NationStates

Good afternoon, World Assembly denizens. We thought we might have a try at drafting a resolution of our own.

International Child Abduction

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Category: Human Rights || Proposed by: Desmosthenes and Burke

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The World Assembly,

Recalling the prior work of the World Assembly in protecting the rights of children and minors,

Observing that a number of families involve multiple nationalities,

Believing that the best interests of the child are of paramount importance, and

Firmly convinced that it is presumptively in the best interests of a child for disputes between parents to be handled with a minimum of disruption to the child’s life,

Hereby:

1. Defines International Child Abduction, for the purposes of this resolution, as the unilateral removal of a child from their normal residence, or retention in a place other than their normal residence by a parent or legal guardian across international borders in contravention of the custody or access rights of another parent, another legal guardian, or the child;

2. Further defines normal residence as the place where a child lived and carried out the usual patterns of residence before the International Child Abduction;

3. Mandates that in determining a child’s normal residence, the following factors must be considered in order of importance:

1. Any prior agreements, judgments, decrees or other legally effective instrument adjudicating or determining the residency of a child which, if available, are definitive without reference to further evidence or inquiry;
2. School, Extracurricular, and Community involvement of the child,
3. The intentions and statements made by the parents prior to the International Child Abduction,
4. The length of time the parent(s) and/or child lived in a place,
5. The location of the parents’ employers,
6. The location of the parents’ families;

4. Instructs courts to limit their inquiry solely to the above factors, and to consider all available evidence, including the testimony of the child where appropriate, weighing on those factors;

5. Requires that member states, upon application for assistance from a child’s parent or guardian, return all victims of International Child Abduction to the government of their normal residence unless one of the conditions set forth below are met;

6. Accepts that member states are not required to return a child in cases where shown by overwhelming evidence:

1. The return of the child would violate World Assembly law,
2. There is a grave risk that such return would result in severe and immediate physical or psychological harm to the child,
3. There was an agreement by the parents permitting the removal or retention;

7. Clarifies that in applying the above standard a member state shall:

1. Refrain from making any consideration on the underlying merits of any custody dispute but shall assume the competence and good faith of the tribunals of normal residence to resolve the underlying issues in the best interests of the child,
2. Abstain from the consideration of perceived faults or deficiencies of the law, legal system, or cultural circumstances of a child’s normal residence,
3. Take judicial notice of, admit into evidence, and give full effect to the valid public records, legal proceedings, judgments, and agreements of the normal residence offered in support of the return of a child; and

8. Requires member states to recognize International Child Abduction as a grave act with consequences appropriate thereto, which shall not be lesser than that ascribed to domestic child abduction.

OOC: This is a very rough draft. I am aware it needs quite a bit of work, so have at it. Let us also assume that the implications of the "Clarifies" list are features and not bugs unless there seems a clearly unintended consequence in lights of the goals of the resolution.

Edit: Newest Draft

"I wouldn't have bolded the two lines you have."

More quibbling about formatting.

• We separate prefatory clauses with commas not semicolons,
  
• we separate sub-list clauses with commas rather than semicolons for differentiation,
  
• there should be an 'and' preceding the final prefatory and operative clauses,
  
• 'The World Assembly' is followed by a comma rather than a colon, and
  
• sub-lists are minuscule letters rather than majuscule ones.

Kenmoria wrote:"I wouldn't have bolded the two lines you have."

Imperium Anglorum wrote:More quibbling about formatting.

• We separate prefatory clauses with commas not semicolons,
  
• we separate sub-list clauses with commas rather than semicolons for differentiation,
  
• there should be an 'and' preceding the final prefatory and operative clauses,
  
• 'The World Assembly' is followed by a comma rather than a colon, and
  
• sub-lists are minuscule letters rather than majuscule ones.

I believe I have addressed the formatting concerns, except that the final sub-list clauses have retained a semi-colon as they are also the ends of a main clause.

Desmosthenes and Burke wrote:I believe I have addressed the formatting concerns, except that the final sub-list clauses have retained a semi-colon as they are also the ends of a main clause.

In reaffirmation, those should be semicolons.

"You have some majescule and some miniscule letters for alphabetical lists, use just minuscule. Also, I would recommend numbering your active clauses."

Kenmoria wrote:"You have some majescule and some miniscule letters for alphabetical lists, use just minuscule. Also, I would recommend numbering your active clauses."

I hope all the lists are now well behaved and clauses suitable numbered (for convenience? I am not used to numbering operative instructions in legislation that way).

Are there any substantive comments about the content?

Desmosthenes and Burke wrote:Are there any substantive comments about the content?

"We are happy to oblige."

3. a) wrote:Any prior agreements, judgments, decrees or other legally effective instrument adjudicating custody or residency of a child which, if available, are absolutely controlling;

"We would presume this includes the citizenship of the child, although this is not immediately apparent; we feel it may bring some delegations ease to see it specifically mentioned, along the lines of:"

Any prior agreements, judgments, decrees or other legally effective instrument including citizenship adjudicating custody or residency...

Whovian Tardisia wrote:

Desmosthenes and Burke wrote:Are there any substantive comments about the content?

"We are happy to oblige."

3. a) wrote:Any prior agreements, judgments, decrees or other legally effective instrument adjudicating custody or residency of a child which, if available, are absolutely controlling;

"We would presume this includes the citizenship of the child, although this is not immediately apparent; we feel it may bring some delegations ease to see it specifically mentioned, along the lines of:"

Any prior agreements, judgments, decrees or other legally effective instrument including citizenship adjudicating custody or residency...

I suppose technically, an adjudication of citizenship would be included under the wording I used. Such was categorically not my intent. I will need to write a line to explicitly exclude citizenship from being absolutely controlling.

Consider a RL example. Bob (British) and Mei Lin (Chinese) get married in Shanghai. They have a child together. Both countries theoretically grant the child citizenship, however, the Chinese side is complicated. For whatever reason, they get it wrong and a Chinese court enters a judgment stating the child does not have hukou in China. That court cannot, for what I hope are obvious reasons, say anything about the child's UK citizenship. Let us further posit that 6 years later, they parents wish to obtain a divorce. Before the divorce can be finalized, Bob gets the child out of China (which should be quite difficult to do, but let us assume) and into the UK. Mei Lin complains to the UK to have the child returned to China as his normal residence. My intent is that Mei Lin's request should be granted. China is the child's normal residence, even though his citizenship is likely exclusively British (though the child is still a Chinese national, the denial of hukou is a denial of citizenship).

"In clause 3, I would add, “g. The wishes of the child in question;” as one of the subclauses."

Kenmoria wrote:"In clause 3, I would add, “g. The wishes of the child in question;” as one of the subclauses."

I am not saying no to this addition, but could you explain a bit more why you want this added?

I am not opposed to a court taking testimony from the child, and giving due consideration in regards to and of the other factors, but the proposed additional clause sounds more appropriate in regards to resolving a custody dispute, which is outside the bounds of what this resolution calls on a court to do.

Could you elaborate on how you envision the wishes of the child informing a court seeking to answer the factual question of where the child's normal residence (where the child lived and carried out the usual patterns of residence BEFORE the abduction)?

Desmosthenes and Burke wrote:

Kenmoria wrote:"In clause 3, I would add, “g. The wishes of the child in question;” as one of the subclauses."

I am not saying no to this addition, but could you explain a bit more why you want this added?

I am not opposed to a court taking testimony from the child, and giving due consideration in regards to and of the other factors, but the proposed additional clause sounds more appropriate in regards to resolving a custody dispute, which is outside the bounds of what this resolution calls on a court to do.

Could you elaborate on how you envision the wishes of the child informing a court seeking to answer the factual question of where the child's normal residence (where the child lived and carried out the usual patterns of residence BEFORE the abduction)?

My wording was horrifically imprecise, I did mean taking into account testimony and statements from the child in question. The word “wishes” should definitely not have been used in that sentence. Sorry for the poor word choice.

I have made several substantive changes to the draft, which is now available in the first post. As a summary:

1. Included languages clarifying that testimony from the child should be considered
2. Tightened the mandate on courts through a new clause 4
3. Tried (and probably failed) to clarify clause 3.a

"For clause 8, I don't see why it is necessary to make it optional for a member state to criminalise child abduction. It seems that no sane nation would oppose their sovereignty being reduced for this. Therefore, I would recommend using a word such as “Mandates” instead of “Urges”."

Could I propose this and I can give credit to you?

Kenmoria wrote:"For clause 8, I don't see why it is necessary to make it optional for a member state to criminalise child abduction. It seems that no sane nation would oppose their sovereignty being reduced for this. Therefore, I would recommend using a word such as “Mandates” instead of “Urges”."

I am inclined to agree. The optionality was made for IRL considerations (IRL abduction by a parent is not considered abduction in a distressingly large number of countries, and another large bloc of countries treat it as a pure family law issue). If there is no opposition to the change from anyone, however, I will make it, as I firmly believe it SHOULD be a major crime.

Staypuftonia wrote:Could I propose this and I can give credit to you?

Welcome to the WA and NS. I would not suggest attempting this course of action. However, I am sure you can think of something to write your own draft about. If not, you are welcome to telegram me. I have more than a few other ideas bouncing around that I will share.

Might I suggest reworking the title? It seems to sort of imply that we're for voting for international child abduction rather than laws against it. Maybe make it "On International Child Abduction"?

Come on. No more essay titles. Current name is fine.

Imperium Anglorum wrote:Come on. No more essay titles. Current name is fine.

I know, I know, that naming structure is getting old. But let's be honest with ourselves, the majority of voters don't read past the name and maybe the introduction. Maybe make it "Against International Child Abduction" or "Laws on International Child Abduction", just to sort of make it easier to vote for.

Araraukar wrote:"So if a family is vacationing in a foreign nation, and they get into an accident that puts both parents in the hospital, unconscious, the childcare services taking custody of the child - which is not pre-arranged, due to the accident not being foreseeable, nor is the consent of the parents acquired as they're both unconscious, nor will the child likely be happy about the situation, especially if they're not old enough to understand why they can't have mommy and daddy - would be labeled as child abductors by the WA? Surely that can't be the intention."

OOC: I'm hoping I missed something, but the things in clause 3.a. that the childcare services would normally fall under, talk about prior arrangements.

We believe that the definition of child abduction would preclude that.

1. Defines International Child Abduction for the purposes of this resolution, as the unilateral removal of a child from their normal residence, or retention in a place other than their normal residence by a parent or legal guardian across international borders in contravention of the custody and access rights of the other parent, legal guardian, or child;

In the posited situation, the parents/legal guardians are not the active agent. Section 3.a should never be triggered as there is no abduction in the first instance. Child services, even if we presume it becomes the legal guardian, is also not acting in contravention of the rights of the child's parents by providing emergency support.

However, you have reminded us to clarify clause 5 requires an application from the aggrieved parent, not a government.

OOC: Unless I am missing something, the posited situation does not fall within the scope of the resolution. The definitions refers to acts by parents or legal guardians who act contrary to the rights of another parent or guardian, or to the rights of the child. I cannot see child services falling within that ambit in your specific situation. I suppose I could imagine a fringe case of something like the children's godparents or grandparents wanting them returned to their home country against the wishes of the foreign country while the parents are still incapacitated, but that, while perhaps unfortunate, would be within my intent.

The more likely scenario is something like daddy takes a business trip and brings the kids, has an accident, and dies. Child services providing temporary care until mommy can assume custody would be fine. Child services trying to retain the children instead of allowing mommy to take them home would trigger the resolution, which would be within the intended effects.

Last thing, I will be changing clause 5 slightly, to make it clear that only a parent/legal guardian can file an application for assistance, which would likely solve this even if I am wrong about the application.

New draft posted. Changes are:

Clarified clause 5,
Mandate the criminalization of international child abduction, and
Some language tweaks.

OOC: Been a month since this was up. Can you please remind everyone about the basic premise here; are you trying to criminalize a stranger kidnapping a child and crossing the border with them, or one parent doing so, against the wishes of the other parent? If both, the latter case makes things a bit hairy, if one parent is traveling with the child and needs to, for instance, flya via another country, with an overnight stay there, because their plane had to land due to a malfunction. The other parent might have vehemently opposed taking their kid out of the country on the holiday. Would unforeseen circumstances (as in, not planned by the parent traveling with the child) force WA nations to consider it child abduction?

Also, since you define "international child abduction" as an international action, you can probably instead just define "child abduction" as an international action for the resolution.

Araraukar wrote:OOC: Been a month since this was up. Can you please remind everyone about the basic premise here

To provide a mandatory mechanism for the return of children to their country of residence if they are abducted to or detained elsewhere by another parent or legal guardian in contravention of the rights of the complaining parent/guardian or the child. The criminalization is more of an addendum to discourage people from doing this since the process described in this resolution could conceivably take months or years to resolve depending on a nations courts (IRL it often drags on for several years).

The basic pattern would be something like John is from America and Anna is from Guatemala. John and Anna get married in the US and have a child. Later they get divorced in the US, and the court awards (for the purposes of this example) custody to John. Anna is unhappy and during a visitation takes the child with her to Guatemala, without John's permission (and usually without telling him either) and refuses to return the child to the US and to John. John then applies for assistance from Guatemala. Under this resolution a Guatemalan court adjudicates (effectively being bound by the US custody determination that Anna is acting contrary to John's custody rights) that the US is the child's normal residence. The government of Guatemala is now required to remove the child from Anna and turn it over to the government of the United States (who will presumably then arrange for John to take custody of his child). Clause 8 (which I am not super attached to) further specifies that Guatemala must consider Anna's actions criminal as well and prosecute and punish her at least as harshly as if she had abducted a child from within Guatemala.

A slightly different example would be if John and Anna shared custody of the child and Anna was permitted (either by the custody adjudication/agreement or John's permission) to take the child for a visit to Guatemala for a stated period (say for the summer holiday, to return before school starts in the autumn). During that period, Anna has not abducted the child as she is not in contravention of John's custody rights, and John would have no recourse since he agreed. However, if, at the end of the period Anna then refuses to return the child to John, she has committed abduction by retaining the child in contravention of John's custody rights, and John's agreement to the initial removal does not extend this far. The situation then plays out as above.

Now, say instead of the US and Guatemala, let us posit Yemen and Guatemala. John's application may be rejected this time on grounds that under clause 6.b returning the child to Yemen (an active warzone) would constitute a grave risk of immediate physical (and probably psychological) harm to the child (to wit death, dismemberment, conscription as a child soldier, starvation, whatever other horrible thing you can imagine). Technically Anna has committed the bad act, but we are excusing it based on the exigency of the situation.

For your average unforeseen circumstance, the amount of time necessary to invoke this resolution should cause the situation to resolve itself long before the process can be completed (IRL I have never heard of this taking less than several months, and usually more than a year). In addition, an unscheduled stop, detour, etc. due to a force majeure, in my opinion, could not be rationally considered an act in contravention of the other parent's custody rights or their agreement concerning the child being absent from the country of residence (presuming they agreed to the vacation before they left) for a period of time. I am operating under the assumption that legal systems are not incapable of exercising common sense. On the other hand, if you are positing the complaining parent did not agree to the trip to begin with, then yes, you have to consider that abduction (and that is as I intend).

Can I clarify anything else for you?

Desmosthenes and Burke wrote:Can I clarify anything else for you?

OOC: What if the parent demanding the child be returned has been formally accused of a violent crime? No history of child abuse or spouse abuse, but given that the state is fairly certain they have committed a criminally violent act, would clause 6 apply? Given that it mentions "severe and immediate physical or psychological harm" (underlined word would make your example of Yemen being an active war zone unlikely to apply, btw, since it's fairly unlikely they would instantly have to experience any of the stuff you mentioned), I find it unlikely.

Also, what counts as severe harm? A common example of spousal international child abduction is of a person from a nation and religion where baby penis mutilation is not carried out systematically, marrying someone from a nation and religion where it is, and the parent in support of circumscision then at a later point abducts the child to take them out of the country to have them circumscised.

So if the situation was reversed, and the parent from a country and religion not performing the ritual mutilation was to "abduct" their child to prevent them from being surgically modified to fit norms that they themselves do not believe are justified, would clause 6 make their action non-criminal? WA has, to my memory, specifically legalized boy circumscision (though I'd check the details of the law if I were you).

At a closer read it would appear that your latter example of John & Anna with Guatemala still wouldn't count as international child abduction, because clause 6.c. says "removal or retention". Given that removal was authorized, the fact that retention wasn't, won't have any effect.