Introduction
Having worked for more than 20 years in the field of parental child abduction, I have been struck by the connections between aspects of this emotive family situation, and another, equally emotive, set of familial circumstances, that of relocation, in which I have also been involved for a considerable time. Abduction has been subject to a greater level of empirical research (Chiancone, Girdner, & Hoff, Reference Chiancone, Girdner and Hoff2001), including my own studies (Freeman, Reference Freeman2001, Reference Freeman2003, Reference Freeman2006), than the area of relocation disputes. Taylor and Freeman (Reference Taylor and Freeman2010) provide an overview of the four key qualitative studies reporting on family members’ perspectives on relocation disputes in Australia (Behrens, Smythe, & Kaspiew, Reference Behrens, Smyth and Kaspiew2009; Parkinson, Cashmore, & Single, Reference Parkinson, Cashmore and Single2010), England/Wales (Freeman, Reference Freeman2009, Reference Freeman2010) and New Zealand (Taylor, Gollop, & Henaghan, Reference Taylor, Gollop and Henaghan2010a, Reference Taylor, Gollop and Henaghan2010b). None of these empirical studies were designed to focus directly on the outcomes for children in relocation disputes. Dr Rob George (Reference George2010, Reference George2012a, Reference George2012b) is currently engaged in trying to find out more about relocation cases which do not reach the [English] Court of Appeal so as to broaden our understanding of the everyday realities of relocation disputes.
Chiancone, Girdner, and Hoff (Reference Chiancone, Girdner and Hoff2001) provide a helpful account of the nature of the abduction research literature and emphasise the paucity of social science research in this field:
This study is one of the first attempts to learn extensively about experiences of left-behind parents, practices of Hague Convention Central Authorities, and the strategies that can be used by attorneys, judges, law enforcement personnel, and other professionals to assist in recovering abducted children quickly and safely. (p. 3)
Because of some of the similarities between the circumstances of abducted and relocated children, we should perhaps start to look to the research on the effects of abduction on children when considering what the effects of relocation may be on children who have relocated following relocation disputes between their parents.
It is also well recognised that there is, at least in theory, a close connection between the incidence of abduction and relocation. It is difficult to know, in practice, how closely the theory is reflected in reality. If we try to consider this from a starting point of what we know about relocation, we find that, in England and Wales, very little is known about the details of relocations including how many relocation cases are heard each year, how many succeed and how many fail, how many applications are by mothers, and how many by fathers. Much of what we know is anecdotal in nature (George, Reference George2012b) and, therefore, we cannot rely on the relocation records to assist in our understanding of the possible connections with abduction.
If, instead, we try to approach this from the starting point of what we know about abduction, we are again hampered by the lack of large-scale, detailed empirical research which considers the reasons for the abduction, and specifically whether a proposed relocation was involved. Chiancone, et al. (Reference Chiancone, Girdner and Hoff2001, p. 3) stated that ‘little social science research has been conducted on international parental child abduction’, and there has, unfortunately, been no significant change since that time. Studies have been undertaken by Greif and Bowers (Reference Greif and Bowers2007) and Greif (Reference Greif2009). Dalley (Reference Dalley2007) also conducted a small study limited to left-behind parents who contacted not-for-profit agencies for help finding their missing children. When the left-behind parents were asked:
. . .what they thought had prompted the abduction, only 10 of the 19 respondents gave some explanation. Mothers most often reported the father wanted revenge, whereas fathers reported that the mother needed to control. (p. 33).
Under a grant from the Office of Juvenile Justice and Delinquency Prevention (OJJDPP), researchers at the American Bar Association (ABA) Center on Children and The Law carried out a study to identify barriers to resolving cases of international parental child abduction (Chiancone, Girdner, & Hoff Reference Chiancone, Girdner and Hoff2001). This included a survey of parents in the United States whose children were abducted to, or retained in, other countries, a survey of Central Authorities, and documentation of good practices from leading agencies, organisations, and practitioners. The ABA worked with three national missing children's organisations to survey parents in order to document the problems parents encountered in trying to recover their children. The study was completed in 1998, and drew responses from 97 parents. The left-behind parents’ survey found that a high level of planning had been involved in the abductions, including liquidating assets, and quitting or changing jobs (Chiancone, Girdner, & Hoff Reference Chiancone, Girdner and Hoff2001). This might be suggestive of actions that are inconsistent with the dynamics of a relocation dispute where potentially left-behind parents are often arguing that the child should not relocate, but rather stay in the familiar surroundings in which they are living. Hence the unlikelihood of planning to engage in activities like liquidating assets which might give the impression either of instability, or of planning to abduct the child.
My own research on abduction does not indicate that a relocation dispute was a noteworthy trigger to the subsequent abductions that occurred (Freeman, Reference Freeman2003). No specific reference was made to relocation disputes being a trigger for the abduction, although ‘going home’ was given as a reason by both left-behind parents, and abductors, in some cases (p. 23). Several mothers spoke of their feelings of isolation and misery at being unable to leave countries where they had no support and where they lived only because of the relationship with the child's father, which had now broken down. However, none linked the abduction to the restrictive nature of the relocation jurisdiction in the country from which they had abducted their child. The sample did not include father abductors.
Nevertheless, it is not difficult to see why concerns exist about the connection between relocation disputes and the incidence of abduction, and it is likely that some abductions will occur for this reason. Taylor, et al. (Reference Taylor, Gollop and Henaghan2010a) note that:
More recently, a link between international child abduction and relocation has been increasingly recognized.. . . It is possible that, if the relocation process is too restrictive, parents wishing to relocate may be encouraged to take the law into their own hands and simply leave the country without the required consents. Conversely, if the process is too liberal, potential left-behind parents may feel that they have nothing to lose by abducting the child before the Court has a chance to make the relocation decision. (p.18)
The conventional wisdom is that a restrictive relocation jurisdiction will result in increased abductions by the parent wishing to relocate, usually the mother, while a liberal relocation jurisdiction will result in increased abductions by the prospective left-behind parent, usually the father. There is no substantive evidence that this is the case. It is also not incontrovertible that such an outcome is the inevitable result of having a policy towards relocation which is either restrictive or liberal. Perhaps the spectre of a child's relocation may well produce the thought, or the reality, of abduction by the potentially left-behind parent, or indeed the inability to relocate may produce the thought, or the reality, of abduction by the would-be relocating parent. In most cases this will not be the outcome. Most people do not abduct their children and instead tend to suffer the fall-out of failed relationships with resigned realism, and try to make the best arrangements possible for a continued relationship with their children who have relocated. Nonetheless, as already suggested, there may be some ‘hard’ cases in which this will be the result and, once again, the research on abduction plays a useful role in the relocation debates. What we know from the abduction research is that abduction can have serious and long-lasting effects on the children involved (Freeman, Reference Freeman2006). We therefore need to be aware of the links and the possible consequences, and avoid relocations becoming abductions by addressing the issues at an early stage. This article considers how this may be achieved.
Reasons for focusing on the links between relocation and abduction
Firstly, there is a recognised lack of a solid evidence base relating to the outcomes for children in relocation disputes. This was acknowledged by the Permanent Bureau to the Hague Conference on Private International Law (2012) in their Preliminary Note on International Family Relocation, drawn up for the attention of the Special Commission of January 2012 on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention:
Accordingly, the need for more empirical research into the effects of relocation on children has been acknowledged as a priority to move the debate forward. (fn 73 and accompanying text)
Gilmore and Glennon (Reference Gilmore and Glennon2012) agree: ‘There is, however, a paucity of empirical evidence concerning the impact of relocation on parents and children’ (p. 547, fn 3). Conversely, extensive social science research has been applied by analogy to relocation dispute cases, which has produced very mixed results (see Taylor & Freeman, Reference Freeman2010).
As noted earlier, there is greater evidence available on the outcomes for abducted children. It may be that this can be of some assistance in shedding light on those particular aspects of the relocation context specifically concerning the likely effects of relocation on children. There are many similarities between abducted children and relocated children. Often the abduction is by a primary carer, as is the relocation. Other similarities are equally important, like the loss of important relationships, and the familial conflict which exists. Of course, there are also key differences. Usually a relocation is, in whatever small way, collaborative insofar as it is not done in secret. Both parties are aware at the same time that it is happening and, if the application to relocate is allowed by the courts, it then has the legal seal of approval so the child's removal is not against the law. That does not mean, of course, that the relocated child lives openly and is not in hiding. There are cases where, because of the acrimony between the parents, the relocated parent does not want the left-behind parent to know where she is now living with the child. Sometimes the child herself may not want that information disclosed for fear of her father turning up and embarrassing her – this was a real example from my current abduction research where, following the abduction, the mother later lawfully relocated with the child. So there can be similarities between the experience of the abducted child and some relocated children even here.
Other important relocation questions remain unanswered, including the effect on children of being involved in a relocation dispute disallowed by the court and hence not relocating with their parent as proposed. However, accepting these limitations, the abduction research may be still have some legitimate value.
The second key reason for focusing on the link between relocation and abduction is that the abduction research tells us that abduction can have serious consequences in terms of the effects on the abducted (and previously abducted) child (Freeman, Reference Freeman2006). Children report a lack of trust, and strategies like blanking out as a way of dealing with their unhappiness (Freeman, Reference Freeman2006). They hate the conflict, and have found their return, when it did happen, as distressing as the original abduction. Although we know that abductions occur for a variety of reasons, including protection from abuse for the child, or from domestic violence for the mother (Freeman, Reference Freeman2001), the effects for the child may still be similar, and significant. My current long-term effects research is already producing some interesting initial snapshots of the effects described by the research sample of adults reflecting on their childhood abduction experience many years before. The data analysis is still at an early stage, and caution must be exercised regarding any conclusions that can be drawn in terms of the general effects of abduction. However, these snapshots provide food for thought as they repeat and expand on some of the issues raised in the earlier research about the serious problems that previously abducted children experience regarding trust, relationships, and the strategies for dealing with conflict. The research snapshots provided by interviewees in my current study reveal that these issues endure through to adulthood with, very often, significant impact on their current lives and relationships. What does this mean in terms of what we need to do about it? Surely it is clear that we should try to prevent abductions occurring in the first place. How might we do this when the proximate trigger to the abduction is a relocation?
Preventing relocation-related abductions
To respond to this issue, we need to explore a little further the link between the incidence of relocation and abduction. The debates on this issue relate to the restrictive or liberal nature of the relocation jurisdiction, and its impact on the incidence of abduction. The theory of how this link works is that a restrictive relocation jurisdiction results in more abductions by those wishing to relocate (usually mothers). In my earlier study (Freeman, Reference Freeman2006), almost 70 per cent of the sample involved abductions by the mother, which is consistent with previous research findings regarding the profile of abductors. In contrast, a liberal relocation jurisdiction is thought to result in more abductions by those who would become the left-behind parents (usually the fathers). There are currently many different judicial approaches to relocation being exercised around the world, and much debate about the use of presumptions in favour of, or against, relocation. Generally there is little support for the use of presumptions in this field. Indeed, The Washington Declaration (2010) specifically stated that no presumptions were to be used in relocation disputes. However, might there be significant benefits from the greater certainty that presumptions could bring, such that they may be a preferred way to approach the vexed question of whether a parent should be permitted to relocate with a child following relationship breakdown with the child's other parent? Certainty need not, of course, be brought about only by presumptions, and other ways of introducing a more robust approach are attracting judicial/academic commentary and endeavour (Freeman & Taylor, Reference Freeman and Taylor2011; Thorpe, Reference Thorpe2010), including the use of guidance and disciplines (Henaghan, Reference Henaghan2011), although some scholars still appear to advocate the use of presumptions (Bala & Wheeler, Reference Bala and Wheeler2012).
What impact does such certainty have on the conventional wisdom about the links between the incidence of relocation and abduction?
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(i) Knowing that the relocation is unlikely to be allowed (a restrictive jurisdiction) will not, in my submission, necessarily lead to an abduction by the primary carer mother. It is quite possible that it could instead lead to a different approach being taken by the mother to the problems she is encountering, perhaps with an overly controlling ex-partner from whom she wishes to get away, or perhaps with her new boyfriend from a different country with whom she would like to spend more time. Similarly, knowing that the relocation is likely to be allowed (a liberal jurisdiction) will not necessarily lead the father to abduct the child, but possibly to engage in a different way with the problems he is encountering, perhaps with an ex-partner who has her main family and support networks in another country, where she could work with the assistance of her family and provide a better life for their child(ren). Necessity is, after all, the mother of invention. If we have to face situations, we often find ourselves very capable of doing so. This would be a very positive benefit from the use of presumptions or greater certainty achieved through some other means. People would assess their situations and options differently in the knowledge of what was going to happen.
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(ii) It is possible, however, that the conventional wisdom is correct and that certainty, in the form of presumptions or some other means, may have a less positive impact in the relocation and abduction context. Abductions may be discouraged because, whilst people will not know how the courts are going to decide the issue, they will still have hope and, therefore, will not resort to abduction. If it is clear from the beginning that the relocation will probably be disallowed, there may be no hope, and therefore a greater incentive for abduction.
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(iii) Again, less positively, when we think we have alternatives, we often feel driven to grab them without really taking the time to explore the context of the conflict and the problems being experienced, and the potential consequences and fall-out of the decisions being made. Some interviewees in the relocation research I undertook (Freeman, Reference Freeman2009) told me they wished that more time had been taken to help them consider the implications of the applications they were making to relocate. One mother said she felt bulldozed towards the court hearing once she raised the issue of relocation with her legal adviser. She was told what to expect, i.e. that with a proper plan in place, she would get leave to remove. She began to feel that this course of action was therefore right. If relocation was so accepted, it must be the right thing. She did get leave to remove and, in her case, it turned out to be the wrong outcome. Her child is well-adjusted and has good relationships with both parents, but no longer lives with her in the country to which they relocated. She subsequently returned the child to the father in England so that he could continue his specialised education and, in her words, ‘to benefit from the close relationship with his father which he was in danger of losing following the relocation’ (Freeman, Reference Freeman2009).
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(iv) Additionally, if the use of presumptions was to be supported, we would need to be able to decide whether any such presumption should be in favour of allowing relocation, or of denying relocation, save in exceptional circumstances. As already discussed, the empirical evidence on the outcomes of relocation disputes is unavailable, and will take a considerable time to produce. Yet such research on relocation outcomes will be vital in determining which way any presumption should go.
Is certainty enough?
So, knowing how to influence the incidence of relocation-related abductions is not simple, and it is probably necessary to do more than introduce presumptions – for which we would need to know whether they should be in favour of, or against, the proposed move anyway. Neither on its own is likely to prevent abductions occurring. While conventional wisdom might say a liberal jurisdiction encourages fathers to abduct, you do not actually prevent abductions on this theory by imposing a restrictive relocation jurisdiction because that encourages mothers to abduct. The same can be said in reverse. If you introduce a restrictive jurisdiction, according to the conventional wisdom, this encourages mothers to abduct, but you don't prevent abductions by introducing a liberal jurisdiction because this encourages fathers to abduct. This is just ‘push and pull’ at work. The way forward may well be to introduce greater certainty, not necessarily through the use of presumptions, but through one of the other methods currently being debated internationally, but to do this in conjunction with providing meaningful support to parents and families facing these situations. The environment will need to be truly supportive in order to produce the positive change in approach that greater certainty can provide, and this is where we need to consider the possibility of specialised mediation as a method of delivering the support that is required. The context is aptly described by Professor Mark Henaghan, who said:
[w]hen inter-parental relationships are marked by ongoing conflict and bitterness, then that bitterness is likely to continue, whether the relocation occurs or not. The crucial point is that the reality of the relationship has to be confronted, rather than an idealised view of what post-separation families should be like. (Henaghan, Reference Henaghan2011)
Relocation disputes are often bitter continuations of unresolved relationship breakdown. It may be one way of confronting the reality of the relationship to have greater certainty in relocation cases; for families to know it and to confront, with whatever supportive help is available, the realities of what that means, and of the relationship generally. Presumptions would not be easy to introduce in England and Wales because of the reliance on the best interests principle in s1(1) Children Act 1989 which ensures that the welfare of the specific child determines the issue before the court. Presumptions do not sit well with that principle. For a current commentary on the meaning of welfare, see Lord Justice Munby in Re G (Children) (Education: Religious Upbringing) [2012] where he discussed the welfare principle as it applies in 2012, and emphasised, at paragraph 26, that a judge must peer into the future, perhaps indeed into the twenty-second century, depending on the nature of the case. For relocation cases, this is especially pertinent. It is also interesting to consider the judgment of Lord Justice McFarlane in a contact case, Re W (Children) [2012]. The judge's comments on the significance of parental responsibility may have relevance for the relocation/abduction context – he emphasised the tough nature of some aspects of parenting, which may be ‘a very big ask’, but may be part of the responsibility of the parent with the duty, care and responsibility to deliver what the child needs, hard though that may be.
Abduction impacting on relocation
As already discussed, the conventional wisdom is that relocation impacts on abduction. However, does an abduction also impact on the question of a subsequent relocation, i.e. when the abductor returns to the state of habitual residence following return proceedings, and then commences proceedings to lawfully remove the child from the jurisdiction, will the abduction count against her in the subsequent proceedings? I considered this issue in my Outcomes research project (Freeman, Reference Freeman2003) and found in that sample that the abduction did not appear to have been held against the abductor in the substantive custody issue. However, it did appear to impact on the subsequent relocation decision in many cases.
Interestingly, this was an issue that received some attention in a Court of Appeal case in England, S v C [2011], when the judge at first instance concluded that the situation for the mother upon return to Australia would give rise to an Article 13b risk under the 1980 Hague Child Abduction Convention, and referred to the stress that would be caused to the mother in having to issue a relocation application in Australia. The judge exercised his discretion not to return the child. The judgment was appealed, and the Court of Appeal was ‘troubled’ by the judge's view that the stress of the mother's anticipated relocation application upon return was a factor elevating the Article 13b risk. The Court of Appeal therefore allowed the appeal and ordered the return of the child. It was interesting, however, that the first instance judge – and no doubt others – would see a link between the abduction and any subsequent relocation application.
Conclusions
With all the usual caveats about research rarely establishing causation, is there sufficient correlation in the abduction research (including the snapshots from my current project on the long-term effects of abduction) to draw useful conclusions about the effects of abduction? Even at this early stage of data analysis, it seems there may be.
This, of course, is stand-alone research, but the next question is whether there are any lessons here for the relocation context? I would suggest again that there may well be – particularly with issues of identity and personal relationships. Much may depend on the context and the quality of the parental relationship both before and after relocation. If parents are able to work collaboratively in relocation cases, the loss and grief which may be experienced (relating to identity and personal relationships) may be managed in a caring and supportive way to help the child cope with the emotions that result from these events. In abduction cases, almost by definition, this collaboration is usually lacking, and the long-term outcomes for the previously abducted child may thus be correspondingly more severe. The lessons may therefore include what we already know – if the parents are at war, the child is likely to suffer – and that will be in the context of abduction, relocation and many other family transitions.
In addition to the debates about the need for, and the ways of, producing increased certainty in relocation cases, including the use of presumptions, and the possible impact they may have on the incidence of abduction, specialist mediation may be a way of assisting parents to make earlier and more informed decisions than they are currently able to do. Many people feel that relocation and abduction cases are not amenable to mediation because of the deeply entrenched position of each party – the stakes are so high that there is little room for compromise. Of course, the stakes are truly very high, but that does not mean that parents are incapable of addressing the realities of their situation when they are well informed and well supported. Specialist mediation can provide information to the parties about current understandings on the effects of relocation and abduction on children, and in this way may help to prevent what are truly relocation disputes from becoming abductions. It can help untangle old arguments from current decision-making, recognising that the dispute might be a mere symptom of former, or enduring, family feuds (see the Good Practice Guide issued by the Hague Conference in relation to the abduction context, 2012). Specialist mediation can also help parents to remember the responsibilities of parenthood, which Lord Justice McFarlane spoke about in re W. For a family at war, this approach to dispute resolution – rather than recourse to litigation – might assist parents to reconcile themselves to their situation, place their children's interests first, and accept the reality of their lives as a separated family.
Acknowledgement
This article was first published online in the Journal of Family Law and Practice (2013) 4(1) and has been made available to Children Australia with the kind permission of the Centre for Family Law and Practice, London Metropolitan University. This article is based on a paper originally delivered at the Child Law Conference, University of Tromso, Norway, January 21–25 2013 and has been published here with our thanks.
