Many times we delve into the necessary legal procedures and mechanisms to resolve a situation of international child abduction, but we overlook the reasons that may lead to such an extreme decision.
What drives a parent to abduct their child and take them to another country, far from home, to start a new life together? Are these valid reasons? Are they whims? Are they fleeing extreme situations? Is it a highly beneficial job change???
What are the reasons for the other parent’s resistance to granting permission for relocation and residence in another country? Are they valid reasons? Is it genuine concern? Desire to control their ex-partner? Envy for the prosperity of the other parent? The need to stay close to their child??
Often, a combination of various factors from both sides exists.
In other words, valid or ignoble reasons from both parties can coexist, leading to an extreme situation of illegal relocation.
If one of the parents has the opportunity for career advancement, to form a new family, and/or to pursue a new life outside the current country of residence, the reasons that lead one of the parents to abduct the child often appear after exhausting dialogue and negotiation with the other parent to achieve a consensual relocation.
These reasons acquire some validity when considering that no one is obliged to postpone their life simply because they have a child with someone who denies them that possibility of well-being.
In Argentina, Law 23857 incorporates the Hague Convention on the Civil Aspects of International Child Abduction into our positive law, leaving out the penal, patrimonial, and family aspects of the issue by exclusion.
So, what is the best interest of the child when these situations arise? Because relocations undertaken for these reasons are in pursuit of a better future, which will also benefit the child.
We know that in cases of international abduction, the best interest of the child is identified with their prompt return to their habitual residence, unless some of the exceptions provided for in the treaties are verified—also based on the best interest of the child—which must be interpreted restrictively, but also considering the circumstances that I have been explaining, and which will be relevant in the specific case.
In Argentina∗, many of these situations arise and are exacerbated by the special socio-economic circumstances facing our country. Economic crises, declining job opportunities, political mismanagement affecting citizens’ daily lives, and narrowing the prospects for young people, constant insecurity in cities, high crime rates, and drug trafficking are some of the factors that support decisions to emigrate in search of a better situation.
And so, new questions arise.
Can a young child perceive what is “in their best interest”? Can they understand what “a better future” means?
Can an adolescent weigh all the circumstances described and make a reasonable judgment about the benefits or disadvantages of making a life change?
I believe the answer is NO, and that it should be the adults who, mindful of the true best interest of the child, take actions conducive to their well-being.
Setting aside all selfishness and thinking about the other (who is their child), I understand that it takes a sense of greatness and generosity for a parent to grant permission for relocation abroad. However, I believe they must do so because it is a parent’s obligation to ensure the well-being of their children, even if that decision deprives them of maintaining close and daily contact.
In this sense, I also believe that extreme responsibility is required from the parent who emigrates with their child to another country; when they do so for just reasons and not driven by lack of love, hatred, or resentment toward the other parent.
I firmly believe that every action and behavior has consequences, even if not immediate, but in the future. And, regarding the topic at hand, another recurring reason arises when one of the parents begins to consider the decision to emigrate from the country of residence, and that is when it comes to marriages or unions between people of different nationalities.
In these cases, when things start to go wrong in the relationship, the foreign person begins to long for their home country. Their land, their home, their customs, their family. This is something innate to human nature and is inherent to the dynamics of human relationships. Initially, these differences are what attract the other person, but when things stop working, they are what drive them apart, and that’s when the internal process of returning to their place of origin begins. That’s why I say that actions have consequences because when someone relates to someone of a different nationality, they must bear in mind that these situations can arise and will affect the lives of both in many aspects, now also involving the children resulting from the relationship.
It is for all these reasons that, when weighing a situation from the role we play, whether as a Judge, Mediator, Attorney for the requiring party, or Defense Attorney, a cold interpretation of the law cannot be made without also considering the human aspect implicit in the letter of the law. Only then will a fair solution be reached.
These are some of the reflections that come to my mind based on a phrase once mentioned by a client who took several years to decide and make the difficult decision to leave Argentina with her children, who now live happily in England. She said to me: “I have realized that I have to act now and not keep postponing because THIS IS NOT THE DRAFT OF LIFE, IT IS LIFE”.
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as in many other countries around the world, and especially in this region of the planet
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