Whose Best Interest? International Child Abduction under the Hague Convention

I. INTRODUCTION Each year 350,000 cases of child abduction occur in the United States. Approximately 10,000 of these cases involve the abduction of children to foreign nations by a parent.1 A swell in divorce rates and ease of international travel are likely factors for this recent phenomenon. The primary legal remedy for parents of children abducted to foreign nations is the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") ratified by the United States on October 25, 1980.2 As of July 2001, the treaty was in force between the US and fifty other national signatories.3 The Hague Convention is designed to return children to their "habitual residence" where a court of proper jurisdiction will determine custody. The treaty, however, has been largely ineffective in accomplishing this objective. It has failed to meet its goal in large part because of reliance on an essentially subjective best interest standard that facilitates foreign nations' manipulation of the treaty and their wrongful retention of foreign children within their borders. The subjectiveness of the best interest standard enables judges to make discretionary decisions. Discretion often takes the form of gender biases, national biases, and judgments regarding the 11 acclimatization" of children to their environment that is often due to judicial delay. The result is substantive non-compliance with the Hague Convention. Family courts in the US employ the best interest standard on a daily basis. Fundamentally subjective and ill-defined, the best interest standard is at best inconsistently applied by US courts. However, the complications associated with implementing this imprecise standard are magnified at the international level. The development of objective criteria and an international communication network among judges could facilitate the return of children to the proper jurisdiction and custodial parent. Efforts to effect reform in these areas have been made, but thus far none have remedied the problem of non-compliance. Ultimately, the optimal solution may be to remove the loose language from the treaty that facilitates use of a best interest standard and replace it with objective criteria that international courts could consistently apply. II. THE HAGUE CONVENTION The Hague Convention is a multilateral treaty, seeking "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return."4 Despite having ratified the treaty, many nations still do not satisfactorily comply with the procedure established for the return of children. The return rate of abducted children varies from country to country. While the US returns approximately 90 percent of the children in Hague cases brought in US courts,5 Germany's rate of return is particularly low, at about 39 percent.6 The failure of this treaty is not due to an international conspiracy to retain American children but rather lies in the implementation of a best interest standard at the international judicial level. The US has faced similar problems in its own family courts, where application of the standard is inconsistent across jurisdictions. Although the best interest standard has been adopted by many US states through legislation, it has largely been implemented according to the discretion of judges, who may rely on as many as ten major factors and forty-three sub-factors in their decisions.7 Although developing a set of objective criteria and a strong international communication network among judges might promote greater uniformity in implementation of the treaty, the continued low return rate from the same noncompliant nations raises important issues. Either the efforts at consistency must become more vigilant, or, more likely, the treaty language that facilitates use of a best interest standard should be removed altogether from the treaty to close the loophole that, in effect, supports substantive non-compliance through judicial discretion. …