United States Court of Appeals, Sixth Circuit
16 February 2007
Article 7: Name and nationality
Article 8: Preservation of identity
Article 9: Separation from parents
Article 11: Family reunification
Article 19: Protection from abuse and neglect
Article 35: Sale, trafficking and abduction
Other International Provisions:
The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“The Hague Convention 1980”)
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 (“The Hague Convention 1996”)
Alien Tort Statute, 28 U.S.C. § 1350
The International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610
Mr. Taveras and Ms. Taveraz, who are citizens of the Dominican Republic, have two children. After the couple’s divorce, Ms. Taveraz was granted full guardianship over the two children. She travelled with the children to the United States on a visitor’s visa, and informed Mr. Taveras that they will not be returning to the Dominican Republic. Mr. Taveras filed cases alleging parental abduction in both Dominican Republic and U.S. courts. In the case before the United States court, he relied on a number of provisions of the CRC.
Issue and Resolution:
International parental abduction. The primary issue in this case is whether cross-border parental child abduction by a parent with full guardianship over his or her children can be adjudicated under the Alien Tort Statute (“the ATS”). The Court held that Ms. Taveraz’s actions are not shown to constitute a violation of the law of nations, as required by the ATS, and therefore dismissed the case.
The ATS provides that a U.S. federal court “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations…” The ATS does not provide federal courts jurisdiction over every wrongful action committed by and against an alien, only “violation[s] of the law of nations.” To determine if an act committed by an alien is a “violation of the law of nations” under the ATS, the Court used the standard set by the Supreme Court in Sosa v. Alvarez-Machain. In that case, it was held that an action may be considered a violation of the law of nations if it “rest[s] on a norm of international character accepted by the civilized world and [is] defined with … specificity…”. Thus, to establish that the alleged abduction violated the “law of nations”, the plaintiff would have to establish that there is international consensus in the civilised world regarding the illegality of Ms. Taveraz’s actions.
Mr. Taveras, the plaintiff, cited a number of international instruments, including the CRC and the Hague Conventions of 1980 and 1996, to establish that there is international consensus regarding the illegality of parental child abduction. The Court rejected this argument, finding that the various instruments provide very little support for his contention that there is international agreement which sufficiently denounces cross-border removal and retention of children by a parent with full guardianship or custody over his or her children. The Court analysed extensively the facts of the present case compared to other cases under the ATS, and ultimately held that the instruments that the plaintiff cited are “far less recognized and specific than the authorities relied upon by the plaintiffs in [other cases].”
Since Mr. Taveras had failed to produce sufficient evidence that there is an international consensus that the parental child abduction alleged in this complaint is a “wrong so generally and universally recognized that it becomes a violation of the law of nations within the ATS”, the Court dismissed the case.
Excerpts citing CRC and other relevant human rights instruments:
“The Hague Convention of 1980, which has 75 member states and an additional 20 non-member
accession states, was adopted ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’ We reject Mr. Taveras’ argument that The Hague Convention demonstrates an international censure against ‘parental child abduction,’ as described in the complaint, for the simple reason that the challenged conduct does not appear to be the type of conduct condemned by The Hague Convention.”
“In his appellate brief, Mr. Taveras relies primarily on Article III of The Hague Convention which
provides in pertinent part: ‘The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised . . . or would have been so exercised but for the removal or retention.’ In other words, removal or retention is wrongful under The Hague Convention if ‘a parent has taken a child out of a country in violation of the other parent’s custody rights.’”
“It is widely recognized that The Hague Convention only provides substantive remedies for custodial parents. The Hague Convention ‘provides the remedy of return only for a parent who has ‘rights of custody.’ A parent without custody rights, such as Mr. Taveras, is not entitled to the remedy of return or any other judicial remedy. Here, we find, under the plain language of Article III and in light of the fact that The Hague Convention only provides substantive remedies to custodial parents, that Ms. Taveraz’s removal and retention of the children does not appear to have been wrongful within the meaning of the convention because it was not in ‘breach of rights of custody,’ since at the time of removal and retention Ms. Taveraz had – and continues to have — full legal and physical guardianship or custody over the children under the laws of the Dominican Republic.”
“In our examination of the norms reflected in The Hague Convention of 1996 concerning the international removal or retention of a child, we find no significant difference from the original
1980 Hague Convention. Verily, The Hague Convention of 1996 adopts, verbatim, the definition of wrongful removal or retention of a child from The Hague Convention of 1980.”
“We turn now to the United Nations Convention on the Rights of the Child of November 20, 1989 (“U.N. Convention”). Approximately 193 countries are parties to this convention. The United States has not joined the convention. Mr. Taveras relies on six articles of the U.N.
Convention: 7, 8, 9, 11, 19, and 35, none of which squarely addresses the conduct at issue.”
“Upon reviewing the U.N. Convention on the Rights of the Child, we find some, albeit meager, support for Mr. Taveras’s contention that the international agreement sufficiently evinces a denouncement of cross-border removal and retention of children by a parent with full
guardianship or custody. Article 11 adds little to Mr. Taveras’s claim because it states only that ‘Parties will take measures to combat the illicit transfer and non-return of children abroad[,]’ without defining what constitutes an ‘illicit transfer and non-return.’ Similarly, Article 35, provides that parties shall prevent the ‘abduction’ of children ‘in any form,’ but the convention does not indicate that the actions taken by Ms. Taveraz, a parent with full guardianship or custody, qualify as abduction under this provision. Article 19 is inapplicable to the present case
because there is no allegation in the complaint that the children have been subject to any abuse, neglect, or other maltreatment. The remaining cited articles articulate certain rights of children that are applicable to the present case, to wit, the rights to know and be cared for by their parents; to preserve family relations; to not be separated from their parents against their will; and to maintain personal relationships and have direct contact with both parents. However, when
examined against the backdrop of Sosa, we find that the U.N. Convention on the Rights of the Child does not address the conduct challenged in the complaint with sufficient particularity, and thus cannot be interpreted to convincingly express condemnation of this conduct.”
- The Court notes that while 193 countries are party to the CRC, the United States is not a party.
- The court cites Sosa, a Supreme Court case that establishes the standard for determining whether certain alleged violations constitute “violations of the law of nations”. In Sosa, the Supreme Court urged judicial caution, emphasizing that the ATS was intended to provide jurisdiction over a “relatively modest set of actions alleging the violations of the law of nations” and that “there are good reasons for a restrained conception of the discretion a federal court should exercise in considering new causes of action.” The Court in Taveras seemed to heed this guidance, claiming that expanding the ATS to cover claims such as the one at issue could potentially “open the floodgates to a mass of custody-related disputes by aliens.” The legal citation for Sosa is 542 U.S. 692, 728 (2004).
- The Court’s decision in Taveras only barred Mr. Taveras from raising his claim in front of a U.S. federal court. However, Mr. Taveras may still have a valid claim in front of a court in the Dominican Republic.
Although the text of the Convention does not explicitly mention parental abduction, its provisions contain general principles of interpretation, such as the best interests of the child principle in Article 3 or the right to be heard in Article 12, which must be applied in any matter concerning children, including decisions regarding custody and the place of residence of a child.
477 F.3d 767 (6th Cir.)
Link to Full Judgment: