Sean and David Goldman Act 2014
The Sean and David Goldman International Child Abduction Prevention and Return Act 2014
Seven days ago today, the Sean and David Goldman International Child Abduction Prevention and Return Act 2014 was signed into law in the United States. The legislation imposes a number of duties on various parts of the executive branch, including the State Department and the President, to proactively take steps to try and bring about the return of wrongfully removed children; this is to be achieved through the adoption of various prescribed measures designed, in essence, to place pressure on countries that harbour citizens who are at fault in regard to international child abduction. The purpose of this email is to explain why the UK government needs to enact similar legislation.
I have an interest to declare. One thousand days ago today my own son was abducted to Japan and I have not seen him since. This email will, therefore, draw heavily on the situation in that country as it is that country’s circumstances that I am most familiar with.
The Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) can, in certain circumstances, provide for the return of child if the country of abduction was a signatory state at the time when the abduction complained of occurred. A number of populous countries – notably mainland China, India and Pakistan – are not signatories; Japan was also on this list until very recently. In addition, the Convention, even where the two countries concerned are signatory states, does not always provide for the return of the child concerned; there are exceptions to the norm. The Convention does not have retrospective effect and so, in the case of Japan, has no application at all to children taken to that country prior to 1 April 2014. It can therefore be seen that the Convention has significant limitations.
In cases where the Convention cannot be relied upon for any of these reasons, a left behind parent has no meaningful remedy. There is no viable legal option as a court in the UK might well lack jurisdiction; even if such a court had jurisdiction, by having made orders in the past that had been breached by the wrongful removal, any further orders would lack force in the sense that the defaulting party would be beyond the reach of the court: criminal prosecutions/extradition are rarely brought as, even if technically feasible, this would in all probability cause yet further harm to the child involved in the dispute. Whilst there is always the option of negotiation through organisations such as Relate and the option of petitioning local courts in the country of abduction, in the absence of willingness on the part of the abducting parent, this is unlikely to achieve anything and will only result in wasteful expense which would be better directed towards maintenance for the child. It has to be noted that family courts in Japan – and I suspect that this is true of other countries where child abduction is a problem – rarely if ever award rights of access to the non resident parent. This is the case even where the absent parent (be they Japanese or not) is in Japan. Even for those versed in law, dealing with a foreign court is extremely difficult, even leaving aside any judicial unwillingness to intervene. A further concern in regard to Japan is that there is no express provision in their immigration system for an absent parent to be able to enter and live and work in Japan so as to be able to have contact with the child. By contrast there are such provisions in the UK’s Immigration Rules. In Japan, the whole system is stacked against the absent parent meaning that, as things stand, any form of private action is futile.
The Child Abduction Unit at the Foreign and Commonwealth Office and government literature in general is clear about what the government cannot achieve; it is repeatedly asserted that the state cannot ‘rescue’ a child. But that is to state the obvious; that is a matter for parents or, in the absence of agreement, the courts. As indicated above, though, these are not effective remedies. There would be a great deal more that the government could achieve, well short of directly ‘rescuing’ a child, were it to enact legislation to enable it do so. A major part of the current problem in abduction cases is an underlying cultural unwillingness for local (country of abduction) courts to countenance contact with the non resident parent, let alone a return to the country of former habitual residence; it is this attitude that prevents them from signing the Hague Convention in the first place as it is seen as an anathema. In any event, in many cases, mine probably included now, the absent parent would not wish to impose further upheaval on the child by having that child returned – only meaningful contact is often sought. If these matters of local custom do not have an impact beyond the shores of the countries concerned, that would not be a matter for the UK government. But, of course, such approaches do have a wider impact as they concern (British) children of international relationships. This, therefore, is why much stronger diplomatic action, backed by legislative obligation, is required on the part of the UK.
What is acceptable in one country is not always acceptable in another; courts in the UK award (possibly limited or supervised) contact to parents who have served sentences of imprisonment for criminal offences and/or people who, because of the involvement of social workers, are assessed as being a possible danger to children – such is the absolute premium founded upon the importance of a child retaining contact with both parents. Where a country does not apply (what should be) universal principles such as these, and where British children and parents are involved, it is incumbent upon the UK government to take action with the country concerned. Legislation, such as that just enacted in the States, will help in doing that.
The UK government – both this one and, far less surprisingly, the previous one – responds with vocal alacrity every time Japan executes one of its own nationals, found guilty of a capital offence, because this is something that the UK government has decided that it disapproves of. It matters not to the government here that the government there is also properly elected. Such criticism should not, in general, be a concern of the UK government – the utilisation of capital punishment is a matter for Japan – unless of course it involves British interests which would justify intervention in such a case only. It is an example of the UK government elevating the wrong type of human rights concerns about the conduct of foreign governments; current UK practice pays far less attention to the conduct (or lack of conduct) of such governments when it comes to the tolerating of international child abduction, itself recognised as a form of child abuse, even though that does impact upon British nationals and, as such, interests. Foreign posts are quick to assist British nationals who abuse the hospitality of the countries that they are visiting, living or working in by breaking local criminal laws. Against this backdrop, British Ministers and officials have been considerably less vocal in raising the issue of UK to Japan child abduction despite the fact that there are a significant number of British cases: that, unlike the death penalty, is an issue that impacts upon British national interests as it concerns British citizens – the left behind parent and the child.
The government’s current response in cases where there is no effective legal remedy is that there is nothing that it can do; that is broadly correct as a statement of what the position is but it is this that shows there is a need to legislate so as to ratchet up the diplomatic options. In the 1950s, Lord Denning wrote in a judgment:
What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument did does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.[i]
To stay relevant, law has to evolve. Whilst to legislate should always be a last resort, as it increases regulation and cost which is ultimately borne by taxpayers, in the situation described above there is an overwhelming need for legislation. A child is only a child for a finite period of time; after that their childhood, and the absent parent’s role in it, is gone and gone forever. The damage caused is well documented in various pieces of research. The failure to recognise this as the problem that it is explains why, as soon as the legislative calendar allows, the government should follow America’s lead and enact its own legislation. Where necessary the law must coerce; this is true of states and not just of individuals. The Foreign Office should, in short, follow and apply the State Department’s unyielding position:
[ii] http://travel.state.gov/content/childabduction/english/legal/for-judges.html (accessed on 14 August 2014) (emphasis added).
Update (8 January 2015): This email was not responded to by the UK government, despite a reminder being sent.