Parental abduction : Children in a Legal Vacuum: International Child Abduction


Source: Huffington Post / Natasha Kuilak Mellersh

Many of us take on work or studies in a foreign country, and some of us end up having a family with someone of a different nationality. All great for international understanding? Well usually. But if the relationship breaks down, this type of globally mobile lifestyle brings new challenges for the family courts. Where do you file for a divorce? What about custody and visitation? What if the custody battle turns acrimonious?

With the increase in transnational marriages, international parental child abduction has become a serious problem that affects both individual states and the international community.  Parents who feel unfairly treated by the family courts may  “forum shop” taking the kids into a new legal jurisdiction that will be more likely to rule in their favour, thus sparking a re-run of their custody case. The Hague Convention on International Child Abduction is designed specifically to prevent this border-hopping between nations; signatory countries agree to accept decisions already made in another jurisdiction and to promptly return abducted children to their place of habitual residence.

The UN Convention on the Rights of the Child also obliges states to ensure that national borders are not used to prevent children from having contact with their family. Signatory states commit to ensuring the continuity of a child’s life when a substantial part of it resides in another country.

Yet it is one thing to accept that is in the child’s best interests to maintain contact with their family and promptly return home; it is another to actually carry this out.

While international legal conventions are designed to regulate cross-border disputes and harmonise legal proceedings, these are not always enforced with appropriate urgency and are frequently evaded or blatantly disregarded. Although parental abduction has been defined as amounting to child abuse, the rights of the child are sadly often ignored in international abduction cases, with nationalistic posturing taking precedence.

Families living abroad are away from the steadying influences of friends and extended family, and may also slip through society’s safety nets of schools, doctors, social workers and counsellors. Who is going to follow up on a family that has moved abroad? Who will bother to find out the background of a family newly arrived in a country? If you don’t speak the language, how can you seek advice and counselling? National laws governing family issues must be adapted to the changing international culture and to reflect the ease of international travel and the transnational nature of many modern families.

US-Italy-Russia

The recent case of the Grin/McIlwrath children highlights the numerous failings of the Russian authorities to work together with their Italian counterparts to protect the children involved. Grin, a Russian-born US citizen who was living in Italy, abducted her four children from their American custodial father in Florence. She travelled to Russia with the children despite Italian court rulings which removed her custody rights and indicated that the children were at risk if they remained with her. Her children have since been placed in Chabad-Lubavitch institutes/orphanages in St Petersburg at her request “for their own safety”.

The plight of the children, who are fluent in both English and Italian, has not even been acknowledged by the Russian authorities. It appears that the obligation of the state to ensure their safety and well being, and contact with their family and friends in Italy in the US, has been completely overlooked since they have been moved into a new jurisdiction, despite the fact that Italy, the US and Russia are all signatories to the Hague Convention.

Russian authorities have similarly done nothing to end the children’s isolation from family and friends, nor ensured they are safe from the risks identified in the Italian court proceedings.

Canada-Poland

In a parallel case two Canadian boys, Alexander and Christopher Watkins, were abducted by their Polish mother after her custody was revoked due to child-neglect. The boys were taken via the US and into Germany where the trail went cold. The Canadian authorities voiced serious concerns about the safety of the children and the ability of the mother to care for them, an Interpol red notice was issued and the mother was put on Canada’s most wanted list. When the children were finally located in Poland, the father immediately applied to have the boys returned home. At the December hearing in Poland the judge ruled that the children are now settled in Poland and should not be returned to Canada. This is despite the boys’ school in Poland independently suing the mother for child neglect. The appeal will be heard on 16 May 2012.

Leaving the children in the care of a demonstrably neglectful and potentially abusive parent is a clear breach of the Convention on the Rights of the Child. Refusing to return the children to the custodial parent is a violation of the Hague Convention. That Poland as an EU member state is not being held accountable for the misapplication of these laws and agreements as well as blatantly ignoring Interpol red and yellow notices raises concerns for the quality of European law.

Although both cases have a non European element they both involve EU borders. The issues of cross-border problems arising from divorce or family problems should be tackled more effectively within the EU. While there is often talk of the unification of laws in the EU there is a clear lack of co-operation when it comes to family law. In a region in which members of EU states can move freely between and within numerous jurisdictions the legal tools must exist to deal with the resulting problems of this freedom of movement.

It’s not clear why the Hague Convention is largely ignored in many states, possibly it is perceived by the national judiciary as meddling from outside, maybe it’s just a sign of the general distrust of and reluctance to co-operate with another country’s legal systems, or it could just be plain nationalism: siding with the parent of the same nationality.

If the unification of laws in the corporate sector is moving ahead, why are the laws governing our private lives being left behind? The creation of networks such as Interpol, Europol and various UN initiatives have offered little assistance in addressing problems arising from transnational familial relationships, especially those involving children. While numerous national and international legal measures have been created to uphold the rights of the child, their application has been limited. The enforcement of existing laws and international agreements has not been enough to protect children from the dangers of international child abduction.

Immediate action is essential in cases of child abduction because of the age and vulnerability of the children compounded by the volatility of a parent who is putting their own child through the trauma of abduction. Yet both Poland and Russia have failed to act on these cases, posing a serious risk to the children involved. The person posing the greatest danger to an abducted child is the abductor.

Follow Natasha Kuilak Mellersh on Twitter: www.twitter.com/@tashalaws 

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Mother fled Italy for St. Petersburg, Russia with her four children


Source: Huffingtonpost

Russian Democracy Has a Pulse, Now It Needs a Heart

The Arab Spring was made possible by Facebook servers — sitting in one country affecting another. The ability of information in the form of electrons, to easily pass through borders designed to stop things in the form of atoms, forces us to update our ideas of sovereignty, and the seven billion pieces that give it form — citizenship.

The most simplistic reading of sovereignty is the ability to issue passports, to have a postal system, print money and field an army. But what is the point of a postal system when letters arrive in your inbox without needing stamps? And what is the point of government-issued currency, when we pull out a plastic card instead of paper bills every time we buy things? And what is the meaning of citizenship, when people who are born and live in one country carry passports issued in another? And what is the power of an army when dealing with non-state actors like Al-Qaeda?

Perhaps a way to understand the big picture is to look at the small picture.

My attention these days is focused on Russia — not for the obvious reasons of civil unrest due to election fraud that is currently in the news; the story that has got my attention is smaller but it, too, is a window into the health of Russian democracy.

It is the story of an Italian resident and American and Russian citizen, Marianne Grin, who fled Italy for St. Petersburg, Russia with her four children. My friendship with her family is how I initially learned about this story. The rest comes from Russian and Italian newspaper reports and court documents.

Ms. Grin has said she has fled to St. Petersburg, Russia to escape domestic violence where she claims to have close family. This is an odd claim as she has no family in Russia. Her mother, the children’s maternal grandmother lives in California, as do the children’s paternal grandparents.

Once in Russia she re-invented herself as a persecuted “Russian mother” playing to cultural xenophobic fears. She appeared on TV, gave interviews, and started a blog drawing attention to herself — leaving out the fact that she owns property in both Russia and Italy and has a law degree from Harvard University from her new narrative.

She has also claimed that the U.S. Consulate tried to break into her apartment and kidnap her children. This seems more like a cry for a help than a serious accusation against the State Department.

While the weakness of Russian democracy can be seen through the lens of a recent fraudulent election, another way to get a pulse of this democracy is by looking at the integrity of the press corps. In Russia, it seems as if it is on life support. The transition from a top down authoritarian system under communism that told the press what to write, to the independent investigative system that is essential for a healthy democracy has not gone well.

In fact, it has gone terribly. While the high-profile brutal murders of journalists Anna Stepanovna PolitkovskayaPaul Klebnikov, Khadzhimurad Kamalov are well known, what is less known, but horrifying, is the murder of 213 Russian journalists in the last decade.  With so many journalists killed one can conclude that in order for a reporter to survive it’s better not to ask questions. This makes doing one’s job as a journalist impossible.  Perhaps, this why none of the reporters verified Ms. Grin’s story by talking to the father, family members, or the Italian authorities before publishing it in Russia.

When the story was told in Italy, it was radically different than the story told in Russia. According to the leading Italian national newspaper, La Repubblica, Ms. Grin had lost custody after the court-appointed psychologist concluded that she had a severely disturbed personality and posed a danger to her own children. It’s not easy for a mother to lose custody in Italy as the Italian courts strongly favor “Mamma” in custody disputes and fathers are awarded exclusive custody in only 1.6 percent of cases.

The Italian newspapers also reported there had been no domestic violence by the father and others that Ms. Grin had accused of violence.

It appears that Ms. Grin was not escaping domestic violence — rather she was escaping a court judgment that she didn’t like.

Why does any of this matter? 

I think this case redefines how we can think about the bigger ideas of citizenship and sovereignty and is a window into the state of democracy in Russia.

Let’s talk about citizenship first. What does it mean to be a citizen in a world of global employment hop-scotching? There are four children involved here. Three of them were born in Italy, one in the U.S. The children have Russian and U.S. passports, but that’s a legal status. What does that mean to a child?  To these kids the only home they have ever known is Florence, Italy. This is where they have been growing up. It’s where their schools are and where their friends live. It’s their state of mind, and their state of place, until now.

Now, through no fault of their own, it seems the children are stateless. The mechanism for protecting children is established. It’s called the Hague International Convention Against Child Abduction. The Convention provides for the immediate return of children abducted from their “habitual place of domicile.” In July of 2011, Russia joined the convention. This is the first case to come up in Russia after the convention came into force in October 2011. So far it seems that the Russian Foreign Ministry is supporting international child abduction instead of honoring the treaty it signed and has turned a blind eye to the human rights at stake here. The father, family and friends have been denied access to the children; the children’s education has been interrupted, and that’s cruel.

The safety of the children needs to be made a priority.

Given the Italian courts’ allegations against Ms. Grin of mental instability, all of this took on a sense of urgency on Nov. 21, 2011 when, in a parallel story, Elke Mellersh left her husband with her two children and fled from England to Turkey, where she also claimed to be protecting them from the father.  She, too, found refuge in local Turkish media, which sensationalized rather than verified her story. The story ends with Elke taking her delusions of protection to the extreme, killing herself and the two small children.

Do laws in countries matter? Do laws between countries matter? I would argue that they do now with the new permeability of borders caused by a shift from the analog to the digital more than ever. So while the concept of citizenship remains blurry to me, one thing that would make it clear, and would also be a sign of healthy democracy would be if the children were returned to their home in Italy and reunited with their father, friends, family and classmates in accordance with Italian law, Russian law, and international treaty.

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