THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND THE NEED FOR ITS INCORPORATION INTO A BILL OF RIGHTS

In this article I discuss the failure of most democratic countries to accept or properly implement the UN Convention on the Rights of the Child, despite, except in the case of the United States, having ratified it. I consider the domestic implementation of treaties. I discuss, from an Australian perspective, that country's failure to enact a Bill of Rights and argue that children in Australia have suffered as a result. I also discuss judicial approaches to international law and compare the situation in countries such as the United States, the United Kingdom, Canada, and New Zealand and suggest that even in those countries that do have a Bill of Rights, it is not oriented toward children and therefore does not properly recognize their rights.     

INTERNATIONAL PARENTAL CHILD ABDUCTION: WHY WE NEED TO EXPAND CUSTODY RIGHTS PROTECTED UNDER THE CHILD ABDUCTION CONVENTION

The Child Abduction Convention, an international treaty, protects custody rights internationally among its member states by providing a remedy of return in cases where a child was wrongfully removed in violation of a parent's custody right. There is no such remedy for the violation of a parent's access (or visitation) rights. A ne exeat clause in a child custody agreement restrains a custodial parent from removing a child from a predetermined jurisdiction (such as a particular country) and can be issued when there is a risk that the custodial parent might flee to another country with the child(ren). Currently there is a circuit split within the United States as to whether a ne exeat right coupled with the right of access should equal a protected custody right under the Convention. Most international courts protect the ne exeat right under the Convention; however some do not. A ne exeat right should convey a protected custody right for policy reasons. The beneficial implications of a ne exeat right creating a protected custody right under the Child Abduction Convention clearly outweigh the detriments. While there is no instant solution to the inconsistencies among various courts in interpreting the Child Abduction Conventions’ scope in regard to a ne exeat right, there are ways to resolve the problem. If consistency in judicial interpretation cannot be achieved, a movement needs to be initiated to create a protocol to the Child Abduction Convention to further explain the scope of custody rights and ne exeat rights under the Convention.     

THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION AND THE GRAVE RISK OF HARM EXCEPTION

International child abduction is a problem that affects families around the world. The Hague Convention on the Civil Aspects of International Child Abduction was instituted to ensure that abducted children are promptly and safely returned home. Although the goal has been met, recent decisions and their use of Article 13(b) have limited the return of children to Israel on the premise that political turmoil and increased incidences of terrorist attacks constitute war. Although few would dispute that the recent escalation of terrorist attacks in Israel is troublesome, these incidences do not rise to the level of war. Such interpretations of Article 13(b) is too broad and undermines the Convention's policies. Unfortunately, in the global post-September 11th climate, terror attacks are inevitable throughout the world. In light of this harsh reality, courts must not be quick to declare that a country is a zone of war absent clear and convincing evidence.     

THE ELUSIVE PURSUIT OF SOLOMON: FALTERING STEPS TOWARD THE RIGHTS OF THE CHILD

This article provides a brief critique of presumptions about parenting and children seen through the lens of family law. It argues that, historically, decisions largely followed gender‐based and/or moral presumptions of the day and that sometimes these were in tension with each other. Sometimes, too, as in the biblical story of Solomon's judgment, biological parenthood was contested and/or gender did not provide a ready answer. The article argues that, as children's rights and the best interests of the child increasingly came to dominate the decision‐making rhetoric, a Solomon‐like belief has nonetheless persisted, that judicial ingenuity and sophisticated investigative resources can determine the underlying truth of a dispute and lead to the correct outcome. The evidence, however, points in the direction of significant predictive limitations to the legal, social, and psychological knowledge bases supporting most postseparation parenting decisions. It is argued that what is needed is a formal shift in emphasis from a somewhat idealized commitment to discovering the truth in most contested cases to a focus on good decision‐making processes. It is suggested that most transitional families are best served by an emphasis on good, respectful processes associated with good‐enough decisions that formally acknowledge the limitations of our capacity to predict. Good processes and good‐enough decisions are in turn best supported by a clear emphasis on children as individual agents, who, though dependent on adults, are entitled to the full panoply of human rights.     

CHILD SUPPORT IN THE UNITED STATES

This article reports on the results of a telephone survey conducted with a random sample of households screened for eligibility to receive child support in the state of Colorado. Despite the recent enactment of ambitious child legislation at the state and federal levels, the accounts of 731 custodial parents reveal a massive level of unmet need, with child support problems being most extreme for those never married to the chilďs other parent. These mothers typically lack an order establishing a legal obligation to pay child support and have incomes that fall below the poverty level. Overall, women of Colorado with child support orders received only about half of the support they were due, and 73 per cent of all women due support reported that they had experienced problems in collecting support either currently or in the past. The average amount of back due child support owed to the 60 per cent of women in the sample who reported an arrearage was $12,000. Analysis revealed that payment behaviour tracked with the length of time since separation with payment patterns worsening over time and irregular visitation and/or the presence of problems around child access. Female obligors exhibited the same payment patterns as their male counterparts but were more apt to maintain visitation. The article documents the dramatic, negative economic consequences of irregular or missing child support payments for custodial parents, and discusses the additional legal and financial commitments needed to improve the situation. The efficacy of private child support transfers to achieve an adequate standard of living for all children is called into question.     

ON THE LIMITS OF RIGHTS

Law and Philosophy -