Monday, May 2, 2016

Does the Hague Convention Work?



“Often the Hague Convention works, and it is certainly better than relying on undefined principles of comity that would likely force left-behind parents to litigate the bests interests of the child anew after the other parent forum shops,” said Barry S. Pollack, founding partner of Pollack Solomon Duffy LLP, and former federal prosecutor. Mr. Pollack has handled many Hague Convention cases.

He notes though the Hague Convention is not without its drawbacks.

“Judges are only guided to make decisions within six weeks, rather than required to do so. In rare cases, the issues are so complex that experts might be necessary to determine whether children need to be protected,” explained Pollack. “Otherwise, cases should be streamlined with all the contemplated protections and procedural flexibilities  afforded to left-behind parents, while still providing due process to the alleged abductor.” 

For parents like Steve Fenton, whose own son was taken by the boy’s biological mother (Fenton’s ex-wife) from their home in California for a holiday visit to southern Mexico and was never returned, the process is daunting and often marred by disappointments and complications. He recently gave an accounting of his case in his book Broken Treaty.

“The Hague Convention Treaty in my view, in principal, is a worthwhile concept, though still crude in application,” explains Fenton. “There are serious short comings when it comes down to sending a child back to the home state. My own findings indicate that children taken to lesser developed countries have the least potential of recovery within the Hague signatory nations. However, even the more developed country’s internal judicial policies often render the Hague useless when local family courts judges are apathetic to international law or dismiss the Hague resolution completely.”

His assessment isn’t far off. In 2009, the United States declared Brazil, Chile, Honduras, Greece and Mexico displayed "patterns of non-compliance.” So just because a country is a party to The Hague Convention does not mean that it will effectively enforce its treaty obligations. Mexico for example has been found time and again to be "non-compliant" with the terms of the Hague Convention.

“Hague Convention restitution is too often viewed more as a suggestion rather than a treaty
member obligation,” recounted Fenton. “It can offer false hopes to a left behind parent who might otherwise have better devoted their time and money by taking the fight directly to the family court system of the abductor. I was told that my case would be dismissed if I pursued a parallel legal action, so I was forced to take a gamble with the Hague Convention which proved only a parade of painful disappointments.”

For a left-behind parent whose child is taken to a foreign country that does not follow the Hague Convention, the situation is much more troubling. At this point in time, there is no superseding law to automatically return the child to the United States under the proper, original custody decree.

“Whether working with a Hague member nation or not; rights for left behind parents end outside U.S. borders,” add Fenton. “The only rights a left behind parent would have are the rights under the jurisdiction of the state (country) where the child was taken. Sadly there is often a huge disadvantage on the abductors home turf. Aside from domestic law here at home, any parent trying to recover a child abroad must re-educate themselves on the policies and legal structure of foreign family court system. Most left-behind-parents pour their life savings and more into attorneys, legal fees and travel to enter a local family court system outside the U.S.”

In the end, Fenton was forced with the help of a private investigator and other assets within Mexico to rescue his son himself and return the United States. This is never recommended as each country sees this as a violation of the Hague Convention and in some instances a violation of law which if caught depending on the country hold serious repercussions including imprisonment for those involved.