This is the case irrespective of whether the parents are married or not, and irrespective of whether they are living together or not.7 This rule applies to all children who are habitually resident in Belgium, and not only to children with Belgian nationality.8 For a parent to have parental authority, his or her parenthood with regard to the child must be established. The mother is the person who is mentioned in the birth certificate.9 The presumed father is the person who is married to the mother. This presumption can, however, be reversed.10 If parents are not married, the father can officially declare his fatherhood at the child’s birth (at the time the birth certificate is drawn up) or at another stage (before or after birth) by authen­ tic act.11 The parental authority also remains shared after the separation of the parents.12 It can only be exclusively granted to one of the parents by a court judgment. This can be done, for instance, if the parents are incapable of reaching agreement on   The grandparents were the abductors in this case.   See the chapter two, section entitled ‘Principal, Secondary and Alternate Residence’. 7   Belgian Civil Code art 373–74. This provision makes no reference to marriage. 8   Belgian Code on Private International Law art 35. 9   Belgian Civil Code art 312. In Belgium it is not possible, as it is in some other countries, most famously France, to give birth anonymously. 10   A complete discussion of the Belgian rules on parenthood falls beyond the scope of this research report. For more information, see Y-H Leleu, Droit des Personnes et des Familles 2nd edn (Brussels, Larcier, 2010) 569−622; P Senaeve, Compendium van het personen- en familierecht, 11th edn (Leuven, Acco, 2008) 231–85; P Senaeve, F Swennen and G Verschelden (eds), De hervorming van het afstammingsrecht (Antwerpen/Oxford, Intersentia, 2007). 11   Belgian Civil Code arts 319 and 327. 12   ibid art 374. These provisions again make no reference to marriage, but only to whether or not the parents live together. 5 6

52

The Family

aspects of the child’s life such as his or her residence, health care, education, rec­ reation, or religious or philosophical orientation. Exclusive parental authority is not granted lightly: there must be serious reasons for doing so. Even if the exclusive parental authority is granted to one parent, the other par­ ent maintains the right to oversee the education of the child. He or she may gather all information in this regard and institute proceedings in the interest of the child. The parent without parental authority also keeps the right to contact with the child. This right can only be refused for serious reasons. If the parents do not live together, the court can also grant parental authority to one parent concerning a particular matter.13 For instance, parental authority remains shared, but one parent is granted the power to decide which school the child will attend. Thus, there is a broad spectrum of possible arrangements between joint and exclusive parental authority. However, this mixed system, according to which the parental authority is shared for some matters and exclu­ sive for others, is not often used in practice.14 In most legal systems, as in Belgium, the question whether one parent can take a child out of the country (for instance for holidays) is a question of the exercise of parental authority/responsibility. In England, however, a particular rule exists for taking the child out of the country. No parent may take his or her child out of the United Kingdom for more than a month without the written consent of every person who has parental responsibility.15 In France16 and in some states of the United States, there is legislation that requires a parent to inform the other parent of a change of residence. Contact arrangements can then be modified if necessary. These countries are bigger than Belgium, which means that a contact arrangement can be jeopardised by a parent moving to a different place, even in the same country. It is a useful rule to safe­ guard the child’s right to contact with both parents. This applies nationally and internationally, which corresponds to the current reality of borders that are easy to cross.

B  Application to International Child Abduction Instruments As has been pointed out in chapter two on terminology, the Hague Convention and the Brussels II bis Regulation17 use the term ‘custody’ to refer to rights and duties relating to the care of the child.18 This is a broad definition of the word ‘custody’.   ibid. See also Senaeve, Compendium (no 10) (2008) 357–58.   This finding emerged from interviews with professionals. 15   The Children Act 1989 s 13. 16   French Civil Code art 373-2. 17   Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recogni­ tion and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1 (The ‘Brussels II bis Regulation’). 18   See chapter two, section entitled ‘Custody and Access’. 13 14



Parental Authority and Perceptions of it

53

Thus, a parent with parental authority under Belgian law certainly qualifies as a person with custody under these instruments, irrespective of whether or not the child lives with him or her. As the most common scenario in Belgium is that the parents share parental authority, they will in most cases both have ‘custody’ under the international instruments. This fact, however, does not seem to be well-known by the public at large. A psychologist who was interviewed confirmed that there is a general lack of know­ ledge on the notion of joint parental authority and its meaning: people do not realise that they cannot move to another country with their child without the consent of the other persons that have parental authority over the child. Such a move would amount to a breach of the other parent’s parental authority rights, even in situations where there is no judgment and the action would thus not amount to a criminal offence. In the fight against child abduction, one of the important weapons is the spreading of correct information on what the law says. Parents are often confused and hear different stories, or simply do not realise that the fact that the child’s primary residence is with them does not mean that they can unilaterally decide that the child will move to another country. Moreover, one of the judges that were interviewed said that the common exer­ cise of parental authority often only exists in theory and not in practice. She said that one parent often decides on the school and that the consent of the other par­ ent is not always asked. While this may be the everyday reality, this does not have the effect that the other parent can be ignored in important decisions such as the moving of the child to a different country. Rather, it means that the other parent implicitly agrees with the choices made by the first parent. This information should also be spread among the public at large.

C  Knowledge of Third Parties, Including Local Authorities, of the Parental Authority over a Child In Belgium, information on the parental authority over a particular child is not readily available. While divorce orders are communicated by the registrar of the court to the local authorities, this is not the case for orders regarding parental authority. If a parent has exclusive parental authority, he or she must communicate this to the local authority him or herself if he or she wants it to be aware of this fact. The Civil Code provides that third parties who act in good faith may rely on a presumption that if a parent takes a decision in respect of the child, that decision is supported by the other parent.19 Third parties include natural persons, institu­ tions (such as schools) and authorities. Thus, allowing the child to leave the country for holidays, and applying for a passport or identity document are no exceptions to this rule. In other words, if a   Belgian Civil Code art 373. See also Y-H Leleu, (n 10) 696−97; Senaeve (n 10) 353–54.

19

54

The Family

parent applies for a passport at a local authority, the authority may rely on the presumption that the other parent has consented to the issuing of the document. This applies only if the third party acts in good faith. Thus, if the local authority believes or knows that the other parent has not consented, it cannot assume con­ sent. Under such circumstances the authority should contact the other parent. However, in a circular to local authorities, the Ministry of Domestic Affairs20 reiterated the presumption that a parent is deemed to consent to an act by the other parent. In this circular the Ministry stated that the local authority where the child resides may not refuse to issue an identity document for a child unless a par­ ent has requested in writing that such document should not be issued without his or her consent. Thus, local authorities may not refuse passports lightly. This state of the law can lead to confusion, and does in practice. It attempts at balancing two important rights, namely the right of the child not to be abducted, and to have contact with both his or her parents, and the fundamental freedom of persons: the fact that people should not be deprived of their freedom (in this case their freedom to move across borders) unless there are true indications that they have bad intentions. Local authorities certainly do not seem to be insensitive to the problem of international child abduction, but they are also caught in this balancing act. Unfortunately, this has resulted in different local authorities dealing with potential problems very differently. (It should be noted here that local authorities historically have strong powers and extended capacities in Belgium.) Some con­ tact the other parent when the parents are divorced or not living together and one of them requests a passport for the child. Even when the parent is contacted, the method by which this is done vary. Some authorities contact the other parent by telephone, others write a letter. In the case of one interviewed left-behind mother, the local authority wrote her a letter at the time the passport was issued (not at the time of the application by the father – it is possible that this practice also exists, but we have no evidence of it). A few days after her daughter had disappeared, this mother received a letter from the local authority, saying that they wished to inform her that a passport for her daughter had been delivered to the daughter’s father. The letter was dated two days before the departure, but she received it only after the departure. The mother said during her interview that if she had been asked whether a passport could be delivered, she would have refused. In this case the parents were not living at the same address, and not even in the same town. The daughter’s official residence was at the mother’s house. The local authority would have been aware of this at the time of the request, due to the information in the Belgian population register. It is not clear why this authority had assumed this practice. What is clear from this case, however, is that the local authority’s actions did not in any way help to pre­ vent a child from being abducted.

  Circular by the Ministry of Domestic Affairs, 31 January 2007.

20



Parental Authority and Perceptions of it

55

For prevention purposes, local authorities would either have to interpret the presumption of co-decision in the case of joint parental responsibility more strictly, or the legislation would have to be amended. This point will be further elaborated in chapter nine on prevention. Let us now turn to the way in which third parties are informed about parental authority/responsibility in some of Belgium’s neighbouring countries. The Netherlands has a register on the parental authority over children.21 This register is kept at the courts. A child’s information would be kept at the court of the judicial district where the child was born. The register contains information on judgments altering the parental authority over a child. It also contains infor­ mation on situations in which the parents requested shared parental authority while they were not married. This register is public and anyone may consult it without charge. The register thus provides publicity to all interested third parties on the parental authority over a child. In France, a similar presumption exists as in Belgium: when parental authority is shared and one parent takes a decision, the other parent is presumed to have consented.22 However, the presumption is valid only for ordinary (or everyday)23 acts. For other acts the explicit agreement of both parents is necessary. Ordinary acts include matters such as signing forms for school, enrolment in a school or sports club, taking the child to a doctor, etc. According to some jurisprudence, applying for a passport is also an ordinary act. However, there exists doubt about this.24 In England, the problem will arise on fewer occasions: in cases where parental responsibility is shared, each person with such responsibility may act alone with­ out the other (or others) except where legislation expressly requires the consent of more than one person.25 It is thus only for the acts specifically mentioned that a third person would have to require the consent of both persons. One of the excep­ tions is taking the child out of the country for more than one month, for which written consent of every bearer of parental responsibility is required. Moreover, a person with parental responsibility may not act in a way that is incompatible with a court order.26 In this instance, the difficulty of notice to third parties might arise, for instance where the court order contains a stricter prohibition for leaving the country. 21   Civil Code of the Netherlands art 244 and Besluit van 26 November 1969, tot vaststelling van een algemene maatregel van bestuur, bedoeld in artikel 244 van Boek 1 van het Burgerlijk Wetboek; see also the official website overheidsloket.overheid.nl/index.php?p=product&product_id=327. 22   French Civil Code art 372-2. 23  ‘usuel’. 24   See A Batteur, Droit des Personnes et de la Famille, 4th edn (Paris, LGDJ, 2009) 201. 25   The Children Act 1989 s 2(7). See also N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 432–34. They explain that the reason for this liberty given to parents is to encourage both of them to feel concerned and responsible for the welfare of the child. Note also that this rule has been restricted by courts, imposing on parents a duty to consult with the other parent in a few cases where long-term decisions were taken unilaterally. The authors describe the approach by the court as ‘questionable’. 26   The Children Act 1989 s 7(8).

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The Family

IX  Residence of the Child A  Alternate Residence as Preferred System in Belgium The system of alternate residence has become common in Belgium over the last few years. The Belgian legislation27 provides that if one of the parents requests that the child should alternately reside with both parents, the judge must examine this possibility as the first option. The judge may still order another type of residence arrangement, but must in all events motivate his or her decision. The circum­ stances of the case and the best interests of the child and of the parents have to be taken into account. As this legislation is relatively recent, our dataset did not contain many cases of alternate residence. The system of alternate residence has a number of important advantages. The first is of course that the child has the opportunity to spend equal amounts of time with both parents. The child becomes less of an object to be pulled to and fro dur­ ing the divorce, and the child is less confronted with a conflict of loyalties. Being able to spend an equal amount of time with both parents reassures the child and hopefully helps to eradicate feelings of guilt.28 Moreover, each parent will be involved in the child’s school and leisure time. The idea of the ‘Sunday daddy’ or ‘ice cream daddy’ disappears. On the other hand, the system has been severely criticised by jurists and psy­ chologists alike (during the interviews). Opponents argue that in instituting this system, the demands on children are becoming too high: they are required to con­ stantly move between two homes. This is a great organisational burden. A child has to think of his or her school books, sports gear, clothes, etc. A young child is in this way forced to think a whole week ahead. These children are forced to assume too much responsibility, in a society where young people stay with their parents much longer than earlier generations (eg until the age of 24 or 25). Moreover, and more importantly, children living in two places do not have their own nest. They are not provided with the stability that children need to grow up peacefully. It is further said that this system is not appropriate for very young children, for instance those that are still breast-fed.29 Similarly, it is not suitable for teenagers, who should not be forced to move between different places, but should be permitted to have their own den. Consequently, the system of alternate residence can in practice only be implemented for a limited age group. However, 27   Belgian Civil Code art 374 and Act of 18 July 2006, Loi tendant à privilégier l’hébergement égalitaire de l’enfant dont les parents sont séparés et réglementant l’exécution forcée en matière d’hébergement d’enfant, Moniteur belge 4 September 2006. 28   See www.enfant.com. 29  See L Sweet and C Power, ‘Family Law as a Determinant of Child Health and Welfare: Shared Parenting, Breastfeeding and the Best Interests of the Child’ (2009) 18 Health Sociology Review 108–18.



Residence of the Child

57

once implemented, teenagers tend to sustain the system, so as to remain loyal to both parents (whether consciously or subconsciously).30 One of the professionals interviewed had the impression that the legislation is putting pressure on fathers to request alternate residence, even though they are not really in a position to organise their lives accordingly, or even though this would not really be their first choice. Fathers feel pressurised and there is a per­ ception that one is not a good father if one does not fight for alternate residence. For the system of alternate residence to work effectively, it is required that the parents have frequent contact with each other. Indeed, they have to jointly arrange day-to-day issues concerning follow-up at school and sports clubs, etc. Lastly, professionals say that the system of alternate residence is criticised in other countries.31 I have experienced the same when explaining the Belgian legis­ lation to audiences in Scotland. In the context of international couples, an inter­ viewed legal practitioner even had experienced that some mothers fear the possible imposition of alternate residence to such an extent that they would rather move back to their home country with their child (ie abduct the child). In conclusion, those that criticise the legislation felt that the interests of the child have to be considered for every case, rather than the legislator imposing a ‘preferred’ system. Although the Act allows the consideration in every case, it is broadly perceived, not least because of its title, as imposing or favouring the sys­ tem of alternate residence. However, professionals emphasise that any type of residence of children after divorce should be carefully assessed and one should not apply one type by default and without careful consideration. Before the enactment of this legislation, there had been no broad study on the question. The Senate admitted this, and organised a public hearing to evaluate the application of the Act. A study was conducted in 2009 and 2010 investigating the application of this Act by professionals and the experiences of parents and children and formulating recommendations for better application.32 One of the conclusions of this study was indeed that professionals regard the legislation rather as a recommendation: they assess the possibility of alternate residence first, but do not feel compelled to impose it in all cases.33

30   See K Vrancken, Tussen twee huizen. Co-ouders en hun kinderen vertellen (Leuven, Vanhalewyck, 2005) where parents, children and teenagers speak about their experiences of alternate residence. 31  For a nuanced view from a psychiatric perspective, see J-Y Hayez and P Kinoo, ‘A Propos de l’hébergement alterné’ (2006) 106 Acta psychiatrica belgica 33–38 (also published at www. observatoirecitoyen.be). 32   M-T Casman, A César and C Waxweiler, ‘Evaluation de l’instauration de l’hébergement égalitaire dans le cadre d’un divorce ou d’une separation’, published at www.lesfamilles.be/documents/ RapportULG.pdf. This study was commissioned by the Secretary of State for Family Affairs. 33   ibid 167.

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The Family

X  Respecting the Contact Arrangement A child has the right to have contact with both parents. This right does not only exist under national law, but is also enshrined in the UN Convention on the Rights of the Child34 and more recently in the Charter of Fundamental Rights of the European Union.35 Where one of the parents creates an obstacle for the contact between the other parent and the child, this amounts to a criminal offence in many countries. In Belgium, withdrawing a child from the authority of a person who has such author­ ity can result in one year’s imprisonment or a fine.36 An extreme form of denying the other parent contact with his or her child is the wrongful removal of the child from the country of his or her habitual residence, or the wrongful retention of the child in a country other than that of his or her habitual residence. International child abduction is also a criminal offence in many countries, among others in Belgium. If a person takes a child out of Belgium for more than five days and thereby infringes the rights of someone with parental authority, this can result in imprisonment of a period between one and five years or the payment of a fine.37 At the same time, the civil aspects of international child abduction are addressed by international instruments. These instruments are premised on the fact that the contact between parents and children should be maintained.38 A parent should not be permitted to move with the child to another country and by doing so escape legal rules on parental authority or on contact between the child and the other parent.

A  Risk Factor for International Child Abduction At the outset of this study, a hypothesis was formulated that non-respect of the contact arrangements should be a warning sign of a possible abduction. However, the data in the dataset was insufficient to either confirm or reject the hypothesis. During the interviews, several left-behind parents said that there had already been problems with the contact arrangements before the abduction. One father explained that before the abduction the mother had already twice failed to return the child on time. The first time she kept her son with her and enrolled him in a school close to where she lived. After this occasion, the residence arrangement was amended: before that the child spent equal amounts of time with both parents, but after that, he resided principally with the father and visited   UN Convention on the Rights of the Child art 9.   Charter of Fundamental Rights of the European Union art 24(3). 36   Belgian Criminal Code art 431–32. 37   ibid. See also M Verheyden, ‘Internationale parentale ontvoeringen’ (2003) 43 Nieuw Juridisch Weekblad 990–95 at 993. 38   See, for instance, Hague Child Abduction Convention art 1(b). 34 35



Respecting the Contact Arrangement

59

the mother every other week from Wednesday to Saturday. The second time she was late returning from holiday with the child. In this case, the non-resident mother wanted more contact with her child and she later came to abduct him. The fact that there had been breaches of the contact arrangement is certainly relevant in this case, particularly because the mother had enrolled the child in a school close to her. This indicates that she had already pre­ viously had the intention to wrongfully retain her child. In another case, there was a long history of problems before the first abduction. The parents got divorced when their daughter was still very young. An arrange­ ment for alternate residence was made, so that she lived with her father for one week and with her mother for one week and so forth. This situation continued for a bit more than a year. The father then met a new partner, who lived in Denmark and he wanted to move there. He wanted to take his daughter with him. The mother wanted the daughter to stay with her in Belgium. It was ordered in a judg­ ment that the child would live with her mother, but would go to Denmark for the last five days of every month, as long as she did not yet have to go to school. This arrangement went well for about a year and a half. However, after some time, the child was crying when she came back from Denmark. Then she stopped eating. She was examined by a doctor who came to the conclusion that her problem was not physical, but psychological. The child became very difficult, pouring cola on the couch, and drawing with black markers on her bed sheets, on the walls, and on her new shoes. She was four years old by this time. She started ignoring her mother, asking everything from the mother’s partner, and not speaking to the mother. The mother found this situation very hard, but realised that her daughter was happier in Denmark. The father was living on a farm with many animals and the mother also realised that he and his new partner were in a better financial situa­ tion than she was. An agreement was reached by which the arrangement was reversed, so that the child would live in Denmark, but spend the last five days of every month in Belgium, as long as she did not have to go to school. According to the mother, at this time the father tried everything to keep the child away from her. He accused her of using drugs, of abusing the child and so forth. He then instituted proceedings in Denmark with the purpose of preventing the mother from seeing the child. The judge ruled that the child was to visit the mother in Belgium every third weekend of the month (in the meantime the child was going to school, so that a five-day visit every month was no longer possible). The mother explained how the situation was at that time: The arrangement was that I could phone whenever I wanted to phone and that never went well. Often when I phoned, there was simply no answer, or he had changed his num­ ber. Most often I did not get the child on the line. And on a particular day, I was standing in the video shop and the child was . . . it was the weekend that she was going to come and visit me and I wanted to rent a film and I phoned her, the child, to ask whether she had seen the movie and she abruptly said to me: ‘I do not want to speak to you anymore.’ . . . I then really, it was like a slap in my face. It made me feel sick. That was with my current

60

The Family partner, with whom I still have a relationship. She could not understand it either, she said ‘she has been stirred up, that cannot come out of the child’s own mouth . . .’ Ehm, thus he then often went back to the court, saying that I take drugs, that, that, well, the worst pos­ sible things. He tried everything so that the child, so that I could never . . . I even have a judgment in which it is stated that he had asked that I could not have contact with the child any more. Because she was afraid of me, and she did not want to come to my place and the child did not want to have anything to do with me. Really, years on end, actually as long as we had the arrangement of the third weekend of every month, he was making things difficult. Until, on a certain day, I was standing at the airport and she wasn’t there.

After two occasions on which the father did not let the daughter visit her mother according to the arrangement, the mother instituted new proceedings in order to have the child’s principal residence with her again. She was successful and she obtained the judgment in her favour at a time when the child was in Belgium vis­ iting her for two weeks during the summer holidays. According to the judgment, the child had to visit the father in Denmark for the following two weeks and then return to Belgium, where she would then be living. The mother did not want to let the child go to Denmark to visit her father, because she was convinced that he would not let her return, certainly not after he had lost the court case. She was advised by the Central Authority to let the child visit the father: she had to respect the judgment, also to show the father her good intentions. Her lawyer then asked the father’s lawyer to let the father sign a declaration that he had taken notice of the judgment and that he would send the child back on the determined date, which the father signed. The child went to Denmark, but on the date foreseen for her return, the child was not at the airport. After that, the mother had no contact with the child for a full year. Her telephone calls, sms’ and webcam attempts all remained unanswered. In this case, it seems that the parents never managed to find an arrangement for the child that was satisfactory for a lengthy period of time to both of them and to the child. The father’s negating of the mother’s right to contact her child (and of the child’s right to contact with her mother) seems to have been a symptom of the fact that he wanted the child to live with him permanently. In the end, wrongfully retaining the child is an extension of having negated the contact rights. A father in a different case explained that, after a first abduction by the mother, the parents were reconciled. They then went on holiday together. Even during this time, he felt that the mother did not want him to have anything to do with their daughter. In this story, like in the previous ones, the abduction was an extension of the dynamics that had been going on between the mother and the father. In some cases the mother moved out of the family home a number of times, most often with the child, going to family, friends or a women’s refuge, before finally leaving the country. These acts do not necessarily indicate the mothers’ attempts to deny contact rights between fathers and children. Rather, they indicate that these mothers were living in what they experienced as intolerable situations. The fact that contact was denied was in these cases rather the result of a choice by the mothers to escape their situations.



Conflict and Sources of Stress in the Family

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We thus see cases where contact had been deliberately denied, or made difficult, and cases in which contact had become impossible due to a decision by one parent.

B  Bad Advice Due to a Bad Track Record In one case a father explained that the mother had been advised by a lawyer to abduct her child. This was because she had already failed twice to return him to the father at the agreed time. The first time this resulted in the residence arrange­ ment being changed from alternate residence to principal residence with the father. The lawyer had said that the best chance for her to have her son’s residence with her would be to go abroad. It is inconceivable that a lawyer could give advice to act in a way that is so blatantly illegal. Of course in this situation it is not known whether the lawyer was ill-informed of the legislation, or whether he was acting in bad faith, knowing the law (return proceedings), but thinking that the practical difficulties would pose an insurmountable hurdle. Neither of the two possibilities is acceptable of a lawyer.

C  Well-respected Contact Rights before Abduction On the other hand, in some cases the contact arrangement was always respected. In these cases, the left-behind parents were of course surprised by the abduction. Here, the abductions seem to have had a different motivation. In some of these cases new partners might have played a role, in the sense that the parent started to think and react differently at the instigation of the new partner (see below). In one of the cases, the father fled because he had debts in Belgium. Thus, the fact of hav­ ing respected contact arrangements was irrelevant in this case, as the abduction had a different reason.

XI  Conflict and Sources of Stress in the Family As I stated in the introduction, child abductions happen in unhappy families. There are different reasons why these families or one or more members of the family are unhappy. Sometimes the source lies in the relationship, sometimes in a difficulty with the child, and sometimes it is purely individual.

A  Knowing the Other Parent; Stability of the Relationship Research conducted in the Netherlands has indicated that abductions often occur in families where the parents had not been together for a long time before they

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The Family

had children.39 This information was not available in the current study. I therefore turn to what was said by parents during their interviews. One father explained that it is important to know the other parent before one becomes involved in a relationship. He said: I have already heard that even the imams in the Mosques say that: it is better to let a woman and a man see each other, because before it was really strictly forbidden that the man and woman see each other before the marriage.

And: Well, me too, I had also seen my wife. The problem is that it was not enough.

At the time of the interview, this father had been reconciled with his wife, who had returned to Belgium to live with him, after having abducted their child to her home country. He was not resentful of her or his marriage, but said that one had to think carefully and take the opportunity to get to know the other parent. Another father, in a different context, emphasised the importance of communi­ cation. He said that, especially in situations where both mother and father are foreigners in Belgium, it was important to talk a lot before having children together.

B  Having Children A point related to the previous one, is the timing of the birth of the first (and often only) child. An interesting and unexpected finding from the interviews was that in several cases one of the parents wanted a child while the other thought that it was not (yet) the right time. Sometimes this was the left-behind parent, sometimes the abducting parent. Some said that the mother was too young when the child was born and that she could not deal with the drastic change in her life. One father said that the mother had decided that she wanted a child, while he had other proj­ ects that he wanted to give his attention to at the time; he thought that they would have children later. In these cases, relational problems ensued soon after the birth of the child. An abducting mother who was interviewed explained that her partner did not seem interested at all in the child and had almost missed the birth because he fell asleep again after she had called him to say that he should come to the hospital as she was on her way and the child would be born in the next few hours. These stories indicate one of the sources of relational conflict. It is not true for all the cases that the other parent (most often the left-behind parent) did not love his or her child and did not want to be with him or her. Rather, the change in the family situation caused stress and conflict, which led to (or contributed to) the break-up and abduction of the child.   See in general the results reproduced in B de Hart, Internationale kinderontvoering (2002).

39



Conflict and Sources of Stress in the Family

63

C  Difficulties in the Parents’ Relationship and Roles in the Family In some cases, there are difficulties about parents’ place in the relationship and in the family more generally. The place and role a person assumes can of course change when children are born into the family. One mother said that the father did not acknowledge her authority over the children. She expressed this as a form of abuse which can in the end lead to an abduction. While she did not accuse her ex-husband of being macho, she did find the way in which he undermined her inappropriate to the point of abusive. In the case of one abducting mother, her experience was that her partner was working very hard and that she had to carry the burden of bringing up the child and doing the household chores on her own. She explained her life, and how she became very unhappy. The problems in her relationship, linked to the fact that she was not working and did not have a circle of friends in the city where she lived, were all factors that weighed heavily to make her feel unhappy and not at home: Pietro had in the years before I left not spent half a day alone with my child, with our child. He had twice, and this is why I remember it so well, he only looked after him twice without me, and then there were friends with him that also had children. So in this way it was quite a classical, and in my view a bit of a macho attitude like ‘I work, I take care of the money, you take care of the child.’ So this was not really something on which we, well, it was a big source of conflict. [. . .] There were other conflicts as well [in the relationship], but that was actually, well, later on he said ‘Bye, I’m off’ and then I was stuck there in Rome all by myself and in the weekends he went to parties in Milano and I was stuck there, and he travelled alone and this guy was already away a lot for his job, but then besides that he also started things, half in the idea of social obligations and yes, it is of course practically more difficult to travel with a small child of one year old . . . and more expensive. I must admit that he paid everything for me at that time . . . I was following a course in the mornings and then I wanted to do translation work, start­ ing from home, and . . . well that was at home, I never started it up. I had prepared everything and I had a room equipped as my office, I had everything ready, but then I left. I really thought either I start with this, or I leave. But it was the idea that I would be working professionally again and I was of the view that if you have a child, you have to, even if you only have 10% of your time free (because he really worked a lot), then 8% of the 10% must go to the family. I found the situation very hard. We then saw a relation­ ship therapist, there, oh, before I ultimately returned, I came to Belgium three times, because I could not face it any more. [. . .] One of the purposes of the therapy, the therapist said so, was also to give me one evening, because I wanted to take dancing classes, to give me one evening that he would stay with the little one and that I would be able to go and dance, but well, he made it impossible for me a few times, saying ‘well, I cannot come home’ and well, then I couldn’t go dancing, because it is not like in Belgium where there are organisations that can babysit, that was a different situation, plus I had a small, very small social network there, not like here [in Belgium], where I have family and so on. And a few of the times that I went, he got a babysitter. So, that really, I, that really bothered me incredibly that he, well then he went to do sports, and

64

The Family then I had the feeling that we were always at the bottom of the list. I could not under­ stand that and it was a great source of conflict, yes. And apart from that, the fact that I went from having an income to having none at all bothered me a lot. But it was a bit of everything and certainly in the last year it became very clear that I was in his way in all respects. For example, while I earlier went along to those work functions, as his wife, let’s say. But he was totally, he was, [I] was very much pushed aside, well, it was like I heard via the people working for him that there was something planned and they would say: ‘Will you also be there?’ and I said ‘Euh, what is happening?’ Well, yes, that is a hor­ rible feeling that you are really unwanted. And so, I had no reason any more to be in Italy.

She also explained how she got the impression that her partner did not love her anymore. She wanted to stay for the benefit of the child, but she realised that her son witnessing the severe disputes (and on two occasions violence) was not good for him either. She made up her mind to leave her partner and then realised that it would be better for her to return to Belgium, for reasons she explained: At a 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 time, because I knew that I would go and live on my own, but financially, practically, in Belgium the wages are much higher, the rental cost is much lower. I really have no capital 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 I really want a future for my son that would make him happy, because in everything I always thought that I cannot do that, take the child out of a mom-dad situation. On the other hand, we had rows in a way that I thought that I do not want to do this to my son either. But then gradually I really 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 par­ ents 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



Conflict and Sources of Stress in the Family

65

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 con­ tact with her children and, according to the father, was still struggling with put­ ting 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 con­ flict that has to be identified and addressed at the appropriate time, ie before it gets out of hand.

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The Family

E  Living in a Foreign Country Two of the professionals interviewed said that they had the impression that children were abducted by mothers who were unhappy in Belgium, were not well-integrated, and wanted to return to their home country, with the child. Two of the three mothers referred to in the previous paragraph were also unhappy to be in Belgium, which added to their negative state of mind. The mother who had post-natal depression, on the other hand, had taken a lot of trouble to integrate in Belgium. She learnt not only the language, but also other aspects of Belgian society, going further than the mandatory course for foreigners in Flanders.40 Several other abducting parents were not happy in Belgium before they left. They missed their family, they were not well-integrated, or they had ended up in Belgium by chance or as a result of their marriage and did not enjoy living in Belgium. One father explained that becoming involved in a relationship where the other person had left her (or his) country, demands a strong awareness of how the expa­ triated person must feel. He said that his wife had always missed her family a lot. He expressed the importance of allowing that person to visit her family in the country where she came from for extended periods. He said: I would say that before marrying a girl from abroad, one really has to think carefully. [. . .] Because it becomes a little difficult. [. . .] And . . . one has to remember where the girl comes from, she cannot stay here all the time, she has to go back to see her family. And two weeks are not enough, she must go for longer, go for much longer. She must go for at least two or three months, or four months. Per year, to see her par­ ents a bit, and that becomes a bit much. [. . .] Yes, because she has nothing here. She has nothing. She has no friends, she just has one or two cousins. But over-there in [. . .] she has everything, she has her friends, she has her parents, her cousins . . .

Taking the mother’s situation into consideration, this father managed to recon­ cile with her. He now allows her to visit her family in her country of origin, and he has no fear of a recurrence of the abduction. A father told the story of his Brazilian ex-wife. They had opened a shop to sell clothes. However, she was not happy there: she felt that she was the victim of rac­ ism. For instance, people would not think that she was the manager of the store. When this did not work out, the father and mother tried various other businesses, including multi-level marketing, selling cosmetics, swimming suits, etc. However, she was never happy in Belgium. She also complained that they were not able to travel enough. An abducting mother who was interviewed had a similar problem, of not being happy in the country where she lived with her partner and their child and not being at home. She wanted to work, but had to look after her child and then also  Called Inburgeringscursus.

40



Conflict and Sources of Stress in the Family

67

had to face practical hurdles. She did not have a social network in the city where she lived. Another father explained the unhappiness of the mother who had no legal resi­ dence and could not work. She missed her family. In the case of one interviewed father, the parents were both Belgian, but lived with their child in another country (on another continent) for a limited period. According to the father, they had both planned to stay longer, but the mother without previous warning changed her mind and decided to return. There was occasional conflict within the relationship, notably just preceding the mother’s decision to return. However, up until that time the relationship was not at a dead end, but rather evolving: he said that he and his partner had concrete professional and/or personal projects for the next year in the country where they were living. However, there were also clumsy gestures on his part. He said that there came a break due to his lack of trust in his partner. He added that being expatriated is an accelerating factor for a couple, as the couple becomes turned inward. Moreover, being an expatriate, the persons one can turn to for advice are limited, and not necessarily people with the same views as the friends at home. The father explained how the mother had spoken to another woman shortly after a dispute that they had had (the straw that broke the camel’s back): her advice was quickly pointing to a travel agent where the cheapest air tickets could be found. Living as an expatriate, deciding upon the return, being alone with a limited support network are all factors that can place stress on a relationship. Parents should be aware of this, and address the stress and conflict in a timely manner and with the necessary attention. One of the fathers who had lived through the experience of having his child 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 feel 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 that 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

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The Family

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 abduc­ tor, 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 con­ vinced about . . . his illness. Come-on, there was nothing wrong with him.

Similar to the situations of illnesses, a left-behind mother explained that her son had Attention Deficit Disorder and an autistic spectrum disorder. This was diag­ nosed 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 it is 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 father and every mother fights for his or her child, but simply the powerlessness that I 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 not a doctor, I also notice that there is something wrong with my child, but what? If the doc­ tors, various doctors, say this and that is the matter with your child, then I am not going to say hey, that is not true, 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 abduct­ ing 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 differ­ ences in parents’ views on how to deal with a specific problem 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.



Conflict and Sources of Stress in the Family

69

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 necessarily positively promoted the idea of abduction, but sometimes the new part­ ner lived in another country or wished to move to some other country. The abduct­ ing parent wanted to join or follow the partner and took his or her child along. One mother spoke about her daughter’s father’s new partner. This woman had four children, but they had all been institutionalised. She had a criminal record. She had told the daughter (who was subsequently abducted) that she wanted another child and she wanted her to be her new daughter. When the father and his partner fled from their creditors in Belgium, they took the daughter along. One mother said that she still had no idea why the father had, five years after their divorce, failed to return the children after a vacation. She added that the father had a new partner who did not have children; she might have influenced the father. In other cases, the left-behind parent wondered whether the new partner might have disturbed the equilibrium they had found, or might have been criticising the left-behind parent behind his or her back, etc. These elements can augment the conflict and possibly contribute to the decision to abduct. On the other hand, the left-behind parent’s new partner could also play a part in the family conflict. It is possible that there is a strained relationship between the child and the left-behind parent’s new partner and that the child therefore feels unhappy when he or she is with the left-behind parent. In one of the interviews, a left-behind mother said that her son had accused her new partner of hitting him, something he had never done. However, she admitted that there had been arguments between them. Her son was 15 when he was abducted by his father. A teenager of that age is not abducted in the same way as a small child: this boy had indeed taken the decision with his father that he wanted to stay with him and live on a boat and travel for a year or so. The mother said that she had, subsequent to the abduction, given a lot of thought to the relationship between her new partner and her son. Although this was not a particular focus of the interviews, the analysis of the interviews has made it clear that separated parents’ new partners should not be left outside the larger picture of an unhappy family. In an attempt to address con­ flict in time, which is one of the most important lessons learnt from studying international child abduction, new partners should be considered as well.

H  Role of Grandparents The role of grandparents emerged from several interviews and also from the analysis of the dataset. When they live in another country, they might wish to see their grandchildren more frequently.

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In some instances the left-behind parent had the impression that he or she was never accepted as partner for their son or daughter, sometimes on cultural or religious grounds. When the grandparents see conflict in the couple, they some­ times seem to encourage their son or daughter to return with the child to the country where they (the grandparents) live. Or they encourage the parents to let the child visit them for a few months (with the abducting parent). In some cases, grandparents are actively involved in preparing the abduction, by assisting with practical details and sometimes financially. Of grandparents, it can also be said that they should not be left out of the bigger picture of an unhappy family, especially in cases of international families.

I  Debts in Belgium In one interview, a mother said that the father had fled from his creditors in Belgium. He had a new partner, who also had to flee the country. Although this sounds like an isolated case and a strange reason to abduct a child, the person of the federal police that was interviewed indicated the existence of debts in Belgium as one of the warning signs, in some instances calling for preventive measures to be put into place. When asked why the father had taken his daughter along if his main purpose was to flee from his creditors, the mother responded without a doubt that one of the reasons was to hurt her. She added that the father could not stand the fact that she and her new partner were happy and were not struggling financially.

XII  Family Conflict and Parental Alienation A psychologist said that abduction is always part of a long family history. The abduction happens at a key moment in this history. A former ambassador said that one of the recurring elements was the hate between the parents. He said that some people wanted to keep their children so that the other parent cannot see them. A person from an organisation also said that the hate that she sees between parents makes her worry about the children. The ambassador said that people should be able to set themselves above the hate and think of their children. Several experts said that children are sometimes used as pawns in the conflict between the parents surrounding their divorce. A psychologist said that international child abduction is a particular manifesta­ tion of parental alienation. He spoke of the suffering that he had seen with chil­ dren. He said that when he asked children what the most important thing in their lives was (as an open question), children that were the victims of parental alien­ ation responded that their friends, school, or their dog were the most important

Conclusion 71 thing. Thus, the children identified someone or something that was removed from their parents. Even children aged between nine and 11 gave such answers. As a psychologist, he could see the importance of the problem with the parents by the way in which the children tried to trivialise it. (He saw children on their own, but with the agreement of both parents.) He told of the experiences of a father whose daughters were abducted from Belgium to another European country. The parental alienation had taken a severe form in this case. The mother not only denigrated the father, but also Belgium as a country. She said that people here were poor, the education system was bad, and the place was full of paedophiles. The result was that the girls were too scared to even come to Belgium. The father only managed to re-establish the contact with his daughters through immense perseverance. He said that in the most extreme form of parental alienation, children are conditioned to such an extent (and sometimes hidden during the time that they are living with the abducting parent in another country) that they become total strangers to the left-behind parent. He spoke of a mother who had seen her children again after many years: this mother had the impression that she had lost her children. He said that the eldest son had completely integrated his father’s values: he believed that his father had done the right thing to abduct them from Belgium in order to ensure a good religious upbringing in Morocco, while such upbringing would not have been possible in Belgium.

XIII Conclusion Every abduction encountered in the course of this study had a particular history. Even if no-one saw the abduction coming, there were elements in the family life that were difficult. The difficulties varied in nature. In some instances there was conflict between the parents. Sometimes this conflict concerned the upbringing of the child, including the education or religion. In other cases, the conflict was related to the household. Even if the family conflict was not visible before the abduction, the communi­ cation was often seriously disrupted. In some cases, one parent thought of termi­ nating the relationship, while the other was still set on saving it. The psychologists that were interviewed emphasised the importance of attenuating family conflict before it is too late. They also said that parental alienation should be countered. Action should be taken by professionals while dialogue between the parents is still possible. Time will only aggravate the problem. Sometimes one parent missed his or her country and family to the extent of desiring nothing but returning, and in some cases to the point of being depressed, but did not discuss these matters with the partner. These are issues that should be

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addressed before it is too late, as they can become so unbearable that they ulti­ mately lead to international child abduction. Addressing them requires good communication, and respect for different values and traditions, and also for sim­ ple things such as different habits. Several professionals emphasised the importance of solving family conflicts in less hostile ways. A woman from an organisation referred to the example of resolving conflicts in Kochem (Germany). There, a conscious effort has been made to move away from adversarial proceedings. Attempts are made by judges, lawyers and psychologists alike to assist the parents in reaching an amicable solu­ tion within a certain timeframe. Round table negotiations are organised in which the various actors participate. This approach has been taken over in various other jurisdictions in Germany.41 In the end, the help that parents can get at this stage (ie before the abduction) is vital, and should be focused on improving understanding and communication. If issues are addressed in the correct manner, abductions could be avoided. Here, it is not the law, but psychology and sociology which can solve problems. Let me end this chapter with the words of an honorary ambassador: It is more effective to persuade someone to stay than to prevent him or her from leaving.

41   This emerged from a telephone interview with Andrea Schulz, head of the German Central Authority.

5 The Abduction I  Number of Abductions Over the course of our research project, 667 files were investigated. These included abductions in which the child was abducted from or to Belgium, as well cases in which Belgium was neither the country of origin nor of destination of the abduction but that had a link to Belgium for another reason, and files of cross-border contact with children. The 667 files, as has been explained, concern files that were open during 2007 and 2008. There were 164 files concerning abductions that took place in 2007. These involved 225 children. In 2008 there were 133 cases of international child abductions. 188 children were involved in these abductions. The remaining 370 files concerned abductions that had taken place before 2007, but that had still not been resolved by 1 January 2007. Some of these were resolved during the course of 2007 or 2008, others remained open for a longer time. These figures are high and every abducted child is one too many. However, the problem of international child abduction should also be seen in the light of other issues of family conflict. In 2008 there were 1.817.847 families with children in Belgium. 687.299 (almost 38%) of these were families in which there was only one parent.1 In 2008 there were 35.366 divorces in Belgium.2 In 2007 (statistics for 2008 are not yet available) 146.409 persons immigrated to Belgium while 91.052 emigrated from Belgium.3 In the light of these figures, child abductions happen in relatively few families. It remains an extreme case, and fortunately not a common one. Of the files investigated, 91.4% were abductions, ie the child was wrongfully removed from one country to another or wrongfully retained in a country. 8.6% of the files concerned cases in which the cross-border contact of a child was not respected. These files concerned situations where one parent lived in a

1   See the website of the Department of Statistics in the Ministry of Economy at statbel.fgov.be/fr/ statistiques/chiffres/population/structure/menages/nmbrenoyaux/index.jsp. 2  See statbel.fgov.be/fr/statistiques/chiffres/population/mariage_divorce_cohabitation/divorces/ index.jsp. 3   See statbel.fgov.be/fr/modules/publications/statistiques/population/immigrations_et_emigrations_ internationales.jsp.

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The Abduction

different country than the children. The child should have contact with that parent (either because of a judgment or because of an amicable arrangement between the parents), but the contact was not permitted, or actively avoided by the parent with whom the child lives. In such cases, the non-resident parent can introduce proceedings under the Hague Convention to re-establish contact with the child.4 Therefore, the cases have been taken up in the dataset for this research. 70.2% were cases in which the child was abducted from Belgium to another country, while 17.6% were cases in which the child was abducted from another country to Belgium. The great number of abductions from Belgium has several possible explanations. A first is that Belgium is predominantly an immigration country. As will be indicated below, parents abducting their children sometimes return to the country of their nationality, although this does not account for all abductions.5 This, however, is probably not the only explanation for the great discrepancy. Another factor that should not be forgotten is the role of the institutions whose files were included in the study. Of the files dealt with by Child Focus, 84.5% were abductions from Belgium. Only 6.1% were abductions to Belgium. The reason for this is at least partly to be ascribed to Child Focus’s role: it is a Belgian centre for missing children. While it is well-known in Belgium, the same cannot be said internationally. A parent living in Belgium will either almost automatically know that he or she should phone Child Focus, or might be advised to do so by the police or by someone in his or her direct environment. The persons from the Central Authority confirmed during their interviews that about two-thirds of their cases concern abductions from Belgium to other countries. This is not representative for all abduction cases to and from Belgium, since the Central Authority will not necessarily have been contacted in all cases. However, the large difference is interesting. The head of the unit said that cases of abduction to Belgium are increasing. She thought that a possible contributing factor to the large number of abductions from Belgium was the presence in Belgium of the European institutions, the North Atlantic Treaty Organization (NATO), etc, nongovernmental organisations (NGOs) and other organisations that have offices in Belgium in order to be close to these international institutions. In 3.6% of the cases, Belgium was neither the country of residence of the child before abduction nor the country of destination of the abduction. The reasons vary as to why one of the institutions where the data was gathered would have opened files for cases in which Belgium was neither the country of origin nor the destination of the abduction. At the Central Authority, it is possible that a file was opened because it was not clear where the child was, and the leftbehind parent considered it possible that he or she was in Belgium. One of the   The Hague Convention (1980) art 21.   See sections entitled ‘Destination of the Abduction Compared to Nationality and Country of Birth of the Abducting Parent’ and ‘Other Possible Links between Abducting Parent and Country of Destination’ below. 4 5



Relationship of the Abductor to the Child

75

obligations of the Central Authority under the Hague Convention is to assist in locating a child and thus a file would be opened.6 Another possibility is that the child was abducted through Belgium, although Belgium was not the final destination. In these cases, it is possible that a parent alerted the Central Authority or Child Focus when the child was in Belgium or when he or she thought that the child was still in Belgium. The Ministry of Foreign Affairs, because of its particular role, has cases in which the children were not in Belgium either before or after their abduction. The Ministry can intervene on the basis of the Belgian nationality of the requesting parent or of the child. If, in such a case, a child is abducted to a country that is not party to The Hague Convention, the Ministry of Foreign Affairs and the embassies or consulates will assist in seeking a solution. This is part of the role embassies and consulates have to protect Belgian citizens. In 1.2% of the cases, a contact arrangement regarding a child living in Belgium had been disrespected. Only cross-border cases have been taken up in the statistics. In other words if both parents lived in Belgium and a non-resident parent complained that the contact arrangement was not being respected by the resident-parent, the file was not included in the statistics. It is also important to bear in mind that only administrative and Child Focus files have been included in the study. In cases of non-respect of a contact arrangement, parents can directly contact a lawyer and introduce court proceedings, or attempt to have a foreign judgment (for instance by the court of the former habitual residence of the child) executed in Belgium. These files were not part of our dataset. While I argue that the non-respect of contact rights is part of the larger problem of families where there is conflict with respect to the residence of the child, the available information does not provide us with a complete picture of the situation. In 7.4% of the cases, contact arrangements in other countries were reported not to be respected. In these cases, it is possible that the non-resident parent lived in Belgium and sought to re-establish contact with his or her child.

II  Relationship of the Abductor to the Child A General In 65.2% of the cases, the mother was the abductor. In 33.4% of the cases, the father was the abductor. In 1.3% of the cases, the child was abducted by a grandparent or another relative, such as an aunt. Abductions by a grandparent or other relative have only been included in the dataset where the abductor had parental responsibility over the child. If not, such an abduction would be considered an abduction by a third person. In one case (0.1%), the mother and father together   The Hague Convention (1980) art 7(a).

6

76

The Abduction

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



Relationship of the Abductor to the Child

77

abducted the children, who had been placed in an institution and had visited their parents. This finding contradicts the perception that still exists that the majority of child abductions are committed by fathers. Also, at the time of the negotiation of the Hague Convention, it was thought that fathers typically abduct their children because they are not happy with the residence and contact arrangements.7 However, it has clearly emerged from several studies that in truth there are more mother abductors. For instance, the study conducted by Nigel Lowe for the Hague Conference on Private International Law also found that more mothers abduct their children than fathers do.8 In the study conducted by Kék Vonal in Hungary, it was found that in 88.4% of the cases the mother was the abductor. The perception that fathers are more common abductors is found time and again in the press. While conducting this study, I was phoned by a journalist looking for background information for an article he was writing. His first sentences were that he was writing about a case where a mother had abducted her child and that this was strange, since most often one encounters fathers who abduct their children, doesn’t one? This perception still exists despite the fact that the Annual Reports of Child Focus point out that more children are abducted by their mothers and that this has been the case for several years. Older studies conducted in the United States of America found that more fathers abduct than mothers, but mention an increase in the number of abductions by mothers compared to earlier studies.9 Moreover, these studies seem to include intra-US abductions and can therefore not be directly compared to international abduction cases.

B  Abductions from Belgium If we regard the abductions from Belgium to other countries separately, we see that mothers were responsible for 61.9% of these abductions, while fathers for 36%. A grandparent abducted the child in 1.7% of the cases. Both parents abducted the child together (eg from an institution) in 0.4% of the cases. Thus, the percentage of mothers is slightly lower, but not significantly: mothers are still responsible for the large majority of abductions. A further breakdown of the figures is shown in the following table. 7   See the explanatory report of convention by E Peréz-Vera, published in Acts and Documents of the Fourteenth Session (1980), tome III, Child Abduction, 429 (also published at www.hcch.net/ index_en.php?act=publications.details&pid=2779&dtid=3). 8   See N Lowe, ‘A statistical Analysis of Applications made in 2003 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Part I – Overall Report, Preliminary Document No 3, Part I (updated in 2007)’ 21, published at www.hcch.net/index_en. php?act=publications.details&pid=3888&dtid=2. This study found that in 68% of the cases, the mother was the abductor, while in 29% the father abducted the child. The data for this study were collected from the central authorities of the contracting states to the Hague Convention. 9   See RL Hegar and GL Greif, ‘Abduction of Children by Their Parents: A Survey of the Problem’ (1991) 36 Social Work 421–26.

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Table 1: Country to where Child was Abducted and Relation of Abductor to Child Country to where child abducteda EUc EEA, excluding EUd Other Europee Middle Eastf Asiag North Africah West Africai Central Africaj East and southern Africak North Americal Central and south Americam Oceanian

Mother abductor 67.9% 100% 52.8% 20% 76.9% 36.2% 58.3% 42.9% 85.7% 61.1% 100% 100%

Father abductor 30% 0% 41.7% 80% 23.1% 58.6% 41.7% 57.1% 14.3% 38.9% 0% 0%

Other abductorb 2.1% 0% 5.5% 0% 0% 5.2% 0% 0% 0% 0% 0% 0%

Only countries that were found in the cases of the dataset are included. Including grandparent, other relative with parental authority, and mother and father together. c Including Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Hungary, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. d Norway and Switzerland (Switzerland was added to this category because of its particular relation to the Schengen-States). e Albania, Andorra, Belarus, Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Moldova, Serbia, Turkey, and the Ukraine. f Iran, Iraq, Israel, Jordan, Lebanon, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen. g Bangladesh, China, India, Indonesia, Malaysia, Mongolia, Nepal, Pakistan, Philippines, Russia, Thailand, and Vietnam. h Algeria, Egypt, Libya, Morocco, Sudan, and Tunisia. i Burkina Faso, Cameroun, Congo (Brazzaville), Côte d’Ivoire, Equatorial Guinea, Gabon, Ghana, Guinea, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. j Burundi, Congo (Kinshasa), and Rwanda. The division between Western and Central Africa States could have been done in another manner as well, but I have chosen to keep Burundi, Congo (Kinshasa) and Rwanda in a separate category because these are all ex-Belgian colonies. Congo (Brazzaville) has therefore been added to the West African list and Angola has been categorised as East and southern Africa. k Angola, Botswana, Djibouti, Ethiopia, Kenya, Lesotho, Madagascar, Mauritius, Mozambique, Namibia, South Africa, Tanzania, and Uganda. l Canada and the United States of America. m Argentina, Bolivia, Brazil, Chile, Colombia, Dominican Republic, Equador, Haiti, Mexico, Peru, and Uruguay. n Australia and Micronesia. a

b

Table 1 above and figure 10 below provide us with striking findings. While mother abductors were the clear majority to certain destinations, including the European Union (EU), the European Economic Area (EEA) (non-EU), Asia, East-and southern Africa, Central and South America and Oceania, the percentages vary. They were responsible for all abductions to the EEA (non-EU), Central and South America and Australia and Oceania. As is clear from the figure, the number of abductions to the EEA (non-EU) and Australia and Oceania was small, so that one should draw conclusions with caution for these countries.



Relationship of the Abductor to the Child

79

Figure 10: Part of the World to which the Child was Abducted from Belgium

On the other hand, it emerged that fathers were the major abductors to North and Central Africa and certainly to the Middle East, where they were responsible for 80% of the 25 abductions. Also noteworthy is the higher percentages of other abductors (specifically grandparents and other relatives) to North Africa and to other European countries (non-EU and non-EEA). This might be explained by the fact that Morocco and Turkey have been placed in these categories, and these countries have relatively large immigrant populations in Belgium. Consequently, there are more grandparents from these countries that have regular contact with their grandchildren and possibly more who have parental authority.

C  Abductions to Belgium Of the abductions to Belgium, the mother was the abductor in 71.8% of the cases and the father in 28.2%. In abduction cases from other EU countries, as many as 72.2% of the abductors were mothers, while 27.8% were fathers. The percentage of mother abductors was even higher than the already high average of 65.2%. It is not clear why this percentage is higher. It does seem to be in line with abductions from Belgium to other EU countries. In other words, Belgium as a destination, like other EU destinations, has more abductions by mothers.

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It must be recalled that the dataset probably does not provide a complete picture of all the abductions from other countries to Belgium. A further breakdown is therefore not made of these cases.

D  Abductions where Belgium was neither the Country of Origin nor Destination In the cases where children had been abducted neither from nor to Belgium, the mother was the abductor in 70.8% cases, and the father in 29.2%. These percentages have been calculated on the basis of 24 cases, and because of this small number further analysis and conclusions are not appropriate.

E  Response to the Fact that there are More Mother Abductors Why more mothers abduct their children is hard to tell. One of the professionals interviewed said that one must not lose sight of the fact that mothers often simply have more occasion to abduct their child, as they are often also the primary caretaker10 and are therefore with the child most of the time. Several fathers had the impression that mothers were being advantaged by society, that they were able to get away with more. They described this as discrimination. One father explained how the mother, after having abducted the child to Africa, came back to Brussels (without the child) without any problem, while there was supposed to be an alert issued for her. A friend of the father’s saw the mother and told him about it. He contacted the police and it then emerged that the alert had not been issued. The position was then rectified and she was arrested when she tried to return to Africa. He said: So, there are the failures of the Belgian justice system, I don’t understand how one can travel with a child after having committed a wrong like that. I was in the United States with my son two years ago. I swear to you, when we arrived in the United States, I was kept at the airport for two hours, in New York. Because they said to me: ‘Yes, but you are travelling with a child, where is his mother, do you have a document?’ And I had not even taken the judgment with me. That means that for me, I was told that it is not normal that a little boy was without his mother. And here, they let a mother leave with her kid.

When I asked this father whether, if he looked at the differences between Belgium, Cameroun and the United States, he had the impression that parents were treated differently, he responded: I am of the opinion that mothers and fathers are treated differently. I am convinced of that. I am even certain. Mothers have advantages. It is always said that a mother takes   See section entitled ‘Abducting Parent and Residence of the Child’ below.

10



Relationship of the Abductor to the Child

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better care of a child and that the man, there are always old-fashioned thinkers who say that the man is not capable of doing it. I am telling you, she travelled with the child for several months without any problem. That is not normal. Me, I only travelled one single time and I was asked so many questions that I had to travel with a copy of the judgment. There are double standards. It is perceived as more normal to see a woman with a child than the other way around, but that’s society for you. I think that that is a bit unfair, but that’s the reality.

Similarly, another father said: Because I cannot imagine that, had I done this act that Sophie had done, I cannot imagine that I would not have had a problem within the first three months. I really cannot imagine that.

Later in his interview he came back on this point, saying: There are double standards and that is something that really bothers me a lot.

F  Disrespect of Contact Rights: Mothers/Fathers The research results have pointed out that, also for cases concerning withholding contact, mothers are the biggest culprits. Among the collected data there are only eight files that concerned the nonrespect of contact rights in Belgium. Of these, the mother withheld contact in six (75%) cases and the father in two (25%) cases. There were 49 cases where the children lived in another country and files were opened because contact arrangements were not respected. In these cases, mothers were also the ones that withheld the children in the most cases: 77.6% as opposed to 22.4% fathers. Although the amount of cases is not high, the difference between mothers and fathers is remarkable. This might be partly explained by the fact that currently there still seem to be more children that primarily reside with their mothers than with their fathers. Thus, these fathers might have only contact rights, and these are the rights that have to be respected by the mothers and that form the subject of the figures. The countries in which children are resident in cases of non-respect of contact rights are mainly EU countries: 65.3% of cases. This is understandable if one takes into account that (extensive) contact arrangements are dependent on practicalities: the parents must generally live relatively close to each other. The relevance of this factor is confirmed by the fact that the Netherlands and France, both neighbouring states of Belgium and also EU Member States, together account for 32.7% of the cases.

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III  Mother/Father Abductors Compared to the Status of the Parents’ Relationship An analysis has been made to determine whether there is a correlation between the form of the parents’ relationship and the person who abducted the child. Table 2 below shows the percentages of mother abductors according to the parents’ relationship. Table 2: Parents’ Relationship and Relation to Abducted Child Parents’ relationship Registered partnership Separated from registered partnership Non-officialised relationship Married Separated from non-­ officialised relationship Divorced Factually separated, but still married Parents never lived together One parent deceased

Mother abductor 100% 100%

Father abductor 0% 0%

Other abductora

82.2% 67.4% 67.4%

15.6% 32.6% 32.6%

2.2% 0% 0%

61.4% 56.9%

38% 42.2%

0.6% 0.9%

50% 50%

50% 0%

0% 50%

0% 0%

  Including grandparent and other relative with parental authority.

a

The number of cases in which the parents had a registered partnership or were separated from such partnership is small and it is difficult to draw conclusions from these figures. The same is true for the cases where one of the parents was deceased. If these findings are compared, it is interesting to note that the percentage of mothers that abduct the child during the marriage or when still in the relationship (non-official or registered partnership) is higher (77.1%) than the overall percentage of mother abductors (65.2%). While it is not possible to really draw a conclusion for the one case in which parents had a registered partnership, the difference is marked in the cases where parents are married or living together in a non-official relationship. On the other hand, the percentage of mother abductors is smaller (62.4%) after divorce or after a factual separation. While there are still more mother abductors than fathers, the difference is smaller. Thus we note that mothers are more likely to abduct a child while still involved in a relationship with the father. In order to find an explanation for this fact, sophisticated sociological study is necessary. Such analysis is beyond the scope of



Abduction and Parental Authority

83

this book. Suffice it to take note of this fact, which is certainly relevant when the prevention of child abduction through psychological and other channels is contemplated.

IV Abduction and Parental Authority An analysis was done to compare whether parents with parental authority were more or less likely to abduct their child. In the vast majority of the cases taken up in the dataset, the parents shared the parental authority, namely in 87.8% of the cases.11 For these cases, the mothers account for the majority of the abductions, namely for 67.6%. This figure is slightly higher than the overall percentage of mother abductors (65.2%). The cases in which one of the parents had exclusive parental authority are fewer. For these cases, the mother abductors were still in the majority, but the percentages were lower: 54.4% where the mother had exclusive parental authority and 52.9% where the father had exclusive parental authority. It is not entirely clear what the reason is for these figures. One can say that in cases where exclusive parental authority had been granted to one parent, the family situation was probably more problematic. In most of these cases, the parents were already separated. As has been indicated in the previous paragraph, when the parents have already separated, the percentage of mother abductors decreases. The findings concerning parental authority follow that pattern. Table 3: Parental Authority in Families before Abduction Parental authority Other non-family, non-relative, eg institution Shared between parents Father exclusive Other family member/ relative

Mother abductor 100%

Father abductor 0%

Other abductora 0%

67.6% 52.9% 0%

31.9% 47.1% 100%

0.5% 0% 0%

a   Including grandparent and other relative with parental authority. In the case where the parents abducted the children together, the information on the parental authority is not available. The children had been placed in an institution in this case, but it is not clear whether this was a provisional measure while the parents retained their parental authority, or whether the parental authority had been completely withdrawn from the parents.

Note that there was only one case in which another family member and only two in which a non-relative had parental authority. One can therefore not deduct a great deal from the first and last rows of table 3 above. 11   This high percentage is in accordance with the Belgian legal situation, which is that parents share parental authority, also if they are not married, unless the Court has ordered otherwise.

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Figure 11: Person(s) with Parental Authority over the Child at the Moment of Abduction Compared to Abductor

V  Abducting Parent and Residence of the Child While the previous section analysed the relationship between parental authority and the parent who abducted the child, let us now turn to the relationship between the child’s residence (with mother or father or both) and the parent who abducted the child. For this analysis, the legal residence of the children was taken into account. Where possible, data on the factual residence situation was included. This, however, is not known for all cases. Information on who the primary caretaker was factually is available in 441 of the 667 files. For 80.7% of the cases, the legal and factual positions were the same. For the remaining 19.3% of the cases, the factual residence was known to be different from the legal situation. In 75.4% of the cases the child is abducted by the parent with whom he or she principally resided, or, if the child resided equally with both parents (together or alternately), by one of the parents. If account is taken of the differences in the factual and legal situations, in 79.2% of the cases the child is abducted by the parent with whom he or she primarily resided or, in the case of equal residence, by one of the parents.



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It is important to recall that this percentage is based on the available information and it is often difficult to determine the precise factual situation, especially at a time when the family might live in turmoil and the factual situation might be unstable, contested or easily changed. It is important to bear in mind that the data collected is archival in nature, and in some instances based on the recounting of one parent, so the information might be subjective. The above figures and figures 12 and 13 below indicate clearly that in the vast majority of the cases, the resident parent abducted the child. Of course, this parent has more opportunity to abduct the child, as he or she sees the child more often.

Abduction by parent or one of the two parents with whom child had principal residence Abduction by parent with whom child did not have principal residence

Figure 12: Abducting Parent and His/Her Relation to the Child

Abduction by the primary caretaker or one of the two parents who were primary caretakers factually Abduction by a parent who was not the factual caretaker

Figure 13: Abductions by Primary Caretakers or One of the Primary Caretakers

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These results also force us to contemplate the reasons why a parent abducts his or her child. It does not seem plausible to state that an abducting parent is a parent who feels aggrieved because he or she is unable to spend enough time with his or her child. It is possible that the parent does not want the child to spend time with the other parent, because he or she genuinely believes that the other parent is a bad influence on the child, or because he or she wants to hurt the other parent (sometimes heard in the accounts of the left-behind parents). However, this is different from feeling aggrieved due to one’s own contact with the child. When working toward the prevention of international child abduction, this finding should be borne in mind. It is not sufficient to look only at possible grievances parents might have concerning their own contact with their child. It is also essential that parents trust each other with their child, and that they see the importance for the child to have contact with both parents. The following table shows the residence of the child compared to the abducting parent, further broken down according to the relationship between the parents. For some categories the figures are too small to justify any generalised conclusions. These categories have been indicated with an asterisk.

Table 4: Relationship between the Parents, Residence Arrangement, and Relation of the Abducting Parent to the Child Relationship between parents Married Divorced

Factually separ­ ated, but still married

No official relationship

Residence arrangement With mother and father together With mother Equally with mother and father With father With other person or institution* With mother Equally with mother and father With father With other person or institution* With mother and father together With other person or institution*

Mother abductor 77.1%

Father abductor 22.9%

Other abductora 0%

67.2% 53.3%

31% 46.7%

1.7% 0%

42.4% 100%

57.6% 0%

0% 0%

57.4% 56.3%

42.6% 40.6%

0% 3.1%

66.7% 0%

33.3% 100%

0% 0%

81.4%

16.3%

2.3%

100%

0%

0%



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Table 4 (cont): Relationship between parents Separated from non-official relationship

Registered partnership Separated from registered partnership Never lived together

One parent deceased

Residence arrangement With mother Equally with mother and father With father With other person or institution* With mother and father together* With mother* Equally with mother and father* With mother Equally with mother and father* With father* With mother* With other person or institution*

Mother abductor 73.4% 65.8%

Father abductor 26.6% 34.2%

Other abductora 0% 0%

60% 0%

40% 100%

0% 0%

100%

0%

0%

100% 100%

0% 0%

0% 0%

57.1% 50%

14.3% 50%

28.6% 0%

0% 0% 100%

100% NA NA

0% 100% 0%

  Including grandparent and other relative with parental authority. *  In the categories indicated by an asterisk, the amount of cases are fewer than five, and the percentages are therefore not reliable. a

This table confirms that it is most often the resident parent who abducts the child. Where the parents are still together, it can be seen that most abductions are done by the mother.

VI  Preparation for the Abduction A  The Well-planned Abduction During the interviews, many left-behind parents said that they had not seen the abduction coming. However, when they were asked to look back at the situation after the experience they had had, many acknowledged that everything had been well planned, in some cases meticulously, even though they had not realised it at the time. One mother explained how the father had booked the plane tickets three weeks in advance, without her knowing. He had done all of his preparations on a new

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laptop computer which he had bought and which he took with him when he left. After he had left, she discovered that he had left no trace on the family computer of anything he had done over the past three months. She realised how long he had been busy with his plans. She explained some of the preparations he had taken. He had gradually taken some of the children’s clothes and toys to his office so that he could take them along when the day of departure came. At a certain point, the mother noticed that the children’s coats had disappeared. When she said something about this, the father responded that she was the one who had lost them. He had also taken all his expensive shirts to the drycleaners. The mother explained that he had never done this before and she thought it odd, but she did not ask his reasons. She added: But one never says this is bizarre, we do not get along, thus he will steal the children.

In this way she illustrated the discrepancy between the expectations of one parent and the preparations by the other. In her case, the couple was still living together, but experiencing difficulty in their relationship. They had reached a point in their relationship where one was still hoping for improvement, while the other had decided to end the relationship. While she was still attached, he was in the process of detaching himself from the relationship and he was planning his departure. In these circumstances, it is only natural that a mother did not see what was coming. In another interview, a father explained that the child’s mother had collected letters from the teachers at school saying that the child was hurt and teased by the boy’s father and uncle (who lived in the same house as the father). While the mother did not act on these letters for eight months, she kept them for the moment she wanted to leave with the child. Thus, she had been preparing the abduction by putting blame on the father’s way of parenting. Although this abducting mother’s methods were different from those of the father in the previous account, the result was the same: secretly preparing the abduction while the other parent was unaware. Another mother said that the father had told her that he would go on holiday with his daughter in July (when the daughter would normally have visited him) and thus he needed the child’s passport and clothes. He also said that he needed the school books to check what his daughter had learned. This was the first time he had asked for the school books and the mother thought it strange. This was an indication of the plans he had been making, probably to enrol the child in a school in the new country. However, the mother did not expect such actions. This account again shows that there is a large step between finding behaviour strange and linking it to a possible abduction, which remains unthinkable for many parents. In a case where two Belgian citizens lived with their child as expatriates in another country, there was conflict between the mother and the father. They had initially gone to another continent to live and work there for one year. They had then decided to stay longer and, according to the father, both of them had projects there that they wanted to complete. However, against the background of



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relational difficulties, the mother said that she wanted to return to Belgium. He managed to convince her to take a month to think about her decision. The father wanted her to think carefully, rather than breaking up the family (he was convinced that he wanted/needed to stay longer). During the month, the mother would not pronounce her decision; she said that she would only do so at the end of the month. It later emerged that she had been using this month to prepare her departure with her child. The father was unaware of her preparations, thinking that she was contemplating her future. At the end of the month, she gave him the impression that she had decided to stay. He was very happy. She then left secretly in the night. When he woke up, the mother and child had already left. The father expressed how incomprehensible he found the mother’s behaviour. He was shocked as to the extent to which his partner at the time had been able to play a game and lie to him as she did her preparations. In another interview, an abducting mother explained her own preparations. She was living in a difficult family situation, where she had been the victim of two incidents of violence. She and her partner were constantly arguing and she was not happy where she was. She was a Belgian citizen living in another European country. She explained that she first left with her child when she was ill and not doing well. This was without her partner’s consent (she had tried to contact him, but failed). Her idea was to stay for a while and take some time to think about her situation. Her aunt (who was a lawyer practicing in Belgium) told her that she could not just leave with her child like that. She told her to report to the police that she was in Belgium, which she did. After her return to the other country, she spoke to her partner, saying that she wanted to leave. She started packing her stuff, getting all the child’s documents and keeping them in her handbag. She tried to sign an agreement with her partner concerning their separation, but he refused. When he went away for the weekend, she flew. She phoned him when she was in Belgium. This mother explained how she had carefully investigated her possibilities and consulted lawyers in Belgium and in the country where she was living. She was well aware that she was not legally permitted to take her child and return to Belgium. The choice she faced was either staying in an intolerable situation where she had been the victim of violence, or to illegally take her child to Belgium and seek a better life for herself and her child there. She had also considered living on her own in the country where the child’s father was, but she had no money to enable her to do so and not much of a social network to support her. The mother knew what her legal rights were. She realised that if she went to Belgium, she would have to immediately introduce legal proceedings there. She also took the risk that the child’s father would not institute proceedings to request the return of the child, because he was not able to look after the child on his own due to his burdened professional life. She took a risk, but she was well informed: she had obtained legal advice.

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She did not leave in a hurry: she had weighed up the possibilities and took a careful decision. This account, from an abducting parent herself, shows how carefully an abduction can be planned. Moreover, she also explained how she had considered other options and her deed was really one of last resort. She would not have abducted her child if she saw any other option. This account has convinced me that one cannot see every child abduction as a thoughtless, selfish act. The mother was profoundly unhappy before she abducted her child. In a situation like this family’s, moral and psychological support is more important than the availability of legal proceedings after the facts.

B  The Unplanned Abduction It emerged from a few of the interviews that the abduction had not been planned at all, according to the left-behind parents. One of these was an abduction by a mother who had post-natal depression. She left to see her family, with the agreement of the father, but did not return as planned. She had taken one of her two children with her. When the father contacted the mother’s family, they said that she was not with them anymore and they thought that she had returned to Belgium. It seemed that the disappearance was a whim. According to the father, the mother had later, after she had been found, admitted that it had been a surge and that she was not conscious of the consequences of her actions at the time. The father said that she had had postnatal depression since the birth of the first child. The second child was born shortly after, and she had never quite regained her emotional strength. To make matters worse, her own father had died shortly after the birth of the second child. Another abduction took place by a mother who had borderline personality disorder. She disappeared one day with the child. On that day, she had various appointments and nothing indicated that she would disappear. In the view of the father, it was similarly a whim. The father explained that she had disappeared like this quite a number of times during their relationship. In a third case the mother went on holiday and once she was with her family in her country, she did not want to return. It is not clear whether this mother suffered from post-natal depression or from depression as she was unhappy in Belgium, where she had hardly any friends or family, and no job. The accounts of these mothers indicate yet again the intricacy of the problem of international child abduction: it does not stand on its own, and when attempting to prevent abduction, legal mechanisms protecting a child are simply not sufficient. In many instances the period before the abduction is one of difficulty for one or both parent(s). This delicate social context should be respected and treated with due sensitivity. Social workers and schools should not lose sight of this bigger picture. Most importantly, the root of the problem must be addressed in time.



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C  Abduction Linked to Holidays According to many of the accounts, the abducting parent went on holiday with the child and never returned. This can partly be confirmed by the statistical data. It was found that about 52% of abductions took place during holiday time. This information is probably not fully accurate, because it was not possible to take the holiday period of other countries into account for cases in which the child had been abducted from another country to Belgium: such information was not readily available, especially if it concerned past years. Therefore, the practical choice was made to take only Belgian school holidays into account. Another difficulty with the concept of ‘holidays’ is that many of the abducted children were still very young and not yet attending school. Thus, it is possible that a parent took the children on ‘holiday’ during a period which is not generally considered a holiday period. Taking these additional elements into consideration, it is possible that the percentage of abductions linked to holidays is in fact higher. Abducting a child during a vacation allows a parent to overcome certain hurdles. He or she can apply for passports, buy plane tickets and phone his or her family or friends in the country of destination without having to do so secretly. The other parent is aware of the planned holiday and consents to the preparations (which in fact might have an end goal other than the one he or she is aware of). The left-behind parents who were interviewed often said that they realised, when looking back, that the abduction had indeed been planned all along, but that they were not aware of it at the time the ‘holiday’ was being prepared. One mother explained how she had sensed that particular year that the holiday would end up in an abduction. Her daughter would have stayed with her father for a month. Even during this month, she could not reach the father and daughter, while there was normally communication between them during the time that the daughter visited her father. This father first took his daughter to England, with his new partner and her son. However, they were arrested before boarding the ferry, as an alert had been issued for his partner and her son. The father and daughter were not kept under arrest. The father, his new partner and his daughter subsequently travelled by car to Barcelona and further to Andorra. The mother had been concerned about the looming abduction, and she was in fact proved right when the father tried to go to England. Nevertheless, nothing could be done to stop him. There was no legal basis to keep the father under arrest, since the facts took place during the month in which the father was exercising his right to contact with his daughter, and the alert did not concern him (but only his partner and her son). The mother was extremely frustrated by the chain of events leading up to the abduction of her daughter. She explained that she had sensed it in advance, that all the signs were there, that the father had even walked into the arms of the police when his partner was not permitted to leave the country. She was faced, quite

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brutally, with how inadequate the legal tools were. It made no sense to her why the father could not be stopped just because he was still exercising his contact rights. The point of this account is twofold. First, one must be able to respond to a situation like this before the abduction takes place. Second, the law does not provide sufficient tools for preventing abduction in a situation like this. It is important that the root of the problem is treated in the appropriate way, whether that be psychological, through mediation, or any other way. In another interview, a father explained that the mother took the child on holiday to Africa without his permission and she stayed for three weeks before returning. In the meantime the father had instituted legal proceedings in the Canton court.12 The parents separated after this incident, and the child lived alternately with the mother and the father for periods of one week. A ruling was made that neither of the parents should leave the country with the child without the written consent of the other parent. However, the next summer, the mother contacted the police to tell them that she would go to Africa on holiday. She left with the child and did not return. The father realised that they had left when he got a phone call from the school after the first week of September saying that his son had not been attending school during the first week of term. The father was shocked by how this was possible following a judgment preventing the mother from leaving the country without his consent. Yet again, it turned out that the legal system’s tools were insufficient. Another father experienced vividly how a planned holiday turned gradually into an abduction. He had agreed to the mother visiting her family in Spain with their three children. During the first weeks, the mother kept extending their stay, and he agreed to this. After three months, however, he thought that the family had been separated long enough and asked her to return to Belgium. She then said that she was in fact not planning to return. It was only at that stage that he realised that everything had been well orchestrated in advance. He said: She had for example let me buy the tickets . . . in a very, well, clever way, so that she could prove afterwards, because she used that in court, that I had given permission for them to leave . . . That of course did not have much of an influence, but it was one of the arguments. And when they were in Spain, they had been there for two weeks, then I went there, and then my wife said ‘well, I am staying a bit longer’, but in the mean time, her sister works at a school over there, she was a nursery school teacher. She [the mother] said: ‘I am going to send the children to school. Then they have something to keep them occupied during the day. But then you have to sign a paper that they will not get subsidies from the Spanish State.’ And I signed that. Afterwards I thought that that was stupid. But that also happened to prove that I had given permission that the children would go to school there. [. . .] She had also taken her jewellery along, something you don’t take with you when you go on holiday, you don’t need it, but that is something that you take with you when you are not planning to return. [. . .] I had sent some toys and some of their [the children’s] stuff. I had even sent her a bank card so that she had money over there . . . before I knew that she was not going to return, because the fact that she wanted to stay longer, I had no objection to that.   Justice de la paix / vredegerecht.

12



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93

His account shows how the mother had actually used the holiday to plan and execute her move to another country, taking the children with her. Bit by bit she asked his permission for steps she had to take in her process. The abduction could not have been prevented by stricter rules on leaving the country. Only communication and emotional assistance could have helped this family. Despite all these negative experiences of holidays turning into abductions, parents acknowledge the importance of allowing an expatriated parent to travel to his or her home country. One father even said that it is important to allow a person to visit family and friends in his or her country of origin for extended periods. He saw such an attitude as a measure for prevention, since it made life easier for that person (the mother in this case). Another father had refused to give his permission when the mother wanted to go on holiday with the children to her country. When interviewed, he said that this refusal was the thing that he regretted most. Despite his refusal, the mother had left with the children. He said that one has to allow visits rather than try to prevent them. In this way, parents concede that the law as a preventive tool is not adequate. Solutions have to be sought elsewhere.

D  Preparation and Children In some cases, depending on his or her age, the child was told of the planned move. Sometimes the child alerted the other parent. This parent, however, did not always know what to do with the information, and whether to take it seriously. Sometimes, however, the child was explicitly told not to tell the other parent. The father of a boy who was eight years old at the time of the abduction said: He would have known but he would not have been allowed to tell. That must have been difficult for such a small child.

This father was sensitive to how difficult the abduction and the conflict between his parents had been for his son. He realised that if the child did not tell him anything, the child himself was not to blame, but rather the mother who had been brainwashing him. In another case, the mother explained how the father had prepared his children for the move. He had told them that he had a big surprise for them. He told the mother that he was going to take the children to the zoo that day. At the time she thought that he was making a disproportionate fuss about going to the zoo, which was something nice, but not that big a deal, after all. It was only after the abduction that she realised that the fuss was all about preparing the children, so that they would not be disconcerted when they got to the airport and the father told them that the surprise was that they were going to visit their grandparents on a different continent. Both these accounts show how the children became involved in the preparations, which were beyond their control. In this way children fall victim to the

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conflict between their parents. The unfortunate result of a strictly legal approach to child abduction is that children are even more involved in conflict, rather than being assisted by way of a psychological or conflict-resolving approach.

E  Beating the Law An official of the public prosecution who was interviewed said that the most difficult cases, in her experience, are those where the abduction had been carefully planned without any threat uttered beforehand. She was of course speaking from the point of view of ensuring the return of the child through judicial means. When an abduction is well planned, it is more difficult to find the child, and more difficult to start proceedings. Listening to parents about how the abduction of their children had been prepared, it becomes clear that much thought is put into beating the law: abducting parents make sure they are a step ahead. Using only legal tools in this quest can be counter-productive: it can become a competition at outwitting. Therefore, the law in itself cannot provide all the tools for dealing with international child abduction. The role of family therapy, assistance by social workers and negotiated solutions cannot be stressed enough.

VII  Number of Children Abducted Together In most cases, all the children in the family were abducted together: this was so for 90.9% of the cases. In 9.1% of the cases, some of the children were abducted, but not all of them. whether or not all children in the family were abducted together All children in the family abducted together Not all children of the family abducted, but only some

Figure 14: Whether or not all Children in the Family were Abducted Together



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VIII  Destination of Abduction A  Countries to which Children were Abducted from Belgium The countries where children were abducted to, vary greatly. The destinations have therefore been classified according to parts of the world. In table 5 below, the countries have therefore been grouped into parts of the world. Table 5: Parts of the World to which Children were Abducted Part of the world to which child abducteda EUb North Africac Other Europed Asiae Middle Eastf Central and South Americag North Americah West Africai Central Africaj East and southern Africak Oceanial EEA, excluding EUm

Percentage 52.6% 12.6% 7.8% 5.7% 5.4% 5% 3.9% 2.6% 1.5% 1.5% 0.7% 0.7%

Only countries that were found in the cases of the dataset are included. Including Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Hungary, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. c Algeria, Egypt, Libya, Morocco, Sudan, and Tunisia. d Albania, Andorra, Belarus, Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Moldova, Serbia, Turkey, and Ukraine. e Bangladesh, China, India, Indonesia, Malaysia, Mongolia, Nepal, Pakistan, Philippines, Russia, Thailand, and Vietnam. f Iran, Iraq, Israel, Jordan, Lebanon, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen. g Argentina, Bolivia, Brazil, Chile, Colombia, Dominican Republic, Equador, Haiti, Mexico, Peru, and Uruguay. h Canada and the United States of America. i Burkina Faso, Cameroun, Congo (Brazzaville), Côte d’Ivoire, Equatorial Guinea, Gabon, Ghana, Guinea, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. j Burundi, Congo (Kinshasa), and Rwanda. The division between Western and Central Africa States could have been done in another manner as well, but I have chosen to keep Burundi, Congo (Kinshasa) and Rwanda in a separate category because these are all ex-Belgian colonies. Congo (Brazzaville) has therefore been added to the West Africa list and Angola has been categorised as East and southern Africa. k Angola, Botswana, Djibouti, Ethiopia, Kenya, Lesotho, Madagascar, Mauritius, Mozambique, Namibia, South Africa, Tanzania, and Uganda. l Australia and Micronesia. m   Norway and Switzerland (Switzerland was added to this category because of its particular relation to the Schengen-States). a

b

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The following graph shows the differences in destinations in terms of the true figures.

Figure 15:  Part of the World to which the Child was Abducted from Belgium

These results are in sharp contrast with the perception that people have of international child abductions. As has been explained above,13 the typical abduction, according to the perception, is to a country in North Africa or the Middle-East. This perception has probably been created (or sustained) by a few known cases, books published by mothers in these situations,14 and media attention. Child Focus has noted a discrepancy between its prevention and actual abduction files over the years: while the number of prevention files concerning Africa is much higher than the number of actual files, the contrary is true for abductions to European countries.15 A possible reason for this divergence between perception and reality might be the idea that moving from one EU country to another is similar to moving within the country. Possibly, EU citizens have even ceased to see such a move as an abduction because of the collapse of the borders. Unfortunately, it is also this collapse of borders that makes child abduction within the EU so easy. However, even within the common area of the EU, the legal systems are still different. We are   See above, chapter 4, VI.   Such as B Mahmoody, Not Without my Daughter (New York, St Martin’s Press, 1987) and H Amin, Reunited in the Desert (London, John Blake, 2007). 15   See, eg Child Focus’s Annual Reports of 2008 18–19 and 2009 17. 13 14



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thus clearly, as far as the law is concerned, in an international context, even though people might not always realise that. The legal systems are different; each state has its own mechanisms for the enforcement of judgments,16 and its own police services. These elements make the return of a child more difficult than it would be if the child had remained in the same country (in this last instance one would generally speak of the non-respect of visitation, access or contact rights). An analysis has also been made according to the legal instruments applicable in the countries to where children had been abducted from Belgium. The legal instruments that were taken into account are the Brussels II bis Regulation,17 the Hague Convention and the protocols that Belgium has concluded with Morocco and Tunisia.18 The Brussels II bis Regulation provided a supplement to the Hague Convention for cases of international child abduction. Therefore, the Hague Convention is also applicable in all states in which the Brussels II bis Regulation is applicable. The legal ties that a country had with Belgium were seen as the relevant question. By implication, not all states that are party to the Hague Convention have been classified as such, but only those states that Belgium had accepted: the Hague Convention only creates obligations between Belgium (as one of the states that was represented at the negotiations for this Convention) and states that have also been represented at the negotiations leading to the Convention or that have subsequently acceded to the Convention and whose accession had been accepted by Belgium. If Belgium does not accept another country’s accession, the Convention does not apply between Belgium and that country.19 It is important to note that a strict time frame had to be respected in this analysis. In the case of some of the files investigated, the state in question became party to the Hague Convention during the time that the file was open. Therefore, the file started off as a non-Convention file with the Ministry of Foreign Affairs. Later it became possible to introduce Hague return proceedings. In order to avoid complexity in the analysis, one date has therefore been chosen. The same applies for cases with Bulgaria and Romania: these states have been classified as Brussels II bis states, even though this EC Regulation is only applicable in these states as of 16   In the EU, enforcement proceedings are simplified and exequatur proceedings are abolished for some matters. However, even the enforcement of a judgment from one EU country in another is not (yet) without difficulty. 17   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 L338/1 (The ‘Brussels II bis Regulation’). 18   Note that the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (Luxembourg, 1980) has not been taken up in this categorisation, as Liechtenstein is the only state that has signed that Convention but not the Hague Convention. None of the cases in the dataset concerned an abduction to or from Liechtenstein. This Convention is not used often because its requirements are stricter than the Hague Convention. 19   A list of the contracting states that Belgium has accepted is available at www.just.fgov.be/index_ fr.htm. For a list of all states party to the Convention, see www.hcch.net/index_en.php?act=conventions. status&cid=24.

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1 January 2007.20 The date that was chosen as reference is 1 August 2009. (This date corresponds to the time when the coding of the data was done.) The legal situation on that date was taken into account for the files. The following table shows the destination countries according to the applicable legal instrument. Table 6:  Legal Instrument Applicable in Country of Destination Legal instrument applicable in country of destination Brussels II bis Regulationa Hague Conventionb No international treatyc Bilateral protocolsd

Percentage of abductions 51.1% 19.8% 19.3% 9.8%

a Austria, Bulgaria, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Hungary, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. Note that the Hague Convention is also applicable in all these states. Also note that the Brussels II bis Regulation is not applicable in Denmark, even though that country is a Member State of the EU. Therefore, for cases where a child has been abducted from Belgium to Denmark or from Denmark to Belgium, the Hague Convention applies and not the Brussels II bis Regulation. b Countries where the Hague Convention, but not the Brussels II bis Regulation applied as on 1 August 2009: Argentina, Australia, Bahamas, Belize, Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Chile, China (only Hong Kong and Macao), Colombia, Costa Rica, Croatia, Denmark, Dominican Republic, Ecuador, El Salvador, Fiji, Georgia, Guatemala, Honduras, Iceland, Israel, Macedonia (the former Yugoslav Republic of), Mauritius, Mexico, Moldova, Monaco, Montenegro, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Saint Kitts and Nevis, San Marino, Serbia, South Africa, Sri Lanka, Switzerland, Thailand, Turkey, Turkmenistan, Ukraine, Uruguay, Uzbekistan, the United States of America, Uruguay and Venezuela. c All other countries. d Morocco and Tunisia.

These figures are interesting with prevention in mind. It indicates the amount of abductions to countries linked to Belgium by a legal instrument. It emerged from the interviews with parents and professionals alike that in their experience the legal instruments are not well-known. Spreading information about the state of the law and about the legal instruments and procedures available in case of an abduction might help to prevent such abductions. Figure 16 shows the real figures in relation to each other.

B  Countries from where Children were Abducted to Belgium As has been indicated above, the number of files in which the child had been abducted from another country to Belgium is smaller than that of the abductions to Belgium. These figures possibly do not provide the full picture.

  When they acceded to the EU.

20



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Figure 16:  Legal Instrument Applicable in Country to which the Child was Abducted from Belgium

It is, however, abundantly clear that the majority of abductions to Belgium happen from other EU countries. Next in the row are North America and North Africa, but figures for these countries are much lower than those for EU countries. Table 7: Parts of the World where Children were Abducted from (to Belgium) Part of the world from which child abducteda EUb North Americac North Africad Middle Easte Asiaf East and southern Africag EEA, excluding EUh Other Europei Oceaniaj West Africak Central Africal Central and South Americam

Percentage 76.9% 6.8% 6% 2.5% 2.5% 2.5% 0.9% 0.9% 0.9% 0% 0% 0%

Cont.

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Only countries that were found in the cases of the dataset were included. Including Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Hungary, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. c Canada and the United States of America. d Algeria, Egypt, Libya, Morocco, Sudan, and Tunisia. e Iran, Iraq, Israel, Jordan, Lebanon, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen. f Bangladesh, China, India, Indonesia, Malaysia, Mongolia, Nepal, Pakistan, Philippines, Russia, Thailand, and Vietnam. g Angola, Botswana, Djibouti, Ethiopia, Kenya, Lesotho, Madagascar, Mauritius, Mozambique, Namibia, South Africa, Tanzania and Uganda. h Norway and Switzerland (Switzerland was added to this category because of its particular relation to the Schengen-States). i Albania, Andorra, Belarus, Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Moldova, Serbia, Turkey and the Ukraine. j Australia and Micronesia. k Burkina Faso, Cameroun, Congo (Brazzaville), Côte d’Ivoire, Equatorial Guinea, Gabon, Ghana, Guinea, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. l Burundi, Congo (Kinshasa), and Rwanda. The division between Western and Central Africa States could have been done in another manner as well, but I have chosen to keep Burundi, Congo (Kinshasa) and Rwanda in a separate category because these are all ex-Belgian colonies. Congo (Brazzaville) has therefore been added to the West African list and Angola has been categorised as East and southern Africa. m Argentina, Bolivia, Brazil, Chile, Colombia, Dominican Republic, Equador, Haiti, Mexico, Peru and Uruguay. a

b

The following graph shows the real figures in relation to each other.

Figure 17: Part of the World from where Child was Abducted to Belgium

In table 8 below, the same breakdown has been made for abductions from Belgium to other countries. The table indicates the legal instruments applicable in the countries from which children were abducted to Belgium. Of course the Brussels II bis Regulation is applicable in the great majority of countries, since most of the abductions are from EU countries, as table 7 above has shown.



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Table 8: Legal Instrument Applicable in Country from where Children were Abducted Legal instrument applicable in country from where children were abducted Brussels II bis Regulationa Hague Conventionb Bilateral protocolsc No international treatyd

Percentage of abductions 74.4% 17.1% 6% 2.5%

a Austria, Bulgaria, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Hungary, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. Note that the Hague Convention is also applicable in all these states. Also note that the Brussels II bis Regulation is not applicable in Denmark, even though that country is a Member State of the EU. Therefore, for cases where a child has been abducted from Belgium to Denmark or from Denmark to Belgium, the Hague Convention applies and not the Brussels II bis Regulation. b Countries where the Hague Convention, but not the Brussels II bis Regulation applied as on 1 August 2009: Argentina, Australia, Bahamas, Belize, Bosnia and Herzegovina, Brazil, Burkina Faso, Canada, Chile, China (only Hong Kong and Macao), Colombia, Costa Rica, Croatia, Denmark, Dominican Republic, Ecuador, El Salvador, Fiji, Georgia, Guatemala, Honduras, Iceland, Israel, Macedonia (the former Yugoslav Republic of), Mauritius, Mexico, Moldova, Monaco, Montenegro, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Saint Kitts and Nevis, San Marino, Serbia, South Africa, Sri Lanka, Switzerland, Thailand, Turkey, Turkmenistan, Ukraine, Uruguay, Uzbekistan, the United States of America, Uruguay and Venezuela. c Morocco and Tunisia. d All other countries.

The following graph shows the applicable instruments in absolute figures.

Figure 18:  Legal Instrument Applicable in Country from where Child was Abducted to Belgium

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It is not possible to deduct from these cases that there are fewer abductions from non-convention states. It has also been explained above that we probably do not have the full picture of incoming conventions. These figures are interesting for purposes of prevention: there is clearly a problem with abductions within the EU, where the Brussels II bis Regulation applies. This instrument has been fully applicable since 1 March 2005. Thus, it is possible that the application is not yet optimal and that if the same study were to be conducted in five or 10 years from now, the number of intra-EU abductions would have decreased. The Brussels II bis Regulation has a double role to play in this regard: in the first place, if well-known, it could serve as a deterrent for parents to abduct their child, as they will know that the child will efficiently be brought back through legal proceedings. In the second place, the Brussels II bis Regulation provides a mechanism for EU countries to easily recognise judgments on parental responsibility, including issues of the residence of the child after divorce. If these judgments can be easily enforced across national borders, child abductions should decrease. While the 1980 Hague Child Abduction Convention can serve the same purpose as the first described above, the second could be served by the Hague Convention of 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. This Convention also provides for the recognition and enforcement of foreign judgments. If these judgments are enforced across borders, it becomes more difficult to disrespect them and abduct children. The Convention has gained many contracting states since the research was condected.

C  Destination of the Abduction Compared to Nationality and Country of Birth of the Abducting Parent One of the hypotheses was that parents abduct their children back to their ‘home’ countries. We compared the nationality/ies of the abducting parent and his or her country of birth to the destination of the abduction It was found that the child was abducted to a country of which the abducting parent had the nationality or to the country in which he or she was born in 58.3% of the cases. In 41.7% of the cases, no such relationship was found. This means that the child was seemingly abducted to a country with which the abducting parent had no apparent connection. Before seeking to explain these statistics, a word of caution must be added. It is possible in cases of dual nationality that the second nationality was not taken up in the files, as it was not useful for the purposes of solving the case. This second nationality might coincide with the destination of the abduction. In the same way, it is possible that information on the country of origin of the parent was lacking or did not give an accurate picture (only the country of birth was taken into account). The interviews with left-behind parents also indicated that grandparents played a role in the abduction itself in some cases. They housed their son or daughter



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Abduction to country of nationality or place of birth of the abducting parent Abducting to another country

Figure 19:  Relationship of the Abducting Parent to the Destination of the Abduction

with the children and assisted with the day-to-day tasks that the single parent has to take care of. They also sometimes helped to conceal the children. Naturally, the grandparents often live in the country of origin of the abducting parent, ie the country which the abducting parent lived before setting up a family somewhere else. Linked to the idea of ‘going home’, it emerged from some of the interviews that there is a perception among parents (abducting and left-behind) that the state of which you are a citizen should ‘help’ you. The perception is also seen in the idea that some abducting parents have that they have the right to ‘return home’ with their child and that their ‘home country’ will assist and protect them. This perception does not correspond with reality: the international conventions on child abduction take the habitual residence as the point of departure and not the nationality. However, the fact that the perception exists, might induce abductions. Therefore, the spreading of correct information is essential. The percentage of abduction to countries of the nationality or the origin (in the sense of place of birth) of the abducting parent is lower than the perception. This unpredictability shows how difficult it is to attempt to prevent international child abductions.

D  Other Possible Links between Abducting Parent and Country of Destination There are many possible links that a parent can have with a country but that were not visible in our dataset.

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A first possible link can be that the abducting parent has relatives or friends in the country of destination. Another possibility is that the abducting parent moves to a country to follow or join a new partner. In the quantitative analysis, there is no data available about the new partner and his or her nationality and/or country of birth. However, the interviews pointed out the role that new partners can play. This has been discussed in the previous chapter.21 Yet another possibility is that a parent flees from debts in Belgium and takes his or her child along. Such information is not available in the data collected, but the parents and some of the professionals interviewed referred to this reason for child abduction.22 They specifically spoke of people with debts in Belgium as potential abductors, and thus indicated that measures of prevention might be called for.

IX Conclusion The chapter has indicated that every child abduction is different. The circumstances vary, as do the destinations. These disparities make it difficult to respond to the phenomenon of child abduction in a way that is appropriate for all cases. Moreover, it has been pointed out that the perceptions that exist about child abduction, are largely inaccurate. More mothers abduct children than fathers. More abductions take place within the EU than to North African or MiddleEastern countries. The fathers have expressed their frustration at being treated more severely than mothers, saying that the general perceptions in society simply make it easier for mothers to abduct children. Thus, when addressing child abduction cases, and when attempting to prevent international child abduction, caution should be had not to fall into the trap of perceptions and prejudices. The following chapter will point out how the law attempts to respond in the various scenarios.

  See chapter four, section entitled ‘New Partners’.   See chapter four, section entitled ‘Debts in Belgium’.

21 22

6 The Quest for Return I Introduction As has been pointed out in the chapters above, the best remedy for international child abduction is prevention. Once a child has been abducted, all available routes are difficult, and the negative impact on the child increases as the weeks and months pass. This chapter will assess the different routes to solicit the return of the child: both legal and extra-legal. It refers to the quantitative and qualitative data gathered and builds further on the thesis that the law does not provide adequate tools to deal with the problem of international child abduction. An important value of the existing legal instruments is that they have a role to play in the prevention of international child abduction. The main legal instruments on international child abduction are the Hague Convention on the Civil Aspects of International Child Abduction (1980)1 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).2 Both of these are multilateral conventions. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996)3 is also relevant for our purposes. It is, however, not yet in force in all European Union (EU) countries.4 On the level of the EU, the Brussels II bis Regulation5 also deals with the civil aspects of international child abduction. 1   This Convention was negotiated by the Hague Conference on Private International Law. For the full text see www.hcch.net/index_en.php?act=conventions.text&cid=24. 2   This Convention was concluded under the auspices of the Council of Europe. See www.coe.int. 3   This Convention was also negotiated by the Hague Conference on Private International Law. For the full text, see www.hcch.net/index_en.php?act=conventions.text&cid=70. 4   The delay in the ratifications of many EU Member States was due to a controversy that existed between Spain and the United Kingdom with regard to the Convention’s application in Gibraltar. The Convention is in the process of being ratified by most EU Member States. It has not yet been ratified by Belgium. During the time of the quantitative and qualitative collection of data, this Convention was not part of the Belgian legal system. 5   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 L338/1 (The ‘Brussels II bis Regulation’).

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Moreover, there are several bilateral conventions on international child abduction. Belgium has two bilateral protocols on this topic: one with Morocco6 and one with Tunisia.7 In cases where none of the above instruments are applicable, the left-behind parent’s options are much more limited. He or she can start proceedings in the country from where the child has been abducted and request the court to grant him or her exclusive parental authority over the children. However, there is no guarantee that such judgment will be recognised in the country where the child has been abducted to.8 Another option is instituting criminal law proceedings. The parent can also attempt negotiation or mediation, possibly with the help of the Belgian embassy in the country where this child is (assuming that the leftbehind parent and/or the child is a Belgian national). The chapter will start by a brief overview of parents’ first reactions when they hear that their child has been abducted by the other parent. Then the different legal and other routes which might lead to the return will be considered, as well as the enforcement and other issues relating to the return itself.

II  First Reactions The first reaction when a parent hears that the other parent has abducted his or her children is often shock and disbelief: When Phil called me, the father, from Toronto, the city of transit, on his way to Vancouver, to say to me: ‘I am leaving, I have taken the children,’ I saw myself exploding in a thousand pieces, I saw myself, to tell you the shock . . . it can kill you!

A  Contacting Authorities or Institutions The first steps parents took varied. Some parents immediately started calling as many organisations, institutions and authorities as possible. Others did not know where to start.

6   Protocol Accord concerning the creation of a Belgian-Moroccan commission on matters of civil justice, concluded in Rabat on 29 April 1981. The text of this Protocol is available at www.just.fgov.be/ index_fr.htm (French version). 7   Protocol Accord concerning the creation of a Belgian-Moroccan commission on matters of civil justice, concluded in Tunis on 27 April 1989. The text of this Protocol is available at www.just.fgov.be/ index_fr.htm (French version). 8  The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children contains rules on the recognition and enforcement of foreign judgments. Belgium will ratify this Convention, like all other EU Member States, but Belgium has not yet done so.



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It also depends on what their family, friends or colleagues advise them to do. As a first step, many parents reported what had happened with the local police. Some first called Child Focus. Others first contacted their lawyers. Some parents said that it is best to knock on all the doors where someone can possibly help. They tried all different routes simultaneously.

B  Amicable Solution Some parents preferred not to start legal proceedings immediately, but wanted to first attempt to convince the other parent to return. One father tried, with a great amount of patience, to find an amicable solution. His father (the child’s grandfather) had travelled to Pakistan, where the mother was, and spoke to her and her family. It was only after a year and a half that this father contacted the authorities. First, the police were contacted and via them the Belgian Embassy in Pakistan. This was done with the sole purpose to create pressure and the mother eventually returned of her own accord and under pressure by her own family. The Embassy contacted the mother. This created some pressure, but the ultimate solution was, according to the father, reached by the negotiations between the families. He said: But in fact, the most effective was that my father went there, because if we had to wait for a notice from the judicial system, I think it would have taken a bit longer. [. . .] And it would have been much more complicated.

This interview indicates that there might have been more abductions where the authorities had never been contacted, but which were solved by the intervention of the families of the mother and/or father. In the case of this interview, the parents were reconciled and are now living together again. In the same vein, a father, who found no amicable solution, said: ‘So she instituted legal proceedings and the proceedings did not change much, but it is clear that when you enter into the vows of lawyers, love [. . .] is gone.’ Other parents said that there was no point in seeking an amicable solution, and they insisted on the importance of quickly notifying all relevant authorities and instituting all possible legal procedures. An amicable solution can work in some cases, while in other cases the leftbehind parent no longer believed that it was possible. It is important to respect the views of the left-behind parent on the route that should be pursued, as he or she in most instances knows the abducting parent well. At the same time, the leftbehind parent must be thoroughly informed of the different possibilities, of the time that legal proceedings can take, and of the possible consequences of waiting (including the fact that the child integrates in his or her new environment and the fact that Hague Proceedings can fail on the basis that the child has been in the new environment for more than a year and is integrated in this place.9) 9   The Hague Convention (1980) art 12 provides that if more than a year has passed between the abduction and the institution return proceedings, the return has to be ordered unless it is demonstrated that the child is now settled in its new environment.

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As will be indicated below, amicable solutions have much more chance of success than legal proceedings.10

C Police When parents report an abduction with the (local) police, they are often asked whether there has been a judgment concerning the residence arrangement of the child. This question is normal in the course of the work done by the police officers, because for an abduction by a parent to be considered a criminal offence in Belgium, there has to be a judgment.11 However, some parents reported that the police said that they could do nothing for them in the absence of a judgment. These parents felt that they were sent away, while in fact the police could draw up a report of the facts and refer parents to the Central Authority, the Ministry of Foreign Affairs and/or Child Focus. One father said: The police, no really. Because I went to the police and they said to me ‘Do you have a judgment on paper?’ And I said well, no, for the moment I have nothing because it still has to be judged. So the police, until they have papers, do nothing. [. . .] They said to me: ‘We cannot do anything. You have no papers. She has the right to take her daughter and to leave like that.’ Look, this is really not possible!

Although one cannot speak of a criminal offence in cases where a judgment concerning the residence of the child has not yet been issued, the police should be encouraged to draw up a report of the facts. This could be useful for left-behind parents at a later stage, when they need proof. Moreover, police should be encouraged to refer parents to the Central Authority, the Ministry of Foreign Affairs and/ or Child Focus. For return proceedings under the Hague Convention to be successful, it is not required that the residence and contact arrangement with respect to the children are taken up in a judgment.12 Although this does not really fall under the competences of the police, they should at least be aware that they should draw up a report and refer parents to the competent authorities.

III  Legal Proceedings: General Overview The return proceedings by definition take place in a country other than the country in which the left-behind parent lives. Often these proceedings are also in a   See chapter eight, section entitled ‘Outcomes’.   Criminal Code art 432. 12   The Hague Convention art 3 states clearly that rights of custody can be conferred by a judicial or administrative decision, by agreement with legal effect, or by operation of law. Therefore, a judgment is not necessary before such proceedings can be instituted. 10 11



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language that is not the left-behind parent’s first language, if he or she speaks it sufficiently at all. The left-behind parent sometimes attends the proceedings, but not always. One parent described his experience: It was an intense moment, travelling to Germany . . . and having to tell the whole story in German . . . but I thought I have one chance only and I must use this chance.

During the interviews, some parents were unable to explain which proceedings had taken place when and where. They seemed to see a stack of proceedings here and there and they could not always tell which were for return and which were for the parental responsibility or residence, etc. In line with this, a judge in her interview said that in her experience parents often do not understand that the prime legal issue in moving to a different country with the child or abducting the child is court jurisdiction. The definition of international child abduction does not have the result that one may not move from one country to another with the child, but that one must have the consent to do so. If there is a dispute between the parents about where the child will live, this dispute has to be resolved by the judge of the child’s habitual residence. The purpose of the Hague Convention is to force abducting parents to let the child return and to have the dispute resolved by the judge of the child’s habitual residence. She said that abducting parents in return proceedings often bring arguments on the substance, for instance why they should be able to live in the new country and why the children should live there with them. This, however, is not the concern of the judge in return proceedings: he or she has to order return (with a few strict exceptions) so that the judge of the habitual residence can rule on the substantive arguments. The order for return is not an order ruling with which parent the child should live. Nothing prevents the abducting parent from returning with the child and instituting proceedings relating to the substance of the matter in the country from where the child was abducted.13 The judge added that it is hard to explain these legal technicalities to parents, while remaining sensitive to the human side of the story. One mother told of the proceedings under the Hague Convention in the US: So I had fifteen days of trial. My husband did not accuse me of paedophilia, but he accused me of everything, everything. So, he did not have proof and he could not support his averments. But my great fear was that he would produce false proof. [. . .] He did not go that far. And you see, it is an inextricable situation. When one finds oneself . . . Well, I speak English fluently, so that was ok. But when one finds oneself in a foreign country where one does not speak Romanian or Greek or I don’t know what, in front of a foreign court. You have to be there, because it is important that the judge sees you, that he sees that you are not stupid or a paedophile. The judge must see you. But apart from that, how can you assure your defence? I had incredible luck that it was in English. 13   Unless of course the parent is prevented from returning because criminal proceedings have been instituted and the parent risks being arrested and detained. See A Bucher, ‘Réforme en matière d’enlèvement d’enfants: la loi suisse’ in G Venturini and S Bariatti, New Instruments of Private International Law. Liber Fausto Pocar (Milano, Guiffrè Editore, 2009) 181–97.

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You know, it is unfair. At any moment one can fall or fail. And in an unfair way, because one is simply in situations of international law. And at the end of fifteen days the judge said: ‘OK, now this it, the children return to Belgium.’ So yes, I won the case.

Let us now turn to the figures on the legal proceedings that were used. Of the abductions to Belgium, the Brussels II bis Regulation was used in 50% of the cases. The Hague Convention was used in 31.7%, the bilateral protocol between Belgium and Morocco in 4.9% and the bilateral protocol between Belgium and Tunisia in 2.4% of the cases. None of these instruments were used in the remaining 11% of the cases. It is important to bear in mind at this stage that the data that form part of this study were collected at ministries and at Child Focus. It is therefore possible that there were more abductions to Belgium in which none of these instruments were used – cases which never became files at one of these ministries or Child Focus. The same analysis was made for cases in which the child had been abducted from Belgium to another country. No legal proceedings were used in 48.7% of the cases. The Brussels II bis Regulation was used in 17.5%, the Hague Convention in 23.2%, the Luxembourg Convention in 1.3%, the bilateral protocol with Morocco in 4.5% and that with Tunisia in 4.8% of the cases. In the following paragraphs, the legal instruments will be regarded separately: the law, as well as the application that emerged from the qualitative data, will be explained.

Figure 20: Type of Legal Procedure used in Abductions to Belgium



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Figure 21: Type of Legal Procedure used in Abductions from Belgium

IV  The 1980 Hague Convention This Hague Convention departs from the view that children should be protected from the harmful acts of their wrongful removal or retention. Their best interests are paramount in matters relating to their custody.14 Therefore, children who have been abducted from one country to another should be promptly returned to the state of their habitual residence. The principle behind this prompt action is that a parent should not be permitted to unilaterally change the country of residence of the child. The wrongful removal or retention should not lead to the child adapting to the new environment, only to be uprooted again when he or she later has to return. If a parent wishes to move to another country, he or she must first seek per­ mission from the court, or request the custody or residence arrangement for the children to be modified, in order to make sure that even after the move the child will be able to maintain contact with both parents.15   Preamble of the Hague Convention (1980).   See also Hague Conference on Private International Law, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part III – Preventive Measures, 2005, 19–20. 14 15

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The Convention seeks to prevent a parent from filing the application for the modification of the residence of the children only after having moved. The idea is that only the court of the child’s habitual residence should rule on the matter, and not the court of the state to which the child has been wrongfully removed. When there are two (or more) persons who have parental authority over a child, one of the parents should not be able, by taking the law into his or her own hands, to alter the legal position as to which court has jurisdiction. The Hague Convention is one of the first international instruments dealing specifically with children and their rights. It is even older than the UN Convention on the Rights of the Child, which dates from 1989.

A  Entry into Force and States Party The Hague Convention was concluded by the Hague Conference on Private International Law in 1980.16 It entered into force on 1 December 1983.17 The Convention has more than 80 contracting states.18 However, this does not mean that all these countries have direct legal obligations towards each other. The Hague Convention is open for signature to all the states that were members of the Hague Conference at the time of the Convention’s adoption,19 but these states may choose whether they accept the accession of other states. If a state accedes to the Convention, the Convention will only apply between that acceding state and other states insofar as those states accept the accession of the new state.20

B  Scope of Application The Hague Convention applies to children younger than 16-years-old. The Convention contains rules for returning children when they have been wrongfully removed to or wrongfully retained in a state other than the state of their habitual residence. The nationalities of the parents and of the children are not relevant for the application of the Convention: only habitual residence is taken into account. If the abduction took place from one Convention state (where the child had his or her habitual residence) to another Convention state, the Convention applies. The Hague Convention applies to all international cases where the custody rights21 of a parent have been infringed. According to the Convention, these rights may be embodied in a judgment or in an agreement with legal effect, or may exist by   See www.hcch.net/index_en.php?act=conventions.text&cid=24.   See www.hcch.net/index_en.php?act=conventions.status&cid=24. For a detailed bibliography of legal writings on the Convention, see www.hcch.net/index_en.php?act=conventions.publications& dtid=1&cid=24. 18  For a full list of the contracting states, see www.hcch.net/index_en.php?act=conventions. status&cid=24. 19   24 October 1980. 20   Hague Convention arts 37 and 38. 21   For the scope of the term ‘custody’, see chapter two, section entitled ‘Custody and Access’. 16 17



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operation of law. Thus, where parents have no judgment concerning the parental authority over the child, the Convention will apply if both have parental authority according to national law (as is the case according to the Belgian Civil Code22). The Convention deals only with the civil aspects on international child abduction. It does not contain any rules on criminal law or the extradition of abductors. International child abduction by a parent is a criminal offence in some states, but not in all. This has no influence on the operation of the Convention.

C Mechanism The Hague Convention places an obligation on States Party to designate central authorities.23 In most states, these central authorities are hosted in the ministries of justice or external affairs.24 Whenever a child is abducted from one contracting state of the Hague Convention to another (or retained in the latter), the Convention seeks the rapid return of that child, through the assistance of central authorities. Every contracting state has at least one central authority with the task of facilitating communication between the contracting states. A parent whose child has been abducted, for instance from Belgium to New Zealand, should contact the central authority in Belgium. This authority will request all necessary documents from the parent and contact the central authority of New Zealand. The central authority will attempt to find an amicable solution between the parents.25 The lengths to which central authorities go in this respect, vary greatly. In some cases mediation is almost imposed; in others a letter of invitation to mediate is written; in others the parent is merely informed that if there is no amicable solution, legal proceedings will ensue. In Belgium, a police officer generally contacts the abducting parent to ask him or her what his or her intentions are. This officer usually does not raise the possibility of mediation. However, the Conclusions and Recommendations of the Hague Conference’s Fifth Special Commission to review the operation of the Hague Child Abduction Convention (1980) and the Hague Child Protection Convention (1996)26 emphasised the importance of agreements and mediation.27 At the same time, mediation should not result in an undue delay of the return proceedings.28   Belgian Civil Code arts 373–74.   Hague Convention (1980) art 6. 24   For the contact details of the central authorities of all the states party to the Convention, see www. hcch.net/index_en.php?act=conventions.authorities&cid=24. 25   Hague Convention (1980) arts 7c) and 10. 26   30 October to 9 November 2006. This text is available at www.hcch.net/upload/concl28sc5_e.pdf. 27   See No 1.3.1., p 7. See also S Vigers, ‘Note on the Development of Mediation, Conciliation and Similar Means to Facilitate Agreed Solutions in Transfrontier Family Disputes Concerning Children Especially in the Context of the Hague Convention of 2006’ (Preliminary Document No 5 of October 2006), available at hcch.e-vision.nl/upload/wop/abd_pd05e2006.pdf. 28   Conclusions and Recommendations of the Fifth Special Commission to Review the Operation of the Hague Child Abduction Convention (1980) and the Hague Child Protection Convention (1996) No 1.3.1., p 7. 22 23

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If an amicable solution cannot be reached, the central authority will institute court proceedings for the return of the child. Return applications should be processed expeditiously and courts should ensure their speedy determination.29 Where necessary, the central authority will also assist with locating the whereabouts of the child.30 In return proceedings, a distinction is made between cases where the child has been abducted more than a year before the institution of court proceedings and cases where a year has not yet passed. If the proceedings are instituted within a year, the Court orders the return of the child, unless one of the few exceptions applies.31 If the child was abducted more than a year before, the Court also orders the return, unless it is demonstrated that the child has become settled in his or her new environment or one of the other exceptions applies.32 There are a limited number of exceptions, on the basis of which the Court can refuse the return of the child. They are as follows: •  The parent requesting the return did not actually exercise his or her ‘rights of custody’ over the child at the time of the removal or retention. •  The parent requesting the return had consented to the removal of the child or had subsequently acquiesced in the removal or retention. •  There is a grave risk that the return would expose the child to physical or psychological harm or place him or her in an intolerable situation. •  The child objects to being returned and has attained an age and degree of matur­ity at which it is appropriate to take account of his or her views.33 •  The fundamental principles relating to the protection of human rights and fundamental freedoms of the State where the child had been abducted to, do not permit the return of the child.34 After the return, it is up to the court in the State of the habitual residence of the child to rule on the parental authority and the custody of the child. The decision that the child should return shall not be taken to be a determination on the merits of any custody issue.35

29   Conclusions and Recommendations of the Fifth Special Commission to Review the Operation of the Hague Child Abduction Convention (1980) and the Hague Child Protection Convention (1996) No 1.4.1., p 8. 30   Hague Convention (1980) art 7a). 31   ibid arts 12 and 13. 32   ibid arts 12 and 13. See also Explanatory Report to the Hague Convention, written by E PérezVera, ‘Acts and Documents of the Fourteenth Session’ (1980) Vol III, Child Abduction, 458–59, para 77. 33   ibid art 13. 34   ibid art 20. This ground for refusal exists to cater for exceptional circumstances. It is not often used: see N Lowe, ‘A Statistical Analysis of Applications Made in 2003 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Part I: Overall Report’, available at www.hcch.net/upload/wop/abd_pd03e1_2007.pdf, 36–38. 35   Hague Convention (1980) art 19.



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D  Use in Practice The 1980 Hague Convention was used for cases in which the child had been abducted to Belgium in 16 cases. Fifteen cases were closed at the time of the research (this is relevant for determining the successful end of the case). Whether or not the child returned is known in 12 of these cases. In seven cases (58.3%) the child returned, but in five cases (41.7%) he or she did not. In six (42.9%) of the closed cases, the Convention indeed led to the conclusion of the case. One case (7.1%) was settled. One file (7.1%) was closed on the basis of a judgment on the substance (concerning parental authority or the residence of the child). In three cases (21.4%), the applicant parent abandoned the procedure and in three other cases (21.4%) no solution was found. In five of the six cases in which the child returned, the date of return is known. The mean number of months between the abduction and the return is eight. One child returned after one month, one after seven months, two after nine months and one only after 14 months. The Hague Convention was applied in 73 cases in which the child had been abducted from Belgium to another country. 53 of these cases were closed. Whether or not the child returned is known in 49 cases. Of these, the child returned in 33 cases (67.3%), but did not return in 16 cases (32.7%). In 21 cases (39.6%), the Hague Convention indeed led to the resolution of the file. 19 cases (35.8%) were settled. In five cases (9.4%) the case was closed on the basis of a judgment on the substance. In one case (1.9%) the applicant parent abandoned the procedure and in seven cases (13.2%) no solution was found. Of the 33 cases in which the child returned, the duration of the abduction is known in 28 cases. The mean duration was 10.9 months. In nine cases (32.1%), the child returned within six months. In 19 cases (67.9%), the child returned within a year. In 25 cases (89.3%), the child returned within two years. The other three cases lasted longer: respectively 25, 27 and 31 months.

V  Legal Proceedings: Brussels II bis Regulation The Regulation aims at governing a number of matters of family law in the EU. It has a different point of departure than the Hague Child Abduction Convention: it aims at facilitating the free movement of persons within the EU. For this purpose, the private international law rules of certain aspects of family law are harmonised (step by step, and this Regulation is one of the steps). One of the topics that have also found their way into the Brussels II bis Regulation is that of child abduction. At the time of the negotiation of the Regulation’s amendment, there was a difference of opinion about the inclusion of the topic of child abduction. Some thought that the Hague Convention (1980)

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worked well and that the EU should not create legislation on a topic that is already sufficiently regulated by another international legal instrument. Others were of the opinion that the Hague Convention was not sufficiently effective and should be improved for child abductions within the EU. The main criticism seems to have been that the Convention allows too many exceptions and children are not always returned when they should be.36 The result was a complicated compromise, which will be discussed below.

A  Entry into Force and States Bound The Brussels II bis Regulation has been fully in force since 1 March 2005.37 It is applicable in all EU Member States, with the exception of Denmark.38 The non-application in Denmark is due to the particular status that Denmark has in relation to EU legislation on civil justice.39

B  Scope of Application The Regulation concerns the jurisdiction and the enforcement of judgments in matrimonial matters and in matters of parental responsibility. It thus has a much broader scope than the instruments discussed above. This Regulation is an updated version and an elaboration of the Brussels II Regulation. That Regulation concerned only divorce and the parental responsibility of children when the question was linked to the divorce and when the children were those of both divorcing parents. The idea behind the reformation of the Regulation was to elaborate the cases that would fall under this European legislation: the parental responsibility of all children can be regarded under the Regulation now, and disputes about parental responsibility are covered by the Regulation in all instances, not only when these disputes are linked to divorces. The Regulation, like the instruments discussed above, in the first place have regard to the habitual residence of a child and not to his or her nationality.

C  Mechanism Regarding International Child Abduction The Brussels II bis Regulation deals more broadly with parental responsibility, containing, among others, rules on jurisdiction. This means that whenever there 36   On this debate, see P McEleavy, ‘The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?’ (2005) Journal of Private International Law 5–34. 37   Brussels II bis Regulation art 72. 38   It is thus in force in Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. 39   See Protocol (No 5) to the European Community Treaty, Amsterdam Version, on the position of Denmark (1997) and Protocol (No 22), Lisbon version, on the position of Denmark.



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is a dispute on the parental responsibility of a child, the Member States will determine whether or not they are permitted to hear it according to this Regulation. The Regulation attributes jurisdiction to the courts of the place where the child has his or her habitual residence.40 The Regulation states that in cases of wrongful removal or retention, the court of the place where the child had his or her habitual residence immediately before such removal or retention, retains its jurisdiction.41 Only return proceedings can be introduced in the place where the child has been removed to or where he or she is retained. Moreover, the Brussels II bis Regulation contains rules on the recognition and enforcement of judgments on parental responsibility. This means that while return proceedings are introduced in the country where the child had been abducted to, the judgment on parental responsibility will also have to be recognised and enforced in that state.

D  Use in Practice An analysis of the application of the Brussels II bis Regulation to closed cases in which the child had been abducted to Belgium, can be made for 31 cases. Of these, the child returned in 17 cases (54.8%) but did not return in 14 cases (45.2%). For 30 of the 31 closed cases, the way in which a final solution was reached is known. The Regulation itself led to the end result in 15 cases (50%). One case (3.3%) was resolved by the application of the Hague Convention. (This might be because the Regulation was not yet in force in the country at the time of the institution of proceedings.) Five cases (16.7%) were settled. In four cases (13.3%) a judgment on the substance (parental authority or residence of the child) led to the closing of the file. In one case (3.23%), there was a counter-abduction. In one case (3.3%) criminal law proceedings led to the resolution of the case. In three cases (10%) the applicant parent abandoned the proceedings. In 16 of the 17 cases in which the child returned, the number of months between the abduction and the return is known. The mean is seven months. In 11 (68.8%) of these cases the child returned within six months. In 14 cases (87.5%) the child returned within a year. In the other two cases the child returned only after respectively 19 and 54 months (4.5 years). The Brussels II bis Regulation was applied in 55 cases of abductions from Belgium, 41 of which were closed. In 37 of these cases it is known whether or not the child returned: In 24 cases (64.9%) the child returned, but in 13 cases (35.1%) he or she did not. The Brussels I Regulation indeed led to the closing of 14 files (34.1%) and the Hague Convention to the closing of another three cases (7.3%). As explained above, this Convention might have been used because the Regulation was not yet   Brussels II bis Regulation art 8.   ibid art 10.

40 41

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applicable in the relevant country at the time of the institution of proceedings. Nine cases were settled (22%). In five cases (12.2%) a judgment on the substance (on the parental authority or the residence of the child) was the reason to close the file. In one case (2.4%) there was a counter-abduction. One case (2.4%) was closed by the use of criminal law proceedings. In seven cases (17.1%) the applicant parent abandoned the proceedings and in one case (2.4%) no solution was found. The duration of the abduction is known for 22 of the 24 cases in which the child returned. The mean number of months between the abduction and the return of the child was 13.9. In six cases (27.3%) the child returned within six months. In 14 cases (63.6%) the child returned within a year. In 18 cases (81.8%) the child returned within two years. In the remaining four cases the abduction lasted longer: respectively 27 months, 28 months, 32 months (almost three years), and 48 months (four years).

E  Free Access to Justice and the Role of the Public Prosecutor in Return Proceedings According to the Hague Convention (1980) and the Brussels II bis Regulation, Central Authorities must bear their own costs when applying it.42 This means that every state takes upon itself the obligation to set up the Central Authority, staff it, and pay operational costs. Part of these costs is the translation of documents. The Central Authority also has to introduce proceedings for the return of the child. This obligation can be costly. In order to keep the costs to a minimum, Belgium chose to place the obligation of the institution of return proceedings on the public prosecution, upon receiving the file from the Central Authority. However, this task differs significantly from the other tasks of the public prosecutor in this country. In cases concerning children (and often in other cases, but that is not our present concern), the public prosecutor has the role of advisor to the Court. In fulfilling its role, it has to guard over the best interests of the child. A person from the public prosecution described her role in return cases. She said that she is not a lawyer who represents a client. She has no direct contact with the left-behind parent (who is by definition resident in another country). All communication passes through the Central Authority. This role of the public prosecution is something that is heavily discussed and debated among professionals in Belgium: some of the interviewed professionals thought that the public prosecution should be exempted from this job. Others thought the current legislation was not problematic. The public prosecutors of at least two jurisdictions have expressed their serious concern, stating that they cannot perform their tasks in the light of such a clear conflict of interests: on the one hand they have to introduce return proceedings, and on   Hague Convention (1980) art 26.

42



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the other hand they must guard over the best interests of the child. They, along with some other professionals, argue that this role under the international instruments infringes the public prosecution’s independence and clashes with its general role to act in the best interests of the child. According to them, in some instances the return proceedings and the best interests of the child are not compatible. In order to avoid the conflict of interests, the public prosecution sometimes declines to institute return proceedings, certainly when the file contains averments of violence (these averments are often made by abducting parents when they contest the return of the child). The Central Authority is in these cases forced to take a lawyer. When the applicant parent qualifies for legal aid, such aid will be provided.43 In other cases, the Central Authority has to pay the lawyer’s bill. Public prosecutors in some of the other jurisdictions see the matter differently: they consider the best interests of the child to be served by the demand for the return. The Hague Convention has thus concretised the notion of ‘the best interests of the child’ in matters of child abduction: the child should be returned and a proper decision regarding the residence of the child should be taken by the court of the habitual residence. This is a more abstract view on the best interests of the child: it is general and takes into account that legal rules should be respected, so as to avoid that people take the law into their own hands, and also, as information spreads, to avoid the abduction of children. The consideration made by the other (above-mentioned) group, is one which is more closely linked to the situation: regard is taken of a particular child in his or her particular circumstances. One lawyer, whose viewpoint was in line with the second group, criticised the first group as being too focussed on national law, rather than thinking internationally about the broad phenomenon. He said that from a legal point of view one must see the return in the general interests of the child. The Hague Convention has defined the interests of the child in these situations: a child should be returned and the parental responsibility and/or residence disputes should be fought at the habitual residence of the child. He argued that one should not look at the best interests only of a specific child, but should look at the bigger picture. This difference in approach is problematic for the following various reasons: •  First, because of the way in which the law was implemented, no budget is provided for the Central Authority to pay legal practitioners. •  Second, the Central Authority has been forced to compile a list of legal practitioners whom they can contact when necessary. While the Central Authority is part of the Ministry of Justice, a public service, it is forced to contact independent legal practitioners. Maybe there should be a way of giving lawyers the possibility to offer their services to the Central Authority in these matters. •  Third, and probably most serious, the points of view of the public prosecutions lead to an unequal treatment of applicant parents. For some of them the public prosecution handles the case. In doing its work, the public prosecution remains neutral and generally does not directly contact the parent concerned (this is the   This is in accordance with art 7g) of the Hague Convention (1980).

43

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left-behind parent of a child that has been abducted to Belgium). All communication takes place through the Central Authority. This of course takes time and indirectly obtained information always has a different flavour than direct communication. Legal practitioners, on the other hand, have a different way of working: they contact their clients directly, meet them in person or speak to them on the phone. This difference in treatment seems problematic in a matter as sensitive as child abduction. In other countries, the Central Authority takes this task upon itself and has legal standing, or the Central Authority hires lawyers to institute the proceedings. This last option is of course more costly, one of the reasons the Belgian legislation has opted not to pursue this route. In the Netherlands the Central Authority itself acts as the legal representative of the parent introducing return proceedings. This role of the Central Authority has, however, been criticised: it leads to confusion and distrust with parents. They see the same institution contacting them to seek an amicable solution (possibly via mediation) and then subsequently, if no amicable solution is reached, representing one of the parents in court. Therefore, an amendment to the legislation has been proposed to relieve the Central Authority of the function of legal representative.44 In Germany the Central Authority is also formally mandated to represent the parent introducing return proceedings. In practice the Central Authority introduces the application, and then contacts a lawyer to conduct the proceedings. If the parent qualifies for legal aid, the services of the lawyer are free. If not, the parent has to pay for the lawyer.45 At the time of introducing the court proceedings, the Central Authority also sends a letter to the abducting parent asking him or her whether he or she would consider a voluntary return, informing him or her of the proceedings. If this letter bears fruit, the court proceedings will be stopped. The German Central Authority rarely has direct contact with the applicant parent, but leaves that task to the lawyer. After the case is transferred to the lawyer, the Central Authority no longer serves as go-between, but is kept informed of the development of the case. Under German law, the Court is compelled to inform the parties of the possibility of mediation in cases relating to family law. If the parents wish to pursue this option for the return of the child, the Central Authority will intervene, through a different person than the case worker responsible for the case. In this way, the German Central Authority seems to manage its various tasks without the conflict of interests perceived in the Netherlands. 44   See www.internetconsultatie.nl/kinderontvoering. See also the explanatory note with this proposal, available at the same page. According to this note (p 4), the only other countries in which the Central Authorities have the role of legal representative to the same extent as in the Netherlands are Australia, Bulgaria and the Czech Republic. 45   See MV Antokolskaia and GCAM Ruitenberg, ‘Taken en functies van de centrale autoriteit bij de uitvoering van het Haags Kinderontvoeringsverdrag in Duitsland, Engeland & Wales, Frankrijk en Zweden. Een rechtsvergelijkend onderzoek in opdracht van het WODC van het Ministerie van Justitie’ (2008). Information was also obtained from a telephone interview with Andrea Schulz, head of the German Central Authority.



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In England return proceedings are instituted by legal practitioners who are contacted by the Central Authority. This is the system that will be in use in the Netherlands if the legislative amendment is accepted.

VI  Combination of Brussels II bis and Hague Child Abduction Convention (1980) As has been stated above, the way in which rules on international child abduction were included in the Brussels II bis Regulation was based on a compromise. This has resulted in a rather complex interaction of the instruments. On the one hand the Brussels II bis Regulation states that it takes precedence over the Hague Convention (1980) as far as matters governed by the Regulation are concerned.46 On the other hand, the preamble suggests that the idea is that the Hague Convention (1980) is still used for the immediate return of abducted children but complemented by the provisions of the Regulation.47 It can be seen in practice that this interaction between these instruments is no simple matter. The facts of a recent case Povse v Alpago illustrates the complex situations which can arise when legal proceedings are pursued in different countries.48 The interaction will be considered below on a few specific points.

A  Application of the Exceptions to Return As has already been explained, some of the negotiators of the Brussels II bis Regulation were of the opinion that the Hague Child Abduction Convention (1980) permits a refusal of the return of the child too readily. The grounds on which the Convention permits the return of the child to be refused have been outlined above.49 This paragraph will focus on the changes that the Regulation has incorporated in those grounds for refusal. The first change relates to the ground for refusal that ‘there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. This exception has been ‘complemented’ by the Regulation. According to the Regulation, a court cannot refuse the return of the child on the basis of a grave risk if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.50 Thus, the protection of the child now, on the basis of the Regulation, does not consist of refusing the return, but of first seeing whether protection can   Brussels II bis Regulation art 60(e).   ibid recital 17. 48   Case C-211/10 Povse v Alpago, not yet reported in ECR (judgment of 1 July 2010). 49   See section entitled ‘Mechanism’ above. 50   Brussels II bis Regulation art 11(4). 46 47

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be provided in the state of habitual residence. Thus, return is favoured more strongly; refusal is possible in fewer instances. However, the practical implementation of this rule is far from straightforward. How can a court in Poland investigate the possibility of protection in Belgium? How far should the protective measures go: should they be conditional upon an incident in Belgium after return, or should they take force immediately (for instance regular verifications by a social worker)? How can the Polish Court assess whether these arrangements of protection will be ‘adequate’? Should this be proved by the left-behind parent? Should the Court call in the assistance of the Central Authorities of Poland and Belgium? Or should the issue be solved by direct communication between judges? Within the EU, the Evidence Regulation51 aims at facilitating the taking of evidence in other countries. Among the possible methods mentioned are videoconference and teleconference.52 These techniques might indeed assist judges to obtain information about the situations in other states, when such information is intended to be evidence in court proceedings. The second change concerns the rule that ‘the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views’. The Regulation states that when applying the return mechanism of the Hague Convention, ‘it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity’.53 Thus, the Regulation imposes the positive duty on the Court requested for the return of the child to hear the child, unless there is a reason not to do so. This change does not aim at facilitating return, but focuses on the interests of the child. The third change relates to an addition brought by the Regulation. A court can only refuse the return of the child if the person who requested the return (most often the left-behind parent) has been given the opportunity to be heard.54 This is again a restriction on the use of the exceptions. The extra requirement presumably makes it harder to rely on the grave risk a child faces with the other parent, as that parent has the opportunity to argue and prove the contrary.

B  Six Week Turnover Time for Returns Both the Hague Convention (1980) and the Brussels II bis Regulation encourage an expeditious handling of return cases.55 The Hague Convention provides that if a judicial or an administrative authority has not reached a decision within six weeks, the applicant or the central authority of the applicant state may ask for the 51   Council Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (‘Evidence Regulation’) [2001] OJ L174/1. 52   ibid art 10(4). 53   Brussels II bis Regulation art 11(2). 54   ibid art 11(5). 55   Hague Convention preamble and art 11; Brussels II bis Regulation recital 17 and art 11(3).



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reasons for the delay. While the Brussels II bis Regulation is silent on the administrative proceedings, it is stricter in regard to the application of the six-week term for the court proceedings. It states that the Court ‘shall, except where exceptional circumstances make this impossible’ issue the judgment within this period.56 However, there is no sanction attached to this rule, and one can hardly think of a possible sanction. This six-week term is often misunderstood by parents. They think that the six weeks apply to the entire procedure, while it in fact refers to a particular step, namely the decision about return (usually the power of a court). It seems that this term is very often exceeded in practice.57 The reasons for this delay are multiple. At the administrative stage, many documents have to be prepared and translated. Often, parents do not possess the necessary documents and have to obtain new copies. Sometimes the whereabouts of the child are unknown. The central authorities then have to start proceedings in the country where the child is presumed or suspected to be, in an attempt to determine the whereabouts of the child. This is only one of the elements that can cause delays.

C  Direct Communication between Judges Many EU instruments encourage direct communication between judges. The Hague Conference on Private International Law has also been paying attention to the matter of direct communication of judges. The Conference has created a Network of Judges from the various contracting states to the Hague Child Abduction Convention (1980). The judges’ networks of the EU and of the Hague Convention have recently held a joint conference and one of the outcomes was that, for family law matters, where possible, the same judge could be designated for the two networks.58 The networks of judges exist alongside those of central authorities.59

D  Mutual Trust between Judges of Different Legal Systems The Brussels II bis Regulation, like all EU legislation, is based on a spirit of cooperation and mutual trust. This manifests itself clearly when reference is made, for instance to the idea that the Member State of the habitual residence should be trusted to take adequate measures for the protection of a child. Similarly, for certain matters exequatur has been abolished by the Regulation.60 This means that the judge that granted the judgment also issues a certificate, which   Brussels II bis Regulation art 11(3), second para.   See section entitled ‘Long Duration of the Proceedings’ below.   See the Conclusions and Recommendation of the Joint EC-HCCH Conference on Direct Judicial Communications on Family Law Matters and the Development of Judicial Networks, held on 15–16 January 2009, available at www.hcch.net/upload/judcomm_concl2009e.pdf. 59   For a discussion in these networks, see section entitled ‘Judges’ below. 60   See for instance the next paragraph on judgments on the substance after return proceedings. 56 57 58

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renders the judgment directly enforceable in other EU Member States. This mechan­ ism is based on mutual trust by all courts in the EU of other EU legal systems. The practices of the Member States do not always seem ready for this trust; it will hopefully be built slowly but surely.

E  Judgments on Substance after Return Proceedings The Brussels II bis Regulation covers a broader field than the Hague Convention (1980): the former is not only concerned with the return of the child, but also with judgments concerning parental responsibility that are issued afterwards. The Hague Convention operates on the assumption that children are sent back and then national law determines the jurisdiction regarding further decisions on parental responsibility and custody/care, access/contact and residence of the children. (Or, for countries where the Hague Child Protection Convention (1996) is in force, this Convention determines jurisdiction.) Once the child is returned, the operation of the Hague Convention (1980) is extinguished. The Brussels II bis Regulation, on the other hand, contains rules for jurisdiction over all disputes regarding parental responsibility. It also contains a specific rule for judgments after abduction. If there has been a non-return order, the Court where the child had his or her habitual residence before abduction, may still rule on the parental responsibility. If the result of such judgment is that the child should be returned, this last judgment trumps the non-return order.61 An example will illustrate the rule. A mother abducts her two children from Belgium to Scotland. The relevant central authorities are contacted and proceedings are instituted in Scotland for the return of the children. The Court refuses the return because there is a danger of physical abuse of the children and the Scottish Court is not satisfied that sufficient measures have been taken in Belgium to protect the children. The father was heard, but did not manage to convince the Court. He then institutes court proceedings in Belgium to confirm the residence arrangement that existed before the abduction, that is to say that the children live one week with him and one week with the mother. The Belgian Court assesses the situation and finds that the alternate residence was indeed the best option for these children, taking into account their age and their relationship with both parents. Of course it will be impossible for the children to live in Scotland for one week and the next week in Belgium. The implication is therefore that the children must return. This judgment has precedence over the Scottish non-return order. Thus, the Court of the habitual residence has the last word. A specific certificate even exists for this scenario.62 However, in practice these judgments seem difficult to enforce. The enforcement of the judgment will have to overcome the fact that a local judgment exists saying the contrary, usually a ground for refusal of recognition and enforcement in private international law, even in the EU instruments.   Brussels II bis Regulation art 11(8).   Brussels II bis Regulation art 42 and annex IV.

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The Brussels II bis Regulation provides, however, for judgments on parental responsibility that the latter judgment takes precedence over an earlier contradictory one.63 This is different from the normal rule, but makes sense for cases of parental responsibility. While this information is not always readily available, we know of at least one case where the enforcement of the judgment requiring return after there has been a foreign non-return order was problematic.64

VII  Luxembourg Convention The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children Convention has the goal of ensuring that custody and access rights of parents in relation to their children are respected. The Convention also aims at reducing the number of wrongful removals and of restoring custody rights that have been interrupted.65

A  Entry into Force and States Party The Convention was concluded in Luxembourg in 1980, under the auspices of the Council of Europe. It entered into force on 1 September 1983.66 It has fewer contracting states than the Hague Convention.67 All of the contracting states with the exception of Liechtenstein are also party to the Hague Convention. In most of them the Brussels II bis Regulation also applies. This limits the practical use of the Convention.

B  Scope of Application The Luxembourg Convention, like the Hague Convention of 1980, applies to children under the age of 16. Like the Hague Convention, it uses the criterion of the habitual residence of the child and ignores the notion of nationality. It is also limited to civil law and does not address issues of criminal law.   Brussels II bis Regulation art 23e).   Court of First Instance, Brussels, 9 January 2009, published in (2008) 151 Revue du droit des étrangers, (Special issue) 737–41, with case note by T Kruger 742–46. 65   See the Preamble of the Convention. 66  See conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=105&CM=7&DF=22/01/201 0&CL=ENG. The Convention has been applicable in Belgium since 1 February 1986. 67  The contracting states are Austria, Belgium, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Norway, the Netherlands, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, and the United Kingdom; see conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=105&CM=7&DF=22/01/2010&CL=ENG. 63 64

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C Mechanism While the aims of the Hague and Luxembourg Conventions are similar, their operation differs. The Luxembourg Convention also places the obligation upon contracting states to appoint central authorities.68 In most states, the same central authorities are appointed under the two conventions. The Luxembourg Convention does not enable return proceedings in the same way as the Hague Convention, but facilitates the recognition and enforcement of judgments concerning the custody of children. Therefore, the Convention can only operate if there is a court order establishing the custody of the child. The Hague Convention’s application is broader, as it does not require a decision concerning custody, but also applies if custody exists by operation of law or on the basis of an agreement recognised by law.

D  Use in Practice The Luxembourg Convention has rather limited operation in practice, due to its more complicated mechanism than the Hague Convention, and due to the fact that many of the States Party are also bound by the Brussels II bis Regulation, which establishes deeper integration and takes precedence over the Convention.69 In the dataset analysed, there were no cases of abductions to Belgium in which the Luxembourg Convention was applied. The Convention was applied in four abduction cases from Belgium to other countries. In one of these cases the child was returned, while the information is not available for the other cases. Due to the small number of cases, no pertinent conclusions can be drawn with regard to the operation of the Convention.

VIII  Bilateral Protocols with Morocco and Tunisia Belgium has cooperation protocols with Morocco and Tunisia.70 These protocols address matters of civil justice and are not limited to child abduction or even to family law. The protocols institute commissions in which civil servants of the Ministries of Justice and Foreign Affairs negotiate specific cases in order to attempt to find solutions.71 68   Luxembourg Convention art 2. For the central authorities of the states, see conventions.coe.int/ Treaty/Commun/ListeDeclarations.asp?NT=105&CM=7&DF=22/01/2010&CL=ENG&VL=1. 69   Brussels II bis Regulation art 60(d). 70   The texts of the protocols are available at www.just.fgov.be/index_fr.htm (French version). 71   Protocol with Morocco and Protocol with Tunisia art 1.



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These commissions are based on administrative cooperation and not on legal rules introducing particular proceedings or determining jurisdiction or the recognition or enforcement of judgments. They meet at least once a year, alternately in Brussels and Rabat (for the Protocol with Morocco72) and alternately in Brussels and Tunis (for the Protocol with Tunisia73). It should be noted here that the Hague Child Abduction Convention has also been in force in Morocco since 1 June 2010, but Belgium has not yet accepted the accession of Morocco. Therefore, the Convention does not yet apply between these two states. The effect of these protocols cannot be compared to the strong international legal obligations that the above-mentioned conventions impose. The commissions often have to rely on goodwill for the satisfactory completion of a case. During an interview, one father explained his experiences in Tunisia, including the language difficulties: ‘And abroad you are on your own. You do have an embassy, but you are alone at the family court. And everything happens in Arabic and in French and in broken English’ [the father’s first language was Dutch]. He said that the cooperation between the Belgian and Tunisian authorities was problematic. The meetings of the mixed commission take place only once a year. The meeting in his case did have a positive result: his wife was told that she could not just leave with the child like that without any judgment. However, it bothered him that he had no report of the meetings with the Belgian Embassy in Tunisia and with the Central Authority: he had nothing in writing to confirm the solution that was reached. Turning to the figures, the Bilateral Protocol with Morocco was applied in four abductions to Belgium, of which three were closed. The child returned in two of these cases (66.7%) but did not in the other (33.3%). One case was solved as a direct result of the application of the Protocol, one by a settlement and the third on the basis of a judgment on the substance. Of the two cases in which the child returned, one abduction lasted 22 months and the other 29 months. The Bilateral Protocol with Morocco was applied in 14 abduction cases from Belgium. Thirteen of these cases were closed. In 11 of these cases it is known whether or not the child returned: the child returned in nine cases (81.8%), but did not in the other two (18.2%). The Protocol led directly to the closing of one case (7.7%). Eight cases (61.5%) were settled. In one case (7.7%) there was a judgment on the substance which led to the closing of the file. In one other case (7.7%) the applicant parent abandoned the procedures and in another case (7.7%) no solution was found. One case (7.7%) was closed because the child attained majority. The duration of the abduction is known for seven of the nine cases in which the child returned. The mean duration was 25.9 months. In three cases (42.9%) the   Protocol with Morocco art 3.   Protocol with Tunisia art 4.

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child returned within six months. In four (57.1%), he or she returned within a year. The three remaining cases lasted respectively 13 months, 50 months (more than four years!) and 96 months (eight years!). The Bilateral Protocol with Tunisia was applied in two abductions to Belgium. As both of these cases are still open, it is not possible to say whether the Protocol was effective, or will be effective in these cases. This Protocol was used in 15 cases of abductions from Belgium. Thirteen of these cases were closed and for 11 it was known whether or not the child returned. In 10 cases (90.9%) the child returned, but in one (9.1%) he or she did not. The Protocol directly led to the finalisation of four cases (30.8%). Three cases (23.1%) were settled. In one case (7.7%) the child was counter-abducted. In one case (7.7%) criminal law proceedings led to the closing of the file. Four cases (30.8%) were closed when the child attained majority. For nine of the 10 cases in which the child returned, the duration of the abduction was known. The mean duration was 58.2 months. In only two cases (2.2%) the child returned within a year. In four cases (44.4%) the child returned within two years. The other cases lasted 63 months respectively (more than five years), 64 months (more than five years), 135 months (more than 11 years), and 139 months (more than 11 years).

IX  Hague Child Protection Convention (1996) This Convention is much broader than the Hague Child Abduction Convention and complements it. It deals with jurisdiction, applicable law, and the recognition and enforcement of judgments concerning the protection of children. These include parental responsibility, custody and guardianship, the placement of children in a foster family, the kafala74 and similar institutions of care for children.75 The protection of children is of course also relevant in matters of child abduction. Measures might be necessary to ensure the safe return of the child. The Convention provides that in cases of urgency, the State on whose territory the child is present can take necessary measures of protection.76 These measures will 74  The kafala is a creation of Islamic law according to which a child in need of protection may be entrusted to a public or social institution or to a Muslim family who will care for the child’s person and if necessary for his or her property. Where necessary the guardianship over the child can be delegated to the institution or family. The decision to implement the kafala in a particular case is taken by the guardianship judge or by an administrative commission. The kafala was included in the Hague Convention of 1996 because it concerns the protection of children. See P Lagarde, ‘Explanatory Report on the Convention’ in Proceedings of the Eighteenth Session (1996), tome II, Protection of Children and at hcch.e-vision.nl/upload/expl34.pdf, 547, para 23. 75   Hague Convention (1996) preamble and art 1. 76   ibid art 11. See also W Duncan, ‘Action in Support of the Hague Child Abduction Convention: A View from the Permanent Bureau’ (2000–01) 33 New York Journal of International Law and Politics 103–123, 114.



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be recognised in other contracting states.77 At the same time, the Convention grants jurisdiction to the contracting state in which the child has his or her habitual residence, also while the child is not present there because he or she had been wrongfully removed to or wrongfully retained in another state and until the child acquires a habitual residence in the new State.78

A  Entry into Force and States Party This Hague Convention was also negotiated and concluded under the auspices of the Hague Conference on Private International Law.79 It entered into force on 1 February 2002 and the States Party has increased rapidly over the last few years.80 As this Convention covers matters that lie within the competence of the EU, the EU authorised the Member States, except those that have already done so and except Denmark, to ratify the Convention by 5 June 2010.81 However, not all Member States have met this deadline.

B  Scope of Application The Convention is applicable to children under the age of 18. Its scope is thus larger than that of the 1980 Hague and Luxembourg Conventions, which are applicable only until the child turns 16. The Convention covers jurisdiction, applicable law, and the recognition and enforcement of judgments of measures for the protection of children. It also contains rules on the cooperation between states on such measures.

C Mechanism As the Convention deals with the questions of jurisdiction and applicable law, it reduces the risk of conflicting judgments on parental responsibility. This means that if a child is abducted from one contracting state to another (assuming that both these states are also party to the 1980 Hague Child Abduction Convention), a parent would be able to institute return proceedings only in the State where the child is. That State would not have jurisdiction to hear the substance of the matter   Hague Convention (1996) art 23(1).   ibid arts 5 and 7. 79   See www.hcch.net/index_en.php?act=conventions.text&cid=70. 80   For a list of the contracting states, see www.hcch.net/index_en.php?act=conventions.status&cid=70. 81   See Council Decision (EC) 2008/431 authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law [2008] OJ L151/36. See specifically consideration no 6. 77 78

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on parental responsibility. This is completely in line with the philosophy of the Hague Child Abduction Convention. The Convention also facilitates the recognition and enforcement of judgments. This gives the judgments greater cross-border effect.

X  Enforcement of Return Orders The qualitative results pointed out very clearly that the enforcement of foreign judgments is a grave problem. Once a court has ordered the return, parents sometimes still have to wait before they can actually go and fetch the child. In some instances parents go to the other country to fetch the child, fail to get him or her because he or she is concealed, and then have to go again at another time. This difficulty is not new and it has been receiving the attention of the Hague Conference on Private International Law for a number of years already.82 The Permanent Bureau of the Hague Conference drafted a comparative report on the enforcement of return orders in contracting states83 and a document stating the principles of enforcement of such orders.84 These resulted in a Guide to Good Practice on Enforcement Issues.85 Moreover, the issue has been raised in a number of cases at the European Court for Human Rights, in connection with the right to family life.86 82   See Duncan, ‘Action in Support of the Hague Child Abduction Convention’(2000–01) 103–23, 113. The Conclusions of the Special Commission concerning the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (2002), available at hcch.e-vision.nl/ upload/abd2002_concl_e.pdf, already addressed the issue by stating that the Permanent Bureau of the Hague Conference should continue to gather information on the practice of the enforcement of return orders in different contracting states (p 1). 83   A Schulz, ‘Enforcement of Orders made under the 1980 Hague Convention – A Comparative Legal Study’ Preliminary Document No 6 (October 2006), available at hcch.e-vision.nl/upload/wop/ abd_pd06e2006.pdf. 84   A Schulz, ‘Enforcement of Orders made under the 1980 Convention – Towards Principles of Good Practice’ Preliminary Document No 7 (October 2006), available at hcch.e-vision.nl/upload/ wop/abd_pd07e2006.pdf. 85  Available at hcch.e-vision.nl/upload/guide28enf-e.pdf. See also the Conclusions and Recommendations of the fifth meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980 in the civil aspects on international child abduction and the practical implementation of the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, available at www.hcch.net/upload/concl28sc5_e.pdf, 8, paras 1.5.1. and 1.5.2. 86   European Convention on Human Rights art 8. An analysis of these cases is beyond the scope of this book. For more information see PR Beaumont, ‘The Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Hague Convention on International Child Abduction’ (2008) 335 Collected Courses of the Hague Academy of International Law 9-104 and PR Beaumont, ‘The Art. 8 Jurisprudence of the European Court of Human Rights on the Hague Convention on International Child Abduction in Relation to Delays in Enforcing the Return of the Child’ in G Venturini and S Bariatti, New Instruments of Private International Law. Liber Fausto Pocar (Milano, Guiffrè Editore, 2009) 75–94. Note that the right to family life is now also enshrined by art 7 of the Charter of Fundamental Rights of the European Union.



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A  Enforcement, Force and Due Care Several professionals confirmed that enforcement remains one of the most difficult issues. While it is possible to have a judgment concerning children enforced by force, this should remain a last resort, as it can be traumatising for the children. In some instances, the police in Belgium explain this to the parents: if they do not cooperate with the voluntary return of the child, force may be used and this could traumatise the child. The person from the Federal Police (Brussels) said that in his experience, the way of enforcement depends on the culture in a country. While some countries (like the United States) enforce judgments with force, other countries do not enforce, yet others (like Italy) apply penalties for non-compliance. He said that in Belgium, the police try to explain the importance of complying with the judgment to the parents. If a judgment is enforced by force, it is important to provide psychological support. In Belgium, children are generally prepared by a psychologist for their return (the enforcement of the judgment). The Belgian authorities cooperate with the authorities in other countries in order to let the return take place as smoothly as possible. One of the persons of the Central Authority that was interviewed thought that if judges knew of the psychological assistance during enforcement, they would be less reluctant to order the return of a child, even against his or her will. In this way, she expressed the importance of finding a humane way to enforce return orders. Another way of coercing a parent to comply with a return order is to take up penalties in the judgment: this is an amount that becomes owing per day if the parent does not comply. However, an interviewed professional explained why such penalties might also be problematic: first, they have to be enforced by bailiff, which is expensive for the applicant parent. This means that they often stay a dead letter. Second, if the parent against whom they are granted does not have the money, there is little one can do.

B  The Tales of Two Left-behind Mothers One mother told of the long and difficult process of having the return judgment enforced: But then, how would Emma come back? I mean, she was there in Denmark. And then I was in fact constantly in touch with Child Focus for the follow-up and with the Belgian Embassy in Denmark, to actually get Emma back here. [. . .] They first asked Mr Vandyck to cooperate voluntarily and to send Emma back. That was not done. He did not react on anything. [. . .]

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And then Child Focus called me at the end of July, they told me that I must get ready, because we, because I was summoned at the court in Denmark. [. . .] It was the plan . . . Mr Vandyck had to return Emma at the court. So, he also had to come to court with Emma and hand her over to me. That was planned for the 2nd of August, in 2007. [. . .] I hoped that I would get Emma back, of course. The stress, because you cannot imagine that. Also the fear that if the child sees me, she will not want to come with me, because yes, a year, I mean . . . I am a stranger to her. In the mean time Emma was . . . seven years old. Thus that was no small child any more. [. . .] When we arrived in Denmark, we were received by the Belgian Ambassador to Denmark. [. . .] So we arrived at the court. I saw Mr Vandyck’s car there, so I thought yes, yes, he will hand over the child. So we entered [. . .] and we sat down. Mr Vandyck was also sitting there with his lawyer. Emma was nowhere to be seen. [. . .] And the judge said look, because you came from Belgium and this is not a normal procedure, he said, because normally I would not give a judgment immediately. Give me half an hour and I will give my judgment. [. . .] So we waited for half an hour, at least. And I can promise you that was no fun, to stand there at that moment, because the chance still exists that you will not get your child back, after everything you have done. You are really powerless, I tell you. [. . .] Then eventually he returned after half an hour, we had to go back in. Who wasn’t there? Mr Vandyck and his lawyer. What did the judge say? That Emma had to be handed over then. Mr Vandyck wasn’t there, his lawyer wasn’t there. They had left. Ran away. So, what did the judge do? He tried to call Mr Vandyck. He didn’t respond. Then he phoned his lawyer and he [the lawyer] said that Mr Vandyck did not want to hand over the child. My Danish lawyer said, where does he live? And in the mean time we had his address and so on, where he was presumably living with Emma. Then the lawyer apparently drove there in the evening. And at a certain moment, the lawyer phoned to say that we must be ready the next morning at 7a.m., because he had seen Mr Vandyck walking with Emma in the garden in the evening. [. . .] So we went there with the police to go and fetch her. [. . .] With vans and all, they were all hiding there. [. . .] ‘You stay in the car,’ the Danish lawyer said. So the Danish lawyer went to the house with the judge. And we saw them walking around there. No-one to be seen. They were not there. [. . .] I said to my lawyer, what about driving to his ex-wife’s place. [. . .] In the mean time, before we went there, my lawyer had driven to a few schools to see whether Emma was there, but nothing. No-one knew any Emma. Eventually I asked whether we could go to the ex-wife’s place. And he did that, we went looking for the house and we arrived, we drove onto the driveway. Good reception and all, and she knew to which school Emma went. So we went there. [. . .] We were at the school, we had to stay in the car and the lawyer got out. But I would say here is the parking place, here is a sort of small school. I saw my lawyer walking over there, but while he was walking there, all of a sudden, I saw Mr Vandyck driving past (we were parked in this way), driving past with Emma in the back seat. [. . .] And my lawyer came back and we told him. And he said, ‘oh, well, that is a good sign, because the judge had also said that he could be in Sweden in five minutes’ time’ and then we wouldn’t be able to find him anymore. He said, but if he did not hand over the child on Friday and if he did not turn up at the court on Monday, an international alert would be issued to find him. We in fact had to return to Belgium on that Friday, so you can just imagine the situation. [. . .]



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So yes, what did the ambassador say, he said come to my office until he phones us, or we hear something from him. That lasted extremely long, hey; you cannot imagine something like that. Because you are sitting there, you are there for your child, you can’t do anything. At precisely 1 p.m., I remember that very well. At 1 p.m. my lawyer got a phone call [. . .] ‘Yes, he is with me’, with his lawyer, ‘and he is planning to hand Emma over.’ Yes, that was good news of course. ‘Can you be here at 1 p.m.?’ (At his lawyer’s office) ‘Yes, of course.’ So at 1 p.m. we went there. It was some distance away. So we went there, to the lawyer’s office. We went upstairs, with my lawyer. His lawyer came in, really a rude woman, really, yes . . . and I saw her giving a piece of paper to my lawyer. And they were talking, but well, angry of course, but in Danish, so we could not understand what they were saying. He went outside and I saw him saying no and so on. You saw him nodding with his head and so on, but you could see that something was wrong, you could see that. So his lawyer left. But Mr Vandyck’s car was parked here and my lawyer had parked his car in front of it in such a way that he could not get away. [. . .] So his lawyer went back outside and my lawyer angrily tore up the piece of paper and I saw him phoning and the person from Child Focus that was with me asked what was going on. Now they wanted us to sign a document that we would not take Emma if she started to cry. ‘No,’ my lawyer had said, ‘that is not allowed. The judge has ruled that the child must come with us and it goes without saying that the child will cry, because she does not know her mother, she had not seen or heard from her in a year. It is only logical that the child will cry. Every child would cry.’ He said, ‘I am not even considering that,’ so he tore up the document. So they still wanted to play a dirty little game [. . .] So my lawyer phoned the judge. We were waiting outside. [. . .] But that took so long, because these people, I don’t know from where they had to come. So we were standing outside and at a certain moment his lawyer came out and said, and asked whether the person from Child Focus wanted to go and talk to Emma. My lawyer said ‘look, try to get Emma along peacefully,’ because it would be nicer for the child than if the police and the judge had to come and fetch her, because that is traumatic for a child, you know. So the person went in, stayed a little while, and came out without Emma. ‘Yes,’ she said, she was on the verge of coming with me and then the lawyer said: ‘Do you really want to go to your mother?’ But really, in a way so as to say . . . Of course the child started crying and backed away, ‘because I told her look, say goodbye to your father now, because otherwise the police are going to come and fetch you soon. That is no fun. She was on the verge of coming along.’ [. . .] So eventually the judge arrived there with the police. I sat in the car – it was a car with shaded windows, you know – I at first did not dare to, I thought no, because if she starts to scream and she does not want to come with me, I think that I would have collapsed on the spot. And they went inside and I was waiting in the car with the secretary, and the person from Child Focus was standing outside and I saw them coming out with two policemen next to them and the judge, and he [the father] had Emma wrapped in his arms, so as not to hand her over, you know. But yes, I had read that the police in fact is not allowed to take a child away from a parent. And I thought maybe she does not want to come with me. The stress, really. I sat there crying and the person from Child Focus made a gesture that I should get out of the car so that the child could see me. So I got out of the car with fear in my heart, I went to stand in front of the car and I saw her and

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I started, I could start crying again, and I thought, I started crying and she did not come to me. And I said: ‘Emma, please, come to mommy,’ I said, ‘I have not seen you for such a long time,’ I said ‘and it is daddy that kept you away, I missed you so much’ and I started crying and crying and I fell onto my knees and she let go and she ran to me. We then immediately got into the car and he came to the window, but she did not behave strangely, I must say, because I thought that she would start, but she, no . . . And then we went directly to the airport, because it was already Friday and we had to be there on time for our plane. And so it happened, that is how she came back.

Another mother, whose child was in Spain, told of her experience when she went there and tried to get her son back: Then I went to fetch him, but he wasn’t there, at the court. He had to go to the court to hand Alexander over. The notice had allegedly been given to the father via the post. By letter. He allegedly had not received the letter, so he wasn’t there. Then they eh . . . they sent another letter by bailiff, to the father’s house. And no response. Then I went with the Guardia civil, because the court had also given me a letter for the Guardia civil, then we went to his shop, because he had a little shop in Spain at the time, and then ehm, he, ehm, really, if you stand there at that moment, and with the police, ‘We are coming to fetch Alexander.’ ‘Oh, he is not here.’ ‘Oh, and where is he then?’ ‘He is on holiday with friends.’ ‘Where that?’ ‘Oh, I don’t know.’ ‘Eh, can we have the telephone number of the friends?’ ‘I don’t have it.’ So he was laughing in our faces, mine and the Guardia civil’s. He was making a fool of us. Then, the only thing they said was: ‘Oh, that is nice, hey, you send your son on holiday with eh, people, and you don’t even have their phone number, if something happens,’ ‘Well, they can contact me, can’t they?’ ‘But you don’t want to contact your son, you don’t know what is happening.’ He just, and he looked at me like you can get lost, you, you will not see the child. And then, and I thought really, how is this possible, why don’t they arrest him, or do something? They didn’t do anything. [. . .] They simply said: ‘If he says that he doesn’t know, what can we do?’ [. . .] So the Guardia civil, well, they did nothing further. My lawyer then gave me the advice to go and check at the shop regularly, or at the grandparents’ place. I went to knock on the grandparents’ door, they said ‘Alexander is not here. Alexander is not here.’ And then at a certain moment, we saw that Alexander was there, at the grandparents’ place. Then I phoned my lawyer, and then I went to the police of Granada city and I reported it there as well. That is all so, pff, all, as I sometimes say, I experienced it all, but . . . I, it was as if I was driven by: now you have to do this, now you have to do that, and you don’t stop to think what you are doing or how you are doing it. [. . .] And then I went to my lawyer, because I had just had an interview with the Spanish television, and I told the whole story, this and that and the other, I am not getting my son, and so on, everything that was happening at the time . . . And I remember clearly that we left, we went to the car, and I got a phone call – I still get cold when I think of it – . . . from the police where I had been that morning, and they said: ‘Are you Alexander V’s mother?’ I said ‘yes’. ‘Well, we have your son here.’ So, he was with the police. They had gone to, probably the Guardia civil, had gone to the grandparents’ place, put pressure on them, because these are things that I don’t know, and eh, Alexander was apparently hidden at an aunt’s place. So they were hiding Alexander there. [. . .] Then of course we first had to fill in a whole stack of papers and then all of a sudden Alexander was standing there, first very agitated, and then of course when he saw me, he hugged me. So he had no



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clothes, he had nothing, nothing with him. Later I heard that they first wanted to place Alexander in a, ehm, how do you call that, a foster home, but then, when they heard that the mother was in Spain, they immediately contacted me.

In these two cases the children were returned. They indicate how difficult the return can be. In some instances an abducting parent can hide or move around with the child for a long time.

C  A Particular Rule under the Brussels II bis Regulation Under the Brussels II bis Regulation, a certificate exists for one particular situation which is relevant to this study: when the country to which the child is abducted refuses the return on the basis of one of the grounds of refusal under the Hague Convention (under art 13); then the country from where the child was abducted rules on the substance that the children should reside with the leftbehind parent; this implies the return of the child. In such cases the last Court (which rules on the substance) can issue a certificate if the child was given the opportunity to be heard or was not sufficiently mature to be heard, if both parties were given the opportunity to be heard, and the Court has considered the reasons for the non-return order.87 The certificate has the effect that the judgment is directly enforceable. In other words, there is no need for a declaration of enforceability by the Court where the child is (presumably the country to which he or she had been abducted). However, this direct enforcement is not operating correctly in some of the Member States. A lawyer recounted the difficulties she experienced when trying to enforce a foreign judgment with certificate in Belgium. She explained that she had a certificate issued in another EU country. In principle, the Brussels II bis Regulation has abolished the exequatur procedure for such cases.88 This means that it is not necessary to have the foreign judgment legitimated by a Belgian court: one can address the enforcement authorities directly. However, the lawyer explained that neither the police nor any other authority she contacted was able to enforce the foreign judgment. In the end she was compelled to request a declaration of enforceability in court. Thus, in practice the abolition of exequatur (at least in Belgium) is not as easy as it is meant to be. It is important that enforcement agencies should be well-informed of the intended operation of the Brussels II bis Regulation and its certificates. A lawyer who was interviewed confirmed that the enforcement of judgments should be easier. He thought that the system of direct enforcement, which the EU is working towards, would be a great step towards efficacy. However, as pointed out above, the abolition of enforcement needs some time before it will work effectively.   Brussels II bis Regulation art 42 and its annex IV.   Exequatur means the process of having a foreign judgment declared enforceable.

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XI  The International Nature of the Phenomenon and Related Difficulties Many of the legal difficulties concerning international child abduction arise exactly because of the international dimension. Legal systems are national. While cross-border movement has become much easier, especially within the EU, the legal systems still stop at each national border. This poses challenges to the law. This discrepancy between personal movement and the effect of judgments can confuse parents. Some professionals noted that parents have difficulty in understanding why their Belgian judgment has no direct force in other countries, even in European countries (in most instances). Parents were also frustrated by smaller discrepancies. During the interviews, some raised the issue of social investigations. They experienced it as unfair that social investigations were conducted at the home of one of the parents, but not at the other. This happened because of the international context. They thought that judges should be able to order investigations at homes that are situated in other countries. (The parents that raised these issues were talking about the context of the EU.) This remark reiterates the frustration that parents feel at the ambiguity of the international context: on the one hand, the EU seems like one borderless world, and on the other all sorts of incomprehensible legal obstacles exist.

A  The Confrontation of Legal Systems The first challenge is that each national legal system has its own legal concepts. A judge who was interviewed explained that the translation of such concepts often caused difficulty. Legal systems of other countries might be totally different. She specifically experienced this when she had to issue a certificate under the Brussels II bis Regulation: she had to answer specific questions which did not always match the situation according to Belgian law. Legal systems have very different approaches to parental authority and the residence of children after the separation of their parents. In this sense, legal systems also come into confrontation with each other. Judges are trained in a specific legal tradition. It is not easy to transcend that tradition. Thus, judgments might expand the confrontation between legal systems: this in turn can lead to other problems such as non-recognition or non-enforcement or conflicting judgments. Moreover, a lawyer explained that there should be more confidence between legal systems, particularly between the judges of the different systems. He gave an example of a case where the trial in return proceedings in the United States took five full days. He thought that this should not be necessary, but that judges should be able to order the return of a child and trust the judges in the other country to evaluate what the best residence order would be in the long run. This would be in



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line with the purpose of the Hague Convention: the child should be returned to the country of his or her habitual residence immediately and then the courts in that country should determine the residence of the child. Another lawyer was of the view that jurists form the hard core of nationalists, thinking that their own system is best. They have to start acknowledging that better solutions might sometimes be found elsewhere. International contact and learning from each other is important. He added that the bars of different countries should encourage their young members to do internships in other countries so that they can enrich their experiences and see how things can be done differently. A former ambassador spoke of the cultural and religious differences that were important to take into account when seeking solutions for child abduction cases. He said that religious principles also influenced countries’ laws and the way in which authorities operate. Religious convictions can also lead people to distrust other systems (such as the Belgian system). He said that in the negotiations that he has done in several cases, he had to convince people that there is a Muslim community in Belgium and that there are mosques.

B  Finding the Child The first step in solving an international child abduction case is often locating the child. Often the parent knows, or has a strong suspicion of the country where the child is, but before legal proceedings can be instituted, the exact address must be known. In practice it can be difficult to obtain this information. The central authorities play an important role in this step, but the process can be long. Moreover, a person from the public prosecution who was interviewed said that the localisation proceedings in some countries are not effective. One father explained how much trouble he had taken in order to find out where the mother and their daughter were. He knew that she was in Australia, but did not know the exact location. As he still had access to her MSN messenger account, he at a certain point saw a photo of her and the child with a car in the background on which the registration number was clearly visible. He communicated this information to the police and the mother and child were then found.

C  Cooperation between Belgian and Foreign Authorities The authorities of different states have to cooperate in order to solve international child abduction cases. Such cooperation is foreseen by the Hague Convention (1980) and the Brussels II bis Regulation. Both these instruments impose the obligation upon states to set up, fund and maintain central authorities with the task to assist and cooperate with authorities in other states. Outside the scope of these instruments, cooperation is also necessary: where there are no legal rules, cooperation between authorities, whether structural or informal, is often the only way of securing progress towards the resolution.

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Structural cooperation takes place in the framework of the bilateral protocols that Belgium has with Morocco and Tunisia. These protocols have set up commissions in which officials of the two countries participate. The persons working with the Belgian Ministry of Foreign Affairs confirmed that the protocols facilitate dialogue and that cases with these countries are less hard than those with countries with which no form of structural cooperation exists. They said that specifically for the cases where the abducting parent has dual nationality, the commissions are valuable. Without these commissions, the abducting parent would be seen as Moroccan in Morocco, or Tunisian in Tunisia while Belgian in Belgium; the result would be that authorities would protect their own nationals and many cases would remain unresolved. The protocols have been able to set aside these prejudices and induce authorities to seek solutions and also if their own nationals are averred perpetrators. The existence of the protocols has moreover created political will on the part of the authorities. Cases with countries that have no convention with Belgium can be hard. In these cases, one is dependent on the Belgian embassies in the other countries and the contacts they have. Such contact is not always easy to establish. In some cases any contact the embassy wishes to establish, has to pass via their ministries of foreign affairs. A former ambassador, who had worked as an ad hoc mediator in some child abduction cases, confirmed that contact with the authorities of some countries can be difficult due to a lack of mutual trust. This is the case especially in countries where religion plays an important role: officials of those countries are sometimes convinced that their religion is not considered important in Belgium, and that cooperation with the Belgian authorities would therefore amount to a result that disrespects their religion. Besides contact between formal authorities, organisations (non-governmental organisations (NGOs), parents’ organisations, etc) can also establish cross-border contacts. A woman that had worked for such an organisation emphasised the importance of such contacts. She explained that organisations can play an important bridging role between family members in different countries. In order to play this role effectively, organisations should cooperate and create, where possible, international networks.

D  Parallel Proceedings In the interview with the persons working with the Central Authority, the issue of various (simultaneous) proceedings came up. When a child is abducted from Belgium to another EU country, return proceedings can be instituted in the country of destination (under the Brussels II bis Regulation89 and the Hague Convention90). On the other hand, the Brussels II bis Regulation also contains rules for the recogni  Brussels II bis Regulation art 11.   Hague Convention on International Child Abduction (1980) art 12.

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tion and enforcement of judgments. Thus, one could also institute proceedings for a declaration of enforceability.91 In some countries, one has to choose which of these routes one would pursue (for instance Italy). In other cases, some applicants opt for pursuing both routes simultaneously. Someone from the Central Authority said that she usually opts for the route of return proceedings and attaches the Belgian judgment to the requested documentation for information. She added that this was a practical approach, among others, because a parent needs a lawyer for enforcement proceedings, which can be costly, while the return proceedings are free of charge for the applicant parent.

E  Conflicting Judgments As far as proceedings on the substance are concerned, it can happen that both parents institute court proceedings in order to obtain the (provisional) residence and contact arrangement for the child. One mother said: We arrived at this absurd situation where he had provisional custody in the US, where custody had been granted to the father and also exclusive parental authority. In Belgium, I had custody.

This ‘absurd situation’ is certainly not unique to this mother’s case. Often, especially at the provisional stage, parents attempt to secure a residence order in their favour. Whether or not the Court engages in the request depends on a number of matters. First, the Court would have to determine its own jurisdiction to hear the matter. In many cases jurisdiction in parental responsibility matters is based on the habitual residence of the child,92 or in some instances on the nationality of the child.93 The application of these different criteria might lead to more than one court having simultaneous jurisdiction. Also, the definition of habitual residence can be different according to different legal systems. Moreover, different courts can come to different results based on the same facts: in this way two different courts can rule that the child is habitually resident within its territory.94 Second, besides jurisdiction on the substance of the matter, a court might use different criteria for provisional matters.95 Some courts will grant provisional measures (including provisional residence) even though they do not have jurisdiction on the   Brussels II bis Regulation art 28.   Both the Brussels II bis Regulation (in art 8) and the Hague Child Protection Convention (1996) (in its art 5) contain this general rule. 93   For instance, the Belgian Code on Private International Law grants jurisdiction to the court of the nationality of the child (arts 32 and 33). Note that this rule will only be applied if the child does not have his or her habitual residence anywhere in the EU (with the exception of Denmark). 94  For more detail, see for instance T Harper, ‘The Limitation of the Hague Convention and Alternative Remedies For a Parent Including Re-Abduction’ (2010) 9 Emory International Law Review 257, especially 271–72. 95   See for instance ECJ cases C-256/09 and C-296/10, Purrucker v Vallés Pérez, not yet reported in ECR (judgments of 15 July 2010 and 9 November 2010). 91 92

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substance. This has the result that the chance of conflicting judgments arising is even higher for provisional cases. Third, a court approached for a residence order will not always be aware of the fact that a child had been wrongfully removed to that country. One of the interviewed judges explained that in her experience judges have to be very careful in residence proceedings, especially if the defendant (ie other parent) does not enter an appearance. She said that by way of careful and targeted questions, a judge should examine whether an abduction had not taken place. If the judge is not aware of the abduction, a residence order might be granted, while the left-behind parent obtains a residence order in the country where the children lived before the abduction. Fourth, when return proceedings fail, the court of the place to where the child has been taken, might grant a new residence order. At the same time, the court of the place where the child lived before the move, might also grant a residence order. This situation occurred in the case of one of the interviewed mothers. The child had been abducted by the father to Spain. The mother had a Belgian judgment according to which the child’s residence was with her. Return proceedings were introduced, but the Spanish court ruled that the child should not return to Belgium. In this case, the father used his Spanish non-return order in France (when arrested at the airport) and even in Belgium. He managed to move back to Belgium and he used the Spanish non-return order for purposes of enrolling the child in the population register as domiciled with him. The local authority made the enrolment without contacting the mother, who had parental authority according to a Belgian judgment. The issue of conflicting judgments can only be solved by conventions or other legal instruments containing rules on the mutual recognition and enforcement of foreign judgments. The Brussels II bis Regulation and the Hague Child Protection Convention (1996) contain such rules. However, even within the framework of these international instruments, the risk of conflicting judgments is not completely excluded. There remain exceptions to recognition. This indicates that the law simply cannot provide adequate responses to all problems. The facts that judgments are in the first place national and that conflicting judgments can arise, should serve as a warning sign that parents should rather be assisted to find solutions which they are both willing to respect.

F  Lack of Sufficient Knowledge about the International Legal Instruments A psychologist said that the international conventions on child abduction are insufficiently known. The interviews with parents have confirmed that the public at large are not always aware of the international legal rules. Interviewees have told that they did not know whom to contact; many of them did not know of the structures created by legal instruments and by extension did not know of the existence of the central authority.



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A judge explained that legal practitioners in Belgium sometimes institute the wrong proceedings. For instance, they request provisional measures after a child has been abducted to another country. She said that as judge, she asks the party and his or her lawyer whether they have instituted proceedings under the Hague Convention for the return of the child. She now works at the Court of Appeal and she said that she sometimes sees cases where the relocation of the child had become a fact because of the time that had passed (a year or two in some cases) while the correct proceedings were not instituted. Some parents also said that their lawyers were not aware of the legal instruments and the correct authorities dealing with these instruments. In this way, valuable time was lost in some cases. The next section will provide a more in-depth analysis of the role of lawyers and other professionals.

XII  The Role of Professionals in Child Abduction Cases A Lawyers The number of parents that said that their lawyers did not do their job correctly is alarming. Many of the parents had pro deo lawyers, and most of them were not satisfied. One mother even expressed her thoughts in this way: Pro deo lawyers are not worth the effort. So, when one says it is rubbish, and it is even dangerous and lamentable to say to someone: ‘If you don’t have a lawyer, take a pro deo one.’ This has no use. I have not heard of a person who has said that he or she had taken a pro deo lawyer and that that helped him or her. So, we have to take that off the board, the solution is not pro deo. The solution is money. One has to be practical in this situation. The solution is money to pay a good lawyer. If my children returned, it is because my lawyer here [in Belgium], to whom I owe 30.000 euros, has prepared a watertight file.

Another mother said that her pro deo lawyer did absolutely nothing: I had a pro deo lawyer here in Belgium. That was really a scandal, because the guy did nothing for me. He did nothing, because it is even so . . . he had allegedly contacted my lawyer [in Spain], but that was not at all true.

Yet another mother explained that she had tried two different lawyers in Belgium after she had fled Bosnia to get away from the violent acts committed by her husband. She was not permitted to take her child along, or even to see him or have any contact with him. Although her case was not a straightforward one, the lawyers could have been expected to at least tell her that if the child lived in Bosnia (and had always lived there), she should be instituting proceedings there, and that procedures were foreseen by the Hague Convention. Instead, they wasted a lot of

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time while the child was still very small (one to three-years-old when the proceedings were taking place, three at the time of the interview). She said: I went to a lawyer, that was here [in Belgium], my first lawyer. She said, ‘yes, we will,’ she said, ‘it will work out, we will start proceedings for provisional measures, eh, within a month you will have your child back.’ And for me it was like, pff, yes, well, so . . . and then, one month passed, and I kept phoning and phoning and going there and money and all, I immediately paid her. She asked 1000 euros. At first I gave her 500, on the first day, the following week I gave her another 500, and all of that was my parents’ money, because I had no money, I had no job. So these were extra costs for them. But my father said ‘yes, that doesn’t matter, even if she says 5000, she is saying to you that you will have your child within a month.’ . . . We were all, well, because we don’t know this, hey, how it all works. And a month passed, because she had a month to give my documents to the court and after a month there would have been a judgment . . . And that was in November, but only in February I went to the, she made an appointment at the court. And then the judge said: ‘Mrs Lemmens, sorry, but we cannot help you.’ Because that was four months later, hey, that was the court for speedy proceedings, so she had only a month . . . I said yes, and he was shouting at the lawyer, he said: ‘What are you doing here? This woman has been without her child for four months!’ . . . And so on and so on and then, oh, and then in July there was the youth court again . . . eh, but yes, nothing came of that either. Because then they said yes, the child has always lived in Bosnia and so on, so that was also dismissed. And this while I asked my lawyer: ‘Can you at least see to it that I get something on paper from a Belgian court or from someone else that I can go and visit my son, . . . at least that,’ because I was not allowed to see him, and they were blaming me for not phoning, but I did phone, but they never answered. So then I eventually gave up, because I never got hold of the child. Thanks to the neighbour, the girl, I sometimes got photos of him and so on, or she told me that he was doing well, but then I found out that she was on their side. [. . .] So here was nothing and, eventually I got angry with my lawyer. I got another lawyer, again paid him, but in the end, well, a year has passed again, more than a year. So all told this has been going on for two years. Still nothing, well, at least not from the Belgian side.

Asked what the new lawyer had done, she responded: Yes, that was also, well, that was the same bullshit I’ll say, saying that we’ll try and you will have your child soon, but that was so . . . [. . .] And then, well, I had given up hope and it did not matter anymore and a few months later, this was last year, he told me, ‘well, the best thing you can do is to find a lawyer in Bosnia.’ [. . .] I thought, jeez, I told him: ‘But could you not have said this to me in the first place?’ I said: ‘It is almost, we are . . .’ It has already been a year and a half that I had not seen my child by that time, also hadn’t spoken to him. I said: ‘Could you not have told me this earlier?’ . . . I said, ‘this year and a half was like twenty years to me.’

One father said that he had the impression that the Hague Convention was some kind of taboo for lawyers and that they were scared to touch it. Another father, who was of the opinion that he had a good lawyer, explained that his lawyer had immediately instituted divorce proceedings, requesting to have the children’s principal residence with the father. (The three daughters had been abducted to Spain.) However, he said that the lawyer did not know of the



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existence of the Central Authority. Listening to his story, it seemed that the lawyer was not aware of the Hague Convention either. It was only seven months after the abduction that the father’s brother-in-law read about the Central Authority in a weekly newspaper that he contacted the Central Authority and return proceedings under the Hague Convention were instituted. One month later the file was in Spain. The father was lucky that this perchance discovery happened within one year. Otherwise he might have had a more difficult time getting his daughters back. Several professionals confirmed that the lack of knowledge by legal practitioners has the result that the Central Authority is not seised of the cases immediately and precious time is wasted in this way. A person from a parents’ organisation confirmed the experience that legal practitioners dealing with cases of international child abduction was inadequate. She said that they know neither which organisations or authorities to contact, nor where to find the relevant legislation. Another father had a similar experience. He said: Neither of the two lawyers knew that [that there exist return proceedings under the Hague Convention]. Was it to fill their pockets that they supposedly did not know that? OK, there are many things that they have to know. But I found this quite bad . . . I, being a layman, discovered that I should do that [contact Child Focus, which referred this father to the Central Authority, which resulted in instituting return proceedings].

Another father’s lawyer told him to institute divorce proceedings quickly, explaining that he can get divorced even if his wife was in another country (at the stage he did not know for sure where she was) and that he had a bigger chance of winning everything. While the father was happy with this, he said that advice on how to obtain the return of the child would have been good. Only after his sister had told him to phone Child Focus, the return proceedings were commenced via the Central Authority. This father also subsequently had to give up the rights he had gained in the judgment and the children had their principal residence with their mother after they returned to Belgium with her. This indicates that while instituting divorce proceedings in Belgium was not in itself wrong, it did not cover the entire spectrum of legal routes available to the father. The frustration parents had experienced with lawyers has two possible sources. The first is that parents expect to have their children back soon. In reality, the procedures take a long time. While this might in part be in the hands of lawyers, it is certainly partly beyond their control. Thus, the inadequacies belong partly to the law itself and partly to those who practice the law. To a parent in need, the distinction is irrelevant. In such situations, communication is crucial. A lawyer must be able to explain to his or her client why the proceedings are lengthy, and must help the client to adjust expectations to a realistic level. The second possible source of the problem is that lawyers that are specialised in national family law are not necessarily knowledgeable or experienced in

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international matters. It is clear that in at least some of the cases the lawyers lacked the knowledge they needed to deal with international child abduction cases. The matter of child abduction is technical and some effort is required to deal with it correctly. However, a lawyer that takes on a case has a duty to find the correct information. Such information can be found in legal instruments and legal literature, or by contacting a specialised institution, such as the Central Authority, Child Focus, or even the Public Prosecution. It seems that the legal world has become extremely complicated, with a myriad of rules and regulations on international, European, national, regional and local levels. It cannot be contested that this makes life difficult for practising lawyers. It is ironic that law, in its endeavour to solve more and more, has become increasingly distant from the real problems and the people that need assistance. In this complicated legal landscape, practising lawyers who were interviewed expressed the inevitability of the changing roles of lawyers. One practising lawyers drew attention to the responsibility that lawyers bore in the prevention of international child abduction. He wondered how a parent can abduct his or her own child in good faith: it seems so self-evident that parenting is a joint responsibility and that one parent cannot take such an important decision as to move countries without the consent of the other. He thought that legal practitioners had a role in passing on this message to parents. He explained that he had once refused to help a client who unilaterally wanted to move to another country with her children. Acting in this way, he had persuaded her to respect the law. Another said that lawyers, in this international context, can no longer afford to wait for steps to be taken. Rather, they have to assume a more active role. They have to actively seek national and international tools and be able to juggle the different rules. Some lawyers are specialising in the matter of international child abduction. However, as the problem is dispersed (although severe), not many lawyers have made this their niche area. Moreover, a distressed parent does not always know where to find a lawyer with the necessary experience. It might therefore be helpful to have lists of specialist lawyers available. The police or organisations would then be able to refer parents to such lawyers. However, drawing up such a list is not without controversy, as it might be seen as advertising, or as favouritism towards certain lawyers. It had emerged from the interviews that several lawyers had advised their clients to counter-abduct their child. The parents that were interviewed did not follow this advice, but criticised their lawyers for it. Their reaction was more in line with the law than the advice by their lawyers.

B  Coordination between Authorities and Institutions in Belgium A practising lawyer said that there is a danger that the different authorities (Central Authority, police, etc), institutions and persons (parents and practising



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lawyers) involved in a case go in different directions. He said that the holding of coordination meetings in order to channel everybody’s energy was extremely important. The Belgian authorities have indeed responded to this danger. Several of the professionals described the system of coordination meetings, where persons from the Central Authority and/or the Ministry of Foreign Affairs, the public prosecutor, the police, the parent, his or her lawyer and sometimes someone from Child Focus meet to discuss the steps that should be taken in a particular case. They exchange information and determine a common strategy. In this way, the most efficient solutions are sought. At coordination meetings, the public prosecution can also be asked to recall an alert that had been issued for a parent (eg on the Schengen system) if necessary, seen in the light of other procedures or the possibility of an amicable solution. The public prosecution takes the initiative for the coordination meetings. The officials often wait to start criminal proceedings until a coordination meeting has taken place and the different professionals agree on the most suitable routes. The coordination meetings often take place in cases where the child had been abducted from Brussels. They originated in Brussels and now form part of the general practice there. In other cities, the coordination meetings are in some cases more difficult to arrange because not all the persons work in close proximity to each other. Where the distance between the authorities (the Central Authority in Brussels and the public prosecution in another city) makes it difficult to meet, telephone or video conferences can provide a workable alternative. Such practices can still be improved. It is important to include left-behind parents in the coordination meetings as they can provide a valuable input on the approach that would be best suitable, taking the character of the abducting parent into account. In the case of abductions to Belgium, where the left-behind parent is in another country, he or she can be asked for input via telephone. In general, professionals seemed rather satisfied with the cooperation between institutions and authorities in Belgium. They said that such meetings are an effective way of exchanging information and determining a common strategy. It has emerged from the interviews (with professionals and with parents) that these meetings take place mainly in Brussels. It might be desirable to extend the practice to other parts of Belgium. If necessary, such meetings might happen by telephone. Child Focus has a cooperation protocol with the Ministries of Justice and Foreign Affairs. This protocol describes the role of each of these institutions. It also facilitates cooperation by specifying situations in which parents should be referred to one of the other ministries or Child Focus. According to a mother whose children were abducted to North America: They [The Belgians] have a system of round tables where, roughly every three weeks, they meet: the police, the Central Authority, the public prosecutor, lawyer and they

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assess the situation: ‘What are we going to do? This is where we are, in which direction are we going?’ Etc. And this is wonderful. I take my hat off for the Belgian system, really, it’s wonderful. I say this because other countries can learn from this example.

A father had a different view on this. He had the impression that the Central Authority, the public prosecution, police and Child Focus were not well coordinated and did not keep each other informed. This father lived in a city that is located about 100 km from Brussels. There were no coordination meetings in his case, unlike the case referred to above where the mother lived in Brussels. Of course it would pose more practical difficulties to arrange coordination meetings at this distance (taking into account that the meetings include the public prosecution, police, parent and lawyer and that these meetings are usually rather short). However, finding an alternative, for instance by telephone, might assist parents and ensure that their cases, too, are dealt with in the most efficient way possible. Another father, who lives in a small town in the south of Belgium, far from Brussels, likewise complained about the lack of cooperation between different authorities and institutions. The abduction of his children took place a number of years ago. It cannot be said whether his experience would have been different if the abduction were more recent. The system of coordination is in line with the Conclusions and Recommendations of the fifth meeting of the Special Commission to review the operation of the Hague Child Abduction Convention (1980) and the practical implementation of the Hague Child Protection Convention (1996) of 2006.96 These Conclusions and Recommendations state that when prosecuting authorities exercise any discretion to initiate, suspend or withdraw criminal prosecution for child abduction, they should consider the impact such prosecution might have on the possibility of achieving a return of the child.97 On the other hand, someone from the public prosecution explained that she cannot give instructions to local authorities, as these are independent from her. The professionals that were interviewed said that it is the parent or the lawyer’s duty to inform the local authorities of a fear of abduction. In this field one cannot speak of cooperation between authorities. The local authorities that were contacted by the interviewer seemed prepared to cooperate in order to combat international child abduction. These authorities indeed have an important role to play in the prevention of child abduction, as they have the power under Belgian law to issue identity documents and passports. It would be desirable to develop a system according to which the public prosecution can directly inform local authorities of the risk of abduction, asking them to take care when receiving a request for passports, or informing them of a prohibition in a judgment for one parent to request a passport without the permission of the other parent. While the public prosecution cannot give instructions to local communities, informal cooperation and coordination would be useful.   Available at www.hcch.net/upload/concl28sc5_e.pdf.   At 12, para 1.8.4.

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Another possibility would be to provide for a legal duty according to which the public prosecution has to inform the competent local authorities of judgments prohibiting a parent from leaving the country with a child. As the public prosecution already has to inform the local authorities of a divorce (for purposes of the population register), this additional communication would not require much extra work. Moreover, parents and legal practitioners do not always know that they should contact the local authorities separately. A person from an organisation who was interviewed thought that social organisations should be permitted to participate in the coordination meetings. Organisations would be able to play a role to support the parents, a role that the authorities cannot always take upon themselves as they cannot personally support the individuals involved. Moreover, in each of the Courts of Appeal of Belgium, a reference official (of the public prosecution) has been appointed. They meet to discuss the situations in their districts and to exchange information. However, these meetings do not take place often anymore. Some professionals thought that such meetings would be very useful and would enhance the coherence in Belgium on the topic of international child abduction.

C Judges A judge of appeal said that she often finds that judges do not deal with inter­ national cases correctly: they for instance do not distinguish between questions of jurisdiction and applicable law, but use the same motivation for these different issues. She added that it is time-consuming to do the research that is required for these cases, especially when there is already considerable work pressure and an obligation to produce judgments without long delays. The judge said that she had experienced that the abducting parent (who had abducted the child to Belgium) instituted proceedings in Belgium. The abducting parent is often a returning Belgian national, who is familiar with the Belgian system and has a support network there. He or she wants to authenticate the abduction in this way. In such proceedings the defendant is often not present. She explained that as judge one has to be very careful and ask the right questions in order to get to the bottom of the matter. One should be prudent not to give a default judgment that can later serve as an authentication for the abducting parent and that which he or she can use as a defence in the return proceedings in another country. Another judge emphasised the importance of reaching a decision that has the support of all the parties involved. She said that she tries to win the trust of the parents and lead them to a solution that is acceptable to both. In doing so, she retains her role of judge, but uses certain techniques of mediation. She acknow­ ledged that this takes a lot of time, energy and patience, but she was convinced

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that such a decision has more chances of success than prohibitions in a judgment (such as a prohibition to leave the country). She said that prohibitions are often not respected and their enforcement is not always easy. She said that measures to force a parent to do something can be communicated to the child and in this way the child becomes further involved in the conflict. She also said that financial penalties for the non-respect of judgments might have no effect, as a parent might not be able to make the often exorbitant payment. She thought that judges working in the field of family law should be trained to work towards the conciliation of the parents so that a solution can be reached with which they are both happy. A judge added that exchanges of information between judges should be facil­ itated. Several professionals emphasised the importance of judges’ networks in international family matters. Networks exist on an international level.98 Their purpose is to provide avenues for judges to directly contact their colleagues in other countries, and to facilitate the obtaining of information on foreign legal systems, not only on civil law, but also on procedural aspects, such as enforcement. Every country has a judge who serves as a contact point, a so-called ‘liaison’ judge.99 Judges who have questions on the operation of the international instruments can contact the liaison judge, who can assist, through the liaison judge in another country, to contact a specific judge. Liaison judges can also assist other judges in the correct application of the instruments, and help them to understand the differences between the Hague Convention and the Brussels II bis Regulation. In the EU, such network also exists, in the form of contact points of the European Judicial Network. The Brussels II bis Regulation provides for direct communication between judges of different countries.100 For instance, the Brussels II bis Regulation provides that if there is a risk of psychological or physical harm for the child if he or she returns, the return order may only be refused if measures cannot be taken in the country of the habitual residence of the child (thus where he or she lived before the abduction).101 A network of judges can assist judges in 98  See, in general, the Report on Judicial Communications in Relation to International Child Protection (drawn up by Philippe Lortie), Preliminary Document No 8 of the Fifth Meeting of the Hague Conference on Private International Law’s Special Commission to Review the Operation of the 1980 Hague Child Abduction Convention and the Practical Implementation of the 1996 Hague Protection of Children Convention, available at hcch.e-vision.nl/upload/wop/abd_pd08e2006.pdf. 99  The Hague Conference on Private International Law recommended that judges be formally appointed as liaison judges; see the Report on the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October 1980 in the Civil Aspects on International Child Abduction and the Practical Implementation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, held on 30 October 2006–9 November 2006 (2007), available at www.hcch.net/upload/wop/abd_2006_rpt-e.pdf, 48. 100   This has been discussed above, see section entitled ‘Direct Communication between Judges’. 101   Brussels II bis Regulation art 11. Under the Hague Convention, the return might be refused if there is a risk of psychological or physical harm for the child; no notice is taken under the Convention of measures in the country of habitual residence (art 13).



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obtaining information about the measures that are possible in another country. Such information is otherwise not easy to obtain as legal systems and social services vary greatly from one country to the next. One of the judges emphasised that the appointment of a judge to represent a country in a network, should be formal. Thus, the work that the judge is expected to do in the network should be recognised as part of the time on the job, and should be taken into consideration in the distribution of other tasks. Professionals also pointed out that this network of judges must be separate from that of the central authorities. Many judges, when in need of information from another country (general information about the legal system, or specific information relating to a certain case), feel more comfortable contacting a judge in the other country than the central authority. This authority is, after all, in most cases part of the executive, and judges are careful to guard over their independence. The central authority can sometimes be perceived as acting for one of the parties, as this authority is instrumental in the institution of the return proceedings. (What its exact status is in the proceedings depends on national law.) If the authority is seen as representing one of the parties, requesting (neutral) information of it on the content of foreign law would infringe the principle of adversarial proceedings. Thus, while the network of central authorities is essential, the network of judges should exist alongside but separate from it.

D  The Police The police are a group of professionals that play an important role in child abduction cases. As has been explained above, parents were not always helped by the police.102 Thus, they have an important function to point parents that are at a loss in the right direction. Similarly, they also have an important role in the prevention of international child abduction. One mother said: When I told them [the police] beforehand, they said that they couldn’t do anything if he had not left. And when he left, they said: ‘We can’t do anything, he has left. We can’t do anything in [that country].

She said that it should at least have been possible that an alert be issued for the father so that he would be stopped at the borders. The father had indeed told her that he was going to abduct his child. An alert was only issued for this father after he had already left. In this way, ‘he was almost prevented from returning’, she said. A father said that he had reported the breaches of his visitation rights to the police. He had the right to see the child every other weekend. However, the police told him that the judgment did not make clear which weekends he could see the child and thus they were not able to know whether there was really an offence at that particular moment or not. 102   See the discussion on first steps after the abduction, section entitled ‘Contacting Authorities or Institutions’ above.

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Someone working with the High Commission for Justice said that similarly, reference persons have been appointed among the police in Brussels. The idea was to provide a short training on international child abduction for these persons.

XIII  The Inadequacies of the Available Legal Remedies A father who was interviewed said: You are in fact the victim of a decision that was taken unilaterally and then you get the door slammed in your face because of a judicial system that is inadequate in that respect.

A Costs The proceedings are expensive and this poses an important stumbling block for many parents. An argument was made by one of the interviewees that financial assistance to parents should be considered per country, as the costs vary greatly in different countries. Some were disgusted by the fact that even if you had done nothing wrong, it could still cost you a fortune. This matter is of great importance. In the field of international child abduction, a lot has been done to improve the access to justice by the creation (under the Hague Convention) of central authorities. These authorities have an important function as bridge between authorities and courts in different countries and they can save on costs for parents.

B  Strange Outcomes Some parents, after the return of their children, looked back on the strange things that could happen in court. One mother was disconcerted when the judge ruled that her children should stay in the country where they were until the end of the school year. The judge seemed to consider that less disruptive for the children. However, this is not the policy of the legal rules concerning child abduction. The mother said that there was not even any point in appealing this decision, because there were six months of the school year left and she was not sure whether the judgment would be in time to have any practical effect. The same mother said that her child attended a special school in Belgium. However, after his abduction by his father to the Netherlands, he was put in a regular school. This was at issue in the court. She said that the judge spoke to the child for 10 minutes and then came to the conclusion that the child was capable of attending a regular school.



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By the end of it all, this mother was looking for an ombuds-service where she could complain about her experiences with the judicial system.

C  Discrimination between Mothers and Fathers One of the interviewed fathers said No attention is given, certainly not by the court and no-one listens, no-one listens, well, there is absolutely no attention for . . . for the feelings of the man.

Another father said that despite legislation in Belgium on alternate residence and the equality between men and women, these principles are not always applied in practice, for instance in judgments. He added: And as man you have to carry the burden and that I sometimes find hard, I am not bitter, but it is indeed hard.

When fighting for equal rights between men and women, one should not lose sight of the discrimination of fathers, because of a stereotypical view of the roles of fathers and mothers in society. A father said: I was told that three out of four times, it is the mother who abducts the child. [. . .] If they get that far, it is because they are not asked many questions. That’s all.

On the other hand, a mother experienced difficulties trying to see her child in a country in the Persian Gulf. The first time that she went there, she obtained a visa only because she said that she wanted to marry the father. Otherwise, as a woman travelling on her own, she would not have been able to get a visa.103 She said: Yes, because in [that country], the fathers have absolute custody rights over their children. The mothers can see them now and again, but . . .

Her experience, and that of other mothers whose children have been abducted to Middle-Eastern countries, might shed some light on the reasons for the perception that exists that more fathers abduct their children than mothers. While we have seen in chapter five that more children are abducted by mothers than by fathers,104 mothers who struggle to have contact with their children in countries where the legislation gives them very little rights, fight a very hard battle. They might not be the majority, but their stories speak of such distress that their voices must be heard. The experiences of these parents, when combined, teach an important lesson of equality: proceedings should be started without prejudices and every parent should be permitted to take the role in the family that is best suited.

103   Also see H Amin, Reunited in the Desert (London, John Blake, 2008). This author explains the difficulties she experienced trying to see her children in Saudi Arabia. 104   See chapter 5, section entitled ‘Relationship of the Abductor to the Child’.

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XIV  Situations where No Legal Instruments are Available In countries that are outside of the EU and outside the framework of the Hague Convention, obtaining the return of the child is difficult. This was confirmed by an official from the public prosecution explaining her experience during an interview. In the absence of a legal framework, conflicting judgments in different countries can easily come to exist. Embassies can try to assist in negotiating a solution, but in the absence of international legal rules, it is often difficult to resolve the case. The embassies’ chances of success will depend on the experience of the staff at negotiation, the cooperation with local authorities, and the willingness of the parents to seek an amicable solution. The dire experiences in the absence of legal proceedings in some cases drives parents to resort to other means, such as the media and politicians. In the worst cases, counter-abductions can take place, although the incidence of this was very limited in our dataset.

A  In Practice One parent, whose daughters had been abducted to Brazil,105 said: None [of the procedures] succeeded. I was the one who resolved the situation. I am the one who finally, saying that Linda had to have an operation in Belgium, I was the one who precipitated the return, speaking to my wife, that we should not waste money on the operation, I said. [The operation would be free in Belgium, but would have to be paid in Brazil.] That is what ended the war. Otherwise, I think that they would still be in Brazil.

The dataset contained eight abduction cases to Belgium in which none of the above instruments were used. All of these cases were closed. The child returned in one case, but did not in four cases. The outcome in the other three cases is unknown. Three cases were settled: one return, one non-return, and one in which the result is unknown. In three cases the applicant parent abandoned his or her efforts with the institution where the file had been opened. In only one case the duration of the abduction is known, and that was 22 months. Regarding the abductions from Belgium to another country, none of the instruments were applied in 153 cases. 106 of these cases were closed. In 101 cases it was known whether or not the child returned. In 77 cases (76.2%) the child did return, but in 24 (23.8%) he or she did not. 105   Brazil is now party to the Hague Convention and accepted as such by Belgium. However, at the time of this abduction (September 2006), Belgium had not yet accepted Brazil as party to the Convention. Brazil acceded to the Convention on 19 October 1999, but Belgium accepted Brazil’s accession only on 22 February 2007 and the Convention entered into force between these two countries on 1 May 2007.



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Of the closed cases, 68 cases (64.2%) were settled. In 10 cases (9.4%), a judgment on the substance led to the closing of the case. In three cases (2.8%) the child was counter-abducted. In eight cases (7.5%) criminal law proceedings were reverted to and led to the closing of the file. In 10 cases (9.4%) the applicant parent abandoned the efforts and in five other cases (4.7%) no solution was found. Three cases (1.9%) were closed when the child attained majority. Of the 77 cases in which the child returned, the duration of the abduction was known in 71 cases. The mean duration was 5.7 months. This low figure is partly explained by the fact that in 31 cases the child returned within the first month. These were probably cases in which the abducting parent left to go on holiday or stayed on holiday longer without the consent of the other parent. Another possible reason for a quick return is that an abducting parent returned quickly after realising that his or her actions were considered illegal, something not contemplated beforehand. In 56 cases (78.9%) the child returned within six months. In 63 cases (88.7%) the child returned within a year. In 68 cases (95.8%) the child returned within two years. In the remaining three cases the abduction lasted respectively 33 months (almost three years), 65 months (almost five and a half years) and 116 months (more than nine and a half years).

B Media Some parents also try to involve the media and/or politicians. One mother, a journalist herself, on the one hand said that no stone should be left unturned: Knock on all the doors, political, judicial, everything.

She added that the newspapers are also an option, but that one should rather contact the newspapers in the country to which the child has been abducted. She also said that this has to be done carefully, as it is not always well-regarded by judges. Some parents want Child Focus to prepare posters (as it does for missing children) and contact the television broadcasters. One mother did not understand why a child that had been missing for only a few days appeared on television, while her child, who had been away longer, did not.106

C Politicians Some parents had contacted politicians, for instance by writing a letter, or the lawyer contacted a minister because she knew him. One of the interviewed parents thought that this contact really helped to speed up the return of her child. 106   Child Focus follows a policy according to which posters are not always distributed for cases of parental abduction, as they may produce a counter-productive effect, namely chase the abducting parent even further away.

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D Counter-abduction Several parents said during their interviews that they had been advised to travel to the country where the child was and simply take the child back. In some cases, it was a lawyer that had given this advice, in some cases a family member, in one case a doctor and so forth. A father said: Then my lawyer said: ‘well, go and get your son, go and fetch him,’ . . . and I actually wanted to do it but . . . after thinking about it for a long time I thought hey, I am not crazy. That would be hard for my son . . . We are talking about traumas, hey. If I go and fetch him and then keep him here euh . . . giving him the impression that he is being locked up. And wait until the mother will come and get him again. I am not crazy, you know.

Another father said that his sister and brother-in-law (who was a lawyer by profession) told him that they would have gone to fetch the children. He said: At a certain moment, I had a hard time with my family. My sister and my brother-inlaw told me at a certain moment: ‘if you really want the children back, go and get them’ . . . And at a certain time I felt the pressure, because I thought well, should I do that? But I then also said: ‘How would I do it? These are small children. Must I go and steal them off the road? Throw them in the car? Then there would have to be three of us, because the mother would not let them go without putting up a fight.’ . . . I said that it was not realistic. You simply can’t do that. [. . .] Well, I understand the reaction, if you say, as an outsider: ‘if it were my children I would have done this and that’, and I would react in the same way if someone else were in the situation. But if it is you, it is not that simple. And I think that it is best to, well, stay calm, wait and have a lot of patience.

Another mother wanted to counter-abduct her child, but ultimately let herself be persuaded by the Ministry of Foreign affairs not to do it. She said: Because in the beginning I was shocked, I wanted to kidnap him, I did everything. [. . .] I would have kidnapped him, he would have come back and kidnapped him, I would have rekidnapped him, he would have come and rekidnap him. It was not sustainable . . . So I thought I would listen to what I was told [by the case manager of the Ministry of Foreign Affairs], I would try to be docile. And at the end of the day I lost his youth, but I think that I will regain him. We’ll see.

The reluctance by parents to counter-abduct their child is confirmed by the figures gathered from the quantitative study. Of the 82 closed abductions from other countries to Belgium for which the outcome was known, only two ended in a counter-abduction. Of the 300 abduction cases from Belgium to another country for which the outcome was known, there were only five counter-abductions.107 This reluctance stemmed from a concern for the interests of their children, which can only be appreciated.108   For the full range of the solutions in closed cases, see chapter eight, section entitled ‘Outcomes’.   For a legal analysis of counter-abduction, see Harper, ‘The Limitation of the Hague Convention’ (2010). 107 108



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XV  Criminal Proceedings Withdrawing a child from the authority of a person who has parental authority over that child is a criminal offence in Belgium, as in many other countries. Taking the child out of the country for more than five days, infringing the rights of parental authority, is a further offence. The criminal offence of child abduction in Belgium exists only if there is a judgment stipulating the residence and contact arrangement regarding the child.109 This is not in line with the civil law, and the Hague Convention, which define international child abduction as the removal or retention of a child in another country than that of his or her habitual residence without the consent of the other parent while that other parent had ‘rights of custody’ over the child. For purposes of civil law in Belgium, parental authority rights110 can have their origin in a judgment or in an agreement with legal force, or by operation of law. Someone working with the public prosecution said that the definition of the criminal offence should be changed. Indeed, the lack of coherence can be problematic. It might be the reason for the response that some parents receive when they report an abduction to the police that nothing can be done as long as there is no judgment. The police should report the facts, even though there is no criminal offence. It is understandable that this situation causes confusion. Where a child is abducted to a country with which Belgium has no agreement, the only avenues to seek a return are diplomatic channels, amicable solutions and criminal proceedings. Many professionals have expressed their dislike of criminal proceedings in cases of international child abduction. They say that such proceedings should be a last resort, arguing that it often chases the abducting parent further away, rather than convincing him or her to return. Indeed, a parent then sometimes feels driven into hiding, or driven to a place or a country where the judicial authorities will not be able to reach him or her. Moreover, the institution of criminal proceedings might bring with it an alert on the parent’s name. He or she might be stopped at a border control (even if he or she wants to return with the child) because his or her name might be on the alert system. The parent might know that, as soon as he or she attempts to enter the country, he or she will be arrested due to the pending proceedings. Of course, this is no incentive to return to the country with the child. Using criminal proceedings furthermore increases the conflict: such proceedings drive people further from each other, make communication more difficult, and stand in the way of a negotiated solution.

  Criminal Code art 432.   For the use of terminology, see chapter two.

109 110

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Moreover, it is most often not in the child’s best interests that a parent is effectively sent to prison. The starting point should be that a child has the right to have contact with both parents (unless there are exceptional circumstances). Criminal proceedings should be the last resort in child abduction cases. Everything should be attempted to ensure a speedy return, and to allow the child to regain contact with both of his or her parents.

XVI  Amicable Solution A  Mediation and Out-of-Court Settlement111 The psychologists and people from organisations placed a lot of emphasis on communication and solving disagreements in non-contentious manners, for instance by way of mediation. One person said that parents must work towards the future and find ways in which both parents will maintain contact with the child. A psychologist also said that mediation is a good way both to prevent abduction and to resolve the abduction. He said that by this process parents are forced to take their situation into their own hands. He thought that if judges and legal practitioners could be convinced to pay more attention to mediation, this would be a great accomplishment. The ways in which other countries seek solutions in abductions to their countries differ: in France, there is a compulsory phase of seeking an amicable solution; in Portugal parents are asked whether they would like to seek an amicable solution. In Belgium, the police are usually sent to speak to the abducting parent, in order to determine his or her intentions and explain the possible legal proceedings that will ensue (return proceedings under the Hague Convention and possibly criminal proceedings). They do not explicitly mention the possibility of mediation. In the experience of the persons from the Central Authority, this conversation rarely leads to the resolution of the case. One of the interviewed judges wondered whether judges should be compelled to refer parties to mediation, for instance by way of a compulsory information session at the beginning of the proceedings. She said that the effects of such practices in other countries would have to be researched. In any event, she said that judges in Belgium are at this stage not sufficiently knowledgeable about mediation. Some parents have considered or tried this option, in some cases after the abduction, but in some cases already before the abduction. 111   For more detail on the topic of mediation in international child abduction cases, see S Vigers, Mediating International Child Abduction Cases, forthcoming in Hart’s series ‘Studies on Private International Law’.



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One father said: Oh yes, we tried to talk, but it was… well, she remained stuck to her position. I remained stuck to mine. And so it went. I think that there was no way for it to work . . . well. I would have liked a mediation to take place, but with someone external of course. It is of course more difficult between her and me.

He added: I tried with a social worker to find a professional for mediation. But just at that moment no-one was free, we had only a few days in which to find someone . . . She [the social worker] was not a mediator herself. So she gave me names of persons who were mediators and who spoke Spanish. I tried to find one of these persons, but unfortunately no-one was free or available at that moment.

These quotes show some of the difficulties of mediation in cases with an international element. First, the timing is crucial. There is often a short timeframe in which mediation should take place. In this case the mediation had to take place before the mother left. In any event, mediation has to take place before the conflict gets too augmented and the timing is therefore crucial. Second, language can be a problem, especially when the parents, or one of them does not speak the language of the country in which they live. Third, something that has not been explicitly stated by this parent, but which is implicitly present in most abduction cases, is that the mediator must be sensitive to the particularities of an international case. He or she must be able to find information on the relevant legal systems, which might vary greatly. An agreement coming out of mediation is only worth the paper it is written on if it will be recognised in the different countries. Linked to this, the mediator must also be sensitive to cultural differences and must be able to not only take them into account, but positively confront them and never lose sight of the context they create. A former ambassador had sought solutions of child abduction cases while he was working in Algeria. In several cases he acted as intermediary between the parents. He said that the family and relatives also play an important role in the abduction. One could therefore also involve those family members or relatives in the negotiations.

B  Neutrality of the Mediator Another father was hoping to find an amicable solution, with the assistance of a neutral third person. He had contacted Child Focus, which had proposed to contact the mother and play the role of intermediary. However, this did not work. He said that Child Focus has a particular connotation, referring to abductions, paedophilia and such serious cases. As the mother in this case did not see her act of returning home with her child as abduction, the intermediary role of Child Focus was not effective. He even thought that this had made her want to prove that she

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had done nothing wrong. Upon her return, she instituted legal proceedings in Belgium (to where she had abducted the child). This shows another important point of mediation, whether institutional or informal. The mediator has to be neutral, and also has to be perceived as neutral by both parties. This is crucial for gaining the trust of both parties. He said: According to what the mother said, that has also precipitated her instituting legal proceedings and she obtained the rights, even though legal proceedings were not necessary for that. But she got into a paradox, those were her words. To justify her conduct to herself [. . .] She said: ‘I wanted to prove that I had the right to do what I did and thus I instituted legal proceedings and the proof is that I got all that I wanted and I won the case. [. . .] That is the proof that I have complied with my obligations towards society: what I had done was not illegal, I had the right, the proof is that I instituted legal proceedings and I won.’

C  Willingness on Both Sides Someone working with the public prosecution said that she and her colleagues encourage parents to resolve their disputes by way of mediation, but in the end mediation cannot be forced upon parents if they do not wish to pursue this route. A colleague of hers (from a different district) said that she usually asks the police to try to convince the parents to use mediation. However, this option is not often pursued. She said that she has not yet seen any solutions reached via mediation. Often mediation fails because one of parties (often the abducting parent) is not willing to talk. A father said: No, I went there once and both had to agree . . . If your ex does not agree, then you can’t ...

One father said that he thought in general that mediation was a good idea, but that it would not have worked in his case. He said that the mother had everything in her hands: My wife had everything in her hands: she had money, a house, she had her mother in Brazil.

Another father similarly took the view that mediation might work in other situations, but that it would not have helped in his. He said that he was too nervous. He also had the impression that the mother wanted to keep the children out of pride. Another father said: Mediation: will that lead to something? I fear not, because when you had made a decision to move, then I can’t imagine that a mediator can . . . the person, well, either to convince her to review her decision and return to Belgium or to say ‘look, well, let the daughter go’, no, I don’t know. I don’t know. [. . .] Of course when both partners are in Belgium, then maybe.



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D  Time and Money Mediation proceedings require time. In child abduction cases, time cannot be lost, as a child quickly settles into a new environment. If mediation is to take place, a mediator has to be appointed and several sessions have to be organised. A judge said that in such situations, one cannot remain within the six-week period. She thought that a settlement, encouraged by the judge, can more easily be reached within the six-week term. Another difficulty with mediation is that it can turn out to be expensive, especially in international cases.

E  The Risks of Mediation During their interviews, a judge as well as a practising lawyer expressed their views against mediation after a child has been abducted. They thought that mediation was a good way of solving international family disputes only if it occurred at a time before the conflict got completely out of hand, and before the negotiating positions of the parents become too skewed because of the radical act of international child abduction by one of them. If mediation takes place in such situations, mediators should be careful to address possible power imbalances adequately and should stop the mediation if necessary.112 Moreover, professionals said that after abduction time was of the essence: a child can quickly become integrated in his or her new environment. Attempting mediation can result in important time being wasted, as strict time periods apply to the proceedings during this period. Moreover, a parent can in bad faith pretend to attempt mediation, with the sole purpose of winning time and estranging the child further from the left-behind parent. A psychologist, similarly, said that in order for mediation to succeed, there must be at least some trust. An international abduction is such a strong act, that it is difficult to reverse. It is rarely possible, he said, to convince a parent who has committed such an act to return. He was thus also of the view that mediation should take place earlier rather than later. He said that if the parents’ positions were intransigent, mediation would not have any chance of success and might even be dangerous, because it can be used for ulterior motives by parents. If mediation is attempted after abduction, this should be done in a judicial framework, with pressure to back up the process. In order for this to be efficient, there must be cooperation with the authorities of the country where the abducting parent is. Embassies could help in these situations. 112  See JB Kelly, ‘Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention’ (1995) 13 Mediation Quarterly 85–98.

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Another judge said that she did not consider mediation after abduction impossible, as long as one remains prudent not to allow a parent with bad intentions to abuse the mediation process in order to win time. She said that if mediation takes place after an abduction, the entire problem of parental responsibility and the residence of the children should be dealt with as a whole, and not only the return. The fact that this one-step approach is possible is one of the great advantages of mediation as opposed to court proceedings.113 The logic of the Hague Convention and the Brussels II bis Regulation is such that the child should be returned and the substance of the matter (parental responsibility and the future residence of the children) should be assessed by the Court where the children were habitually resident before the abduction. This prolongs the dispute and might disrupt the children even more, as they may have to move back and forth several times.

F  Central Authorities’ Role The central authorities of different countries do not all function in the same way. The Hague Convention mentions as one of the tasks of central authorities ‘to secure the voluntary return of the child or to bring about an amicable resolution of the issues’.114 In some countries, the central authorities place more emphasis on this obligation than in others. One father recounted how his daughter and her mother were located in Australia. The mother was then invited twice to voluntarily return the child. This was done, according to the father, with some insistence, and the mother was told that if she did not let the child return, legal proceedings would ensue. During the time, before a judgment on the return, the mother was forced to stay where she was living. Her and her daughter’s passports were annulled. This mother then allowed the child to return. In Belgium, the Central Authority does not view mediation as part of its role. The persons from the Central Authority who were interviewed, said that they believed in mediation as a way to find a solution, but said that the Central Authority cannot take this role upon itself. They said that the requirements of confidentiality and neutrality in mediation are incompatible with its role. They did, however, recommend parents to consider mediation. It should be acknowledged that central authorities have a difficult task in ensuring speedy proceedings and at the same time seeking a voluntary return or amicable solution. An equilibrium between these two duties should be found, while respecting the left-behind parent’s assessment of the situation.

113   See also S Vigers, ‘Note on the Development of Mediation, Conciliation and Similar Means to Facilitate Agreed Solutions in Transfrontier Family Disputes Concerning Children Especially in the Context of the Hague Convention of 1980’ Preliminary Document No 5 (October 2006), available at hcch.e-vision.nl/upload/wop/abd_pd05e2006.pdf, 8. 114   Hague Convention on International Child Abduction (1980) art 7c).



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G  Mediation in an International Context The problems noted above, regarding time and money, become even more intensive in an international context. It is more difficult to arrange face-to-face meetings when the parents are in different countries. If the mediator has contact with both parents separately, more time might be needed for the mediation. Mediation can be more expensive, or it might be necessary to use telephone or video conferencing, which is not always available at cheap cost. It is also difficult to find mediators that are versed in the legal systems of different countries. It is of course important that the outcome would have legal effect in both countries. To add to the list of skills that an international mediator must have, he or she must be able to speak several languages. Moreover, there might be mistrust by a parent towards foreign authorities, especially when mediation is attempted by an authority such as an embassy. A former ambassador who worked in Algeria and who negotiated in several child abduction cases in that country, said that he had noticed that the abducting parent usually distrusted him (as part of the Belgian system, broadly speaking). He needed some time to win the trust of the abducting parent. He said that he had to explain the legal rules carefully to such parents.

XVII  Long Duration of the Proceedings A General The complaint that most often recurred is the long duration of the legal pro­ ceedings. A father whose child had been abducted to Argentina said that the legal proceedings (including two appeals) had taken a year and a half. A mother said: You know the Belgian justice system. It is terrible, terribly slow. I mean, someone who does not have the means, just won’t see his child again. I found that, I find the Belgian justice system really bad. That really has to be said, because that is the truth.

Another said: I would say that, first of all, it should go faster . . . I am not saying that the authorities are not taking this seriously and so, but it should go faster. That, because a month for a parent in this situation, a month feels like years. So for me, these two years, for me they are like twenty years.

The problem of the long duration of legal proceedings was also raised concerning Belgian judgments about the residence of the child. These judgments also take a long time according to the parents and this is difficult for them. In some cases,

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there are provisional or old judgments that no longer correspond with the situation in reality. A judgment to confirm the actual situation sometimes took months, or more than a year. Regarding return proceedings, both the Hague Convention and the Brussels II bis Regulation encourage speedy proceedings, ie proceedings that take six weeks. A mother said: For me, the biggest annoyance was that the Hague Convention, on paper it is stated that the case will be heard within six weeks – in my case it took six months. That is impermissible.

Parents know of the time limit, and are therefore often disillusioned by their experiences of longer proceedings. Even for parents of whom the child returned and a satisfactory arrangement for contact with the other parent could be established, the one negative experience would be the length of the proceedings, the weeks of waiting, and sometimes of not sleeping. These long periods of waiting are in some cases accompanied by lack of information. Parents tell how they were told: ‘we are working on the investigation.’ Although the police knew certain things in this case, they did not tell the leftbehind parent due to professional secrecy. This was very hard for the parents. A lawyer who was interviewed said that one of the things that he saw time and again was how slow the legal proceedings progressed. He emphasised how difficult this was for officials, and above all for parents. A judge said that in her experience return proceedings in Belgium in 2007 and 2008 were concluded in a period ranging between two and four weeks (calculated from the moment of seising the Court to the judgment). She said that time is often wasted between the first application with the Central Authority of the country of the left-behind parent and the transmission of the file to the Central Authority in the country where the child was abducted to (Belgium in the cases she was referring to), and subsequently the time before court proceedings are instituted. The successful finalisation of a file cannot just be measured according to the return or non-return of the child. An important consideration is the duration of the procedures, whatever their type. As the children involved in abductions are often young, they adapt quickly to a new environment and learn new languages easily. At the same time, they are also prone to forget the language they had been speaking before. If they are returned after a long time, these children might face difficulties. One interviewed mother had moved with her child and with her new husband from Israel to Belgium. She had done this with the knowledge of the father. He knew that their house and shops were being sold and he had signed an authorisation for the child’s passport. The mother and child were also in the newspapers before their return (because of a curious incident with their cat). She thus left neither secretly, nor in disrespect of the father’s rights. The father, however, instituted proceedings under the Hague Convention in Belgium for the return of the child. The mother was deeply shocked when she received the summons. She said that she had tried to facilitate contact between the



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child and the father, via Skype, and she had installed a webcam. However, the father did not seem interested. She thought that he was using the proceedings to get his son back for religious reasons and because of pressure from the State (the boy would have to join the army later). She did not think that the father really wanted the son with him. She spoke of misunderstandings, saying that the child was not central to this dispute. Even though the return was not ordered in the end, the proceedings themselves, and especially their long duration, weighed heavily upon the family. The child had experienced much stress and was battling at school during some periods. For the statistical analysis that follows, only the cases in which the child returned were taken into account. The months between the date of abduction and the date of return were calculated. In 212 cases, the date of the return of the child is known. The mean number of months between an abduction and return is 11.87 months. In 30% of the cases the child returned within the first month. In 57.1% of the cases the child returned within the first six months. In 74.1% the child returned within a year, in 83% of the cases within 18 months and in 89.6% within two years. In the remaining 10.4% of the cases, the child returned after more than two years. In 6.6% of the cases the child returned only after more than three years. The longest period between the abduction and the return is 13.5 years. It should be recalled that enforcement is particularly problematic in many cases.115 Even if the administrative and legal proceedings are finalised within short time limits, it can take a long time to have the return order effectively enforced. It appears from the figures that abductions to Belgium last slightly longer than abductions from Belgium.

B  Duration of Abductions to Belgium Of the abductions to Belgium, the child had returned in 36 cases. Of these, the mean number of months between the abduction and the return was 10.9. The minimum duration was less than one month, and the maximum was 54 months (4.5 years). In 18 cases (50%), the child returned within six months of the abduction. In 25 (69.4%) of the cases the child returned within one year of the abduction. In 33 cases (91.7%) the children had returned after two years. In one case the child was returned only after 29 months, in one case after 44 months and in the last case after 54 months. For this analysis, a breakdown was made according to the legal system applicable in the country where the child was abducted from. Note that in this breakdown the fact whether or not legal proceedings were instituted was not taken into consideration, but only the countries wherefrom the child had been abducted. There were 31 abductions from other EU countries to Belgium in which the child returned. The average number of months between the abduction and the   As has been discussed above, see section entitled ‘Enforcement of Return Orders’.

115

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return was 10.3. In 17 cases (54.5%), the child returned within six months. In 23 cases (74.2%) the child returned within a year of the abduction. In 29 cases (93.5%) the child returned within two years after the abduction. In the remaining two cases (6.5%) the return was even later. There were three cases in which the child had been abducted to Belgium from a country where the Hague Convention applies (but not the Brussels II bis Regulation). In one of these cases, the child returned after one month, in the other after nine months and in the last after 14 months. The mean is eight months. In the two cases in which the child had been abducted from Morocco to Belgium, the mean number of months for return was 25.5. In one case the child was returned after 22 months and in the other after 29 months. This is a very long time if compared with the countries where the Brussels II bis Regulation or the Hague Convention applied. Table 9: Time between Abduction and Return per Legal Instrument (Abductions to Belgium) Instrument applicable in country where child was abducted from

Hague Convention (1980) (Three cases)

Mean number % of returns within six of months months between abduction and return

% of returns within a year

% of returns that took more than a year

8 months

33.3%

66.7%

33.3%

Brussels II bis (31 cases)

10.3 months

54.5%

74.2%

25.8%

Bilateral Protocol with Morocco (Two cases)

25.5 months

0%

0%

100%

It must be noted that the number of cases is small, especially for the Hague Convention and the Bilateral Protocol with Morocco, so that valid conclusions cannot be drawn for these cases.

C  Duration of Abductions from Belgium In 179 of the abductions from Belgium taken up in the dataset, the child had returned. In one of these cases, the date of return was not clear. The mean number of months between the abduction and the return was 12.1. The minimum was 0 and the maximum was 164 (13.5 years): in one case the child returned after such a long period. In 44 cases (24.7%) the child returned within the first month. This represents cases in which the abducting parent stayed on vacation too long without the permission of the other parent, or where the abducting parent very



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soon realised that he or she had done something illegal and changed his or her mind. In 104 cases (58.4%) the child returned within six months of the abduction. In 133 cases (74.7%) the child returned within a year of the abduction. In 159 cases (89.3%), the child had returned within two years of the abduction. In the remaining 19 cases (10.7%) the child only returned after a longer period, in 12 of them (6.7% of the total) after more than three years. As for the abductions to Belgium above, a breakdown is made according to the legal instrument applicable in the country where the child had been abducted to. As above, this breakdown refers only to the countries and not also to whether or not legal proceedings had been instituted. Among the collected data there were 98 cases in which the child had been abducted to another EU country and had returned. The mean number of months for return was 7.1. In 32 cases (32.7%) the child returned within the first month. As has been explained above, we can assume that in these cases a parent went on holiday, or stayed away on holiday too long without the other parent’s permission, or the abducting parent realised the illegality of his or her actions quite quickly and returned. In 65 cases (66.3%) the child returned within six months. In 80 cases (81.6%) the child returned within a year. In 91 cases (92.9%) the child returned within two years. In the remaining six cases, the abduction lasted longer, with the longest case being 65 months (five and a half years). Some countries should be explicitly mentioned. Of the 34 cases in which the child was abducted to France and returned and for which information on the dates is available, the mean number of months was 2.79. In 30 cases (88.2%), the child was returned within six months. In 33 cases (97.1%) the child had been returned within a year. Of the 13 cases with Germany in which the child returned and for which information is available, the mean number of months was 8.23. In seven cases (53.8%), the child had returned in six months. In 10 cases (76.9%) the child had returned in 12 months. For Italy, information on the dates of abduction and return are available in 10 cases. The mean number of months was 3.8. In eight cases (80%) the child returned within six months. In nine cases (90%) the child had returned in a year. There were 11 cases of abductions to the Netherlands for which information is available on the dates of abduction and return. The mean number of months between the abduction and the return was 15.82. In four cases (36.4%) the child returned in six months. In seven cases (63.6%) the child was returned in a year. One case took four years to resolve, which explains the high mean number. Cases with Spain seem to take a long time. Of the eight cases for which information is available, the mean number of months for return was 20.75 months. The child was returned in six months in three cases (37.5%). These are the only cases in which the child returned within a year. The other five cases took longer. A mother whose child was abducted from Belgium to Spain told of her own experiences: she said that the abduction took place in April 2005, but the case was heard in Spain only in November of that year.

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Another mother whose child had been abducted to Spain explained the duration of the legal proceedings: Indeed, it took two years, yes. [. . .] Yes, it really was one [procedure] after the other, and the stress, and then there was going to be a judgment, but it took so long, and the periods of time in between, that was really, really terrible and then they could still appeal, and then it was this and then it was that. It really was one thing after another, and then you try to estimate, well, there was a hearing, then I was thinking by myself: ‘the hearing was today, yes, then it is put on the pile, and then this and that, and then it is filed, and then it has to be typed, and then so and so.’ So I sat, really, and then I was often searching the internet to see how long it takes for a judgment, and when will the next step follow, so it was non-stop.

Information on cases in which the child had been abducted to the United Kingdom is available for four cases. The mean number of months was 12.75. In two of these cases (50%) the child was returned within six months and in three cases (75%) the child was returned within a year. In the fourth case, the child was returned after 32 months. There were 31 cases in which the child had been abducted from a country where the Hague Convention (but not the Brussels II bis Regulation) applied to Belgium and the child returned. The mean number of months between the abduction and the return in these cases was 7.5. In three cases (9.7%) the child returned within the first month. In 14 cases (58.1%) the child returned within six months. In 25 cases (80.6%) the child returned within a year. In 29 cases (93.5%) the child returned within two years. In the remaining two cases the child only returned after 25 and 27 months respectively. Two particular countries that fall into this category can be regarded: Turkey and the United States of America. Information is available for 12 cases in which the child had been abducted to Turkey. The mean number of months between the abduction and the return was 4.42. In eight of these cases (75%) the child was returned within six months. In all 12 cases, the child had been returned within a year. Information on where the child had been abducted to the United States of America is available in five cases. The mean number of months between the abduction and the return was 10.8. In two cases (40%) the child was returned within six months. In three cases (60%) the child was returned within a year. The longest case took 18 months. There were 13 cases in which the child had been abducted from Belgium to Morocco and in which the child returned. This country is regarded separately because of the Bilateral Protocol that exists between Morocco and Belgium. The mean time for return was 14.4 months. In four cases the child returned in the first month. In nine cases (69.2%) the child returned within six months of the abduction. In 10 cases (76.9%) the child returned within a year. In the remaining three cases, the child returned after 13 months, 50 months (more than four years), and 96 months (eight years) respectively.



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Tunisia is also regarded separately as it too has a bilateral protocol with Belgium. There were 11 cases in which the child had been abducted from Tunisia to Belgium and had returned. The mean number of months between the abduction and the return is high: 48.1. In one case the child returned within the first month. In only four cases (36.4%) did the child return within six months, and even within one year. In another two cases the child returned within two years. In the remaining five cases, the child only returned after a longer period, the longest being 139 months (more than eight years). There were 25 cases in which the child had been abducted from Belgium to a country with which Belgium has no international accord or protocol and for which information is available on the dates of abduction and dates of return. The mean number of months between the abduction and the return for these cases was 20.3. In four cases the child returned within the first month. In eight cases (32%) the child returned within six months. In 14 cases (56%) the child returned within a year. In 22 cases (88%) the child returned within two years. In the remaining three cases the child only returned after 33 months (almost three years), 116 months (more than nine and a half years), and 164 months (more than 13.5 years). Before looking at the table of these figures, it has to be remembered that these percentages were calculated for cases in which there was a return only. Cases in which the child never returned are not taken up in these statistics. Table 10: Time between Abduction and Return per Legal Instrument (Abductions from Belgium) Instrument applicable in country to where child was abducted

Mean number of months between abduction and return

% of returns % of returns within six within a months year

% of returns that took more than a year

Brussels II bis (98 cases)

7.1 months

66.3%

81.6%

18.4%

Hague Convention (1980) (31 cases)

7.5 months

58.1%

80.6%

19.4%

Bilateral Protocol with Morocco (13 cases)

14.4 months

69.2%

76.9%

23.1%

No legal instrument (25 cases)

20.3 months

32%

56%

44%

Bilateral Protocol with Tunisia (11 cases)

48.1 months

36.4%

36.4%

63.6%

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In cases where no convention applies, parents also have the feeling that it takes a very long time to find a solution. One father said: Very very long. For me, it was very very long. Terrible, really very terrible. I did not expect that, but when I was in the situation, I found that it went very very slowly. Even the justice system [. . .] I found it extremely slow. I did not find it to be efficient, to be honest with you because I thought that they could phone the French consulate or the Belgian consulate and the Belgian embassy in Cameroun that could do something. All the more because I had the exact address of the place where the child was. [. . .] So, finding one of the parents in this family was not difficult, but they were never capable of doing that. Yet I am a Belgian citizen. [. . .] No, I thought that they were very inefficient.

It can thus be seen that the abductions to countries with which Belgium has no legal instrument (regulation, convention or protocol) take longer to solve than abductions to countries where the Brussels II bis Regulation or the Hague Convention applies.

D  Timing of Each Step of Hague and Brussels II bis Proceedings The Hague Convention provides that each step of the procedure should take no more than six weeks. This applies to the administrative procedures and to the judicial procedures. However, in practice the cases take longer. In a statistical analysis like the present, one cannot determine the reasons for the delays. What we have done, is break up the procedure in order to attempt to find where time is lost. Detailed information was not available in many of the cases. The conclusions are thus tentative. An analysis of this type would be more fruitful when considering data of court files, where dates are available. The Central Authority files contain dates, but not always all the dates, especially of steps set in another country. It is important to note that the figures below do not only reflect on the Belgian Central Authority, but also the central authorities of other countries. Below, the time between the abduction and the request with the Central Authority is considered, then the time between the request with the Central Authority and the institution of court proceedings, then the time between the institution of court proceedings and the judgment. For this analysis the files of Child Focus and the Central Authority were taken into account. For the files of the Ministry of Foreign Affairs the analysis did not seem appropriate, because there are no international proceedings to be followed. We have tried to collect data for the terms within which judgments were appealed and the appeal judgments were handed down, and also for the time between the final judgment and the return. However, too little information was available about these to draw any meaningful conclusions. In the last instance the entire period should be regarded: from the request with the Central Authority to the finalisation of the file.



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E  Time between Abduction and Request with the Central Authority The day of the abduction and the first contact with the Central Authority were taken as reference dates. Information was available for 299 of the files. Of these, the Central Authority was contacted within the first week in only 7.4% of the cases. It was contacted within the first two weeks in 15.7% of the cases and within the first month in 27.1% of the cases. The Central Authority was contacted within the first six months in 60.9% of the cases. It was only contacted more than a year after the abduction in 24.7% of the cases. These figures point to a potential problem. Why do parents wait for such a long time before they contact the Central Authority? There are several possible explanations. The first is that they are not aware of the existence of the Central Authority or of the work it can do. The police should provide parents with information about the functions of the Central Authority when they report the abduction, as many do. This is already happening in many police offices. Lawyers should also advise parents to contact the Central Authority.116

Figure 22: Time between the Abduction and the Request with the Central Authority 116   As has been explained above, lawyers are not always aware of the correct procedures and the existence of relevant international instruments; see section entitled ‘Lawyers’ above.

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Another possible explanation is that parents first want to attempt an amicable solution or to convince the other parent to return before they choose the judicial proceedings route.117 The fact that parents attempt such solutions is positive. However, a parent can also pursue these routes after having contacted the Central Authority. One of the tasks that the Hague Convention explicitly attributes to central authorities is to ‘secure the voluntary return of the child or to bring about an amicable resolution of the issues’.118 Professionals should draw the attention of parents to the fact that contacting the Central Authority does not prevent the seeking of an amicable solution.

F  Time between Request with Central Authority and Institution of Court Proceedings The time between the request with the Central Authority and the institution of court proceedings can be delayed for several reasons. First, one should take into account that we are referring here to the time of contacting the first central authority. Normally, that is the authority in the country from where the child has been abducted. This central authority then contacts the central authority in the country where the child is being kept. In some cases it is not clear where the child is, and the central authority/ies of the country/ies where the child is presumed to be must first locate the child. Another reason why time passes between contacting the Central Authority and the institution of court proceedings is that certain documents have to be collected and in most cases translated. Some parents felt that too much time was lost waiting for the translation of the documents. One father, whose daughter had been abducted to Australia, explained that in his case he had managed to convince the Central Authority to accept documents in English. The Central Authority is not obliged to accept documents in English, but should be encouraged to do so as much as possible. The Hague Child Abduction Convention (1980) explicitly provides that when translation is not feasible, documents can also be sent in English or French.119 This rule was recalled in the Conclusions and Recommendations of the fifth meeting of the Special Commission to review the operation of the Hague Child Abduction Convention (1980) and the practical implementation of the Hague Child Protection Convention (1996).120 These Conclusions add that states should communicate with each other when difficulties are experienced with translation and consider the possibility of making arrangements for the translation in the requested State, while the cost is borne by the requesting State.121   See the discussion in this chapter above on amicable solutions and mediation.   The Hague Child Abduction Convention 1980 art 7(c). 119   Hague Convention (1980) art 24. 120   Available at www.hcch.net/upload/concl28sc5_e.pdf, 4, para 1.1.7. 121   At 4, para 1.1.8. 117 118



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Figure 23: Time between Request with Central Authority and Institution of Court Proceedings

Moreover, sometimes the left-behind parents do not dispose of all the required documents and have to obtain copies from local authorities or elsewhere. Information was available for 107 files. Of these, the court proceedings were instituted within a month of the request with the Central Authority in 18.7% and within two months in 35.5% of the cases. In more than half of the cases (51.4%), court proceedings were instituted within three months. In 10.3% of cases the proceedings were only instituted after more than one year.

G  Time between Institution of Court Proceedings and Judgment Court proceedings should be finalised within a short time. These figures refer to the duration of proceedings in the courts of the countries to where the children have been abducted. A variety of countries are therefore included and this is not a reflection of the Belgian courts only. The figures refer only to the proceedings with the Court of First Instance. Information was available for 95 cases. In 15.8% of these cases the proceedings were completed within one month and in 22.1% within two months. More than half the cases (52.6%) were completed within three months. In 21.1%, the court proceedings lasted between three and six months and in 11.6% of cases between six and nine months. In 10.5% of the cases, the proceedings lasted more than one year.

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Figure 24: Time between Institution of Court Proceedings and Judgment

H  Time between Request with Central Authority and Finalisation of File This last category analyses the duration of the entire file, from the contacting of the Central Authority to the return of the child. These data do not take the separ­ ate steps of the procedure into consideration. Thus, no distinction is made as to whether or not there were court proceedings. Information is available for 136 cases. Of these, 18.4% lasted less than two months and 22.8% less than three months. Of the cases, 44.9% were completed within six months and 61.8% within six months. Of the cases, 30.8% lasted more than one year.

XVIII  Practical Difficulties Regarding the Return Apart from the legal proceedings and the enforcement, other practical difficulties can arise when a child returns. Some parents said that their children had no clothes, or only dirty clothes when they fetched them.

Conclusion 173

Figure 25: Time between Request with the Central Authority and Finalisation of the File

Some parents also described the fear and anxiety with which they approached the child, not knowing whether the child would want to return to them. The confrontation with the other parent can be difficult. One father explained how the child had been handed over to him, but with no suitcase. She had none of her clothes with her. He said: But well, it is so delicate, it is so difficult, it is so painful that to ask in addition to spend half an hour to pack a suitcase, eh. I understand why we did not do it.

When this father wanted to leave with the child, he could not leave Argentina, because the child had entered the country with an Argentine passport, which he did not have with him. He had only the Belgian passport which had been issued by the Belgian authorities before he went to fetch his daughter. This passport could not be used and he had to have an Argentine passport issued for his daughter. Other parents described last-minute difficulties at the airport, involving passports or other documentation. Some of these difficulties were related to the child having dual nationality. Some of these matters should probably have been noticed beforehand by the responsible authorities. In one case the father had to take a number of steps to facilitate the return of the mother and children. An amicable solution was reached and the agreement stipulated that he had to find a place to stay for the mother for the first two

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months in Belgium. He also had to pay her maintenance. These were provisional measures, and the substance still had to be determined by a Belgian court. Such measures are sometimes granted in certain countries. In this case England was concerned. The Hague Convention does not contain rules for such measures and they are sometimes criticised. However, they do assist the abducting parent to return and in this way lasting contact with both parents is facilitated.

XIX Conclusion This chapter has looked at the long and tedious process of actually getting the child back. Legal proceedings are often pursued. However, these take a long time and their enforcement is difficult. They have a strong impact on the parents and children involved. Several parents said that once the proceedings were underway, one has to be patient, stay calm, and wait for them to take their course. Some of them had, during the proceedings, been advised to counter-abduct the child, but they said that this was not a good idea. They emphasised that it was better to wait for the return of the children, even if it took a very long time. One father said that it was important to find psychological support. Others also emphasised the importance of not giving up the fight and not allowing oneself to slip into a depression, even though that might be very hard. Some parents thought that parents’ associations provided a lot of support. Others did not wish to be confronted with the terrible stories of other parents, but preferred to use all their energy for their own proceedings. Enforcement is a difficult issue in practice. Care should be taken to ensure that children are not unnecessarily traumatised, but at the same time it is essential that judgments relating to children are respected. The best ways seem to be for the police to convince parents of the need to abide by the law. Authorities of different countries have to cooperate to ensure effective enforcement. The Brussels II bis Regulation’s certificate for direct enforcement is not always adhered to in practice. The correct operation of this certificate should be explained to practitioners that are confronted with it. The role of professionals has been emphasised: they have an important responsibility to seek the correct procedures in these circumstances, but do not always have the required knowledge. Although I do not want to take the responsibility away from these professionals, at least part of the problem is that legal rules have become dispersed and complicated and people do not always find their way through these. In the end, legal proceedings try to patch up the problem, but are hugely inadequate. The difficulties pointed out by this chapter make it abundantly clear that the law cannot adequately solve the phenomenon of international child abduction.

Conclusion 175 Families in conflict should be assisted to address their problem before it gets so out of hand that an abduction takes place. Parents and grandparents alike have to realise the hardship that an abduction can bring about for all involved. The next two chapters will only further illustrate this point by focussing on the life of the family members while the child is away and the aftermath of abduction. The following chapter will take this up further, by placing the emphasis on the prevention of international child abduction.

7 Life While the Child is Away I Introduction It has been pointed out in the previous chapter that the quest for return is long and tedious. During that period, the days of the left-behind parent are often filled with worry and searching what to do next, and their nights with lack of sleep. Interviewed parents explained how hard this period of their lives was. Some elements deserve particular attention.

II  Knowledge of the Whereabouts of the Child and the Abducting Parent Most of the interviewed left-behind parents knew where their children were. In cases where the abduction consisted of a non-return after a holiday, it is clear that the left-behind parent knew where the child was. In some other cases, the abducting parent phoned from the country where he or she had gone in order to inform the left-behind parent where he or she and the child were. In one case the father fled from his debts and he took the child along. He was first stopped when he tried to cross the border to England. He then left for France, Spain and Andorra but the mother did not know where the child was for more than a month.

III  Keeping Contact with the Child while He or She is Away A psychologist warned parents to guard against alienation between parent and child. He said that the consequences of parental alienation are catastrophic for children. Therefore, it is important for the left-behind parent to maintain the best possible contact with the child while he or she is in another country. This includes telephone contact and visiting the child, if possible. The Belgian Ministry of



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Foreign Affairs has a budget to assist parents to visit their children that have been abducted to other countries. The psychologist said that judges also have a role in countering parental alienation. They should put pressure on parents who create obstacles for the contact between the child and the other parent. Parents recounted that keeping contact while the child was away, even if they had a telephone number, was difficult. This is so for various reasons. The first is that some left-behind parents had the impression that their attempts at contact were hampered by the other parent. When they called, the phone was not answered, or the children not called to talk to them. Sometimes they were given silly excuses, such as the child cannot speak to them because he or she was having lunch. Some also complain that the communication is strained because the other parent is listening and that parent decides how long the conversation can last and when it is time to hang up. One father said: I had contact [with the children] via telephone, certainly at the beginning . . . but eh, that was always quite difficult, because most of the times it was one minute per child and then the phone was put down. And for me it was sometimes more difficult to phone my children and hear them than not to phone them . . . And then I did not call them for a long time . . . And then in the meantime I met my new partner, and she told me that I had to call and then I had contact via telephone again. There was a period, which lasted about a year, I think . . . that really, well . . . it was very difficult and then I had little contact.

Another reason given by some parents is that they did not know what to tell their children. It has emerged from the interviews that the left-behind parents had a strong sentiment of acting in the best interests of the child. A mother explained: When one says contact, it has no meaning whatsoever. You are put on speaker phone with the father next to the child and he hangs up when he wants to and he makes the decisions behind them, and when I talked of Brussels, he said that I was manipulating the children. But one still has to do it. He forbade me to talk to the children about, well . . . at the beginning I did not dare to tell the children: ‘You have been abducted without my consent.’ That is very violent and I did not know how to say the things. This is where one needs support: What should one say to one’s child? I did not know what to say to my kid. I am not even talking of Marc, he was too small. But George, who was nine and a half, what could I have said to him: ‘You have been kidnapped by your father.’ That is horrible! So, what did I tell him, I told him nothing. And as I said nothing, George was convinced that I had agreed. It is a terrible situation.

The father of a five-year-old abducted girl said that at the beginning the mother allowed him to talk to her. However, the child did not understand the situation: She did not see this abduction, she did not feel it, she was over there.

However difficult, many parents tried to establish contact with their children. As has already been pointed out,1 it is often very young children that are abducted. These children do not yet know how to have a conversation by telephone; often they do not yet understand what a telephone is or how it works.   See chapter three.

1

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An abducting mother explained how she had been running after her two-yearold son with the telephone in her hand in order to encourage him to speak to his father. It was not a simple task, although she admitted the importance of allowing her child to have contact with his father. She allowed generous contact rights for the father. In some cases, the contact is made impossible by the abducting parent, who hides the child. It is sometimes arranged that the left-behind parent travels to the country where the child is to see him or her. This sometimes coincides with legal proceedings in that country. This can cause several difficulties. The parent does not know what to expect, the children might have been brainwashed in the meantime. The left-behind parent has to enter into the world in which the child is living, with the abducting parent and his or her family and/or friends. A mother recounted: They had brainwashed him. There are no other words, there are no other words. That is the reality, still today. But I told myself, what are they going to think of me? Are they going to spit in my face? Are they going to shout at me? Are they going to refuse to see me? What is going to happen? I was scared to death. And on the first day, I asked the father whether I could see the children. He told me: ‘Out of the question, they will be traumatised.’ And the judge said: ‘No, the children and the mother will see each other for an hour, under the supervision of a psychologist and in a particular room.’ My elder son saw me and ran into my arms and the younger one as well. I think that is what made the judge decide to say: ‘Ok, now we stop this nonsense.’ And Charles, my elder child has since told me: ‘You know, grandpa and granny were furious when I ran into your arms.’ They were there, they were in the court all the time. That is the reality, that was the situation and I was scared to death when I saw this clan. There is fear, but I was scared shitless. These are situations that I wish upon no-one. You are alone in a country.

One mother had, several months after her son had been abducted to a country in the Persian Gulf, gone there to see him. She had obtained a visa by saying that she wanted to marry the father. The contact in that country with her son’s father and his family went badly and after that she had no contact with her child for three years. On one of the occasions when she was there, she saw her son only from a distance. She had asked a taxi driver to follow the father and find her son’s school. When she had found this, she sent presents to the school through the Belgian Embassy. However, the next day the father took the child out of that school. This mother’s child was abducted when he was four and a half, and had never returned. He was 17 at the time of the interview. The mother explained how she always tried to stay in touch with him, to be there when he needed something. Over the last years, she travelled to the country where her son lives once a year to see him. She had learnt the language to be able to communicate with him, as he cannot speak French anymore. She said: Yes, because first they told him that I had died. I then, when my ex-sister in law in England, his brother’s wife, with whom I am still in touch (and with his brother as well, incidentally) . . . So, she went to see the kid and she told him: ‘No, no, your mom has



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not died, she loves you very much and she is running after you.’ Then he saw things differently. And then they [his father and his family] told him: ‘No, she has not died, but it was because we did not want to hurt you that we said that, because she does not want to have anything to do with you and she does not want to see you anymore.’ So then I had to attack again. Then, when I realised that, I was really . . . that is not on. I said tough luck . . . I am going to tell him. And that is what I did and at the end he understood that what we are saying here is true.

The child visited the mother and her family in Belgium for the first time 13 years after the abduction. The father only agreed with the visit on the condition that he came with his stepmother (the father’s new partner). The following year, the father did not allow him to visit his mother in Belgium, giving the fact that he had not passed his exams. The mother said that he was planning to return to Belgium after having finished his school career. He would then study in Belgium and decide whether he wanted to stay in this country. Another mother, whose child was abducted when he was 15, said that her son said at the beginning that he would return to Belgium during holidays. However, his father did not allow this. The mother explained how he then distanced himself from all aspects of his life in Belgium. He did not once ask how his little half-sister was doing. In some cases, the brainwashing is so severe that the child starts to believe that the left-behind parent does not care about him or her any more. A father told of his experiences: Also, during this period that Carl was with his mother, those nine months that he was kidnapped, I think around the sixth or seventh month he phoned me and he said: ‘well, dad, you probably don’t want to see me anymore,’ he said. So, she had turned everything around that I did not want to see him anymore and . . . and then I told him: ‘Wait Carl, in three or four hours I’ll be there,’ simply to show him that I was not the one that did not want to see him, but that his mother was to blame . . . I dropped everything here and I drove there. And then they were all outside, outside the house, in the court yard. They had notified the neighbours, yes, they had asked the neighbours to come there . . . she, her husband, the children and Carl, they were all outside. I arrived and I opened the door of my car. I said: ‘Well, Carl, that’s nice, come on, get in.’ And he did not want to get in. I said ‘come on’, because I was really not intending to kidnap him . . . I simply wanted to show him ‘well, see, here I am,’ because he thought that I did not want to see him. That was not true. And then I told Carl: ‘Well, is there a small park somewhere around here, where we can play together a bit?’ ‘Well yes,’ he said, ‘we can play a bit of tennis over there’ and I had first said, because he did not want to get in, I had said: ‘Come on, I am taking the keys out of the ignition, I will not drive off, Carl, you can get in.’ It was the mother who had said: ‘Don’t get in the car, because he’ll take you along,’ or I don’t know what. So I said: ‘Come on, we’ll go and play a bit in the park,’ and he got in, but because I wanted to turn my car around, I caught my ex’s eye and I said with my lips ‘bitch’, only a movement of the lips, that no-one else saw, he had not seen that, only her, but she started saying loudly: ‘Hey, he called me a bitch.’ . . . the neighbours . . . well, actually this is something between us, but she used it to cause uproar. And there

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was a racket, and ‘you bastard’ and you this . . . and that . . . And then I had to say to Carl: ‘Sorry, son, but I have to get out of here, because everyone is getting crazy here.’ He said, ‘Yea, yea.’

The father then drove back to Belgium, having seen his child for no more than a few minutes. He explained that he had so many cropped-up emotions, after seven months of not seeing his son, and still thinking that he was never going to succeed in getting him back. In the end, this child returned to Belgium, while the mother remained in Germany. The German judge had identified the brainwashing, and even though the child was heard in the proceedings, she ordered the return of the child. In this way, the judge sought a situation in which the child would be able to have contact with both parents and not be put up by one against the other. The child now has contact with both his parents. Several parents expressed the view, during their interviews, that authorities should assist to prevent parental alienation, and should therefore help parents to maintain contact with their children in other countries. Where the communication between the parents is highly problematic, authorities can assist by providing an intermediary person to arrange visits or telephonic contact between the leftbehind parent and the child. The Ministry of Foreign Affairs sometimes takes up this role. It acts as intermediary and also assists parents logistically, and sometimes financially, to visit their children.

IV  Psychological, Emotional and Moral Support Parents have said how difficult this period of their life was. A father said: It is difficult to describe the feeling, I tell you. Very difficult. Euh . . . what goes on in your mind. It is, it is mixed, it is anger, it is anger, it is hate, it is euh . . . anger, hate, it is, how do you say that, it is powerlessness, certainly powerlessness, sadness, resentment . . . Yes, those are . . . and . . . that brings you . . . that brings you somehow, yes, in a depression.

A mother said: I also often lost my job. Because, I’m telling you, you can’t keep your attention on your work. That is simply not possible. I was regularly ill, because of the stress, simply the stress. Yes, I had no life, I am telling you the honest truth. Yes, it was also all taking far too long. [. . .] And then the school, because the child is absent without reason, and you have to explain and prove that she is not here [in the country].

While some parents said that Child Focus had provided support to them, many parents said that they were not sufficiently supported by professionals. They had to wait for long periods of time without any news about the legal proceedings and without any support.



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One father said that the victim aid service of the police only contacted him after six months. This, he said, was too late. He explained how he had no support, but had to fight alone, while also taking care of his child who was still at home (only one of the two had been abducted by the mother). He said that he became seriously ill and was hospitalised with meningitis. After a week in hospital, he had to go home to take care of his son. Some parents said that they would like to be in contact with other parents who were or had been in similar situations. Others thought that this was too hard and preferred not having contact with other parents. One mother expressed the general lack of comprehension she experienced: People say: ‘Actually you have nothing to complain about. You know that she is with her father.’ But that is not the point. In the mean time you think: ‘She has blond hair and blue eyes. Maybe he has already sold her.’ All sorts of things go through your head.

The persons from the Ministry of Foreign Affairs that were interviewed confirmed the emotional difficulties, saying that they see great distress with parents. In cases where the child had been abducted to a country with which Belgium has no convention or protocol, they see long-term suffering. Parents are distressed that their judgments are not worth much outside Belgium. This distress can cause people to react in the wrong way. They also have unrealistic expectations, for instance that their children should be returned within 24 hours. Someone from the Central Authority confirmed the high expectations by parents. She said that at the beginning parents often phone on a daily basis to ask whether there is news in their file. She said that she progressively informs them that the cases can take a long time to resolve. Victims of child abduction need support. They must have the opportunity to tell their story, to be heard and understood. Professionals said that an abducting parent is a victim of a family conflict as well and should be treated as such, rather than as a criminal, which is the way in which such parents are often portrayed in the media. They emphasised that both parents have to be assisted, as they are both victims. It is important to speak to both parents and to give the father the impression that he too has a right to the child (also in situations in which the father was the abductor or the potential abductor). In discussions with the parents, the perspective of the rights of the child should also be brought to the attention of the parents. Moreover, the dual culture in which the child can be brought up and that which is relevant for the education of the child should be discussed with the parents. They should be assisted to see this duality as an asset, rather than a burden. A child can be brought up in a rich environment if both cultures are respected. Of course, the children also need support. They should be informed about what is going on and prepared for the return. Support can take the form of someone from an organisation going along with the parents to see authorities and to act as interpreter where necessary. The members of organisations can help parents with

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the steps that should be taken and ensure a correct flow of information from the authorities to the parents. Organisations can also give information about matters which do not always occur to parents: someone from an organisation gave the example that a parent might be able to claim under his or her family insurance, but might not be aware of that and might not think of that. The organisations could also help a parent to find a school that will give the necessary attention to the returning child. In some instances, the organisation could also help with finding housing, furniture and funds where necessary. Parents should also be helped to work out their budget. Arranging the practical matters surrounding the return can be hard for a parent. The Belgian Central Authority has one psychologist working in its service. He cannot provide therapy to all parents that contact the Central Authority, but he has been supporting a great number of parents. All French-speaking parents that contact the Central Authority are told of this service and many make use of it. (At the time that the research was conducted, there was no Flemish psychologist at the Central Authority.) The Central Authority and Child Focus also support the parents by listening to their experiences and, if possible, by going along to the other country during the proceedings or when fetching the child. Someone from the Federal Police (Brussels) said that their social workers were very good. He did not know what the situation was with the local police services. He said that in his experience parents did not only need emotional support, but practical help: they have to see that things are moving along. Most of the lawyers that were interviewed did not have a view on this issue. One of them particularly said that it is important for a lawyer to stick to his or her role and not become a second-hand psychologist. He thought that it was more import­ ant for lawyers to recommend to their clients to find psychological support if they identified the need. Some, however, noticed that there was a problem concerning the support of victims of international child abduction.

V Schools Most parents said that their children went to school (or nursery school) in the country to which they had been abducted. In one case, a father who had fled from his debts in Belgium took the child to Andorra. Even though school had started, he did not send his daughter to school. Taking his preparations into consideration, it seemed that he was intending to send his daughter to school after having been there for a longer period. He was arrested within two months and the child returned. In another case, the child lived on a boat with his father. They had ordered course material so that he could complete his schooling via correspondence, but

Conclusion 183 these materials were never collected at the address to which they were sent. In the end, the boy did not complete his school education. In some cases, the left-behind parent had to sign documents for the schooling of the child in the other country. In most cases, however, this was not asked. The schools enrolled the children without asking the other parent for authorisation. In practice, it would be hard for schools to always check the authorisation to enrol a child with the other parent. Therefore, an enrolment done by one parent is often accepted. Schools should be aware of the problem of international child abduction. However, the life of all other parents should not be unnecessarily burdened in such a way that every enrolment has to be signed by both parents. Rather, schools should be open to respond to specific requests by a parent or warning signs when a child has been abducted. Schools can, for instance, be asked to keep a parent in a different country informed about the progress the child is making, in cases where the child had been abducted. While contact between the child and his or her parents is not the responsibility of schools, they can in some cases assist.

VI Conclusion Solving an international child abduction has an important legal element. However, there is also a psychological element, which is often forgotten. Many parents do not get the support they need at these difficult moments. Moreover, contact between a left-behind parent and an abducted child should be maintained. This is very hard for practical and emotional reasons. However, especially in the case of small children, it is important that they do not forget the other parent, and are then subjected to a second trauma when they have to return.

8 Aftermath I Introduction The purpose of this chapter is to regard family life after abduction. The situation will almost never be the same as before. A severe and traumatic event has shaken the lives of all members of the family, and often also the lives of those around them.

II Return A  Return in Closed Cases Analysing the return rate makes sense only in closed cases and in cases of actual abductions. For this analysis, open cases and cases concerning the cross-border contact are not taken into account. The moment in time that was taken into consideration was the time of coding of the files (April–August 2009). However, splitting the files in this way does not give an entirely reliable picture. This is because some files stay open for a very long time while it is not clear whether there will ever be a return. In some cases, especially in files of the Ministry of Foreign Affairs, the files are kept open even if the return of the child is no longer likely or even pursued. In some of these cases, the Ministry continues to provide financial and logistical assistance to the left-behind parents in order to enable them to keep contact with their child and visit him or her in the other country if possible.1 Files that were still open at one place, but closed at the other, were generally considered to be open for purposes of the dataset, except where the child had returned and one of the ministries kept the file open because of unresolved financial or other administrative issues. There were 440 cases falling in the category for analysis. Of these, information on the return of the child is available in 370 cases (84.1%). (No data for the remaining 70 (15.9%) cases.) The missing data can be explained by the abandonment of the   See chapter one, section entitled ‘Methodology’.

1

Return 185 procedure by the applicant parent, a settlement between the parents (either that the child is returned or that the child stays in the new country), or a reconciliation of some sorts between the parents. In some cases, the authorities or Child Focus are not informed of these developments. Of the 370 files, the child returned in 65.7% of the cases. The child did not return in 34.3% of the cases. These statistics include cases where the left-behind parent abandoned the procedures or a settlement had been reached. If a case was settled, it means that the parents have reached an agreement. This does not necessarily mean that the child returned. Return should not in itself be seen as the only desirable outcome for all cases. If parents come to a satisfactory arrangement which permits the child to have contact with both of them, it might well be that the child remains in the country where he or she was abducted to.

B  Return and Manner in which the File was Closed Of the cases, 9.7% were closed on the basis of the outcome reached by the Brussels II bis Regulation2 and 8.2% on the basis of the Hague Convention. The bilateral protocol with Morocco led to the conclusion of 0.6% of the cases and the protocol with Tunisia of 1.2%. In 45.6% of the cases, there was a settlement of some sorts. Of the cases, 13.8% were closed after a judgment on the substance. This means that a court in Belgium or in another country had ruled on the parental authority or the residence of the child and in this manner put an end to the dispute. In 2.1% of the cases, the child was counter-abducted and in 0.3% he or she was abducted to a different country. In 8.5% of the cases, the applicant parent (generally speaking the left-behind parent) had abandoned the proceedings. 3.5% of the files were closed without solution and without the child having returned, while 1.5% of the files were closed because the child became major.

i  Brussels II bis Regulation and Hague Convention There were 33 cases in which the Brussels II bis Regulation led to the conclusion of the file. When this Regulation is applied, it is of course together with the Hague Convention, but with more stringent grounds for refusal of return, as has been explained above.3 In 66.7% of the cases the child was returned. In 33.3%, he or she was not returned. 17 of the 33 cases concerned abductions to Belgium, of which the child returned in 58.8% of the cases, but did not return in 41.2%. 16 cases were abductions from Belgium. In 75% of these the child returned, but in 25% he or she did not. 2   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 L338/1 (The ‘Brussels II bis Regulation’). 3  See chapter six, section entitled ‘Combination of Brussels II bis and Hague Child Abduction Convention (1980)’.

186 Aftermath The Hague Convention was the reason for the closing of the file in 28 cases. In 71.4% of these cases, the child was returned. In 28.6% of the cases, the child was not returned. 7 of the 28 cases concerned abductions to Belgium. Of these, the child was returned in 85.7%, but was not returned in the remaining 14.3%. In 21 cases the child was abducted from Belgium to another country. In 67% of the cases, the child was returned, but in 33% he or she was not. One should be cautious when comparing the figures for the application of the Brussels II bis Regulation and the Hague Convention. The entry into force of the Brussels II bis Regulation is relatively recent.4 This means that it is not possible to draw a clear line between cases decided under the Regulation and the Convention. In some cases, the Regulation entered into force while the administrative procedure had already started. Therefore, it is possible that the Regulation’s operation was not yet optimal in the investigated period. Whether or not the Brussels II bis Regulation will lead to more returns than the Hague Convention thus remains to be seen.

ii  Bilateral Protocols with Morocco and Tunisia The child was returned in both cases in which the protocol with Morocco led to the closure of files. Both cases concerned abductions from Belgium to Morocco. The child was returned in all four cases in which the protocol with Tunisia was the reason for the closure of the file. One of these cases was an abduction from Tunisia to Belgium, while three were abductions from Belgium to Tunisia.

iii Settlement The reasons behind the 155 settlements are diverse. In some cases the parents were reconciled. In some, the abducting parent realised the severity of his or her actions and decided to return. In other cases, the settlement came only after intervention by the police, explaining the course legal proceedings are likely to take. In some cases, the authorities in the state where the child had been abducted to put pressure on the abducting parent to return voluntarily rather than face legal proceedings.5 In 85.8% of the settled cases, the child was returned. In the remaining 14.2%, he or she was not. In these situations the left-behind parent agreed to the child living with the abducting parent. In at least one case, the left-behind parent moved to the country where the child had been abducted to, in order to have regular contact with the child. Of the 16 abductions to Belgium in which a settlement was reached, the child was returned in 68.8% of the cases, while in 31.3% he or she was not. For 136 abductions from Belgium in which a settlement was reached, the child was returned in 87.5% of the cases, while he or she was not in the other 12.5%.   1 March 2005.   Some of this information has been gathered in the qualitative part of the study. It is mentioned here for the sake of completeness and to enhance the understanding of the figures. 4 5

Return 187 In three of the settled cases, Belgium was neither the country of abduction nor the country of destination. The child was returned in all these cases.

iv  Judgment on the Substance In 51.1% of the 47 cases which were solved by a judgment on the substance, the child returned, while in 48.9% he or she did not. For the 13 abductions to Belgium where the file was closed on the basis of a judgment on the substance, the child was returned in 38.5% of the cases, while he or she was not returned in 61.5%. Of the 33 abductions from Belgium, the child was returned in 57.6% of the cases, while he or she was not returned in 42.4% of the cases. In one case Belgium was neither the country of abduction nor the country of destination. In this case the child was not returned.

v  Counter-abduction or Abduction to another Country In seven cases there was a counter-abduction of the child. This amounts to 2.9% of the returns. Two of these were abductions to Belgium, while five were abductions from Belgium. In one case the child was abducted to another country.

vi  Criminal Proceedings Seventeen cases were closed because of criminal proceedings. This means for instance that the parents were arrested and the child returned. Sixteen of these were abductions from Belgium, while one concerned an abduction to Belgium. These figures do not indicate the efficacy of criminal proceedings: it is not known in how many of the cases criminal proceedings were used. They should be seen as a last resort.6

vii  Abandonment of the Proceedings or no Solution In only one (3.4%) of the 29 cases that were abandoned the child returned; in the remaining 96.6% of the cases, he or she did not. Nine of the cases were abductions to Belgium: in eight of them the child did not return and in one case he or she did. The child did not return in any of the 20 abductions from Belgium in which the applicant parent abandoned the proceedings. Of the 12 cases in which no solution was found, none of the children returned. One case concerned an abduction to Belgium, 10 were abductions from Belgium. One case concerned an abduction where Belgium was neither the country of abduction nor the country of destination.

6   See also the discussion on the use of criminal proceedings in chapter six, section entitled ‘Criminal Proceedings’.

188 Aftermath

Figure 26: Way in which Solution was Reached (for Closed Cases)

viii  Child became Major Five cases were closed because the child became major (at the age of 18 for most countries). One could thus no longer continue legal proceedings concerning the parental authority or the residence of the child. In 80% of these cases, the child had never returned. In 20% the child returned. All of these cases were abductions from Belgium.

C  Cases that had been Open for More than a Year When considering returns, in order to complete the picture, one must also take account of cases that had been open for more than a year without the child returning. For this analysis, the files that were still open were taken into account.7 7   August 2009 was taken as reference point, as that was the time of the coding. It is possible that some of the files had been closed between the date of coding and the conclusion of the analysis, but account could not be taken of this change in data after the data had been collected.

Return 189 Of the cases, 85.3% had been open for more than 12 months. 64.3% had even been open for more than two years, 43.4% for more than three years and 30.8% for more than four years. Of the cases, 2.1% (amounting to three files) had been open for more than 11 years. It could thus be assumed, that the non-return rate is higher than stated in the statistics above. For some of the cases which have been open for such a long time, the chances of the child returning are slim. As has been explained, some authorities (notably the Ministry of Foreign Affairs) keep files open even after it has become clear that the child will not return. They do this because they assist the parents in organising and paying for visits to the child in the country where the child now lives. Thus, the fact that the file has not been closed does not necessarily mean that one still hopes for the return of the child.

D  Returns for Abductions to Belgium: Breakdown According to Part of the World from where the Child had been Abducted Of the 91 closed cases in which the child had been abducted to Belgium, information on the return is available in 72 cases. Of these, the child had been abducted from a European Union (EU) country in 60 cases. In 55% of these cases, the child was returned and in 45% he or she was not. The child had been abducted from Switzerland in one case. In this case, the child was returned. In one case, the children had been abducted from the Middle East (Israel in this case). They were returned. In four cases, the child was abducted from North Africa. In two of these cases, the child was returned and in two he or she was not. In five cases, the child was abducted from North America (the United States or Canada); in two of these cases the child was returned and in three he or she was not. In one case the child was abducted from Australia and in this case the child was not returned.

E  Returns for Abductions to Belgium: Breakdown According to Applicable Legal Instrument For this paragraph, the cases have been analysed according to the legal instrument applicable in the country from where the child was abducted. This investigation differs from that above8 in the sense that the application of the legal instrument was not considered, but rather the fact that it was in force in the relevant country.9   See section entitled ‘Return and Manner in which the File was Closed’ above.   Account has been taken of the legal situation on 1 August 2009. In some cases, instruments entered into force while the case was being dealt with. 8 9

190 Aftermath

Figure 27: Part of the World from where the Child was Abducted to Belgium Compared to Return

The assumption is that even if a particular legal instrument was not applied, it might have played a role in securing the return of the child, because the abducting parent became aware of legal proceedings that might be instituted. Thus, the assumption is that the law has a discouraging role (of continuing the abduction, of hiding the child, or of not cooperating to finding a solution). In 59 of these cases, the abduction was from a state in which the Brussels II bis Regulation applies (in other words EU states except Denmark). As has been pointed out above, the Brussels II bis Regulation always applies in conjunction with the Hague Convention. Of these 59 cases, the child was returned in 55.9%, but was not returned in 44.1%. There were nine files in which the child was abducted from a country in which the Hague Convention (but not the Brussels II bis Regulation) applies. In 55.6% of these files the child was returned, but in 44.4% he or she was not. In four abductions to Belgium the protocol with Morocco applied. In two cases the child was returned, but in two he or she was not returned.

Return 191

Figure 28: Legal Instrument Applicable in Country from where the Child was Abducted to Belgium Compared to Return

F  Returns for Abductions from Belgium: Breakdown According to Part of the World to where the Child had been Abducted Of the 339 closed cases in which the child had been abducted from Belgium to another country, information about the return and the part of the world where the child had been abducted to is available for 290 cases. In 164 of these cases, the child was abducted to another EU country. In 66.5% of the cases the child returned, while in 33.5% he or she did not. In two cases the child was abducted to EEA non-EU countries or Switzerland. In one of these cases the child returned but not in the other. In 24 cases the child was abducted to another European country (non EU and non-EEA). In 79.2% of these cases the child returned, while he or she did not in 20.8%. Of the six abductions to the Middle East, the child returned in three cases, but did not in the other three.

192 Aftermath In 11 of the closed cases, the child was abducted to Asia. In 54.5% the child returned while he or she did not return in the other 45.5%. Of the 38 cases in which the child was abducted to North Africa, the child returned in 86.8%, but did not in 13.2%. Seven cases concerned the abduction of a child to West Africa. In 71.4% the child returned, while he or she did not return in the remaining 28.6%. In both the cases where the child was abducted to Central Africa, he or she returned. The same is true for the three cases in which the child was abducted to East or southern Africa. In 16 of the closed cases, the child was abducted to North America. In 62.5% of these cases the child returned, while he or she did not in the other 37.5%. Of the 14 cases in which the child was abducted to Central America, the child returned in 57.1%, but not in the remaining 42.9%. Three cases dealt with abductions to Australia or Oceania. In two of these cases (66.7%) the child returned, while he or she did not return in the other case (33.3%).

Figure 29:  Part of the World to which the Child was Abducted (from Belgium) Compared to Return

Return 193

G  Returns for Abductions from Belgium: Breakdown According to Applicable Legal Instrument Here, as above,10 the analysis does not concern the effective application of the instrument, but merely its applicability, and thus potential application.11 Of the abductions from Belgium, 161 were to countries where the Brussels II bis Regulation applies. The child returned in 66.5% of these cases, but did not return in the remaining 33.5%. In 63 cases, the child was abducted to a country in which the Hague Convention applies. In 65.1% of these cases the child returned, but did not in 34.9%. Here, one should again be cautious when drawing conclusions on the differences between the effectiveness of the Brussels II bis Regulation and the Hague Convention. The delimitation of the spheres of application of these two instruments cannot be done in a clear-cut way for the investigated files. The Brussels II bis Regulation entered into force while some of these cases were being dealt with. Information on the return from Morocco, with which Belgium has a protocol, is available for 17 of these cases. In 82.4% the child returned, while he or she did not return in 17.6%. For 13 of the cases where the child was abducted to Tunisia, with which Belgium has a protocol, information on the return is available. Of these, the child returned in 92.3%, but did not in 7.6%. It serves to be recalled here as long as the child is not returned, the file is in most instances kept open by the Ministry of Foreign Affairs. It would therefore not be correct to deduct from the figures above that the protocols are more efficient than the Hague Convention and the Brussels II bis Regulation. Of the seven cases in which the child had been abducted to Morocco that are still open, data on the date of abduction is available in six cases. All of these cases had been open for more than a year, five of them had been open for more than two years, and three for more than three years. Of the cases in which the child had been abducted to Tunisia, two cases are still open. One of them had been open for two years, while the other one had been open for more than eight years. In the remaining 36 closed cases, the child was abducted to a country with which Belgium had no international agreement. In 75%, these children returned while they did not return in the remaining 25%.

10   See section entitled ‘Returns for Abductions to Belgium: Breakdown According to Applicable Legal Instrument’ above. 11   Again, the situation of the legal instrument applicable as at 1 August 2009 was taken into consideration.

194 Aftermath

Legal instrument in country to which child abducted

Figure 30: Legal Instrument Applicable in Country to which the Child was Abducted Compared to Return

III Outcomes While the analysis above regarded only return, it is important to take other outcomes of international child abduction into account as well. A case might also be closed without the child being returned because the non-return of the child was ordered under the Hague Convention or under the Brussels II bis Regulation, or because the parents had reached agreement.

A General Of the 91 closed cases in which the child had been abducted to Belgium, information on the method of closure is available in 82 cases. In total, the application of the Brussels II bis Regulation led to the reason for the file being closed in 20.7% of the cases. The application of the Hague Convention led to the closing of 9.8% of the files. Of the files, 1.2% had been closed as a direct result

Outcomes 195 of the application of the bilateral protocol with Morocco. 22% were settled. In 15.9% of the cases, the reason for closing the file was that a judgment on the substance (dealing with parental authority or the residence of the children) had been granted. 2.4% of the files were closed because there had been a counter-abduction. In 1.2% of the cases, criminal proceedings led to the closing of the case. 19.5% of the files were closed because the applicant parent abandoned the proceedings and 7.3% were closed without a solution having been found. Of the 339 closed cases in which the child had been abducted from Belgium to another country, information on the reason for closing the file is available in 300 cases. In total, 6% of the cases were resolved on the basis of the Brussels II bis Regulation and 7% on the basis of the Hague Convention. Of the cases, 0.3% were solved by the bilateral protocol with Morocco and 1.3% by the bilateral protocol with Tunisia. 46% of cases were settled. 12% were resolved by a judgment on the substance (regarding parental authority or the residence of the child). In 1.7%, a counterabduction led to the closing of the file. 5.3% were resolved by the use of criminal proceedings. 12% of the files were closed because the applicant parent abandoned the procedures and 6% were closed without a solution being found. The remaining 2.4% were closed because the child became a major (18 in most countries). An interesting question is whether the legal instrument in place in a certain country tends to lead to a particular solution. Of course, the legal instrument itself can be used, but it can also have other effects, for instance precipitating a settlement because the abducting parent is aware of the legal repercussions if no settlement were reached. This analysis is done below, first for abductions to Belgium and then for abductions from Belgium.

N=82

Counterabduction

Criminal proceedings

Bilateral protocol with Morocco

No solution Settlement Hague Convention

Judgment on substance

Brussels II bis Regulation

Abandonment of proceedings by parent

Figure 31: Outcomes for Abductions from another Country to Belgium

196 Aftermath Child became major Criminal N=300 proceedings

Counterabduction

Bilateral protocol with Tunisia

Bilateral protocol with Morocco

No solution

Brussels II bis Regulation

Settlement Hague Convention Abandonment of procedure by parent Judgment on substance

Figure 32: Way in which Solution was Reached for Abductions from Belgium to another Country

B  Abductions to Belgium: Outcome Compared to Applicable Legal Instrument The following table shows the outcome in relation to the applicable legal instrument for abductions to Belgium. Table 11: Outcome in Relation to Legal Instrument Applicable (Abductions to Belgium)

Outcome prompted by

Legal Instrument Applicable in Country from Where Child was Abducted Brussels II bis

Hague Convention 1980

Bilateral Protocol with Morocco

No legal instrument

Brussels II bis

26.6%

0

0

0

Hague Convention

6.1%

33.4%

0

0

a

Bilateral protocol Morocco

0

0

50%

0

Bilateral Protocol Tunisia

0

0

0

0

Settlement

23.1%b

8.3%

50%

50%

Judgment on substance

c

13.8%

25%

0

0

Criminal proceedings

1.4%

0

0

0

Counter-abduction

3.1%

0

0

0

Outcomes 197 Table 11 (cont): Outcome prompted by

Legal Instrument Applicable in Country from Where Child was Abducted Brussels II bis

Hague Convention 1980

Bilateral Protocol with Morocco

No legal instrument

Abduction to a third country

0

0

0

0

Abandonment of procedures by applicant-parent

21.4%

8.3%

0

50%

4.5%

25%

0

0

0

0

0

0

100%

100%

100%

100%

No solution Child became major

a   This can be explained by the fact that a return had already been requested on the basis of the Hague Convention by the time that the Brussels II bis Regulation entered into force. b   This is a high percentage and accounts for 83.3% of the settlements in closed cases where the child had been abducted to Belgium. c  This is a relatively large number compared to this method of closure in other countries: it accounts for 69.2% of the total of 13 cases that were closed due to a judgment on the substance. This can be explained by the fact that the Brussels II bis Regulation also provides for the easy recognition and enforcement of judgments on all issues about parental responsibility (including the residence of the child) in other EU states. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) also provides rules for the recognition and enforcement of judgments. This Convention is not yet in force in Belgium, but hopefully it will be soon.

C  Abductions from Belgium: Method on how Solution was Reached Compared with Applicable Legal Instrument The same analysis can be done for the cases in which the child had been abducted from Belgium to another country. Table 12: Outcome in Relation to Legal Instrument Applicable (Abductions from Belgium)

Outcome prompted by

Brussels II bis Hague Convention Bilateral protocol Morocco

Legal Instrument Applicable in Country to Where Child was Abducted Brussels Hague II bis Convention 1980 10.8%

0

a

6%

0

Bilateral Protocol with Morocco

No legal Bilateral protocol instrument with Tunisia

0

0

0

18.4%

0

0

0

0

5%

0

0

198 Aftermath Table 12 (cont):

Outcome prompted by

Judgment on substance

Legal Instrument Applicable in Country to Where Child was Abducted Brussels Hague II bis Convention 1980

Bilateral Protocol with Morocco

No legal Bilateral protocol instrument with Tunisia

15.5%c

10%

5%

0

8.1%

Criminal proceedings

5.4%

3.3%

0

6.2%

10.8%d

Counter-abduction

1.8%

0

0

6.2%

2.7%

0

0

0

0

0

13.2%

8.3%

15%

0

16.2%

6.6%

8.3%

5%

6.2%

0

0

1.7%

5%

25%

2.7%

Abduction to a third country Abandonment of procedures by applicant parent No solution Child became major

e

a   This can be explained by the fact that a return had already been requested on the basis of the Hague Convention by the time that the Brussels II bis Regulation entered into force. b   This high rate can certainly in part be ascribed to the existence of the protocol and the negotiations between authorities and parents that it allows. c   It should be recalled here that the Brussels II bis Regulation also governs jurisdiction in matters of parental responsibility more generally, see n 14 above. d   This percentage is higher than in the cases where a legal instrument could be applied: the overall percentage of resolution by way of criminal proceedings is only 5.3%. The reason for this higher percentage is that in these situations, there are few other legal possibilities. e   This high figure might also indicate that in many files a solution was never found, but the files were kept open until the child attained majority.

D Mediation At the outset of this study, it seemed interesting to evaluate whether the use of mediation produced a desirable outcome in some of the child abduction cases. The members of the project’s Steering Committee emphasised the relevance of mediation, expressing their desire for more information. For the purposes of this study, both institutionalised and informal mediation were taken into account. However, information on the use of mediation was not available in all files. Information was available in 414 (62.1%) of the 667 files. Of these, mediation was used in 19.8%. Mediation was not used in the remaining 80.2% of cases. There are several possible explanations for the fact that information is not always available and for the fact that mediation seems not to be used often.

Outcomes 199 The first and most obvious is that the conflict in the family has taken such proportions in many of the cases that one or both the parents do not consider mediation a viable option. Some professionals also believe that the power imbalance after an international child abduction is so severe that mediation is not appropriate.12 A second possible explanation is that the possibilities mediation can offer are still not sufficiently known.13 In order for people to choose mediation, they have to be aware of its existence and of what it has to offer. The roles of professionals (legal practitioners, police, judges, central authorities, etc) are not always clear in this regard. A third possible explanation is that if people do opt for mediation, this is not necessarily known by the administrative authorities or by Child Focus, where the data for this study was collected. This is particularly true for informal mediation: the fact that it has taken place will simply not be known in most cases. It is for instance possible that some of the parents who seemed to have abandoned their procedures had sought a solution through mediation. It is also possible that there had been mediation in some of the cases where a settlement was reached, even if this was never known by the authorities or by Child Focus. It is difficult to measure the success of mediation with the limited information. One could assess whether mediation has led to more returns in the assessed cases. However, the success of mediation might lie in the attenuation of conflict, in compromise solutions. This does not necessarily entail the return of the child, but a way forward that is acceptable for both parents and for the child. Such nuanced information can only be gathered by way of a survey in a quantitative study. The qualitative study has included this assessment, but most of the parents could only speak of the possibility of mediation although they had not tried it. One parent had attempted mediation, but this did not lead to a positive outcome in his case. Another could not find an appropriate mediator in the short time span before the mother left with the child. In another interviewed parent’s case, informal mediation took place in the larger family context. The fact that finding a settlement of some kind led to the solution of many child abduction cases reinforces the argument in favour of mediation. Mediation could assist parents to find such settlement.

  For more information, see chapter six, section entitled ‘Amicable Solution’.   In this regard, an interdisciplinary study is being conducted by the Universities of Ghent and Leuven (IPOS) to consider why people choose a specific route when they divorce, or how they roll into a specific route in some instances. This study concerns divorce and does not in the first place focus on the international abduction of children by one of their parents. However, the results will probably shed some light on the status of mediation, or on the way it is regarded by the public at large, that will also be relevant for child abduction cases. 12 13

200 Aftermath

IV  Re-adaptation of the Child When the child returns, the family passes from one very difficult situation to a totally different, although also difficult one. It is often hard for the child to readapt after his or her return. As has been explained, the abductions often last a long time and a small child can forget many things, including habits and even a language. The left-behind parent has put all his or her energy over the past months into trying to get the child back. He or she has often incurred debts (especially to pay legal fees). Then the child is back, needs care, not only physically and financially, but also emotionally and psychologically. A mother said: So, there is this enormous, enormous work that you can never do all on your own. The children must be attended to. On a social level, that is to say their place in society, on a psychological level, on a moral level, etc. So there is a part that I do and I do it with pleasure. But I cannot do everything because I have neither the knowledge nor the aptitude.

A psychologist confirmed during his interview that a lot of work remains to be done after the return of the child. He said that the role of the authorities is limited (as files are generally closed when a child returns). However, he thought that it was important that authorities cooperate with organisations to ensure that children and parents receive the assistance they need. Families in these situations need professional help.

A  Catching Up The child has often lost time at school, because he or she has been to school in a different country where the syllabus was totally different and the language might have been different as well. He or she is in many instances behind with school work. The child sometimes loses several years in the wake of abduction. Depending on the age of the child and the duration of the abduction, the child may have forgotten the language of the home country. A lot of extra care is needed for the school education. One father explained that his young daughter, two-and-a-half when she returned, had not only forgotten her Dutch, but also had problems readapting to the food in Belgium. In the nine months while away, she ate only Asian food and her body had difficulty adapting to the different food.

B  Coming out of a Period of Instability One father said that his children had been to nine different schools during their abduction, including the one they went to after their return. It is, of course, disruptive for anyone to have to cope with so many changes in just a few years.



Re-adaptation of the Child

201

Another father explained the experiences of his daughter, aged 17 at the time of the interview. She had not been able to have a single stable school year over a period of three consecutive years. At her age, this was difficult. When the decision was made that she and her little sister would return from Brazil, she lied, saying that she was pregnant in order to be able to stay in Brazil (with her boyfriend). The girl was old enough to have a strong view of where she wanted to be. In the end, she returned with her sister. She had great difficulties readapting in Belgium.

C  Residues of the Family Conflict and Brainwashing One father explained the last phase of the legal proceedings and the day his son returned in this way: And in the corridor of the . . . that was the first judgment . . . tribunal of first instance, ‘Hey, I am going to, if I have to go back to Belgium, I am going to hit you’, because he really did not want to go along to Belgium, he was always with the mother, he had been completely brainwashed, and effectively on the first day, the mother brought him, and on the first day, we were outside here, the first day, the first moment that he returned, he was angry, angry, angry! Crying, crying, crying, he did not want to be here: ‘Take me back, take me back! Promise me, promise me! Take me back to the mother,’ so he really wanted . . . euh . . . well he wanted me to crack up because he was crying so badly and he was so unhappy. But I had to hang in there. And then he hit me right in the face . . . as hard as he could . . . and I said nothing. I only said: ‘Wow, you are strong, but you must not do that, do you hear?’ Thus . . . I was not angry, because if I were angry on top of that . . . then it would have completely got out of hand. For him it totally . . . but after . . . he carried on into the night, until he was exhausted, he tried to convince me to take him back . . . ‘Take me’ and ‘I want to stay with mom’ and ‘I don’t want to be here’ and ‘everything here is stupid’ and ‘the school is stupid.’ That was also in the expert’s report, well, he said to the woman who did the family sessions, ‘the school is stupid’, ‘football is stupid’, ‘boys’ scouts are stupid’, his cousins were stupid . . . well, the woman said: ‘Those cannot be your son’s words, those are someone else’s words, the mother’s.

A father explained the difficulties his child faced after his return to Belgium from Germany: He is a bit at odds with himself now, now he also starts to lie, because his mother also lied. So he thinks that it is normal to lie. But then I get very angry, if he lies.

He added: Hey, the kid is frustrated. Well . . . he was always in the battle. That could not have been easy.

This father had considerable understanding of the contentious period his son was forced to live through. Thus, he saw the reason behind his son’s behaviour. Moreover, he saw that some of the child’s behaviour was still a result of the influence his mother had been exercising over him, saying or implying that everything in Belgium was inferior. He said:

202 Aftermath He does not want to go to the boys’ scouts anymore. Because his mother had criticised that so much. She never went to girls’ scouts herself, so she does not know. I always went to boys’ scouts and that was fun, the kids together, and . . . and . . . well, I can’t force him. He plays football, but he had to change schools because they called him Hitler.

And: And we are all stupid, stupid people, it would appear: ‘You with your stupid little chocolates’ he says. This is a child of ten, eleven years old saying to his father ‘you with your stupid little chocolates,’ those are yet again not his words.

This father went about the readaptation of his son with a great deal of patience and compassion. He also spoke to professionals about the way in which he handled matters, seeking the best for his child. Reference should at this point also be made to the phenomenon of parental alienation. While it is contested in psychiatry whether or not this can be classified as a syndrome,14 professionals agree that withholding contact between parent and child can be harmful for the child. Professionals who were interviewed, pointed out that re-establishing the contact between an abducted child and his or her parent can be very hard. One recounted that some children have even been given different names by the abducting parent. When they return, these children have to reassume another identity. This is a great shock for them. Over and above the identity issues, children are often intensely manipulated. In one instance, three girls who had been abducted to Sweden were told what a terrible and backward place Belgium was, with paedophiles lurking at every street corner. In this way, the mother managed to estrange the children from their father, and everything connected to him and his life. It was only with much patience and strong willpower that the father managed to re-establish the contact with his daughters.

D  Children’s Own Views Children, of course, grow older and their own views and wishes become more pronounced. One child, who was abducted to an African country when he was four, was seven at the time of the interview. After his return to Belgium in 2008, he finished his school year and then went back to Africa. His parents had agreed that he would live there and spend all his holidays in Belgium. The father explained what the child wished for: No, the kid wants to stay here. He tells me that all the time. He tells me that all the time and it is hard for me. I told him: ‘Look, we have to speak to your mother, because your 14   See B Van Dieren, ‘L’Aliénation parentale en quelques mots’, published at www.separation.be; CC Summers and DM Summers, ‘Parentectomy in the Crossfire’ (2006) 34 The American Journal of Family Therapy 243–61; J-Y Hayez and P Kinoo, ‘Aliénation parentale: un concept à haut risqué’ (2005) 53 Neuropsychiatrie de l’enfance et de l’adolescence 157–65 (also published at www. observatoirecitoyen.be); J Hoult, ‘The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy’ (2006) 26 Children’s Legal Rights Journal 1–66.



Re-adaptation of the Child

203

mother has the right to see you as well.’ And then he said to me: ‘But why can’t we do six months-six months?’ But that is not possible because of the school. And I even considered it, because I have a friend whose child is in the French school and in France the enrolment is per semester. It was possible, but I sought advice in Uccle, the French school is in Uccle [area of Brussels]. They told me that it is not recommended, because it is too disruptive for the child. I know, honestly, that he would have liked to live with me. He told me, he tells me that all the time and I say to him: ‘Look, in a few years, this will change.’ He is eight years old now. I think that we will leave matters as they are for now. [. . .] The more he shows what he wants, well . . . The day when he makes his choice, that will pose problems, because the mother will realise but it is very hard for him because since he knows that he has to return next Saturday, he is very nervous but I know why he is difficult, it’s because he doesn’t want to. That is the problem.

The father did not have a solution for the problem, but had the view that time would tell. In the meantime, he just wanted to provide a welcoming home for his son.

E Therapy While many people expressed the needs that children have after their return, our research on the effectiveness of therapy is limited, because no interviews could be taken with children. Moreover, because the occurrence of child abduction is dispersed throughout the country, so are the psychologists who treat children. In some cases, children see a therapist, but at a certain moment refuse to continue doing so. One father said that he had taken his 16-year-old daughter to a psychologist after she had returned, but it led to nothing, as the daughter was angry with him and he was the one that took her there. Thus, the treatment was associated with the father, towards whom she had a hostile attitude. Another father explained a similar problem: his son refused to see a therapist because of the association that he had between psychologists and the social assessments the family had to undergo in the course of the legal proceedings concerning the abduction and the residence of the child. Those assessments were taking place in a time of severe family conflict and the child did not feel at ease with them. Of course, it is difficult for a parent in such circumstances to see to the continuation of the treatment: one cannot force someone else into treatment; not a child and certainly not a teenager. Moreover, the parent to whom a child returns seems inclined to make the child feel welcome and happy. Sending an unwilling child to therapy would be a hard thing to do for a parent who has missed the child for a long time. Moreover, one of the psychologists who were interviewed explained that in his experience children who had experienced an abduction preferred not to talk about what had happened. Some of the interviewed parents’ accounts were in line with this. One mother recounted that her daughter did not really speak about her experiences during the abduction, nor of the view she now had of her father. The mother said that she confided in one friend only.

204 Aftermath These children might have been forced to find coping mechanisms within themselves. Whether or not such mechanisms are sufficient cannot be deducted from our research. In order to find an answer to such question, a longitudinal study would have to be conducted, interviewing the children who were abducted over the last few years in 20 years’ time. Moreover, the language problem might also resurface when a psychologist is sought. As has been explained, an abducted child sometimes forgets the language. One father said that he only took his daughter to a psychologist after she spoke French again. In his child’s case, relearning the language took three months. This is a short time, as the child was small (six years) and children learn quickly at that age. For other children, the period might be longer, and so it might take too long a time before they can see a therapist, or one would have to find a therapist who speaks the other language. In any event, care should be taken that a child receives the attention he or she needs after a traumatic experience like an abduction. A child might not be the best person to decide whether he or she needs therapy. One mother expressed the difficulties and the need for therapy, in this way: These are children that have been stolen like a packet of sweets. And often it ends without prison punishment. Because it ends thanks to the Hague Convention . . . That means that these are children that have been the victim of an offence and even so, the person who committed the offence has not been punished. It is difficult to understand. So, I started to see behaviour of Tom, behaviour like: ‘I can do whatever, I will not be punished. Society does not punish.’ So I asked the social service to work on respect for the law, legislation, rules and all of that. One has to take care of the children on that level, otherwise they will become hard-core criminals and I am not joking. [. . .] Otherwise, a fourteen-year old child will say: ‘but I can do anything. I will never be punished. My father stole me and he was never punished. So I can also do anything. I can be violent towards a woman.’ [. . .] That is the intensity of the work of getting back children that have been used in other people’s battles. I go to bed at 9 every evening, that is how exhausted I am. When I get home, I have two children to mend. It is a tremendous job. And I do not even talk of myself. I don’t have money for a therapist, so I don’t see one.

V  Re-adaptation of other Members of the Family One abducted child, that affects fifteen people. My mother is dying because she was so shocked, her health has deteriorated completely in one year. No! But no-one is talking of that! I have two children who are traumatised for life! Myself, I am not even talking of myself, I don’t trust anyone any more. My mother is dying. My ex-husband is not in a great state either I think. His family, that must not be great either. We are talking of seven, eight people who are direct victims of this story. [. . .] My niece was completely devastated by this thing, she entirely trusted the children’s father. You see, that is what one calls collateral damage. [. . .] And I am not talking of the financial damage. For the moment, my aunt lent me money to pay the lawyer but now she needs the money to



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move to a retirement home. I have to return the money. She cannot go. She cannot stay in the house by herself and I do not have the money to return to her!

With these words, one of the interviewed mothers made it abundantly clear that not only the child and the parents suffer after international child abduction, but also other family members or relatives. These people also have to readapt to the situation after the abduction and the return or non-return of the child. One of the interviewed fathers had two small children. Only the younger sister was abducted, when she was one-and-a-half years old. This was very hard on the elder brother (three-years-old at the time), who missed his sister tremendously while she was away. During that time, he forgot everything he had learned: he needed nappies again, and he could not eat with a spoon and a fork any more. At school, he could do nothing and hardly spoke. At this tender age, this boy was depressed. The father was satisfied by the work done by a psychologist to support the boy. When the sister returned, the two children were inseparable. They would not allow one to go out with the father or grandmother without the other going along too. At the time of the interview, a year and a half after the return of his little sister, this boy was again having difficulties. His father was worried about him, saying that he had a sad look in his eyes and gave the impression that something was bothering him, but did not want to talk about it. Possibly the child could not express what he felt. An element that also stays with the left-behind parent, even after return, is the fear of recurrence. One mother said that she was still scared that the father (who now had no contact with the 13-year-old child) would try to fetch his daughter from school or wait for her on the side of the road while she was cycling. Many of the other professionals that were interviewed did not have information on how the families were doing after the return, as the file was usually closed upon the return of the child. Some of them coincidentally know something about the families. This finding in itself confirms the need for more family support. A person from an organisation confirmed that there is no support at home for the parent after the return of the child. She pleaded for a follow-up on the families after the return of the child.

VI  New Residence and Contact Arrangements after Return In many cases the residence and/or contact arrangements regarding the child are changed after the return. This information is not always available in the files, since these changes can take place after the file is closed.

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A  New Residence Arrangement Of the 483 closed cases, information on a new residence arrangement is available in 303 cases. Of these, there has been a new arrangement in 37.6% of the cases. There was no new arrangement immediately after the closing of the file in the remaining 64.2%. Of course it is possible that these arrangements still changed at a later stage, but data was not included in our dataset. Of the 114 cases in which there was a new arrangement, the content of the nature of the change is known for 105 cases. In 11.4% the existing arrangement was confirmed. This means that the arrangement was reconsidered (by a court), but the same arrangement as before was ordered. These files had been taken up in the statistics to indicate that there had been a new consideration of the arrangement. In 21% of the cases the child’s principal residence was changed: it would now be with the other parent. In 62.8% the child had his or her principal residence with both parents before (either because they lived together, or because the child had alternate residence with the two parents). The child would now have his or her principal residence with one of the two parents. This is the most common change. In 4.8% the child would now have his or her principal residence with another person while it was with one of the parents before the abduction.

B  New Contact Arrangement Of the 483 closed cases, information on a new contact arrangement was available in 264 cases. There was a new contact arrangement in 41.7% of the cases. There was no new contact arrangement immediately after the closing of the file in the remaining 58.3%. In these cases it is also possible that the arrangement was changed later. In 94 of the 110 cases, the content of the new contact arrangement is known. The existing arrangement was confirmed in 7.4% of the cases. As explained above, this means that the arrangement was reconsidered (by a court), but the same arrangement as before was ordered. In 7.4% of the cases, the abducting parent got contact rights while he or she did not have these rights before the abduction. In 2.1% contact rights of the abducting parent were increased after the abduction. In 24.5% the abducting parent’s contact rights were decreased. The abducting parent lost his or her right of contact in 16%. In 17% the left-behind parent got contact rights while he or she did not have these rights before the abduction. In 1.1% the left-behind parent’s contact rights were increased. In 22.4% the left-behind parent’s contact rights were decreased. The left-behind parent’s right of contact was lost in 2.1% of the cases. These figures could very well have changed further after the closing of the files.



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Even so, these figures are noteworthy. They show significant changes in the way a child has contact with his or her parents. This indicates a consequence of international child abduction that we should not lose sight of: abductions influence the lives of children far beyond the day of their return, or decision of non-return.

VII  Real Contact between Parents and Children after Abduction A  Contact with the Abducting Parent after Return Let us now turn to the realities of the persons who were interviewed in the course of our research. It was found that in some cases, children had no contact with the abducting parent after their return. One abducting father, who had no contact with his daughter after the return, contacted his daughter’s half-sister via social networking site Facebook (his daughter was 12 at the time and the half-sister 17). Through this channel, he asked how his daughter was doing and said that he missed her. He asked the halfsister for a photo of his daughter. He also told her that his daughter would be getting a half-brother. He gave his telephone number so that his daughter could contact him. In this case, the mother had all rights over the child and the father was not permitted to have contact with her. The daughter did not want to have contact with her father but, according to her half-sister, the fact that she could not see her father was also painful for her, as he was still her father. It was also painful to hear that her father was getting another child while he could not take proper care of her, in her view. This incident worried the mother and her new partner: they thought that the father would also try to contact his daughter directly via Facebook, as she had just set up her own account. They were considering ways in which they could prevent her from getting messages from strangers, fearing a recurrence of the abduction. In other cases, parents of returned children allowed contact with the abducting parent. These parents still believed that it was in the child’s best interests to maintain contact with the parent who had abducted them. They allowed telephone calls and visits, but tried to take the necessary precautions to prevent a recurrence of the abduction. A father explained how, after the return, he allowed the mother, who had abducted the children, to contact the girls every third day. He had also installed a webcam to facilitate the contact. A father said that his elder daughter (17 at the time) had asked him whether her mother could come and stay with them during the summer holidays, some time after she and her five-year-old sister returned from Brazil, to where they had been abducted. (The mother had no home in Belgium.) The father let the mother stay

208 Aftermath with them at his flat for two months. This was an important gesture not only to the mother, but also to his daughters. He also said that once the mother had her own place in Belgium, the children could go and see her there and spend holidays there. Another father said that he encouraged the mother to maintain contact with the children. This mother had returned to Belgium after the abduction. The situation was very hard for her. The son, who had not been abducted with his sister, was very angry with her. The daughter was less angry, but also not very warm towards the mother. After a week, the mother left because she could not cope with the situation. She now has no contact with the children and does not ask how they are, even though the parents are still legally married. The father explained that the children have suffered from the total absence of their mother (they are brought up by their father and grandmother). He said that they are too small now to ask many questions, but he knew that the questions would come. Some parents allowed the child to go on holidays to the country in which the other parent lived. These holidays were sometimes long: in some instances six weeks. One mother said that she had allowed her children to visit their father in the country where he had been living since the abduction (outside the EU). She explained that she was not doing this to be nice to him, but from a concern to show her children that nothing could be solved by hate and vengeance. The fear of re-abduction was present with several parents, whether the child had contact with the parent (saw him or her during holidays) or not.

B  Contact with the Left-behind Parent in Cases of Non-return Two mothers had children that were abducted. The sons were respectively 17 and 18-years-old at the time of the interviews. The mothers explained their contact with the sons. One of them had contact with her son, but had the impression that he used her when he needed money. He wanted to return to Belgium after having finished school, but she thought that he wanted to live in Belgium because of what she called the ‘freer lifestyle’ (he was in the Middle East), rather than for her and her family. The other mother explained how, even though her son was back in Belgium (with his father), she had very little contact with him and felt as if he only knew her when he needed her. She described how she at first thought that her son had been brainwashed by his father and how she kept having faith in him. However, it became too hard for her and in order to save herself and her relationship and to retain the energy she needed for her younger child, she had to distance herself from her son. She regretted the fact that he had never completed his high school education, having lived on a boat with his father. However, she felt that he now had to assume his own responsibility and take his future into his own hands, something she said he had not been willing to do before.



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She said: No [I don’t see him]. Just now, I have sent a message, I have sent several, well a few, to try to re-establish the contact. [. . .] And I never got an answer. As if. I was simply saying: ‘If you want, we can have a sandwich together’, I did not want to say ‘I would like to see you.’ I didn’t want to force him. It has been two or three years and even, myself, honestly, I am telling you, I don’t know whom I will have in front of me. I really don’t know whom I will have in front of me. Honestly, you can say that this is maybe not adult behaviour, but it scares me.

The mother added, a bit later: Even if it were two years, I feel that it has done a lot of damage, that bridges have been burnt, no, it’s a terrible situation, you try to create a shelter for yourself and to tell yourself ‘I am not that attached, my god, he is eighteen years old, he is grown-up, he has his life.’ You try to detach yourself. It is sad to say, but you really try to protect yourself. Really . . . I think that that is it. It is not, far from that, that I don’t love my son any more, far from that, but I try not to invest so much. I cried for days and days and days. I had migraines from hell that I felt sick, I couldn’t sleep anymore. I had no life anymore, I had the impression that I was on another planet. And at a certain moment, yes it is true, you say to yourself I have to let go a little, and that, I don’t know whether it’s only me or whether all parents think like that: I really have difficulty saying that I am going to invest so much again, honestly.

In another case where a six-year-old child did not return after having been abducted by her mother to Morocco, the father said that telephone conversations were too difficult. He said that a six-year-old child cannot really have a proper telephone conversation. He saw his daughter three times a year and he thought that this provided a clear pattern for her. Because of the emotional difficulty that the entire experience had caused him, he said that it was easier not to have any contact with the daughter while she was in Morocco with her mother. At the other end of the spectrum, an abducting mother explained that she was prepared to allow a generous contact arrangement for the father. The child, who was four at the time of the interview, saw his father every month for a few days (in Belgium). During these periods he collected his son from school. Mother and father had attended two school activities together. The child went to visit his father for longer periods during the holidays. The mother had the impression that the contact between father and son, ironically, had increased. She said that he took more time for his child than he did when they lived together. She, however, acknowledged that such an arrangement was only possible for a wealthy father. She added that both the father and she want their son to have two parents. They did not want to give him the feeling that they want to make each other’s lives a misery. Both of them had new relationships and their son got along with the new partners. She said that his life now was very much like that of other children whose parents are divorced, except that he lived in two countries. This story seems to end by resolved conflicts and by regained respect. It is indeed important that parents come to this point in the interest of their children.

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C  Contact with the Left-behind Parent if the Child Lives with the Abducting Parent after Return One father explained that his daughter returned with her mother to Belgium from Tunisia. However, the daughter lived with the mother and the judgment stipulated that she should see her father every other weekend. He said that the mother often did not respect this arrangement. He feared a recurrence of the abduction. He was not sure that he would have the patience and be able to trust the justice system a second time to solve the case effectively. He had been frustrated by the proceedings the first time, and had the experience that the cooperation between the Belgian and Tunisian authorities was not always satisfactory. In this case, the disrespect of the contact arrangement sounded an alarm bell to the father, who had been left behind once already.

VIII  Psychological, Emotional and Moral Support Some parents strongly felt the need for aftercare, certainly as far as psychological support was concerned. When the child returned, the file was closed, but much remained to be done in order to reconstruct the children’s lives. The experiences of parents varied greatly when it came to the support they got. A lot depended on particular persons with whom they incidentally came into contact. For instance, one mother explained that she and her family were well supported by someone from the victims’ aid service of the police. This person came to visit them at their home almost every day while her daughter was away and still saw them after she returned. When contacting welfare services to interview professionals assisting victims, it was hard to find someone. Several services responded that they had not yet encountered the problem, or that they had come across it only once, and the person that had helped the victims in that case had in the meantime left the service. The person who had helped the family referred to in the previous paragraph, had drawn on his general experience, but had no particular experience on abducted children. As has been explained, the problem of international child abduction is dispersed and various professionals might come across it once in a career. It is important to provide support to families in the aftermath of abduction. If the Central Authority cannot provide support in a structured way, consideration should be given to a system of referring parents to social workers or psychologists who can help.

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IX Schools Many parents were happy with the way in which schools took care of their children on their return. The school was most often aware of what had happened (the child was absent for a certain period). The teachers took extra trouble to make sure that the children adapted, learned the language again, etc. One father explained that his daughters could not speak Dutch anymore when they returned. The school teacher took the trouble of looking up Spanish words in the evenings in order to help the girls. Parents were grateful for the help and understanding that they got from schools. However, the schools could not respond to all the needs for support that a child might have.

X Conclusion A child abduction case is not solved when the child returns. In many cases, the children have difficulties in adapting again to the country of their former residence. Some of them had forgotten the language; they are behind with school work, etc. Moreover, it is not only the child who has been abducted that has to adapt. The left-behind parent has to create a new home for the child, other family members or relatives might have been affected by the abduction and they need to take up their lives again. In a case where only one of the two children was abducted, the other child can have a very difficult time coming to terms with what happened. Whether or not parents allow the child and the abducting parent to have contact with each other after the return, varies. In cases where contact is refused, it can be because the left-behind parent fears a second abduction. In cases where safeguards are put in place to prevent a second abduction, the left-behind parents are more inclined to allow contact. It has emerged from the interviews that parents and children need more postfactum support by professionals. The approach of child returned, file closed, should be reconsidered. A lot of psychological work remains to be done in order to reconstruct these families.

9 Prevention of International Child Abduction I Introduction One of the main reasons for this study on international child abduction was for the purposes of publishing a prevention guide for professionals working with families where there is a risk of such abduction.1 Several of the parents who had lived through the experience of having his or her child abducted, were of the view that one simply cannot avoid such an unimaginable event from taking place. One said: You can’t avoid it . . . because you are always compelled to let the child go [to the other parent]. They are going on holidays, you have to let her go. If you don’t, you risk getting a sanction.

This sentiment is in line with the results of the quantitative research. Of the 608 strictly abduction cases, information on whether a prevention file had been opened before was known in 551 cases. In only 20 (3.6%) cases, a prevention file had been opened beforehand. It should be noted here that only Child Focus opens files for prevention, while the Ministries also give advice when concerned parents contact them. They do not, however, keep a separate record of these files. Moreover, some left-behind parents might have contacted local police or lawyers (mainly practitioners) in order to obtain advice on the prevention of an inter­ national child abduction. It is thus possible that more of the left-behind parents had attempted preventing the abduction than appears from these figures. It has also emerged from the figures of Child Focus that the profiles of prevention files and of actual abduction files vary greatly.2 While most actual abductions from Belgium take place to other European Union (EU) countries, most prevention files concern African countries. The usual tips, such as paying attention to the clothes a child wears, and the registration number of a car, were not always possible to follow if one did not expect the abduction. 1  A guide for professionals has been published by Child Focus in Dutch, English and French. A similar guide has been published by the partner organisation for this research project, Kék Vonal, in Hungarian. 2   See Child Focus’s Annual Report of 2008, 18–19 and of 2009, 17.



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On the other hand, some said that more information should be provided to parents beforehand, so that they know what can happen, what the legal position is and what they can do to avoid international child abduction. Two clear strategies regarding prevention of international child abduction have emerged from the interviews. The first is proactive3 and was mainly supported by psychologists. The underlying thought is one must not create the type of atmosphere in which an international child abduction becomes likely. Measures include communication and respect, allowing contact rights between the child and the other parent, assisting an immigrant parent to feel happy and at home in Belgium. If a happy environment or one in which there is respect and communication, is created, abduction becomes less likely. The next set of measures is reactive. These are steps that parents have to take when they fear an abduction. By this time, communication and respect are probably already at a low point. These measures can stop an imminent departure, but practice shows that they often fail. They cannot in themselves be relied upon to prevent any child abduction.

II  Different Views on Prevention A psychologist who was interviewed discussed the general tips that are often given to parents who fear an abduction of their child by the other parent, such as contacting a lawyer to obtain information on your rights, instituting proceedings for interim measures, including a prohibition to leave the country, applying for a passport from the local authority and informing them not to issue a passport to the other parent. However, he said that these actions can aggravate the conflict. From a psychological perspective, seeking an agreement will be a more effective way of preventing abduction. Similarly, legal proceedings can intensify the break between the parents. On the other hand, an interviewed lawyer said that in order to prevent abduction, a parent should get a judgment on the residence of the child as quickly as possible. They should see to it that the judgment contains a prohibition to leave the country. However, she acknowledged that this is not always effective. She thought that it was better to start legal proceedings and then try to negotiate with the other parent and reach a solution. In this way there is some pressure for the negotiations to succeed.

3  See also the Hague Conference on Private International Law’s Guide to Good Practice Child Abduction Convention: Part III – Preventive Measures (2005), available at hcch.e-vision.nl/index_en. php?act=publications.details&pid=3639, where preventive measures are divided into proactive and reactive measures.

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III  The Left-behind Parent’s Surprise Often, the left-behind parents had not seen anything coming and were taken totally by surprise: It is unimaginable that the man with whom you had children is capable of kidnapping them. It is unimaginable.

In a similar vein: One does not know what goes on in someone else’s head. Because I thought that I knew the mother of my daughter. Because I lived with her for 16 years . . . So ehm. I never thought that she would do this.

These parents clearly expressed the shock when someone you think you know performs such an extreme act. Even if they acknowledged the conflict, they could not foresee something like this happening. When discussing possible prevention tools, several parents said that it was simply not possible to prevent an event that you could not in any way foresee. A mother said: ‘If one does not imagine an act like this, he could easily take the children’s passports. I did not go and check every day whether the passports were still there.’ On the other hand, some parents said that there had been indications that an abduction might be coming. However, it seems that the hope that this would not really happen was often stronger than the ability to act proactively. One father said: I hoped until the last minute that she would not do it, but well . . . I did feel it coming.

Even in these cases where the possibility of the abduction was foreseen, one could not always react on the hunch one had. This father added: But well . . . in principle one trusts the mother. Eh, she is presumed to know what is good for her daughter.

Later, this father added: It is true that at a certain moment, when Julie [his daughter] was going to leave, we couldn’t find her passport. It was lost somewhere in the house, we couldn’t find it. And I was the one who found it . . . And it is true that I had the passport in my hands and I asked myself for two or three minutes, mmm, what shall I do? . . . For several minutes I looked at the passport, I said OK, but one has to trust [the other parent].

This quote gives some indication of the intricacy of the emotions parents feel: a mix of trust, desire to trust, hope, uncertainty, fear, apprehension, helplessness, inertia, shame. One should not forget that these emotions are felt in the framework of an intimate relationship, or towards a person with whom the left-behind parent has had an intimate relationship in the (often not so distant) past. This fact not only intensifies, but also complicates the feelings. The feelings concerning the



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protection of the child do not stand on their own, but are intertwined with the feelings towards the other parent. The intricate emotions make it hard to prevent child abduction. Parents have so many intense feelings to deal with, and often do not seek professional help at an early stage, partly because of denial, partly shame, partly hope that things will improve.

IV  Failed Attempts at Prevention One father explained how he saw the abduction coming. There was a judgment restraining the mother from leaving the country without his authorisation. She had asked his permission to leave with her two daughters on holiday, but because of his fear that they would not return, he refused. The mother nevertheless succeeded in obtaining passports for her children (Belgian and Brazilian) and left with them. He explained that the departure had been well planned and that, even though the mother said that she would only go on holiday, she had sold her furniture, etc. Despite his knowing all of this and despite the judgment, he was unable to prevent the abduction. Similarly, a father tried to prevent his partner from moving indefinitely to SouthAmerica, where she had already left their daughter. In this case, he knew that it was not for holidays, but that she wanted to relocate there permanently. He said: I took her bag and removed all the papers, well, the plane tickets. Mmm, that is something that I still regret . . . So she was stuck in Belgium a bit longer. All the same, she took all the steps to leave. I took all the steps to try to . . . to find a solution with, . . . despite everything to fetch Cindy . . . to make her understand that . . . well, I don’t know . . .

The mother left later than she would otherwise have and this act on his part had no effect other than aggravating the conflict. A father said that, having reported the mother’s threats to leave to the police, he got a letter stipulating preventive measures. He explained that in a situation where his contact rights with the child were not respected, such things were difficult to observe. A mother was told by her son that the father said that after the next holiday he would not be returning to Belgium, but would stay in Spain. The mother was worried and went to the Canton court.4 The response she got was that as long as there was nothing concrete, nothing could be done. A mother in another case had seen the abduction coming. The father had been threatening her that if she did not return to their relationship (they were in the process of getting divorced), he would abduct their son. He had put his son on his own passport and had changed his name, so that it would be easier to cross the borders.   Justice de la paix / vredegerecht.

4

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This mother said that the father became violent after the son was born. They separated, but he never really accepted this. She said: The Friday before he left, we were at the court and the judge asked me whether I thought that I was in a movie, whether I really thought that he was going to kidnap my son. [. . .] And I said he warned me that he would take the kid if I did not want to live with him. And on the Saturday, as I was obliged to allow him to have contact with the child, but actually he had to give me his passport. He came to fetch him every other weekend. And he left the weekend just after the hearing. He said to me, since the judge said that I could see the child, can I see him? And the kid had also asked me to see his father, I was in any case obliged to allow him to see the child, so why would I play hard ball and demand the papers? And that weekend, well, he left and on the Sunday he called me from X to say that he was there.

One must bear in mind, however, that interviews were taken only in cases where an abduction had effectively taken place. There might be stories of abductions that were successfully prevented, unknown to the author.

V  The Issuing of Travel Documents When a child travels across international borders, like an adult, he or she needs a passport or identity document. Some countries accept identity documents and do not require travellers to have passports.5 When a passport is needed, most European countries require children to have separate passports and children cannot be included in the passports of one of their parents.6

A  Parental Authority and the Issuing of Travel Documents Applying for an identity document or passport for a child can generally be seen as part of the exercising of parental authority. Thus, broadly speaking, a parent who has parental authority can apply for an identity document or passport for a child. Often, both parents have parental authority. In Belgium, this situation is the rule and it is only in exceptional circumstances that parental authority is withdrawn from a parent. This means that there are two persons who can apply for identity documents. In situations of family conflict, it means that two people who do not get along can apply for such documents. Belgian law, as has been explained in chapter four,7 provides for a presumption for third parties that when one parent takes a decision regarding the child, that 5   This is the case in the European Union (EU), for instance if a child travels from Belgium to the United Kingdom. Some other countries also accept identity documents instead of passports. 6   This is in line with the recommendations of the Hague Conference on Private International Law. See Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part III – Preventive Measures (2005), available at hcch.e-vision.nl/ upload/abdguideiii_e.pdf, 8–10. 7   See chapter four, section entitled ‘Knowledge of Third Parties, Including Local Authorities, of the Parental Authority over a Child’.



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decision is carried by the other parent. The presumption has general application and can only be set aside if the third party had reason to believe that the other parent did not support the decision being taken. When there is a judgment granting parental authority to one parent only and the local authority is notified, this would set aside the presumption. However, parents, and often their lawyers, are not aware that they have to inform such authorities themselves. A more efficient solution would be that judgments regarding parental authority for children, or the issuing of passports be communicated directly by the public prosecution to local authorities (which issue passports). The existence of the presumption of course simplifies the daily lives of the parents, whether they are still together or separated: they do not have to ask signed letters of each other every time permission is required for a child to go on an outing with the school, etc. However, the presumption also has the result that one parent can apply for identity documents without the other parent even being aware of this. The Ministry of the Domestic Affairs has published a circular to local authorities (who issue identity documents and passports in Belgium), reiterating the presumption that a parent is deemed to consent to an act by the other parent.8 In this circular the Ministry states that the local authority where the child resides may not refuse to issue an identity document for a child unless a parent has requested in writing that such document should not be issued without his or her consent. Thus, the presumption is interpreted strictly, in the sense that good faith will be assumed where no written notice was received. The practices of local authorities on informing the other parent when a parent applies for a passport or identity document, differ: some local authorities always inform the other parent of the application for a passport, or of the issuing of a passport when they notice that the parents no longer live together (because of the Belgian population register, such information is readily available). Indeed, the issuing of travel documents to minors creates difficulties for local authorities in practice because it necessitates a weighing up of different rights against each other: on the one hand the liberty of innocent people should not be infringed and unnecessary hurdles should not be placed in their way. On the other hand, the right of children to maintain contact with both parents should be protected and international child abduction should be avoided as far as possible. An electronic identity document for children, the so-called Kids-ID has recently been introduced in Belgium. Instructions have been given to local authorities regarding these Kids-IDs.9 In these instructions the point of departure is the same as in the circular referred to above: that the local authority cannot refuse the issuing of a document unless a parent has requested in writing that a document may not be delivered to the other parent without his or her consent. The instructions   Circular by the Ministry of Domestic Affairs, 31 January 2007.   Instructions générales relatives aux documents d’identité électroniques pour enfants de moins de douze ans – ‘Kids-ID’, Version du 27 février 2009 (last updated 10 September 2010), available at www. ibz.rrn.fgov.be. 8 9

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then state that if the parents are separated, it is advisable to inform a parent that the other parent has applied for the issuing of an identity document. In such cases, the parent who is informed gets the opportunity to object in writing within seven days. In any event, he or she has then received notice of the request and has the opportunity to ask the other parent about possible plans to leave the country. The civil servant who was interviewed (by telephone) said that the city where she works applies the same method for issuing passports. Some local authorities have consent forms which parents can sign, giving their authorisation that their child may travel with a third person (for instance an organisation) or with the other parent. Some local authorities actively encourage parents to sign such consent forms, explaining on their websites that consent forms are not mandatory, but advisable in case the child travels abroad.10 For purposes of prevention, several possible avenues for improvement exist. The first option is a stricter interpretation of the presumption. The presumption states that if one parent takes a decision when the parental authority is shared, a third party (in this case the local authority) may assume that the decision is supported by the other.11 Such a presumption is in some instances necessary in order not to make the daily lives of parents impossible. However, one wonders to what extent local authorities should rely on the presumption in cases where parents live separately. One of the lawyers interviewed was of the opinion that civil servants should be trained to apply the presumption with caution: if they know that a parent is acting in bad faith, they should not assume that his or her actions are supported by the other parent, but rather contact the other parent. The second option is that legislation be adopted which requires the consent of both parents (with parental authority) before a passport is delivered.12 A number of the parents who were interviewed were in favour of this approach. Such legislation would be in the same line as the instructions for the issuing of Kids-IDs, referred to above, but would go even further. Authorities would be obliged to contact the other parent and would not be permitted to issue documents without the consent of the other parent. However, caution should be taken before amending the legislation. Well-meaning citizens should not be deprived of their freedom unnecessarily. Moreover, modifying the presumption would cause unnecessary complications in the daily 10   See also the Conclusions and Recommendations of the Fifth Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Practical Implementation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, November 2006, available at www.hcch. net/upload/concl28sc5_e.pdf, 7, in which the Permanent Bureau of the Hague Conference on Private International Law is requested to explore the feasibility and the development of a standardised or recommended permission form. 11   See Y-H Leleu, Droit des personnes et des familles 2nd edn (Brussels, Larcier, 2010) 696−97; P Senaeve, Compendium van het Personen- en Familierecht, 11th edn (Leuven, Acco, 2008) 353–54. 12   This rule exists in certain countries; see Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part III – Preventive Measures (2005), available at hcch.e-vision.nl/upload/abdguideiii_e.pdf, 9.



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lives of many parents, as has been emphasised by one of the interviewees from the public prosecution. This veto right should not apply only for the parent with whom the child is domiciled. As has been indicated in the quantitative study, it is often the resident parent that abducts the child. Even though the children do not reside with the other parent, this parent in most instances still has parental authority. Currently, Belgian legislation favours the alternate residence of the children.13 In these cases, the population register permits the child to have only one officially registered address, as is the case for all persons living in Belgium. Thus, while in fact the parents share not only the parental authority, but also the residence of the children, this is not stipulated in the population register. When it comes to the issuing of passports, preference should not be given to the parent with whom the children have their official residence. Another option would be to enter data on parental authority in the population register. This is an idea which has been positively received by some professionals, but negatively by others. Concretely, it would mean that a new code would have to be created for the population register.14 This code would exist only for children. For each child, the person or persons with parental authority would be entered in this space. In the absence of a judgment changing the default legal position, if the child has (legally) a mother and a father (ie the parents are or were married or the father has officially recognised the child), the names of the mother and father would be entered. However, if a judgment changes this, and grants exclusive parental responsibility to one of the parents, the judgment would be communicated to the local authority in the same way as a divorce judgment is communicated. The changes in the parental authority would be indicated in the population register. Restrictions on the parental authority could also be indicated in this space. Some judgments rule that the parental authority remains shared, but that neither parent may take the children abroad without the written consent of the other parent. If this is taken up in the population register, the civil servant processing the request for a passport would have clear information at his or her immediate disposal. There are three concerns for this route. The first is that a restriction on leaving the country might be temporary and might change by way of interim judgments. This means that judgments would have to be communicated meticulously and in a timely manner to local authorities. The second concern is privacy. Several professionals said that information such as restrictions on the exercise of parental responsibility should be handled discreetly. This is, however, true for several matters taken up in the population register. Not all categories of the population register are open for consultation. This category, as it concerns children and their protection, would be a closed category: it would not be visible to all institutions that have access to the population 13   As has been explained in chapter four, section entitled ‘Alternate Residence as Preferred System in Belgium’. 14   All data entered into the population register have separate codes.

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register, but only to the civil servants that need the information in order to assure the appropriate protection of children.15 The third is that this will address only a small percentage of the problems, as parental authority is most often shared.

B Blacklisting One of the classical tips that are given to parents who fear international child abduction is to contact the local authority or the Ministry of Foreign Affairs in order to prevent the issuing of a passport. The Belgian Ministry of Foreign Affairs has a list of children for whom a passport may not be issued without the consent of the other parent. Moreover, a parent may request a local authority in writing not to issue a passport for the child to the other parent without informing him or her.16 However, not many parents know this. (This emerged from a telephone interview with a civil servant working with the population register.) In Canada, when a parent fears the abduction of his or her child, the name of the child can be taken up in the Passport Control List. This is similar to the Passport Lookout System of the United States. These lists put officials issuing passports on alert. In order to have a child’s name placed on the list, one has to provide the names and dates of birth of both parents and of the children.17 In England, the Children Act 1989 provides for a ‘prohibited steps order’.18 Such order prohibits a parent from taking a particular step, or particular steps, in the exercise of his or her parental responsibility without the consent of the court. It is also possible to issue an all ports warning. This means that the details of a child at risk of abduction are circulated to all ports and airports to prevent the parent from leaving with the child.19 This system works in an island state where the only places of entry are ports and airports. The United Kingdom is also not fully part of the Schengen system: it has not abolished border controls. In France, it is possible to have a notice inserted in parents’ passports to prohibit them from taking the child out of the country without the consent of both parents.20 One of the Belgian lawyers said in an interview that it might be possible on an administrative level to mention in a passport if there is a prohibition to leave the country with the child, in the same way as in France. Such notice could 15   Information on the operation of the population register obtained from a telephone interview with a civil servant. 16   See the Circular by the Ministry of Domestic Affairs, 31 January 2007. 17  See ‘International Child Abduction: a Manual for Parents’, available at www.voyage.gc.ca/ publications/child-abductions_enlevements-enfants-eng.asp#1. 18   Children Act 1989 s 8. 19   N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 616–17. 20   The French Civil Code art 373-2-6 provides that judges can take measures to ensure that the child can maintain contact with both parents. §3 of this article explicitly mentions the possibility of inserting a notice in passports.



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be inserted after a judgment in terms of which a parent is prohibited from leaving the country with the child. If this route is pursued, it must be possible to amend this comment at a later stage if necessary. Comments in passports must be kept up to date in order not to prejudice well-meaning citizens. An official working with the public prosecution referred to the difficulty of ensuring that administrative lists follow the latest judicial decisions without delay.

VI  Passports, Borders and the Schengen Zone While the Hague Convention (1980) and the Brussels II bis Regulation21 seek to prevent the wrongful international removal and retention of children, the EU and certainly the Schengen agreement in the meantime has phased out international borders. If there are no borders, and one is not required to show any form of identity when leaving or entering a country, the international abduction of children of course becomes easier.22 In some cases, it also becomes less clear for citizens that they are transgressing the law. It would be hard to argue for the reintroduction of borders, but there should be some form of consistency: either one is in a different legal zone, or the legal zones have been completely unified. It is hard to deal with international abductions where the international element, at least for the actors concerned, seemed to have disappeared. At the same time, police, judges, public prosecutors and the like function locally. This divergence should in some way be addressed if one is really serious about resolving the problem of ‘international’ child abduction. When the parents were asked for recommendations on how to prevent international child abduction, several of them said that it is vital that a child should not be able to travel without the written authorisation of both parents. Linked to this, some parents also say that there should be more thorough checks at airports or other borders. The problem is of course that requirements of authorisation do not have much point if there is no-one to check the authorisations, because persons are permitted to move freely from one country to another. One father explained that a mother, her new partner and her child most often have different surnames.23 He said that if the border authorities were attentive, they would at this point ask who the father is and ask for proof of authorisation by the father to leave the country with the child. This father’s daughter was 21   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 L338/1 (The ‘Brussels II bis Regulation’). 22   The Hague Conference on Private International Law addresses this issue in its ‘Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part III – Preventive Measures’ (2005). It refers to the possibility of initiating temporary border controls. See p 11. 23   Belgian married women keep their maiden names and do not take the surnames of their husbands.

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abducted to Morocco. In such cases, one can of course require the authorities to be attentive. However, they should not limit the freedom of innocent citizens. This is always a delicate equilibrium to find. Moreover, in cases of abduction within the Schengen zone, there simply is no border to cross where the authorities can be present and attentive. The Schengen zone has an information system, the SIS, which contains details of missing persons and of persons sought for criminal activities. This is a single information system which can be consulted from different countries. It has the result that people being sought in one country can be found in another if they for some reason come into contact with the authorities there. It is thus a mechanism that can also be used to find children who have been abducted within the Schengen zone.24

VII  The Role of the Police in Preventing International Child Abduction One father said that he thought that the police services should act quicker on the fear of a parent. In his case, he had reported the non-presentation of his children to the police. While he did not know where the children were, they were still in Belgium at that point, and left only nine days later. Thus, they could still have been stopped. A mother had a similar experience: she told the police that she feared that her child’s father would abduct the child. They responded that nothing could be done as long as there was no offence. A mother thought that the police should be able to give parents more information when they report an international child abduction. They should be able to tell the parent which steps to follow. Indeed, the police are often the first port of call after an abduction and if the police tell parents to contact Child Focus or the Central Authority, precious time is not wasted. It emerged from the study that the practices of local police services vary on this point. Some do refer parents and give information, others do not. It is also recommended that parents report threats of abduction, or their fears based on concrete facts to the police. Professionals said that these parents must make sure that the police draw up a report of their fear. This does not mean that proceedings will immediately be commenced, but it provides the parent with evidence of his or her fear. 24   This system is currently undergoing modernisation. See Council Regulation (EC) 1987/2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) [2006] OJ L381/4. The introduction of the new system has been delayed; see European Parliament Resolution of 22 October 2009 on progress of Schengen Information System II and Visa Information System [2010] OJ C265/E 1. A study has been conducted on the use of the Schengen system for Child abduction, see the Institut de dret públic’s final report under the coordination of D Moya, ‘Alert on Minors. Feasibility Study on Creating a New Category of Alerts in the SIS on Minors Precluded from Leaving the Schengen Area’ (2005).



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VIII  Training of Professionals and Spreading of Information Several experts said that information about the legal instruments and possible remedies should be spread in the broadest possible way. This should include training for legal practitioners, police and other professionals, information sessions for parents, the dissemination of brochures and easily accessible books and the creation of informative websites. The media (including radio and television) should also be used as a method to spread information. Someone from the Central Authority added that information should also be spread on the possibility of mediation. Some professionals thought that information should also be spread before people marry or have children. They said that people have to be made aware of the fact that having children is for life. They will continue to have a connection with the other person even if the relationship breaks up, because they will continue to be the parents of the same child. A judge said that society is changing: more people live together and have children without marrying. She said that when people do marry, they think about a long-term relationship. However, when people live together, they do not necessarily consciously contemplate their long-term future. It can happen that a child is born while the parents do not have the same type of long-term commitment. Divorce or separation has become easy and socially acceptable, the judge said. At the same time, however, the Belgian legislation presupposes a much more intensive bond between parents. This is visible in rules on joint parental authority (irrespective of whether parents are married, divorced, living together or apart), alternate residence of children, etc. She said that people think that they can break up a relationship, but they do not think of the fact that they have to carry on living as co-parent with that person for approximately 20 years. She said that information should be disseminated in schools, together with sex education. At that point, young people should not only be made aware of their rights, but also of their responsibilities towards children.25 Someone from the Central Authority thought that an agreement, similar to an antenuptual contract, could be conceptualised. Parents could then sign this agreement and have it notarised before they have children. The agreement could cover issues such as the education of the child, the religion that the child would be brought up in, where the child would be brought up, etc. Such agreement should be open for persons that are married as well as for persons that are not married. It would be similar to those reached by parents divorcing by mutual consent under Belgian law, but it would be concluded before divorce or separation. 25   It is relevant to recall at this point the terminology used by the Brussels II bis Regulation: parental responsibility, and not parental rights or parental authority.

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Psychologists added that information should be distributed to parents to make them aware of the risks of child abduction. Such information should reach parents as early as possible. A lawyer said that information explaining the Belgian legislation on parental responsibility and residence of children after divorce should be disseminated, among others, at migrants’ organisations. In the case of cross-cultural relationships, parents should be encouraged to think of the cultural, religious and moral values that they find important for the education of their child.

IX  Warning Signs: When are Preventive Measures Appropriate? A number of the professionals that were interviewed mentioned the ways in which they distinguished situations in which there might be a real risk of abduction from those in which parents merely feared abduction where there were no indications that the fear was really founded. The following warning signals were mentioned: •  there is aggravated conflict, sometimes after repeated legal proceedings; •  a parent has a link with a foreign country; •  a parent has apparent future perspectives in another country, such as work possibilities or family, etc; •  a parent has debts in Belgium; •  a parent is not well integrated in Belgium, for instance, has no new partner, no job, no friends or family in Belgium, etc; •  a parent has resigned from his or her job; •  a parent has sold his or house, furniture and/or car; •  a parent has bought plane tickets; •  a parent has uttered real threats (verbal or in letters) to the other parent or to friends or family members of planning to leave with the child; •  the child has told a parent that he or she was going to move to another country with the other parent; •  parents have not been able to find a compromise regarding the education and religion of their children; •  children are not integrated in Belgium; •  a parent denies the other parent contact with the child, or does not respect the residence/contact arrangement; •  violence between parents. However, some professionals with years of experience still said that it was difficult to determine whether there is a real threat of abduction. The decision on whether



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and how to act on a parent’s fear of abduction is vital. Wrong action at such a delicate moment can be provocative and lead a parent to avoid contact with the other parent or decide to leave the country earlier than planned. Persons working at the public prosecution have to assess when there is a real risk of international child abduction, calling for preventive measures. Preventive measures can include: •  giving notice to local authority not to issue passport; •  putting a parent’s name on the ministry of foreign affairs’ blacklist so that a passport cannot be issued without the consent of the other parent; •  advising the parent who fears for an abduction to apply for passports for the children and to store them away: this measure is not always effective, because the other parent sometimes applies for a new one, telling the local authority that the passport has been lost; •  requesting embassies (in Belgium) of countries of which the parent or child has the nationality not to issue a passport: several professionals thought that this would not necessarily be effective, because embassies have the function of assisting their citizens, and they would not necessarily pay heed to such requests, and indeed a person from an organisation said that he knew of a case where the Malaysian embassy in Belgium was asked not to issue a passport, but issued it nevertheless; •  warning the school/nursery school of the risk of an international child abduction: the attention that schools pay to this varies, but an official from the public prosecution has said that her impression is that schools have become quite careful; •  informing other authorities and persons: this has to be done by the parent or lawyer, as it is not the police’s task; •  taking up a prohibition to leave the country in a judgment and communicating the judgment to the local authority where a passport might be issued: in Belgium this does not happen automatically, but should be done by the parent or lawyer; •  requesting exclusive parental authority over the child to the parent who will not be leaving (although this is a harsh measure which might not always be effective, but can frustrate the potential abducting parent and leave him or her to feel pushed aside in his or her parenthood) and informing the local authority of such exclusive parental responsibility (in Belgium this does not happen automatically, but should be done by the parent or lawyer); •  requesting a parent to leave his or her passport and those of the children with the other parent when he or she has contact with the children, or requesting the passport to be held by a bailiff or a lawyer; •  issuing an alert (in the Schengen information system) for a parent and child: the right to liberty dictates that such drastic measure should only be put in place where there is an apparent risk of abduction; moreover, in case of a criminal offence (only if there is a judgment on the parental authority), an abducting parent can be arrested, if there is no criminal offence (no judgment), the alert can be used only to find the parent;

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•  interrogating the parent (this is usually done by the police, but can also be done by an official of the public prosecution), asking his or her future plans, including a move and professional activities. Someone from the Federal Police (Brussels) said that some of the measures, such as forcing a parent to hand over his or her passport, can be humiliating. Care should thus be taken to impose preventive measures in an appropriate manner, and not in a way that aggravates the conflict because one parent feels humiliated. A psychologist said that in order to decide at which point legal preventive measures should be taken, the contribution of the parents is important. The psychologists said that there are warning signs beforehand in the majority of cases of international child abduction. They said that where there is denigration of one parent by another, this calls for action in the same way as a threat of abduction. They thought that prevention starts at an earlier stage, and is done by communication rather than hard measures such as those explained above. Attention should rather be paid to the conflict in the family and this should be addressed with the necessary professional assistance. Reference should be made here to the legislation in the Netherlands that requires parents to draw up a plan of their family affairs after divorce. This includes the residence of the children.26

X Grandparents In some cases, grandparents play a role in the abduction itself. This, as well as the fact that grandparents sometimes assist with the preparations, means that prevention, raising awareness and spreading of information should also target grandparents and not only parents.

XI Schools Someone from an organisation said during an interview that schools should become more involved in prevention, for instance when they are told that one of the parents is not permitted to fetch the child from school. Moreover, one might tentatively conclude that schools could ask whether both parents are aware of a child’s enrolment. This might be done in a systematic way. In cases where both parents have parental responsibility, this should not pose too big a practical hurdle.

  See chapter two, section entitled ‘Principal, Secondary and Alternate Residence’.

26

Conclusion 227 Alternatively, schools could send an email to the other parent, ensuring that he or she is aware of the enrolment. This does mean that the enrolling parent would be asked to provide the details of the other parent and must be trusted to give the correct information. It might also pose difficulties: a parent can get the impression that the school is checking on his or her intentions. This might prejudice the relationship of trust which should exist between the parent and the school. Moreover, it can cause an administrative burden for schools. In some cases, the old school has to forward information to the new school. In these cases, the old school could be asked to contact the other parent in order to inform him or her of the request to send information. Such a step might help to prevent abduction, where it has not already taken place. It might assist in making clear the true intentions of a ‘holidaying’ parent. In cases where a parent enrols the children beforehand, such alertness by schools might help to prevent abductions. However, practical difficulties should not be overlooked. Schools have a lot of administration to handle and cannot always take care of possible child abduction.

XII Conclusion Since the perception of international child abduction is far removed from reality, attempts at prevention are often misdirected. This chapter has considered the possible measures that can be taken in order to avoid international child abduction. The law does provide certain tools, but others are available after a judicial order has been issued. Law provides hard prevention measures. However, such measures, when taken at the wrong time or targeting the wrong person, might increase the already-­ existing conflict between the parents. In some cases it might literally push a parent away. The psychologists have emphasised this negative effect of prevention measures imposed by the law. According to them, prevention should take the form of assisting families to deal with conflict before it is too late. Time can serve as an aggravating factor. Parents must seek professional help while dialogue is still possible. They should not wait until there are indications of a planned abduction.

10 Conclusion The starting point of international child abduction lies with family conflict, with a parent who is unhappy in a relationship or more generally in the country where he or she lives, with people’s views on parenthood, parental responsibility, alternate residence of children, and the perceived roles of mothers and fathers. One of the stumbling blocks in preventing child abduction is the lack of understanding what the concept of joint parental responsibility entails in practice. It is important that information is disseminated to young parents, informing them of their rights and obligations under family law. They should also be made aware of ways in which to solve their conflicts before it is too late. Communication between parents is important: they should know how the other is thinking. Such communication can prevent unjustified fears of abduction. Someone from the public prosecution said that parents should try to organise the residence and contact arrangement concerning the children before their separation. They could formalise their agreement in a judicial decision. Parents must be able to separate their own hurt and (in some cases) hate from the communication with the other parent in his or her role as parent. Even though the relationship has broken up, the two persons are still parents of the child and will, for the remaining years until the child is independent, be obliged to have some form of contact with each other. Where possible, parents should stay friends out of respect for their child. A parent must have the other parent’s happiness at heart. One has to respect contact arrangements, and even allow more contact with the children than foreseen in a judgment. If a parent is happy with the contact arrangement, the chances of he or she leaving are smaller. In cases of cross-cultural marriages or partnerships, parents should try to see the enrichment that this could bring to their children, and allow them to benefit from the different cultures. At the same time, attention should be paid to the integration of foreigners in Belgium, at least to the point that the foreigners themselves are happy and see a future there, even if their relationship breaks up. Practising lawyers certainly have a role to play in the dissemination of this information, especially on Belgian family law and the illegality of international child abduction. When working with international child abductions, the international context requires contact with authorities in other countries. Trouble should be taken to ensure proper and adequate international contact. Also, judges and legal

Conclusion 229 practitioners should be encouraged to think internationally and to build up a network beyond Belgium’s borders. Moreover, the coordination meetings that are held in child abduction cases and in which the authorities, institutions, lawyer and parent involved discuss a common strategy, are well-regarded by professionals and parents alike. The participants of these meetings get the opportunity to consider the particular circumstances of each case, including the countries involved, the existence of judicial decisions, the age of the child and the potential for dialogue between the parents. The role of the left-behind parent is very important in these coordination meetings, as that is the person who knows the abducting parent best and can give valuable information on him or her. It has clearly emerged from the research that enforcement remains one of the most difficult issues. Creativity is necessary to find adequate solutions, as every case is different. Parents should be prepared by psychologists for the meeting with the other parent and with the children. Policemen also have an important role to play in order to ensure the enforcement of judgments. There might even be mediation after a judgment in order to discuss the modalities of the return. Alternatively, a judge can stipulate the modalities. Regarding the matter of enforcement, cooperation between authorities of different countries is indispensable. Care should be taken when preventive measures are used. Proactive prevention is more effective than reactive prevention, which can drive a parent further away if not done carefully. Proactive measures should aim at reducing conflict, rather than scaring people by harsh legal measures, which can be counter-productive. While a legal framework is necessary, attention should be paid to assist parents by making them aware of their duties and of the negative effect that abduction has on their children. A much more efficient way to prevent international child abduction is by the creation of a climate of mutual respect. In this climate, conflicts are addressed and kept under control rather than permitted to dictate contact between parents and children.

Annex I List of Variables Used for Quantitative Analysis 1. Case open/closed. 2. Abducting parent age. 3. Abducting parent info (mother, father, grandparent, or other family member). 4. Abducting parent nationality. 5. Abducting parent nationality 2. 6. Abducting parent country of birth. 7. Abducting parent country of residence at moment of abduction. 8. Abducting parent town/city of residence at moment of abduction. 9. Abducting parent country of residence after abduction. 10. Abducting parent employment. 11. Left-behind parent age. 12. Left-behind parent info (mother, father, grandparent, or other family member). 13. Left-behind parent nationality. 14. Left-behind parent nationality 2. 15. Left-behind parent country of birth. 16. Left-behind parent country of residence at moment of abduction. 17. Left-behind parent town/city of residence. 18. Left-behind parent employment. 19. Relationship between parents. 20. Number of children in family. 21. Number of children abducted together. 22. Child 1 date of birth. 23. Child 1 gender. 24. Child 1 nationality. 25. Child 1 nationality 2. 26. Child 1 country of birth. 27. Child 2 date of birth. 28. Child 2 gender. 29. Child 2 nationality. 30. Child 2 nationality 2. 31. Child 2 country of birth. 32. Child 3 date of birth. 33. Child 3 gender.

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34. Child 3 nationality. 35. Child 3 nationality 2. 36. Child 3 country of birth. 37. Child 4 date of birth. 38. Child 4 gender. 39. Child 4 nationality. 40. Child 4 nationality 2. 41. Child 4 country of birth. 42. Child 5 date of birth. 43. Child 5 gender. 44. Child 5 nationality. 45. Child 5 nationality 2. 46. Child 5 country of birth. 47. Child 6 date of birth. 48. Child 6 gender. 49. Child 6 nationality. 50. Child 6 nationality 2. 51. Child 6 country of birth. 52. Parental authority. 53. Person with whom child has principal residence (legally). 54. Primary caretaker factually. 55. Contact arrangement for other parent. 56. Way in which arrangement was established. 57. Was the access/contact arrangement respected before the abduction? 58. Last common activity between child and abducting parent before abduction. 59. Last common activity between child and left-behind parent before abduction. 60. Date of abduction. 61. Timing of abduction. 62. Country from where child(ren) abducted. 63. Country to which child(ren) abducted. 64. Primary caretaker (factually) after abduction; before return. 65. Return? 66. Date of return. 67. Time between abduction and request with Central Authority. 68. Time between request with Central Authority and institution of court proceedings. 69. Time between abduction and institution of court proceedings. 70. Time between institution of proceedings and judgment (first instance). 71. Time between institution of appeal and judgment. 72. Time between final judgment and return. 73. Time between request with Central Authority and finalisation of file. 74. Type of procedure. 75. Was there free access to judicial assistance? 76. Child 1 heard during proceedings.



List of Variables Used for Quantative Analysis

77. Child 2 heard during proceedings. 78. Child 3 heard during proceedings. 79. Child 4 heard during proceedings. 80. Child 5 heard during proceedings. 81. Child 6 heard during proceedings. 82. Has there been mediation started after the abduction? 83. Timing of mediation. 84. New custody arrangement after abduction? 85. Content of new custody arrangement. 86. New access arrangement after abduction? 87. Content of new access arrangement. 88. Way in which new arrangement was reached. 89. Had a file been opened before abduction? 90.  Way in which solution was reached (for closed cases).

233

Annex II Consent Form for Interviews Consent to Cooperate in the PICA Project I am willing to cooperate in a research project on International Child Abduction that is being done by Child Focus. The other official partners in this project are the Universities of Leuven and Louvain-la-Neuve and Kék Vonal, a Hungarian organisation that is active in the domain of children’s rights. The project is cofunded by the European Commission. The research is conducted in collaboration with the Ministries of Justice and Foreign Affairs. The project will result in the publication of a prevention guide on international child abduction. I am aware of the privacy code established by Child Focus and I have received a copy of this. I have also received a copy of the present signed consent form. I have been informed about the aims of the PICA project as well as the main elements of the privacy code. I have also been told about the possibility of erasing and correcting data, and of the claims procedure. Child Focus will analyse my data anonymously. If any quotes from my interview are used in the project report or in the prevention guide, this will happen without mention of my name. Child Focus will send me a copy of the research results, if I wish to receive them. [Signed by interviewer and interviewee].

Annex III Structure of Interviews with Parents Semi-structured Interviews Framework

Possible Questions

Precise Questions if Necessary

Family situation before the abduction: How long have the parents been divorced/ separated? How was the contact between the two parents and between parents and children?

Can you tell me more about your family before the departure of your children? What was the arrangement regarding the custody and access rights with regard to the children?

With whom did the children mostly reside? Was there a judgment that determined where the children would live? Was this followed? How often were the children with you? How often were the children with their mother/ father (the other parent)? How did the visits of the children take place?

Preparation of the abduction. Did the left-behind parent see it coming? Did the abducting parent prepare the abduction?

Did you see the departure of your children coming? Did you plan to leave with your children? In retrospect, do you think that the departure had been planned for a long time? Can you tell me more about the preparation for the departure? Were the children aware of the imminent departure?

How did the children’s last visit (with you/with their mother/father) go? When is the last time you saw the children before their departure? How did the last contact with the mother/father before the departure go?

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Circumstances of the abduction itself: When? How (during the holidays/with violence . . .)

How did the departure happen exactly? Can you tell me more about the departure itself?

When did the mother/ father/did you leave with the children? To where did they/you leave? Do you think that the mother/father of the children knew that her/his conduct was illegal? OR: Did you know that the departure would be against the law? How did you learn about the departure of the children?

First steps after the abduction. Which organisations were contacted?

What do you remember of the first hours after you realised what had happened?

What was the first thing you did when you heard what had happened? Who did you contact first?

During the procedure: How long? Which procedures? Were they efficient? Contacts with organisations.

How did the following months pass? Did you feel well-­ supported? What type of procedures did you try? Did you ever consider mediation? What did you never try?

Which steps did you take? Which organisations helped you with this? Which procedures were started? How long did the proced­ures last? Has there been mediation?

Experiences: Duration. Bad and/or good experiences with organisations, with procedures.

If you look back now on what has happened, what were the positive elements, things that helped to reach a solution? What were the difficult elements?

How long did the procedures last? Were you assisted during the procedures? Which procedures were successful in your opinion?



Structure of Interviews with Parents

239

After the completion of the procedures: Family situation. Communication between the two parents and between the parents and children.

How is your family life afterwards (return or other solution) different from that before the departure of the children? How is the contact / communication now with the mother/father of the children?

Do you have the same amount of contact with your children now than before their departure? How is the contact with the mother/father of the children going?

Recommendations to other parents: How could an abduction have been prevented? OR What is the best first step to take after an abduction? Something that the parent would do differently in future.

What would you now recommend to parents to avoid an abduction? What would you recommend them to do after an abduction?

If other parents asked you: do you think that an abduction can be prevented? If so, how? What do you think parents should do in the first place after the abduction of their child?

Policy recommendations: Do the existing legislative frameworks provide sufficient protection? Do the procedures work efficiently?

If you could change the legislation, what would you do? Can you tell me more about your experiences with the existing legislation and its application?

Which legislation is effective/helped your case, according to you? Which legislation is bad in your opinion, or did you experience as a burden?

Something that you would like to add.

Annex IV Structure of Interviews with Professionals Semi-structured Interviews Framework

Possible Questions

Precise Questions if Necessary

Regularity of work in this domain: How much experience does the person have? Especially in the past/ more recently? Other related domains in which the person works.

Maybe you could first of all tell me how often you encounter the problem of child abduc­ tion in your daily work. How does this relate to the remainder of your tasks?

How often do you work with a family/parent of which a child has been abducted? Which other related tasks form part of your job?

Reasons for working on this topic: How did the person find him/herself working with this topic? (Sometimes incidentally, but maybe because of a passion or a realisation that there is a need.)

How did it come about that you are doing this work?

How did it come about that you decided to specifically work in the domain of child abduction?

Recurring patterns: Remarkable matters that always/often recur.

If you regard your expe­ Would you be able to riences, which issues predict an abduction? In which cases? stand out the most? Are there patterns that you often see recurring in practice?

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Biggest hindrances: Legislation or the working methods that should be improved.

In your experience, what is the greatest hindrance to doing your work correctly and efficiently?

Are there rules which you find make it difficult for you to do your work? Are there particular practices/habits/con­ ventions at the services working with child abduction that prevent reaching a desirable solution?

Support to those involved: What is the most difficult for the people involved? How is this addressed? (Lawyers = which procedures, which feedback; Psychologists = how to provide support?)

How do you support those involved? In your experience, which procedures have the greatest chance of success?

Which steps do you take in your cases? Do you sometimes consider mediation? How do you react on the complaint that every­ thing is taking way too long?

Contacts between orga­ nisations/professionals: Is information shared correctly and timeously? Is there good cooperation between services /organisations/departments/ professionals?

Which course does the cooperation between the different services/ organisations/depart­ ments and yourself take?

Are there particular organisations with which you enjoy cooperating? Are there organisations with which you cannot cooperate at all? Do practical issues such as language form impor­ tant hindrances?

After the procedures: Taking up normal life: with success? Are those involved still provided with support?

Do you experience that the family life of those involved after an abduc­ tion differ strongly from the situation before? Do you still have a task after the judicial completion of the case? (especially for psychol­ ogists).

Which course do the international contacts take?

Which course does the communication in families take after an abduction? How long do you think it takes before life can return to normal after an abduction?



Structure of Interviews with Professionals

243

Recommendations to the parents: How can abductions be prevented? OR, what is the best first step to take after an abduction? Something that people should be doing differently. Things that people should know. Can mediation play a role?

What would you recommend to parents to prevent an abduc­ tion? What would you recommend to do after an abduction? Do you think that these issues are sufficiently known with the public at large? Do people have suffi­ cient access to correct information?

If parents ask you this: do you think that an abduction can be preven­ ted? If so, how? What do you think is the first step that parents should take after the abduction of their children? Are there things that people should know, but of which they are often unaware? Is there a role for mediation?

Policy recommenda­ tions: Do the existing legislative frameworks provide sufficient protection? Do the procedures work efficiently? Do the relevant services/ organisations/departments have the necessary staff, resources, and training?

Could you tell me more about your experiences with the existing legisla­ tion and its application?

Which legislation is, in your experience, good/ has helped you? Which legislation is bad, in your opinion/have you experienced as a hindrance. If you could change the legislation, what would you do? Strong/weak points of the EU system, the Hague Convention and other conventions?

Anything you would like to add?

Annex V Policy Recommendations that were made on the Basis of the Research Results The following recommendations were formulated as an outcome of the quantitative and qualitative studies that have been conducted in Belgium for the period between 2007 and 2008 (co-financed by the European Commission). They also take account of the existing literature and of other studies and pilot projects in other countries or internationally. The Conclusions and Recommendations of the Hague Conference’s Special Commission of 2006 to review the operation of the Hague Child Abduction Convention (1980) were also taken into consideration. The recommendations must be read in the light of the Belgian context. However, some of them might serve as an example for other states. Child Focus (Belgium) and Kék Vonal (Hungary) have published prevention guides based on the results of the research. These guides are addressed to professionals who work with international child abductions, or who may come across this problem in their work in the sphere of family law or family therapy. They complement the already existing Guide to Good Practice under the Hague Convention (1980) on Preventive Measures. While this Guide addresses only cases under the Convention, the Belgian and Hungarian guides also address cases to which no convention applies, and they focus on the particular legal and social contexts of their country.

I  Recommendations for Policymakers and the Legislator (a)  Before a passport or Kids-ID is issued for children, the written consent of all persons with parental authority should be required. The purpose of this recommendation is to ensure that all persons with parental authority are aware of the child leaving the country. Although the measure will create extra administration for local authorities, many of these authorities are already prudent when issuing passports and Kids-IDs. Their workload will thus not be increased in an unreasonable way. There were also concerns that the measure might place an unreasonable burden upon parents and encroach on their freedom. However, it will not be required that all persons with parental authority

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are present when applying for the passport or Kids-ID, but that they sign a document. While the importance of appreciating parents’ freedom is acknowledged, this should not outweigh the protection of children. This measure can be implemented by an amendment to the Civil Code. The presumption that a decision by one parent bears the consent of the other does not apply to the application for passports and Kids-IDs. The Central Authority could assist in initiating such amendment. Alternatively, local authorities (communes) should be encouraged to inform a parent of an application by another parent for a passport or Kids-ID. The nonapplying parent should be permitted to notify the authority of his or her disagreement within a short period of time. This measure can be implemented by a circular from the Minister of the Interior. (b)  Integration courses for foreigners should contain basic information on family law and joint parental authority Integration courses currently exist in the Flemish Community (compulsory for certain immigrants, but not others in the Flemish Region, and not compulsory in Brussels). Such courses are offered in some of the communes in the Frenchspeaking Community and in Brussels. The family law rules (including rules on parental authority and the residence of children after divorce) form part of the legal culture in Belgium. Immigrants should be aware of these rules. This measure can be implemented by adding the topic of family law to the already existing courses. In Flanders this falls within the competence of the Flemish Minister of Integration. In the French-speaking Community and in Brussels, where the communes have instituted integration courses, they determine the content. (c)  Mediation and low-conflict methods of resolving family disputes should be promoted. There should be a widespread awareness of the risks of family conflict and parental alienation. Families should be encouraged to seek the least contentious way to resolve their disputes. A change of mentality among the professionals working with family conflict is necessary. Currently, some professionals still tend to attempt solving family conflicts only by court proceedings. This measure can be implemented by paying attention to mediation and other noncontentious ways of resolving disputes in the training of lawyers, judges and other professionals, and by awareness campaigns. The promotion of mediation could become a task of the Federal Mediation Commission. The Central Authority could also assist in the effort of seeking voluntary return, via amicable solutions or mediation. (d)  A network (‘liaison’) judge should be appointed for the International Hague Network of Judges. The function of this judge would be to participate in the international network created by the Hague Conference on Private International Law and to serve as judicial contact point for judges from other countries. He or she should also be



Policy Recommendations made on the Basis of the Research Results

247

available to provide information and assistance to local judges in Belgium on international family law cases. Where necessary, the judge should serve as gobetween for Belgian and foreign judges. This network concerns more countries than the European Judicial Network. The two networks should complement each other. This network exists alongside the network of central authorities. Due to the principle of separation of powers, it is more appropriate for judges to communicate with judges in other countries, rather than only with central authorities. Moreover, central authorities often have close contact with one of the parties and are not always perceived as neutral in the way that judges should be. This measure can be implemented by a decision by the Minister of Justice, in consultation with the judiciary. (e)  When Belgium gives family reunification visas for children, the written consent of all persons with parental authority should be required. A Belgian citizen, EU citizen or other foreigner authorised to live in Belgium has the right to let his or her partner and the children of that partner join him or her in Belgium. In issuing visas for these children, the other parent’s rights should not be infringed. This measure can be implemented by an amendment to the legislation on migrants’ access rights to the country. (f)  The coordination meetings that are taking place between Belgian authorities, parents, their lawyers and Child Focus are highly appreciated. The holding of such meetings should be continued and extended. When arranging such meetings is practically more difficult (for instance when cases are not located in Brussels), video or telephone conferences could be used to facilitate communication. These meetings are usually organised by the public prosecutors. These initiatives should be continued. Other intervening authorities should be encouraged to take similar initiatives, also in the absence of legal proceedings. (g)  Police services should be encouraged to draw up reports when threats of leaving the country with a child or situations in which a parent has left the country with the child are reported to them, even when no criminal offence has taken place yet. Even though criminal proceedings cannot be initiated in some cases, the reports may be useful for parents at a later stage. The police can also refer parents to the Central Authority or Child Focus. They can also advise parents to contact the local authorities or the Ministry of Foreign Affairs (in writing) in order to prevent the issuing of a passport or Kids- ID to the other parent without their consent. This measure can be implemented by a circular to all police services.

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II  Recommendations for the Judiciary (a) Children should be heard in proceedings concerning parental authority, residence and contact, unless there are strong counter-indications. When a child is heard, this should be done in a child-friendly way, by professionals that are trained to communicate with children (the judge him or herself or a social worker or psychologist drawing up a report for the Court). When a psychologist or social worker draws up a report, this person should be familiar with the international legislation on parental responsibility. Under EU legislation, if the child had not been heard in the proceedings, this can provide a ground for refusing the recognition and enforcement of the judgment: this is the case if the non-hearing of the child violates the fundamental principles of procedure in the State where recognition or enforcement is sought. This measure can be implemented by training and awareness campaigns.

III  Recommendations for Professionals Working with Families in Conflict and Families at Risk of an International Child Abduction (a)  Professionals working with families in conflict or families at risk of an international child abduction should encourage parents to resolve their disputes at a time when communication is still possible. Friendly settlements and mediation should be promoted. Where a separation is inevitable, efforts should be made to assist parents to separate on good terms so that communication and co-­parenting will still be possible after the break-up. This measure requires a different approach to family conflict than one in which litigation and court rooms dominate. Training (continued learning) and awareness campaigns among lawyers, judges and other professionals should point out the advantages of friendly settlement of disputes. (b)  Where necessary, professionals should refer parents to lawyers specialised in international family law. This measure can be implemented by drawing up a list of lawyers specialised in international family law. Child Focus could, in cooperation with the Central Authority and the Bar associations, draw up such a list and make it available. This measure can be a short-term response to the problem that lawyers are often not aware of international legislation in family matters. (For a more sustainable response in the longterm, see Recommendation IV (b).)



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(c)  Information on the meaning of joint parental authority should be spread as broadly as possible. Professionals should make an effort to give this information when contacted by families in conflict. (d)  Immigrant parents should be assisted in integrating into Belgian society, in order for them to create happy lives for themselves and their children. A parent who is not well-integrated in Belgium and who has no ties (such as job, friends, social activities) outside the family, is more likely to leave the country with his or her children when difficulties arise in the relationship. This measure can be implemented by pointing immigrant parents to social activities and clubs, and by assisting them in finding jobs. Schools might play a role in spreading information about existing associations or networks. (e)  In the aftermath of an international child abduction (whether or not the child returned), parents should be referred to social services that can provide psychological and emotional support. This measure can be implemented by keeping up-to-date information on the various social and welfare services that work with children and families, and the roles they can play to assist families. Child Focus and the Central Authority can play a role in collecting and distributing this information.

IV  Recommendations for Bar Associations (a)  Lawyers should pay more attention to the possibility of mediation in family conflicts. Lawyers working in family law should be able to see the advantages, in the longterm, of friendly dispute settlement and mediation. This measure can be implemented by providing information to lawyers and by pointing out the role they can play in mediation. This can be included in their training (initial training and continued learning). (b)  Lawyers specialised in family law should be encouraged and trained to have regard to the international elements of this branch of the law. This measure can be implemented by training (initial training and continued learning). (c)  Lawyers should be made aware that in cases where measures for the prevention of an international child abduction are included in a judgment, certain steps should be taken to ensure the efficient implementation of such measures.

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In order to ensure that a passport is not issued to the other parent, they have to contact (in writing) the local authorities, the Ministry of Foreign Affairs, or the consulate of the country of the child’s nationality. If the judgment prevents the other parent from leaving the country with the child, the lawyer should contact the public prosecutor to consider the appropriateness of issuing an alert. This measure can be implemented by training and by providing this information to lawyers.

V  Recommendations for Further Research (a)  The support networks available for families in the aftermath of an international child abduction. (b)  The possibilities of mediation at the various stages (before, during and after) of an international child abduction. (c)  Family mediation in an international or intercultural context. (d)  The perceptions and fear of alternate residence. The relationship between residence arrangements in different countries and the rate of international child abduction from these countries might also be explored. (e) Appropriate ways to hear children in legal proceedings concerning the parental authority over them or their residence.

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254 Bibliography Harrel, SW, ‘Why Attorneys Attend Mediation Sessions’ (1995) 12 Mediation Quarterly 369–77. Hayez, J-Y and Kinoo, P, ‘Hébergement parental alterné et autorité parentale conjointe’ (2005) Revue trimestrielle de droit familial 25–44. Holz, R, ‘International Parental Child Abduction. Part II: The Respondent’s Case’ (2003) The Florida Bar Journal 62–66. Ibili, F, ‘Het verplicht ouderschapsplan in grensoverschrijdende zaken’ (2009) 118 Familieen Jeugdrecht 323–28. Jametti Greiner, M, ‘La protection des enfants dans le cadre d’enlèvements internationaux d’enfants. Les solutions de la Haye’ in G Venturini and S Bariatti, New Instruments of Private International Law. Liber Fausto Pocar (Milano, Guiffrè Editore, 2009) 489−503. Kelly, JB, ‘Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention’ (1995) 13 Mediation Quarterly 85–98. Kruger, T, Civil Jurisdiction Rule in the EU and their Impact on Third States (Oxford, Oxford University Press, 2008). ——, Case Note on Court of First Instance, Brussels, 9 January 2009 (2008) 151 Revue du droit des étrangers (Special issue) 742–46. Lasbats, M, ‘Etude du syndrome d’aliénation parentale à partir d’une expertise civil’ (2004) 11 Actualité Juridique Famille 397. Leleu, Y-H, Droit des personnes et des familles (2nd edn, Brusels, Larcier, 2010). Leslie, DN, ‘A Difficult Situation Made Harder: A Parent’s Choice Between Civil Remedies and Criminal Charges in International Child Abduction’ (2008) 36 Georgia Journal of International and Comparative Law 381−412. Levy Blynn, E, ‘In Re: International Child Abduction v. Best Interests of the Child: Comity Should Control’ (1986–87) 18 University of Miami Inter-American Law Review 353–84. Lowe, N and Douglas, G, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007). Lowe, N, Everall, M and Nicholls, M, International Movement of Children. Law, Practice and Procedure (Bristol, Family Law, 2004) 392. McEleavy, P, ‘The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?’ (2005) Journal of Private International Law 5–34. Meeusen, J, ‘Fifteen Theses on Brussels I, Rome I and the European Union’s Institutional Framework’ in J Meeusen, M Pertegás and G Straetmans(eds), Enforcement of International Contracts in the European Union and Divergence Between Brussels I and Rome I (Antwerp, Intersentia, 2004) 43. Meeusen, J, Pertegás, M and Straetmans, G (eds), International Family Law for the European Union (Antwerp, Intersentia, 2007). Norris, C, ‘Immigration and Abduction: The Relevance of U.S. Immigration Status to Defenses under the Hague Convention on International Child Abduction’ (2010) 99 California Law Review 159−95. Pertegás Sender, M, ‘La responsabilité parentale, l’enlèvement d’enfants et les obligations alimentaires’ in P Wautelet (ed), Actualités du contentieux familial international, CUP Liège (Brussels, Larcier, 2005) 183–218. Pertegás, M, ‘Het jeugdrecht in internationaal perspectief’ in Centrum voor Beroepsvervolmaking in de Rechten, De Procesbekwaamheid van minderjarigen (Antwerpen, Intersentia, 2006) 269–296.



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Pertegás, M, ‘The Impact and Application of the Brussels II bis Regulation in Belgium’ in K Boele-Woelki and C González Beilfuss (eds), Brussels II bis: its Impact and Application in the Member States (Antwerp, Intersentia, 2007) 57–68. Reynolds, SE, ‘International Parental Child Abduction: Why We Need to Expand Custody Rights Protected Under the Child Abduction Convention’ (2006) 44 Family Court Review 464–77. Rigaux, F and Fallon, M, Droit international privé, 3rd edn (Brussels, Larcier, 2005). Schulz, R, ‘The Hague Child Abduction Convention: Family Law and Private International Law’ 44 (1995) ICLQ 771. Senaeve, P, Compendium van het Personen- en Familierecht, 11th edn (Leuven, Acco, 2008). Senaeve, P, Swennen, F and Verschelden, G (eds), De hervorming van het afstammingsrecht (Antwerpen/Oxford, Intersentia, 2007). Van Katwijk, AEH and Wolthuis, A, ‘Het belang van het kind onbemind in kinderont­ voeringszaken Hoge Raad’ (2008) Familie-en Jeugdrecht 58–63. Verheyde, M, ‘Internationale parentale ontvoeringen’ (2003) Nieuw Juridisch Weekblad 990–95. Vermeulen, G and De Pauw, H (eds), Cooperation Between Civil Society Organisations and Law Enforcement Services in the Area of Missing and Sexually Exploited Children. Possibilities and Limits from a European Legal Perspective (Antwerp, Maklu, 2004). Vivatvaraphol, T, ‘Back to Basics: A Child’s Habitual Residence in International Child Abduction Cases under the Hague Convention’ (2009) 77 Fordham Law Review 3325−66. X, ‘Child Abduction’ (2008) 14 International Law Update 106–07. Zander, J, reaction to editorial by K Boele-Woelki (see above) 29 (2007) Tijdschrift voor Familie- en Jeugdrecht 69. Zawid, J, ‘Practical and Ethical Implications of Mediating International Child Abduction Cases: A New Frontier for Mediators’ (2008) 40 University of Miami Inter-American law Review 1−47.

Psychology and Sociology Agopian, MW and Anderson, GL, ‘Characteristics of Parental Child Stealing’ (1981) 2 Journal of Family Issues 471–83. Bensussan, P, ‘L’aliénation parentale : vers la fin du déni ?’ (2009) 167 Annales MédicoPsychologiques 409–15. Bernet, W, ‘Parental Alienation Disorder and DSM-V’ (2008) 36 The American Journal of Family Therapy 349–66. Bow, JN, Gould, JW and Flens, JR, ‘Examining Parental Alienation in Child Custody Cases: A Survey of Mental Health and Legal Professionals’ (2009) 37 The American Journal of Family Therapy 127–45. Carmody, DC and Plass, PS, ‘Family Abductions: An Examination of the Role of Offender Gender’ (2000) Gender Issues 58–63. De Becker, E and Ali-Hamed, N, ‘Les fausses allégations d’abus sexuels sur mineurs d’âge : entre Munchausen par procuration et alienation parentale’ (2006) 71 L’évolution psychiatrique 471–83. De Hart, B, Internationale Kinderontvoering. Oorzaken, preventie en oplossingen (Utrecht, Nederlands Centrum Buitenlanders, 2002).

256 Bibliography Delfieu, JM, ‘Syndrome d’aliénation parentale. Diagnostic et prise en charge médicojuridique’ (2005) 67 Cronique Scientifique et Technique 24–30. Dudley, JR, ‘Increasing our Understanding of Divorced Fathers Who Have Infrequent Contact with Their Children’ (1991) 40 Family Relations 279–85. Freeman, R and Freeman, G, ‘Gérer les difficultés de contact : une approche axe sur l’enfant’ (2004) Journal du droit des jeunes 237. Gardner, RA, The Boys and Girls Book About Divorce (New York, Bantam Books, 1971). ——, The Parents Book About Divorce (New York, Bantam Books, 1979). Greif, GL and Hegar, RL, ‘Parents Who Abduct: A Qualitative Study with Implications for Practice’ (1994) 43 Family Relations 283–88. Greif, GL, ‘A Parental Report on the Long-Term Consequences for Children of Abduction by the Other Parent’ (2000) Child Psychiatry and Human Development 59–78. Hayez, J-Y and Kinoo, P, ‘A Propos de l’hébergement alterné’ (2006) 106 Acta psychiatrica belgica 33–38 (also published at www.observatoirecitoyen.be). ——, ‘Aliénation parentale : un concept à haut risqué’ (2005) 53 Neuropsychiatrie de l’enfance et de l’adolescence 157–65 (also published at www.observatoirecitoyen.be). Hegar, RL and Greif, GL, ‘Abduction of Children by Their Parents: A Survey of the Problem’ (1991) 36 Social Work 421–26. ——, ‘Parental Abduction of Children from Interracial and Cross-Cultural Marriages’ (1994) 25 Journal of Comparative Family Studies 135–42. Hoult, J, ‘The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy’ (2006) 26 Children’s Legal Rights Journal 1-66. Knapp, JJ, Brokaw, DW, Reimer, KS and Welsh, RK, ‘Retrospective Meaning-Making in Adulthood: A Qualitative Study of Conservative Protestant Adults Who Experienced Parental Divorce as Adolescents’ (2009) 28 Journal of Psychology and Christianity 44–56. Limet, O, Parents séparés: constraints à l’accord? (Edipro, 2009). Lowenstein, LF, Parental Alienation. How to Understand and Address Parental Alienation Resulting from Acrimonious Divorce or Separation (Droset, Russel House Publishing, 2007). Madden-Derdich, DA and Leonard, SA, ‘Shared Experiences, Unique Realities: Formerly Married Mothers’ and Fathers’ Perceptions of Parenting and Custody after Divorce’ (2002) 51 Family Relations 37–45. Pe  c´  nik, N, ‘Towards a Vision of Parenting in the Best Interests of the Child’ in M Daly, Parenting in Contemporary Europe: a Positive Approach (Strasbourg, Council of Europe, 2007) 15–36. Plass, PS, Finkelhor, D and Hotaling, GT, ‘Risk Factors for Family Abduction: Demographic and Family Interaction Characteristics’ (1997) 12 Journal of Family Violence 333–47. Schetsky, DH and Haller, LH, ‘Parental Kidnapping’ (1983) 22 Journal of the American Academy of Child Psychiatry 279. Senior, N, Gladstone, T and Nurcombe, B, ‘Child Snatching: A Case Report’ (1982) 21 Journal of the American Academy of Child Psychiatry 579–83. Simons, RL and Associates, Understanding Differences between Divorced and Intact Families (Thousand Oaks, Sage Publications, 1996). Summers, CC and Summers, DM, ‘Parentectomy in the Crossfire’ (2006) 34 The American Journal of Family Therapy 243–61. Sweet, L and Power, C, ‘Family Law as a Determinant of Child Health and Welfare: Shared Parenting, Breastfeeding and the Best Interests of the Child’ (2009) 18 Health Sociology Review 108–18.



Other Reports / Documents of Organisations

257

Van Dieren, B, ‘L’Aliénation parentale en quelques mots’, published at www.separation.be. ——, ‘Cochem Experience’, published at www.separation.be. ——, ‘La Justice face au processus d’aliénaton parentale’, published at www.separation.be. ——, ‘Principe de co-parentalité – Hébergement égalitaire – l’envie de l’enfant’, published at www.separation.be. ——, ‘L’intérêt de l’enfant: Alibi? Piège?’, published at www.separation.be (text of a presentation given at a Colloquium organised by the Bar of Brussels on 14 September 1994). Vrancken, K, Tussen twee huizen. Co-ouders en hun kinderen vertellen (Leuven, Van Halewyck, 2005). Wauterickx, N and Bracke, P, ‘Echtscheiding, attitudes en welbevinden. Een longitudinale studie’ in D Mortelmans, M-T Casman and R Doutrelepont, Elf jaar uit het leven in België: socio-economische analyses op het gezinsdemografisch panel PSBH (Gent, Academia Press, 2003). Webster Ferreiro, B, ‘Presumption of Joint Custody: A Family Policy Dilemma’ (1990) 39 Family Relations 420–26. Wilcox, KL, Wolchik, SA and Braver, SL, ‘Predictors of Maternal Preference for Joint or Sole Legal Custody’ (1998) 47 Family Relations 93–101. Yagmurlu, B and Sanson, A, ‘Parenting and Temperament as Predictors of Prosocial Behavious in Australian and Turkish Australian Children’ (2009) 61 Australian Journal of Psychology No 2, 77–88.

Other Reports / Documents of Organisations Documents of the Hague Conference on Private International Law (Chronological) Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Abduction Convention Conclusions of the Special Commission concerning the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (2002). Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Central Authority Practice (2003). Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part II – Implementing Measures (2003). Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part III – Preventive Measures (2005). S Vigers, ‘Note on the Development of Mediation, Conciliation and Similar Means to Facilitate Agreed Solutions in Transfrontier Family Disputes Concerning Children Especially in the Context of the Hague Convention of 2006’, Preliminary Document No 5 (2006). A Schulz, ‘Enforcement of Orders Made Under the 1980 Hague Convention – A Comparative Legal Study’ Preliminary Document No 6 (2006). ——, ‘Enforcement of Orders Made Under the 1980 Convention – Towards Principles of Good Practice’, Preliminary Document No 7 (2006).

258 Bibliography Report on judicial communications in relation to international child protection (drawn up by Philippe Lortie), Preliminary Document No 8 of the fifth meeting of the Hague Conference on Private International Law’s Special Commission to review the operation of the 1980 Hague Child Abduction Convention and the practical implementation of the 1996 Hague Protection of Children Convention. Conclusions and Recommendations of the fifth meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980 in the civil aspects on international child abduction and the practical implementation of the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, held on 30 October 2006–09 November 2006. Report on the fifth meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980 in the civil aspects on international child abduction and the practical implementation of the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, held on 30 October 2006–09 November 2006 (2007). General Principles and Guide to Good Practice – Transfrontier Contact Concerning Children (2008). N Lowe, ‘A Statistical Analysis of Applications made in 2003 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I – Overall Report’ Preliminary Document No 3, Part I on International Child Abduction (2008). ——, ‘A Statistical Analysis of Applications made in 2003 under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction, Part II – National Reports’ Preliminary Document No 3, Part II on International Child Abduction (2008). Conclusions and Recommendation of the Joint EC-HCCH Conference on Direct Judicial Communications on Family Law Matters and the Development of Judicial Networks, held on 15–16 January 2009. Guide to Good Practice under the Child Abduction Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part IV – Enforcement (2010).

Child Focus Documents Child Focus Annual Reports 2008 and 2009. Leaflet for parents on the prevention of international child abduction. Leaflet for parents on talking to the media.

Other Best Practices Proposed at the International Common Law Conference Held in Washington in September 2000, available at www.travel.state.gov/children’s_issues.html. Chiancone, J, ‘Parental Abduction: A Review of the Literature’ Office of Juvenile Justice and Delinquency Prevention (2002), available at www.ojjdp.ncjrs.org. ERA (drafted by Gyaurova-Wegertseder, B.), ‘Practical issues of Cross-Border Mediation’ (Final Report), published at www.era.int.



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European Commission, ‘Practice Guide for the Application of the New Brussels II Regulation’, available at ec.europa.eu/civiljustice/parental_resp/parental_resp_ec_vdm_en.pdf. Johnston, JR and Girdner, LK, ‘Family Abductors: Descriptive Profiles and Preventive Interventions’, Office of Juvenile Justice and Delinquency Prevention (2001), available at www.ojjdp.ncjrs.org. Johnston, JR, Satatun-Edwards, I, Blomquist, M-E and Girdner, LK, ‘Early Identification of Risk Factors for Parental Abduction’ Office of Juvenile Justice and Delinquency Prevention (2001), available at www.ojjdp.ncjrs.org. M-T Casman, A César and C Waxweiler, ‘Evaluation de l’instauration de l’hébergement égalitaire dans le cadre d’un divorce ou d’une separation’, published at www.lesfamilles. be/documents/RapportULG.pdf. Moya, D (ed) ‘Alert on Minors. Feasibility Study on Creating a New Category of Alerts in the SIS on Minors Precluded from Leaving the Schengen Area’ (2005).

index abandonment of the proceedings or no solution, 187 see also aftermath abduction, the, 73–104    as criminal offence, 58, 113, 155   definition, 24      not precluding move with consent, 109   destination, 95–104      countries from where children were abducted to Belgium, 98–102      countries to which children were abducted from Belgium, 95–98      compared to nationality and country of birth of the abducting parent, 102–3      other possible links with abducting parent, 103–4   duration, see duration    mother abductors, 80-81    number of abductions, 73–75    number of children abducted together, 94    parental authority and abduction, 83–84   parents      parents’ relationship and abducting parent, 82–83      residence of the child and abducting parent, 84–87    preparation for the abduction, 87–94     beating the law, 94     children and preparation, 93–94      holidays and preparation, 25, 91–93     unplanned abduction, 90     well-planned abduction, 87–90    relationship of abductor to the child, 75–81     abductions from Belgium, 77–79     abductions to Belgium, 79–80      abductions where Belgium was neither country of origin nor destination, 80     general, 75–77 see also return abduction and children: see child access see care and contact; custody and access Africa:    prevention files concerning Africa, 96, 212 see also Morocco; Tunisia aftermath, 184–211

     contact between parents and children after abduction, 207–10      contact with abducting parent after return, 207–8      contact with left-behind parent in cases of non-return, 208–9      contact with left-behind parent if the child lives with abducting parent after return, 210   mediation, 198–99    see also mediation and out-of-court settlement   outcomes, 194–99      abductions from Belgium: method on how solution was reached compared      with applicable legal instrument, 197–98      abductions to Belgium: outcome compared to applicable legal instrument, 96–97     general, 194–96    psychological, emotional and moral support, 200, 210     therapy, 203–4    re-adaptation of the child see under readaptation    residence and contact arrangements after return, 205–7     new contact arrangement, 206–7     new residence arrangement, 206    return see return age:   of children, see under child   minor, 16    of parents, 43–44 Algeria:    cases of abduction from Belgium, 47 alternate residence see under residence amicable settlement see mediation and out-ofcourt settlement Australia, 189, 192 Bar Associations, policy recommendations for, 249–50 Belgium:    abductions from Belgium, 77–79    abductions to Belgium, 79–80    abductions where Belgium was neither country of origin nor destination, 80    aftermath of abductions see aftermath

262 Index Belgium (cont.):    Brussels II bis Regulation:      public prosecutor’s role and consequences of other representation, 118–20      use in practice of, 117–18    Central Authority, 2–3, 8, 74–75, 108, 145     and mediation, 160    Child Focus and child abduction, 2–3, 8, 29, 74–75, 107, 108, 145–46     Annual Reports, 77     cooperation protocol, 145–46     prevention/actual files concerning Africa and Europe, 96     prevention guide, 15     role as intermediary, 157    cooperation between Belgian and foreign authorities, 118, 137–38    coordination between authorities and institutions in Belgium, 144–47    criminal offence of abduction, 53, 58, 108, 155    countries from where children were abducted from Belgium, 98–102    countries to which children were abducted from Belgium, 95–98    Hague Convention (1980), use in practice of, 115, 117–18    hearing the child, 35, 37    international institutions in, 74    Luxembourg Convention (1980), use in practice of, 126    Ministry of Foreign Affairs and child abduction, 2–3, 8, 29, 75, 97, 108, 145–46     blacklisting, 220, 225      keeping files open when the child will not return, 189    Ministry of Justice (Central Authority) and child abduction, see Central Authority    numbers of abductions, reasons for, 74   outcomes see under aftermath    parallel proceedings, 138–39    parental authority, 51–52      communicating with local authorities, 53     custody under international instruments, 53      exclusive parental authority, 51–52, 53      information on parental authority, 53     origins, 155      presumption of consent by other parent, 53–54, 216–217     shared, 51, 53, 216–17      withdrawing children from persons with authority, 58    police role and abductions, 113, 131, 156    Privacy Commission, 9–10    protocol with Morocco see under Morocco    protocol with Tunisia see under Tunisia

  public prosecutor:      in return proceedings and free access to justice, 118–21        role of public prosecutor, 118–20, 145–47     registered partnerships, 41    research on international child abduction, 1      actual files and prevention files, 8     archival data, 10–11     control group, 13     court files, 11–12     criminal proceedings files, 12      limitations of the research, 10–14     longitudinal data missing, 12–13      methodology for qualitative research, 4–8      methodology for quantitative research, 2–4       recommendations see policy recommendations on basis of research results     representativity, 12     respect for privacy, 9–10   residence:     across border, 21      alternate residence, 21–22, 49, 56–57       criticisms of alternate residence, 56–57     habitual residence, 21      primary and secondary residence, 20    return orders, enforcement of, 131     psychological support, 131   returns see under aftermath    unmarried fathers, 19 best interests of the child, 34–35, 39–40, 118–19 bilateral protocols with Morocco and Tunisia see under Morocco; Tunisia blacklisting, 220–21, 225 see also travel documents, issuing of brainwashing, 37–38, 93, 178–80, 208    residues of family conflict and brainwashing, 201–2 Brussels II Regulation, 116 Brussels II bis Regulation, 7, 97, 105, 115–21    age of the child and application of Regulation, 17–18    aims of Regulation, 115   in Belgium see under Belgium    ‘best interests of the child’, 34–35    child’s place in legal proceedings, 34     hearing the child, 36–37    communication between judges, 123, 148–49    conflicting judgments, 140    cooperation between states and foreign authorities, 118, 137    custody rights, meaning of, 18–19, 52    entry into force, 116    free access to justice , 118–21      central authorities must bear own costs, 118    habitual residence of child, 116, 117      and application of Regulation, 20–21

Index 263    and Hague Convention (1980), 18, 19, 20, 97, 115–16, 121-25      direct communication between judges, 123      mutual trust between judges of different legal systems, 123–24     return       exceptions to return, 121–22, 185       judgments on substance after return proceedings, 124–25       six week turnover time for returns, 122–23       judgments on substance after return proceedings, 124–25    mechanism regarding international child abduction, 116–17     certificate making judgment directly enforceable, 135, 136, 174      habitual residence of the child, 116, 117      prompt proceedings and return, 122–23, 162      recognition and enforcement of judgments on parental responsibility, 117, 135   outcomes, 194–98    parallel proceedings, 138–39    parental responsibility, 23, 124–25    and non-custodial parents, 24    premise of instrument, 58    public prosecutor, role in return proceedings, 118–21   return      and manner in which the file was closed, 185–86      returns for abductions from Belgium, 193      returns for abductions to Belgium, 190    rights of access and taking the child away for limited periods, 19    scope of application, 116    states bound, 116    timing of each step, 168    use in practice, 117–18 see also return Bulgaria, 97–98 Cameroun, 80 Canada:    Passport Control List, 220    returns of abducted children, 189 care and contact:    contact, meaning of, 19–20    contact rights, 21     and abducting parent, 25      disrespect of contact rights: mothers/ fathers, 81     and left-behind parent, 26      of parent without parental authority, 52    new contact arrangements after return, 205–7    obstacles to contact as criminal offence, 58    parent with care, meaning of, 19

   and parental responsibility, 23    residence change, informing other parent, 52    respecting the contact arrangement, 58–61, 75      risk factor for international child abduction, 58–61     well-respected contact rights before abduction, 61    return and contact see aftermath see also custody and access central authorities:   in Belgium see under Belgium    costs, 118, 150    creation, 113, 126, 137, 150    finding the child, 137   networks, 149     policy recommendations, 247    role, 160, 170, 199 see also Hague Convention on the Civil Aspects of International Child Abduction (1980); Luxembourg Convention (1980) Charter of Fundamental Rights of the European Union, 34    hearing the child, 36    rights to maintain contact with both parents, 58 child:    age of child:     and application of Conventions/ Regulations, 17-18      correlation between country to where child is abducted and his/her age, 30      mean age of the abducted child, 27–29      sixteen and seventeen year olds, 29   brainwashing see brainwashing    care and contact see care and contact    characteristics of the child, 32–33    contact arrangement, 58–61      bad advice due to a bad track record, 61      rights to maintain contact with parents, 1, 23, 24, 54, 58, 156      risk factor for international child abduction, 58–61     well-respected contact rights before abduction, 61    country of birth, 32    custody and access see custody and access    definition of child, 16    duration of proceedings, 162    education and schools see education and schools   family conflict see family conflict    finding the child, 137    gender of child, 30    health of the child:     and abduction, 32–33, 39      failure by parents to reach agreement on, 51–52, 67–68

264 Index child (cont.):    international child abduction, 24–25      as criminal offence, 58, 113, 155   and language see under language    and legal proceedings, 33–35      best interests of the child, 34–35, 39–40, 118–19      best interests of the child and return proceedings, 118–19      hearing the child, 35–39, 135     separate representation, 40    locating the child, see finding the child    manipulation of children, 37–39   ‘minor’, 16      child becoming major and closing of file, 188    nationality of the child, 30–32, 44     dual nationality, 30–31      nationality of the child in cases of abduction from Belgium, 31–32      nationality of the child in cases of abduction to Belgium, 31    number of children abducted together, 94    preparation for abduction and children, 93–94   prevention see prevention of international child abduction    re-adaptation of the child see under readaptation   religion see religion and religion of the child   residence see residence    right not to be abducted, 35, 54    risk of harm for the child if return ordered, 148–49    special care, protection and assistance, 23    wrongful removal, 22, 24–25, 58    wrongful retention, 24–25, 58    will and views of children to be considered, 16–17    young children mainly abducted, 16–17, 27, 39 see also abduction, the; children; families; quest for return Child Focus, see under Belgium conflicting judgments, 139–40, 152 contact see care and contact Convention on the Rights of the Child (1980), 34, 111    hearing the child, 36    rights to maintain contact with both parents, 58 cooperation between authorities, 118, 126–27, 137–38, 229 coordination between authorities and institutions in Belgium, 144–47 costs:    central authorities, 118, 150

   free access to justice and role of public prosecutor in return proceedings, 118–21    mediation, 159, 161 counter-abductions, 144, 154, 187 see also aftermath country of birth:    of the child see under child    of the parents see under parents criminal proceedings, 155–56, 187    alerts and arrest, 225 custody and access:    access rights combined with parental authority/responsibility, 24    definition of ‘custody’, 18–19    definition of ‘rights of access’, 19    care and contact see care and contact    obtaining custody rights, 19    and parental responsibility, 23, 24    unmarried fathers and custody, 19 see also care and contact debts, 1, 61, 70, 104, 176, 182, 224    incurred to recover the child, 200 Democratic Republic of Congo:    cases of abduction from Belgium, 31, 32, 47–48    cases of abduction to Belgium, 32, 46–47 Denmark, 116, 129, 189 discrimination between mothers and fathers, 80–81, 104, 151 duration of abduction, 161-72    duration of abductions from Belgium, 164–68    duration of abductions to Belgium, 163–64   general, 161–63    timing of each step of Hague and Brussels II bis proceedings, 168      time between abduction and request with the central authority, 169–70      time between institution of proceedings and judgment, 171      time between request with central authority and finalisation of file, 171      time between request with central Authority and proceedings, 170–71 education and schools, 20, 22–23    agreement between parents:     differing perceptions about education, 48–49      failure to reach, 51-52, 71     one parent choosing, 53    parents in cross-cultural relationships, 225    and preventing abduction, 226–27    return, deferral to complete the school year, 150    return, schooling after, 200, 211    right of child to be educated, 23

Index 265    rights of parent without parental authority to oversee education, 52    special needs, 150–51    time lost at school from being away, 200    warning schools of abduction risk, 225, 226    while child is away, 182-83, 200-201 enforcement of return orders, 130–35, 174, 229    under Brussels II bis Regulation, 135, 136    enforcement, force and due care, 131      financial penalties, 131, 148    parallel proceedings, 138–39    serious problems with enforcement, 130, 131 England see United Kingdom equality between mothers and fathers, 80–81, 104, 151 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (1980) see Luxembourg Convention European Court of Justice:    enforcement of return orders and right to family life, 130    habitual residence of child and Brussels II bis Regulation, 20    unmarried fathers and custody, 19 European Judicial Network, 148 European Union (EU):    borders, collapse of and abduction, 96, 136    and Brussels II bis Regulation, 102, 115–16, 190   see also Brussels II bis Regulation    Charter of Fundamental Rights see Charter of Fundamental Rights of the European Union    enforcement, 36, 124   European Judicial Network, 148   Evidence Regulation, 122    Hague Convention (1996), 129    mutual trust between judges of different legal systems, 123–24    networks and communication of judges, 123, 148    number of abductions within EU, 104, 212    problem with abductions within the EU, 102, 104    returns for abductions from Belgium, 191    returns from an EU country, 189   Schengen agreement, see Schengen agreement Evidence Regulation, 122 families, 41–72    age of parents, 43–44   child see child   conflict in see family conflict    differences in the nationalities and countries of origin of the parents, 48–49    family life after abduction see aftermath

  fathers see fathers   mothers see mothers    nationality of parents, 44–46     dual nationality, 44–45     of left-behind parent, 45–46     of abducting parent, 45    parental authority see parental authority and parental responsibility    parents see parents    re-adaptation of the child see under readaptation    re-adaptation of other members of the family, 204–5    relationship between parents, 41–43    residence of the child see residence    respecting the contact arrangement see under care and contact    size of the family, 49–50 family conflict:    abductions the result of family conflicts, 11, 24, 33, 228    conflict and sources of stress in the family, 61–70       debts in Belgium, 70     disagreement between parents about aspects of a child’s life, especially illness and disorders, 51–52, 67–68      foreign country, living in a, 66-67     grandparents, 69–70     having children, 62      individual mental or psychiatric difficulties, 64–65       new partners, 69      relationship between parents and roles in the family, 63–64     relationship stability, 61-62    and brainwashing, 201–2   see also brainwashing    habitual residence, new during family conflict, 21    and issuing travel documents, 216    manipulation of children, 37–39    mediation not possible, 199    and parental alienation, 70–71    preparation for abduction and children, 93–94    protection from family conflict, 1 fathers:    disrespect of contact rights: mothers/fathers, 81    establishing parenthood, 51    mother/father abductors compared to the status of parents’ relationship, 82–83    presumed fathers, 51    as proportion of abductors, 75–80      destinations where father abductors the majority, 79

266 Index fathers (cont.):    perception of fathers as more common abductors, 77, 151    treatment of fathers compared to mothers’ treatment, 80–81, 104, 151    unmarried fathers and custody, 19   see also parents first reactions after abduction, 106–8    amicable solution, 107–8    contacting authorities or institutions, 106–7   police, 108   see also police France:   abductions:      cases of abduction from Belgium, 31, 32, 45–46, 48      cases of abduction to Belgium, 31, 32, 45–47      disrespect of contact rights: mothers/ fathers, 81      duration of abductions from Belgium, 165    alternate residence, 22    amicable settlement, compulsory phase of seeking, 156    parental authority and informing third parties, 55    passport notices to prevent removal of child without consent, 220    residence across border, 21    residence change, informing other parent, 52 free access to justice and role of public prosecutor in return proceedings, 118–21, 150 gender of the child, 30 Germany:   abductions:      cases of abduction from Belgium, 31, 32, 45, 47      cases of abduction to Belgium, 32      duration of abductions from Belgium, 165    alternate residence, 22    Central Authority and representation, 120    conflict resolution, 71    hearing the child, 35–36   mediation, 120    residence across border, 21 grandparents:    as abductors, 25, 75, 77, 79, 102–3, 226    contact with, 20    hardship of abduction, 175    and preventing abduction, 226    role of grandparents, 69–70 habitual residence see under residence Hague Conference on Private International Law, 77, 123, 129

   Fifth Special Commission, 113, 146, 170    Guide to Good Practice on Enforcement, 130 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and measures for the Protection of Children (1996), 23, 105, 128–30    ‘best interests of the child’, 34–35    conflicting judgments, 140    cooperation between Belgian and foreign authorities, 137    entry into force, 129    in EU, 105    habitual residence, 129    and Hague Conference’s Fifth Special Commission, 113, 170   mechanism, 129–30     enforcement of judgments, 130     parental responsibility, 129–30    and prevention of abduction see under prevention of international child abduction    protective measures, 128–29    scope of application, 128, 129      applicable to children under 18 years, 129     states party, 129 Hague Convention on the Civil Aspects of International Child Abduction (1980), 7, 15, 97, 105, 111–15    access rights combined with parental authority/responsibility, 24    and Brussels II bis Regulation, 18, 19, 20, 97, 115–16, 121-25        direct communication between judges, 123      mutual trust between judges of different legal systems, 123–24     return       exceptions to, 121-22, 185       judgments on substance after, 124-25       six week turnover time for returns, 122–23   see also Brussels II bis Regulation    central authorities must bear own costs, 118     Belgian Central Authority’s mandate under, 3    cooperation between states and foreign authorities, 118, 137    criticism of the Convention, 115–16, 121      refusal of return, 116, 121    custody rights, meaning of, 18–19, 52   effectiveness, 115–16    entry into force , 112    habitual residence of child and application of Convention, 20–21, 109, 112–13    and Hague Conference’s Fifth Special Commission, 113, 170    legal proceedings and child, 34–35

Index 267     hearing child, 36      interests of child, 34, 35, 111, 119    language of documents, 170   mechanism, 113–14     mediation and agreement, 113   Network of Judges, 123   outcomes, 194–98    premise of instrument, 58    proportion of use, 110   purpose, 109    and prevention of abduction see under prevention of international child abduction   return:      after more than a year, 107-114     from Belgium, 193     to Belgium, 190      child integrated in new environment, more than a year after abduction, 107, 114      child objecting to return, 36      exceptions to ordering return, 114, 116      for dispute to be resolved by judge of child’s habitual residence, 109, 111, 114, 136–37     judgment on residence/contact not required, 108, 112–13, 126, 155     proceedings, 74, 97      prompt proceedings and return, 111, 113–14, 122–23, 162, 168     to secondary residence, 34–35      timing of each step, 168    return and manner in which the file was closed, 185–86    rights of access and taking the child away for limited periods, 19    scope of application, 112–13      application to children under 16 years, 17, 29, 112    states party, 112    translation of documents, 170    unmarried fathers and custody, 19    use in practice, 115, 117–18    wrongful removal, 24    wrongful retention, 24 see also return health of the child see under child holidays:    abduction linked to holidays, 91–93    and rights of access, 19, 52, 53    visits during holidays, 21, 60 Hungary:    Kék Vonal research on child abductions, 2, 13–14      mean age of the abducted child, 28     mother abductors, 77      size of the family, 50    Kék Vonal prevention guide, 15

international child abduction, see abduction; child    confrontation of legal systems, 136–37      cooperation between Belgian and foreign authorities, 118, 126–27, 137–38     finding the child, 137      lack of sufficient knowledge about international legal instruments, 140–41    international nature of the phenomenon and related difficulties, 136–41     conflicting judgments, 139–40, 152    parallel proceedings, 138–39 Ireland, 19 Israel, 189 Italy:   abductions:      cases of abduction from Belgium, 31, 32, 45, 47      cases of abduction to Belgium, 32, 47      duration of abductions from Belgium, 165    enforcement of return orders by penalties for non-compliance, 131    parallel proceedings, 139 judges:    conflicting judgments, 139–40, 152    direct communication between, 123, 148    hearing the child, 38–39    mediation, using, 147, 156    mutual trust between judges of different legal systems, 123–24, 136    networks of judges, 123, 148–49, 228–29    recommendations for the judiciary, 248    residence proceedings and knowledge of abduction, 140    role in child abduction cases, 147–49    training in family law, 148 Kék Vonal see under Hungary language:    and abducted children:      forgetting previous language, 162, 178, 200, 204, 211      learning new languages easily, 162      re-learning previous language, 27, 204, 211    and legal proceedings, 108–9, 127     translation/language of documents, 170    and mediation, 157, 161    and therapy, 204 lawyers, 141–44    lack of knowledge, 142–44    need for specialised lawyers, 144    role in preventing abduction, 144, 228 Lebanon, 31 legal proceedings, the child’s place in, see under child

268 Index Liechtenstein, 125 life while the child is away, 176–83    keeping contact with the child, 176–80    knowledge of the whereabouts of the child and abducting parent, 176    psychological, emotional and moral support, 180–82   schools, 182–83 local authorities:    blacklisting, 220, 225    cooperation with, 152    coordination between authorities and institutions in Belgium, 146–47    and parental authority, 53–55     differing approaches, 54, 217      issuing travel documents, 217–18, 225      presumption of consent, 53–54, 55, 216–217 Luxembourg Convention (1980), 105, 125–26    Central Authority’s mandate under, 3    entry into force , 125   mechanism, 126      enforcement of court orders establishing custody, 126    proportion of use, 110    scope of application, 125      application to children under 16 years, 17, 125     habitual residence, 125    states party, 125    use in practice, 126 see also return media, 5, 96, 152, 153 mediation and out-of-court settlement, 4, 11–12, 92, 106, 113, 120, 156–57    central authorities’ role, 160    information on, 223    international context, 161    after judgment, 229    and judges, 147    language in, 157, 161    neutrality of the mediator, 157–58    parents unaware of mediation, 199    preventing and resolving abduction, 156, 198–99    risks of mediation, 159–60    short time-frame in which to take place, 157, 159    time and money, 159    use, not often, 198–99    willingness on both sides, 158 methodology, 2-8, 237-39, 241-43 see also under Belgium minor, 16 see also child Morocco:    abduction from Belgium, 31, 45–46, 48

   abduction to Belgium, 31, 32, 45–47    age of abducted children up to 17 years, 29    bilateral protocol with Belgium, 7, 97, 106, 126–28     civil justice, 126     Central Authority’s mandate under, 3       cooperation between authorities, 126–27, 138      duration of abductions from Belgium, 166      duration of abductions to Belgium, 164     Hague Convention (1980), 127     outcomes, 194–98      proportion of use, 110, 127–28      return and manner in which the file was closed, 186      returns for abductions from Belgium, 193      returns for abductions to Belgium, 190    immigrant population in Belgium, 79 see also quest for return mothers:    abduction by and status of parents’ relationship, 82-83    disrespect of contact rights: mothers/fathers, 81    easier for mothers to abduct children, 80–81, 104    establishing parenthood, 51    as proportion of abductors, 75–80, 87, 104      destinations where mother abductors the majority, 78      response to fact that there are more mother abductors, 80–81    treatment of mothers compared to fathers’ treatment, 80–81, 104, 151   see also parents nationality:    of parents, 45    of child, 31–32    dual nationality, 30-31, 44-45 Netherlands, 11   abductions:      cases of abduction from Belgium, 31, 32, 45–46, 48      cases of abduction to Belgium, 31, 32, 45–47     Central Authority and representation, 120–21      disrespect of contact rights: mothers/ fathers, 81      duration of abductions from Belgium, 165    alternate residence, 22    hearing the child, 35    parental authority and informing third parties, 55    parenthood plans, 22, 226    research on abductions, 61–62

Index 269    residence across border, 21 new partners see under parents parental alienation, 70–71, 202 parental authority and parental responsibility:    abduction and parental authority, 83–84   in Belgium, see under Belgium    cultural differences, 49    definition of parental authority, 22    definition of parental responsibility, 23    denied by abducting parent, 26    exclusive parental authority, 51–52      for particular matters only, 52    and Hague Convention (1980), 113    see also Hague Convention on the Civil Aspects of International Child Abduction (1980)    obtaining parental authority, 22    perceptions of parental authority, 50–55     application to international child abduction instruments, 52–53      difficulties in law and practice of exercise of parental authority, 51–52      knowledge of third parties, including local authorities, of parental authority over a child, 53–55    presumption of consent by other parent, 53–54, 216–217    recognition of judgments on parental responsibility, 102    right to determine residence of child, 19, 22    shared parental authority, 22–23, 51–52, 53, 55      and issuing travel documents, 216–17    taking a child out of the country, 52, 53, 55 parents:    abducting parent, 25     and the abduction see abduction, the    age of parents, 43–44    alerts for parents, 145, 225   authority/responsibility see parental authority/responsibility    communication between, 228    conflicting judgments, 140    contact between parents and children after abduction, 207–10      contact with abducting parent after return, 207–8      contact with left-behind parent in cases of non-return, 208–9      contact with left-behind parent if the child lives with abducting parent after return, 210    country of birth of parents, 46–48      differences in the nationalities and countries of birth of the parents, 48–49       of the abducting parent, 46

      of the left-behind parent, 47–48    cross-cultural relationships and children, 224, 228    duties towards children, 23   fathers see father    fathers/mother abductors compared to the status of parents’ relationship, 82–83    hardship of abduction, 175    having children, 62    individual mental or psychiatric difficulties, 64–65    knowledge, lack of:      about contacting local authorities, 147      about international legal instruments, 140– 41      about local authorities and blacklisting, 220     about mediation, 199      for understanding legal proceedings, 108–9, 123, 136    left-behind parent, 26      contact with in cases of non-return, 208–9      contact with if the child lives with abducting parent after return, 210     see also aftermath    left-behind parent’s surprise at abduction, 214–15      role in coordination meetings, 229    and legal proceedings      difficulties in understanding, 108–9, 123, 136      lack of sufficient knowledge about international legal instruments, 140–41     representation and consequences, public prosecutor’s role, 118–20    living in a foreign country, 66–67    mother/father abductors compared to the status of parents’ relationship, 82–83   mothers see mothers    moving to another country, 111-112   nationality, 45      differences in the nationalities and countries of birth of the parents, 48–49    new partners, 69, 104    parent with care, 19    parental alienation, 70–71, 202    parenthood plans, 22    partners, new, 69, 104    re-adaptation of other members of the family, 204–5    relationship between parents, 41–43     difficulties in, 63–64     disagreement between parents about aspects of a child’s life, especially illness and disorders, 67–68      knowing the other parent; stability of relationship, 61–62

270 Index parents (cont.):    resident parent most often the abductor, 87    rights of freedom of movement, 54    visiting the abducted child, 189 see also care and contact; custody and access; families; fathers; mothers; return partners, new, 69, 104 passports see under travel documents, issuing of Poland:    cases of abduction from Belgium, 31, 45, 47    cases of abduction to Belgium, 31, 32, 45–47 police:    informing police/obtaining advice, 92, 107, 108, 149, 155, 222    role of police, 91, 108, 135, 149-50, 186, 221, 225     communication and confidentiality, 162      coordination of authorities, 144–46, 199     enforcement of judgments, 229     policy recommendations, 247      and prevention, 149, 212, 215, 222      providing parents with information, 169      reporting the facts, 108, 155, 222      speaking to the abducting parent, 113, 131, 156, 158, 174, 226   training, 223    victim aid service, 181, 210 policy recommendations, 245–50    for Bar Associations, 249–50    for further research, 250    for judiciary, 248    for policymakers and legislator, 245–47    for professionals working with families in conflict/risk of child abduction, 248–49 Portugal:    amicable settlement, 156    cases of abduction to Belgium, 32 preparation for the abduction see under abduction, the prevention of international child abduction, 30, 212–27    best remedy, 105    and Brussels II bis Regulation:     as deterrent, 102      recognition of judgments on parental responsibility, 102    failed attempts at prevention, 215–15   grandparents, 226   see also grandparents    and Hague Convention (1996):      recognition of judgments on parental responsibility, 102    and Hague Convention (1980), 35     as deterrent, 102    information about law, legal instruments and procedures, 98, 103

   issuing of travel documents see travel documents, issuing of    lawyers’ role, 144    left-behind parent’s surprise, 214–15    legal mechanisms protecting child, 90, 92–94    and local authorities, 55, 146    by mediation, 156    perceptions and prejudices, awareness of, 104    police role, 149, 212, 215, 222    prevention files, 96, 212–13   schools, 226–27   see also education and schools    social context and addressing root of the problem, 90, 92–94    strategies regarding prevention, 212      different views on prevention, 213    training of professionals and spreading of information, 223–24    warning signs: when are preventive measures appropriate, 224–26     preventive measures, 225–26      warning signs, 224 principal residence see under residence primary residence see under residence professionals in child abduction cases, 141–50, 174:    coordination between authorities and institutions in Belgium, 144–47   judges see judges   lawyers see lawyers   police see police    recommendations for professionals working with families in conflict/risk of child     abduction, 248–49    training of professionals and spreading of information, 223–24 psychological, emotional and moral support, 131, 200, 210    support for non-abducted siblings, 205   therapy, 203–4 public prosecutor see under Belgium re-adaptation:    of the child, 200–204     catching-up, 200     children’s own views, 202–3      coming out of a period of instability, 200–201      of family members, 204–5    residues of family conflict and brainwashing, 201–2     therapy, 203–4 recommendations see policy recommendations religion and religion of the child:    after abduction, 71, 163      and seeing solutions for abduction cases, 137    and education, 48

Index 271    failure by parents to reach agreement on, 51–52, 71    importance after break-up of relationship, 49 research methodology see under methodology and under Belgium residence:    abducting parent and residence of the child, 84–87    alternate residence, 21–22, 24, 49     and abducting parent, 25     criticised, 22     and left-behind parent, 26      as preferred system in Belgium, 56–57    failure by parents to reach agreement on, 51–52   habitual residence:     and Conventions/Regulations, 20–21     definition of, 20–21     nature of, 20    informing the other parent of a change of residence, 52    new residence and contact arrangements after return, 205–6    and parental authority see under parental authority and parental responsibility    primary/principal residence, 20, 21–22, 24     and abducting parent, 25     and left-behind parent, 26    residence, meaning of, 20    residence proceedings and knowledge of abduction, 139–40    secondary residence, 20, 21–22, 24     and abducting parent, 25     and left-behind parent, 26 return, 105-75, 184-94:    abductions from Belgium: breakdown according to applicable legal instrument, 193–94    abductions to Belgium: breakdown according to applicable legal instrument, 189–91    abductions from Belgium: breakdown according to parts of the world to where the child had been abducted, 191–92    abductions to Belgium: breakdown according to parts of the world from where the child had been abducted, 189    closing of file, 185–88      abandonment of the proceedings or no solution, 187      bilateral protocols with Morocco and Tunisia, 186      Brussels II bis Regulation and Hague Convention, 185–86     child became major, 188      counter-abduction or abduction to another country, 187

    criminal proceedings, 187      judgment on the substance, 187     settlement, 186–87    counter-abductions, 144, 154    Hague Child Protection Convention (1996) see Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and measures for the Protection of Children (1996)    Hague Convention see Hague Convention on the Civil Aspects of International Child Abduction (1980)    in practice, 152–53    legal proceedings: general overview, 108–11      no legal instruments, 106, 152–54      return to be ordered for dispute to be resolved, 109    Luxembourg Convention (1980) see Luxembourg Convention (1980)    media, 152, 153    politicians, 152, 153    practical difficulties regarding the return, 172–74    role of professionals see role of professionals in child abduction cases    risk of harm for the child if return ordered, 148–49    year, more than a, 188–89 Romania:    and Brussels II bis Regulation, 97–98    cases of abduction from Belgium, 31, 32 Russia, 31, 45 Schengen agreement:    alerts for parents, 145, 225    passports, borders and the Schengen zone, 221–22    single information system, 222 schools and education see education and schools secondary residence see under residence settlement of cases, 186–87 see also mediation and out-of court-settlement Spain:    cases of abduction from Belgium, 31, 32    cases of abduction to Belgium, 32, 46–47    duration of abductions from Belgium, 165–66 Support, see psychological, emotional and moral support Switzerland, 189, 191 therapy see under psychological, emotional and moral support travel documents, issuing of, 216–21    blacklisting, 220–21, 225

272 Index travel documents, issuing of (cont.):    parental authority and the issuing of travel documents, 216–20      differing local authority practices on informing the other parent, 217–18      electronic identity documents for children, 217–18     and family conflict, 216     improvement, 218–20      presumption of consent by other parent, 53–54, 216–218    passports, borders and the Schengen zone, 221–22 Tunisia:    age of abducted children up to 17 years, 29    bilateral protocol with Belgium, 7, 97, 106, 126–28    cases of abduction from Belgium, 31, 45, 47    cases of abduction to Belgium, 46    civil justice, 126    Central Authority’s mandate under, 3      cooperation between authorities, 126–27, 138    duration of abductions to Belgium, 167    outcomes, 195, 197–98    proportion of use, 110, 128    return and manner in which the file was closed, 186    returns for abductions from Belgium, 193   see also return Turkey:   abductions:      cases of abduction from Belgium, 31, 45–48      cases of abduction to Belgium, 31, 45–47      duration of abductions from Belgium, 166    immigrant populations in Belgium, 79

United Kingdom:   abductions:      cases of abduction from Belgium, 32      cases of abduction to Belgium, 31, 32, 46–47      duration of abductions from Belgium, 166    Central Authority and representation, 120–21    hearing the child, 36   parental authority      and informing third parties, 55     shared parental authority, 55      taking a child out of the country, 52, 55    prohibited steps order, 220 United Nations Convention on the rights of the child see Convention on the Rights of the Child (1980) United States:   abductions:      cases of abduction from Belgium, 31, 32      cases of abduction to Belgium, 32, 46–47      duration of abductions from Belgium, 166      enforcement of return orders by force, 131    change of residence, informing other parent, 52    father travelling alone with child, 80–81    mutual trust between judges of different legal systems, 136    Passport Lookout System, 220    returns , 189 unmarried fathers and custody, 19 warning signs see under prevention of international child abduction wrongful removal see under child wrongful retention see under child