The border crisis nobody wants to touch; a silent epidemic of unknown proportions

My frequent readers know well that I favor writing about topics that (a) are not receiving enough media attention, in my view, or (b) that the media are covering, but where my opinion is of a contrarian nature to the conventional wisdom. In recent weeks I have come across such an area, having absolutely nothing to do with the financial markets or economics.

Reportedly, hundreds, if not thousands of minor American citizens get illegally taken out of the US each and every year to Mexico. Parents who have rights of custody of their children, including the right to determine where their children live — by law, court order or agreement — all too often, unilaterally decide to unlawfully take children to Mexico or illegally retain them south of the border in clear opposition to the other, US-based parent’s rights of custody.

Such kidnapping cases are treated differently in various countries. While in some, like Mexico, the illegal act is more of a misdemeanor, in other jurisdictions it is considered a serious crime.To counteract such jurisdictional arbitrage, 99 countries around the world have signed on to the global The Hague Abduction Convention, formally known as The 1980 Hague Convention of the Civil Aspects of International Child Abduction (The Hague Convention, for short).

The US and Mexico are signatories, among many developed and emerging nations. According to The Hague Convention, signatory countries commit to expedite judicial processes in order to achieve the prompt return of children to their habitual residence. Article 11 in effect sets a goal of resolving cases within a six-week period, by giving countries the right to request a reason for the delay if the case is not decided within 6 weeksof having been filed in the responding tribunal in order to protect the kidnapped minor’s long-term interests.

At issue in such proceedings is not determining final custody arrangements and/or in which of the dueling parents’ care the child may be better off. Rather, the signatory countries agree that it is in the best interest of children that decisions pertaining to their custody should be made by the courts in their countries of habitual residence.

The U.S. Supreme Court, Abbott v Abbot, expressly identified the chief operating feature of the Convention as being the return remedy. Exceptions to returning children to their habitual residence should be narrowly construed, and rarely applied in order to ensure the prompt return of children.

Courts are expressly authorized by Article 16 to order the return of children “at any time” and even in cases where a defense has been established. Courts look forward as to whether there are “undertakings” available in the child’s habitual residence to protect him or her from any perceived harm. Moreover, The Hague Convention has had a case go all the way to the Mexican Supreme Court, upholding the right of the US-based parent to have his minor returned home, despite criminal allegations against him.

The Hague Convention rules are designed, as mentioned earlier, to prevent the abducting parent from attempting jurisdictional arbitrage through a court that may be friendlier to his or her interests.

The Convention’s international legislation thus calls for the abducted or illegally retained child to return as soon as possible to his or her customary place of residence, as to not disrupt the minor’s development and to foster their long-term welfare.

As previously stated, The Hague Convention is designed to have the abducted child’s long-term interest as the single top priority, and achieves this by providing that custody decisions be made by the courts of the child’s habitual residence — where the proof (evidence) of best interest is found, including family, friends, health care providers, educators, and activities. The court with appropriate jurisdiction (a family court for the minor’s habitual place of residence) may then rule on permanent custody arrangements.

The reason for this veritable epidemic to go largely undetected probably has to do with the fact that parents reeling from such kidnappings are desperate and overwhelmed with the loss of their children. Shame of public humiliation or stigma may also play a key role. Moreover, attracting publicity may be feared to complicate judicial processes, and loving parents want to protect the privacy of their children, even at the risk of not ever seeing them again.

Regardless, this is an issue which I strongly believe deserves meaningfully more attention from both the media and policy makers. This is a significant international problem that appears to be all but ignored, even as the issue of strong borders gains increasing coverage and relevance worldwide.

Parents suffering through this thus find few resources, public precedent literature, testimonials of similar cases or even tips on how to proceed to have their kids return to where they belong as soon as possible. I am close to a decision to make this the topic of my next book, as well as a major cause for my philanthropic efforts. Please do not comment on this post, but share it and like it if you believe it may be an important topic.

Furthermore, if you, or anybody you know is a victim of this crime, following is a list of links to some potentially useful sources.

Helpful Resources for Child Abduction Cases:

Hague Conference on Private International Law Home Page (English):

https://www.hcch.net/en/home

Text (English) of 1980 Convention on the Civil Aspects of International Child Abduction:

https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction

Abduction Convention Status Table:

https://www.hcch.net/en/instruments/conventions/status-table/?cid=24

INCADAT: Child Abduction Case Database:

https://www.incadat.com/en

USA Central Authority Home Page:

https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html

2018 Abduction Report:

https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/AnnualReports/2018%20Annual%20Report%20on%20International%20Child%20Abduction%20FINAL1.pdf

2018 Action Report:

https://travel.state.gov/content/dam/NEWIPCAAssets/pdfs/AnnualReports/Final%2090%20Day%20ICAPRA%20Action%20Report%20for%20TSG.pdf

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Claudio Brocado

Claudio Brocado

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Indep. GLOBAL portfolio mgr; former PM at $LM's Batterymarch,Fidelity,Putnam & RCM (now Allianz Global Investors).Crusader for #finlit & vs #shortermism. RT ≠ E