INTERNATIONAL CO-OPERATION IN CHILD ABDUCTION ACROSS BORDERS
| Citation | (1999) 11 SAcLJ 409 |
| Date | 01 December 1999 |
| Published date | 01 December 1999 |
| Author | Leong Wai Kum |
Kidnapping including of a child has long been a criminal offence in Singapore and other countries. A relatively recent development, however, is the enactment of law to punish kidnapping of a child by his or her own parent. This is progress of which concerned adults will have mixed feelings. We worry that the incidence of such parental behaviour is high enough to require the enactment of laws to punish it but welcome the extra legal protection of the innocent child.
A development that parallels the enactment of the offence of parental kidnapping or, variously called, child abduction or parental abduction is international co-operation to rectify the insidious effect of kidnapping of a child which is arguably worse when committed by a parent rather than by a stranger to the child. The act of the parent kidnapping the child wholly betrays the child’s trust in him or her and causes great pain to the parent denied contact with a child whose whereabouts may even be unknown.
This article traces these developments in the legal regulation of the relationship between the parents and child and discusses the scheme of co-operation under the Convention on the Civil Aspects of International Child Abduction 1980.1 The Convention is open to accession by all countries but to date only some fifty countries have committed to it. More countries should join in this particular arena of co-operation. Only international co-operation can help the child who has been abducted by one of the very two people who should be the child’s protectors. Better understanding of what the Convention brings to the protection of children will persuade more countries to become party to it.
It is somewhat shocking that the law in most common law jurisdictions did not specifically protect the child until the last century. Of course the child has always been protected by the criminal laws from offences that can be committed against a person, adult or child. It was in legal regulation of the relationship between the child and his or her parent that the common law used to be callous. It is interesting to trace this in England and in Singapore.
For too long the common law simply assumed that a parent was bound to do right by his or her child so there need not be legal regulation.2 Indeed, coupled with the common law’s illusory treatment of husband and wife as if they were one legal person, the common law gave the father carte blanche authority over his child oblivious to the interest of the mother or the child. Even by the late 19th century Lord Justice Cotton could decide3
This Court holds this principle — that when, by birth, a child is subject to a father, it is for the general interest of families, and for the interest of children, and really for the interest of the particular infant, that the Court should not, except in the very extreme cases, interfere with the discretion of the father, but leave to him the responsibility of exercising that power which nature has given him by the birth of the child.
In Re Agar-Ellis, the father had restricted his seventeen-year-old daughter from seeing her mother because he believed she was alienating the daughter’s affections for him. The father’s conduct was not extreme enough for the Court of Appeal of England to intervene. The father’s legal right to the physical possession of his daughter allowed him to place this restriction on her even with regard to her own mother.
Lord Justice Cotton thus turned the laudable general principle of minimal interference in family relationships into a specialised principle that discouraged interference in the relationship between a teenaged girl and her father and then further particularised it into the callous principle that he should not inquire into this father’s behaviour. So it was that the
Court of Appeal of England turned a blind eye to the father’s action that denied the teenaged girl contact with her own mother. It refused to consider if his behaviour deserved censure. The court applied the common law and steadfastly upheld the husband’s dominance over his wife and daughter.
The common law became tempered by equity. The Courts of Equity developed the principle of parens patriae, ‘parent of the country’, meaning that the court is the ultimate parent of all children within the jurisdiction. This permitted the court to intervene whenever the needs of a child were not met by anyone including his or her father. The court as parens patriae could no longer remain blind to whether a father’s behaviour was right by his child.
In time, Courts of Equity developed the most significant principle that continues to dominate child law today. This is that in resolving an issue in court that concerns the upbringing of a child the court should consider the welfare of the child. The rights of a parent, including the father, are subordinated. The advent of this equitable principle gradually reversed the emphasis in English law’s regulation of the parent-child relationship. The child became the focus of concern.4 Parental rights began to retreat as the idea of child’s rights gained credence.5
In time, the English Parliament appreciated the wisdom of these equitable developments in child law and began to encapsulate them into statutory provisions.
It should be appreciated that, simultaneously with these developments, courts of equity began to raise the legal status of the wife to equal that
of her husband.6 The equality of husband and wife as spouses spilled over into their capacity as parents.
The mother became increasingly recognised as a person separate from the father. She has her own views on the upbringing of their child. The law should respect and support the mother’s views to the same extent it respects and supports the father’s views. The principle became established that neither father nor mother has a claim superior to the other in the custody or upbringing of a child. They have equal claims.7
In the second half of the 1980’s, English developments reached their pinnacle. This came about by a unique conjunction of political agenda, judicial development and law reform spurred on by an international impetus to improve the legal status of children. The English government embraced the attractive political slogan ‘Parenthood is for life’ and set in motion developments to affirm the responsibility of parents. The House of Lords in 1986 delivered a decision on parental authority that changed child law forever.
The seminal judgement in Gillick v West Norfolk and Weisbach Area Health Authority8 continues to require study as its implications filter across all legal regulation of the relationship between a parent and his or her child. In the course of long learned judgements of the lawfulness of a Department of Heath and Social Services directive to their doctors, their Lordships made profound observations of the nature of parental authority. The directive was that, although the doctor should try to persuade a young patient to involve his or her parents in making the decision whether to undergo medical treatment, it was ultimately the doctor’s clinical judgement whether the young patient understood the nature of the treatment to give real consent to accepting it. In the result, the House of Lords decided the directive was lawful.
The directive was lawful even if one considered its effect inter alia on the balance of authority between a parent and the child in the making of medical decisions. Of this analysis, the House of Lords first affirmed that
the common law protects parental authority only so that the parent can better discharge his or her responsibility to the child. The exercise of parental authority must, therefore, always be directed by concern for the welfare of the child. It follows that the exercise of parental authority should recede as the child becomes capable of making the particular medical decision and this is so even if the child remains under the age of majority. From this perspective the directive was exactly right in directing the doctor’s mind to whether the young patient possessed sufficient maturity to make the medical decision on his or her own.
Of child law, the House of Lords had expounded a complex view of the balance of authority between the child and his or her parent. This view responds sensitively to the dynamic relationship between parent and child due to the fact the child is maturing progressively. As the child matures he or she becomes capable of making decisions. The parent must withdraw proportionately because this is what a responsible parent will do. Their relationship proceeds on this delicate ‘see-saw’ fashion tilting towards or away from the child as the child acquires or still lacks capacity to make a particular decision until the child becomes an adult.
The impact of the international impetus on domestic law, like in England, should not be underrated. The United Nations in 1989 finished its work on the Convention on the Rights of the Child. This document culminated years of negotiation and decades of less ambitious action to improve the status of children.9 The Convention on the Rights of the Child is the most popular international document to date with the majority of the world’s countries already party to it.10 It amplifies the principle of the welfare of the child. The value this adds to domestic law is that, while domestic law requires the courts to pursue the welfare of the child, the Convention goes further and commits all public institutions to this same pursuit. What began as an equitable principle that could selectively modify the common law has gained universal embrace and by all institutions including governments. The internationalisation of this equitable principle, in turn, hastens further development of domestic law.
The Law Commission of England and Wales completed years of review of...
To continue reading
Request your trial