Volume 19, Number 6
DOMESTIC RELATIONS LAW
ARTICLE 13(b) OF THE HAGUE CONVENTION TREATY: DOES IT CREATE A LOOPHOLE FOR PARENTAL ALIENATION SYNDROME?
By Barbara Bevando Sobal and William M. Hilton
Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction provides that judicial or administrative authority may refuse to order a child's return if it finds that the child objects to being returned and if the child has obtained an age and degree of maturity at which it is appropriate to take account of its views. In making this determination, consideration must be given to information relating to the social background of the child provided by the "central authority" or other confident authority of the child's habitual residence.
Since the article's promulgation, conflict has abounded concerning its proper application. One school of thought is that because the treaty has a specific section for exceptions to the general rule of return under Article 12, the drafters of the treaty expected that there would be occasions when, under the exceptions, a child would not be returned. An alternate thought is that Article 13(b) was included only because chances of the treaty's acceptance would have been diminished without it.
Case law reflects this dichotomy. Some courts, after stating the treaty does not go to the merits of the underlying custody actions, have then under the guise of Article 13(b) held best-interests hearings. Other courts have followed the Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, in which great trust in the court's "doing the right thing" is given to the court of the child's habitual residence. An Article 13(b) finding should not be used to create a loophole and defeat the purpose of the treaty, which is to return the children to their habitual residence where the bulk of all relevant evidence concerning their best interests can be found.
Parental Alienation Syndrome (PAS) is a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is a child's campaign of denigration against one parent without justification. It results from a combination of the programming parent's indoctrinations and the child's own contributions to the vilification of the target parent. PAS refers only to situations in which parental programming is combined with the child's own disparagement of the vilified parent.
Case analysis. Perhaps one of the most extreme cases modeling how Article 13(b) creates a loophole for PAS and permits children to be lost to the alienated parent is the case of Lady Catherine Meyer. In 1994, her then husband, Dr. Hans-Peter Volkmann, abducted their two sons, nine-year-old Alexander and seven-year-old Constantin. In the course of the mother's unrelenting efforts to have her sons returned, she met Britain's ambassador to Germany, Sir Christopher Meyer. The two became very close and married in 1984.
Alexander was born in London a year later and Constantin in Germany in 1987. In 1992 the couple legally separated, and the children lived in London with Lady Meyer and visited their father in Germany during school holidays. On July 6, 1994, the children went on summer holiday with their father. Four days before they were due to return to London, Volkmann announced that he was not sending them back to England and disappeared with the children.
The High Court of England and Wales ruled that the retention of the children was illegal and ordered their "immediate return" to Britain under the terms of the treaty. On September 20, 1994, the German appellate court upheld the English decision. Volkmann requested half an hour to say goodbye to them but, in defiance of the court order, bundled the boys into a car and vanished. The next day, Volkmann lodged an ex parte appeal in the higher court of Lower Saxony in the nearby town of Celle, where judges made a provisional ruling in his favor.
The children were required to remain in Germany until the appeal was heard. On October 20, 1994, the Celle court reversed the earlier English and German decisions on Article 13(b) grounds that it was the "children's wishes" to remain in Germany and that they had been suffering in a "foreign environment especially since German is not spoken at home or at school." However, the court also directly contravened Article 13(b) insofar as it states, in pertinent part: "In considering the circumstances referred to in this article, the judicial and administrative authority shall take into account the information in relation to the social background of the child provided by the Central Authority or other confident authority of the child's habitual residence."
In this case, the United Kingdom, not Germany, was the habitual residence of the children. Nonetheless, the Celle court had based its decision on information provided by a German psychologist appointed by the father and an interview with three German judges, not on information or background provided by a competent authority from the United Kingdom.
Although the children were tri-national and trilingual, to the Celle judges they were solely German, and this overrode everything else. At the time of the hearing, Lady Meyer had not seen or spoken to her children in more than four months, during which they had been under the sole influence and control of their father. The Celle decision also meant that all further legal proceedings on custody and access would take place in the abductor's home territory. According to Lady Meyer, during a visit in February 1999, Constantin said that he did not want to see his mother and her new husband. Both children were close to aggressive toward the couple, reciting a litany of Lady Meyer's faults-all false and all parroting Volkmann's words.
The children's attitude toward their mother revealed a classic case of PAS. By focusing on maintaining blood ties and connecting the children to Germany in what amounted to blood law, the Celle court defied the children's place of habitual residence; created a loophole in the treaty by misapplying Article 13(b); and ignored PAS, notwithstanding the court's acknowledgment that PAS was asserted.
Can the loophole be closed? An excellent example of how courts can close the loopholes of Article 13(b) is demonstrated by the decision in The Matter of L.L. Children. The children were abducted from the Netherlands to New York, and an action under the treaty was brought for their return. The mother implored that the children remain because they were suffering from psychiatric disorders caused by their father's domestic violence.
A New York court found that all of the major commentators concerning the treaty agreed on the requirement of strict interpretation in the application of Article 13(b). The court made arrangements for the children to return to the Netherlands under the supervision and care of both New York and Dutch child protection agencies. The court determined that the principle purpose of the Convention would be upheld by a prompt return of the children to the Netherlands.
The court did not fall into the Article 13(b) trap; instead, it found that despite possible trauma to the children, an important public policy would be served by their return and that this factor outweighed any possible trauma to them. The court also found that the return of the children to the Netherlands would further the return of children abducted from the United States under similar circumstances.
Barbara Bevando Sobal is an attorney in New York, New York, and can be reached at email@example.com. William M. Hilton is an attorney in Santa Clara, California.
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This article is an abridged and edited version of one that originally appeared on page 997 of The International Lawyer, Fall 2001 (35:3).