No happily ever after
A panel of specialist family mediators should be established to provide more support to abducted children, Professor Marilyn Freeman tells Catherine Baksi
Parental child abduction has more than doubled in the last decade, with almost two children a day taken out of the UK against a court order or without the consent of one parent. Foreign and Commonwealth Office (FCO) figures show there were 580 new parental child abduction and international custody cases in 2012-13, up from 272 in 2003-04, though this figure is likely to be the tip of the iceberg.
Harmful effect
Despite its increasing prevalence, there is little understanding of the harmful effect on the children involved and an almost total absence
of appropriate support or follow-up after reunification. These are issues that Professor Marilyn Freeman, a barrister (non-practising)
at 4 Paper Buildings and expert in international
child abduction, highlights in a recent report
on the subject, and believes need addressing.
Freeman calls for a greater awareness among professionals, including lawyers, of the impact
of parental child abduction on the children
and families involved, and is working to set
up mechanisms to provide effective support.
While the law works to get children returned
to the states where they were habitually resident, says Freeman, lawyers need to know that the ‘return is not the end of the abduction story’.
In the report, ‘Parental child abduction:
the long-term effects’ (International Centre
for Family Law, Policy and Practice), Freeman explores the experiences of those involved
and recommends measures to help abducted
children and their families.
During 2011-12, interviews were carried out with 34 adults from the US and UK, 33 of whom had been abducted as children and one of whom was a non-abducted sibling of an abducted child.
Of those who took part, 24 were aged 2-8
when they were abducted, five were abducted when they were aged 9-11, and four were aged
0-2 years. The time span between abduction and reunification ranged from a few days to 42 years and the abductions had taken place between ten and 50 years ago.
Describing their time away following the abduction, participants spoke of ‘just surviving’, ‘shutting down’, ‘living under the radar’, and ‘growing up as a ghost’ with ‘weak attachments’.
Some experienced treatment associated with children who are abducted by strangers rather than their parents, including sexual and physical abuse or neglect and living with a constant feeling of fear and danger.
Though some experiences were less extreme than others, all had been removed from much that had been familiar to them, such as home, school, friends, pets, and extended family, and may have been told lies to justify what had happened.
The Hague Convention, says the report, has proved to be a ‘popular and extremely useful’ instrument for securing the return of increasing numbers of children, but the accounts of the interviewees demonstrate starkly that reunification did not signify the end of their challenging times.
Reestablishing trust
Many reported not feeling part of either side of their family after reunification, being confused and lost, and not getting the help they needed from their left-behind parent, who was overly focused on the return and insufficiently focused on the needs of the returned child.
It was, says the report, especially difficult for abducted children who had been told that the left-behind parent did not love them any more, and reestablishing trust was hard and, in some cases, impossible. Sometimes the interviewee experienced the return as the real abduction
and chose to return to live with the abductor.
The report suggests that problems for the children and their families are often heightened on their return as they struggle
to find their place within their own family structure in their changed circumstances. ‘The reunification itself can be the cause of many problems
for abducted children and the disturbance generated by the reunification has often been a catalyst for the emergence of difficult psychological issues for them relating to their identity and sense of belonging,’ it says.
Children often have conflicted loyalties, having spent a period of time with the abducting parent as their sole support system only to be returned to a sometimes barely remembered parent who may be experiencing all types of challenging responses to what has occurred and who often emotionally expects to get back the child who was taken rather than the older, and ‘different’, child who has returned.
There may be non-abducted siblings, half-siblings, or step-siblings who feel resentment at the time spent searching for the abducted child, at having been left behind, and at having to fight for attention now that their abducted sibling has been returned.
Or the family composition may have changed since the child was abducted to now include
a new step-parent or other siblings for the abducted child to form a relationship with.
The abducted child may blame the left-behind parent for not finding them, or for deserting them. In some cases, they may have thought that the left-behind parent was dead and grieved for them, so that the person with whom they are now expected to settle down is simply a ‘ghost of what they once knew’.
Conversely, the left-behind parent may blame the abducted child for not doing enough to find their way home and may resent the returned child for what seems like an abandonment.
The report points out that it is possible that the return will be a happy and fulfilling experience for the family, but observes that it appears very unlikely that this will occur without at least some of these issues arising. And these families are left to cope with their issues alone and pick up the pieces of their lives without any support.
The experience of the majority of those interviewed supported findings from earlier research by Freeman that the effects of abduction can be seriously negative and long-lasting.
The report shows that 25 of the interviewees suffered very significant emotional, physical, and mental problems as a result of the abduction, which has had a profound impact on the rest of their lives. These included psychotic breakdown, suicidal feelings, depression, eating disorders, post-traumatic stress, panic attacks and experiencing an identity crisis.
Adult relationships were coloured by
the abduction experience, with interviewees reporting difficulty connecting to people.
The report stresses that these children and their families need help. They are, it says, ‘part of our global society and our lives even if we do not know them. The impact of their experiences will affect us and we cannot successfully ignore, or turn a blind eye, to them.’
It continues: ‘The ripples of abduction bounce without respect for jurisdictional boundaries – the abducted child will grow to become a previously abducted adult who will form relationships and families that could potentially include many of us.’
Post-abduction maze
To prevent abductions and help those returned navigate the ‘post-abduction maze’, the report makes a series of recommendations.
Chief among them is making families who are involved in legal proceedings aware of the impact of abduction on children. It notes: ‘Family law cases are often highly charged with the potential for drastic measures being taken by the parent parties to a dispute. With the ease of travel these measures may include the removal of the children to another country.’
It suggests that parents involved in family disputes need to know about the legal and socio-legal aspects of child abduction and the effects on children. The idea being that such knowledge may prevent a parent from taking
such a drastic step if they know the potential
harm it will do to their offspring.
And this is where lawyers can help. The report recommends the establishment of a body of abduction-specialist family mediators who are
able to provide appropriate information about abduction and its effects in family law cases,
with a register of such specialists kept by the Hague Conference on Private International Law, among other places.
But the key message of the report is that it
is not enough simply to return the abducted children: they need to be protected from the harmful effects of their abduction, and this will include those children who are not returned.
‘More understanding and more targeted
support for abducted children and their families
is needed,’ says Freeman.
The report recommends that abduction support services are put in place and are well publicised,
with the authority effecting the return setting up
a monitoring system to provide follow-up and mentoring to support the children and their families.
In addition, it suggests
that abduction training should
be devised and offered to schools,
local authorities, police, judges and
mental health specialists, so that they deal appropriately with all the issues experienced
by children and families who find themselves
in need of help.
Freeman explains that the law works as far at it goes – getting children returned – but, she says, return is not the end of the story and the current law does not go far enough to protect children. She wants all lawyers who do family cases to
have some understanding of what happens
in abduction cases, so they that might have an impact on preventing it.
It would be particularly useful, she says, for
the lawyer of a left-behind parent to have some understanding of how the experience affects children. ‘As the report shows, returns do not always work out successfully for the adults or
the children and there can be lots of emotional changes even if the abduction was not long-term,’ she says.
A greater awareness of what an abduction means for the child, says Freeman, has the potential to influence the way lawyers advise clients regarding interaction with the child post-return. They may even bring the research
to their attention, she suggests.
Freeman is working with specialists in other jurisdictions to find the best way to take forward the recommendations of the report and establish care and support structures for those involved in child abduction.
Funding is a challenge, but, reinforcing the report’s conclusion, she says: ‘We cannot continue to think that we have done enough to protect children from the harmful effects of abduction simply by returning abducted children to where they lived before.
‘Perhaps the most pressing issue is for parental child abduction to be understood for what it is,
an important matter with potentially extremely serious effects for the child, and not some relatively benign event which sometimes happens in families. We are failing these children if we do not recognise this.’ SJ
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Child abduction: Legal context
Julia Thackray is the former head of family at Penningtons and now the family programme director at Central Law Training (CLT)
Over the last 35 years, an extensive legal framework has developed aimed at both preventing the removal of children across international borders and securing their return after abduction.
The 1980 Hague Child Abduction Convention, which now has almost 100 signatories, represents the core of the legal context for dealing with international child abduction. The convention provides a swift, or ‘summary’, procedure to decide which country’s court should make decisions about the children, whether in their home state or the state to which they have been taken.
Each contracting state signs up to obligations in relation to children who have been ‘wrongfully removed’ to or ‘wrongly retained’ in their jurisdiction country and to return them promptly to the country of their habitual residence. The convention applies equally to children who have been ‘snatched’ from the parent they live with and children who have travelled with their main carer, if the move was without the full consent or knowledge of other key people (usually the other parent).
The aim is that decisions about the children,such as who they should live with and whether they should be permitted to relocate internationally, should be made after a court case in the home state which takes into account children’s best interests.
Usually, under the convention, the aim would be for children to be returned swiftly and without a detailed court hearing, in contrast to most other child cases, which involve decisions on the basis of detailed investigations into the child’s welfare. The very few exceptions to the obligation to send children back are narrowly drawn and generally protective in nature.
A child’s return can be refused where there is a grave risk that the return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. An exception would also be made where children’s objections to being returned are strongly in fluential in the light of their age and maturity.
There are other signi ficant provisions which a ffect cases in different ways depending on the countries involved. Within the European Union, a European Council regulation (Brussels II Revised) modi fies the working of the 1980 convention. As well as additional rules about hearing children’s views, there can be a ‘second bite of the cherry’ for the state of habitual residence after a return has been refused. The court of the home state may have its own subsequent hearing and issue an order requiring the return of the child, which will trump the first order.
The 1996 Hague Convention, in force only since 2012, comprises 41 contracting states and interacts in complex ways with the other legal obligations, but aims at extending the reach of protective measures for children internationally. The convention increases the uniformity of how cross-border cases are dealt with, giving primary responsibility to the state of habitual residence and providing rules about which country’s laws are to be applied to decision making, as well as facilitating the recognition and enforcement of measures in other contracting states.
The prospects for recovering children who have been taken to non-convention countries are much more challenging, with some, much more limited, options for obtaining the return of abducted children.
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Catherine Baksi is a freelance journalist
@legalhackette