Tuesday, May 10, 2011
Shmueli & Schuz: "Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases"
Benjamin Shmueli (Bar-Ilan Univ. Faculty of Law) & Rhona Schuz have posted "Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases" (forthcoming Columbia Journal of Gender & Law) on SSRN. Here is the abstract:
This article deals with a unique intersection between civil (tort and/or contract) law, criminal law, family and child law, and international law.
Perhaps one of the most traumatic crises which can occur to an individual is when his child is abducted to another country by the other parent. The widely ratified Hague Convention on the Civil Aspects of International Child Abduction 1980 is designed to enable the crisis to be resolved as quickly as possible by mandating the authorities in the state to which the child has been abducted to restore the status quo ex ante by ordering return of the child to the state of his habitual residence immediately prior to the abduction, unless one of the narrow exceptions in the Convention is established.
However, this remedy by itself does not put the left-behind parent in the position he was in before the abduction. In particular, the process of recovering the child often involves the left-behind parent in considerable financial expense. For example, he may incur costs in identifying the whereabouts of the child, in traveling to the requested state and staying there in addition to the legal costs involved in bringing an application for return in the courts of the requested state. Furthermore, the discovery that his child has been abducted together with the uncertainty as to whether and when he will recover the child and lack of or reduced contact with the child will often cause considerable emotional distress to the left-behind parent. The issue of compensation for the left-behind parent is not discussed in the existing literature.
This paper examines - maybe for the first time in the literature - the extent to which it is appropriate to require the abductor to compensate the left-behind parent and the preferred framework for the provision of such compensation. We present four alternative models: the tort model (in which the left-behind parent brings a civil-tort claim against the abducting parent), the contract model (in which the left-behind parent brings a civil-contract claim against the abducting parent in cases in which there is a contract between them and it has been breached), the criminal model (in which compensation is awarded in criminal proceedings against the abducting parent), and the Abduction Convention model (in which compensation is awarded by the court of the state which is requested to return the child as part of the Convention proceedings). We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. After concluding that the Abduction Convention model is the preferred model, we discuss various dilemmas that arise in implementing this model and consider how to find an appropriate balance between the objectives of tort law and those of child law, as expressed in the Abduction Convention.
Among other considerations, this article examines the delicate question whether in determining the compensation courts should consider: the background of the relations between the abductor and the left-behind parent; the relations between the left-behind parent and the child; contributory negligence (or contributory/comparative fault) the part of the left-behind parent and the social background of the family, including the question of the involvement of the authorities and the possibility that the abductor has taken a step out of frustration and despair due to lack of proper treatment by the authorities.