We understand that International Abduction of Children and Adolescents is a situation where one of the parents, in an unilateral way, that is without the consent of the other parent, abducts or illegally retains a minor abroad, tearing him/her from his/her place of habitual residence.
Each case of abduction is unique and responds to specific causes. Nonetheless, all the social changes brought on by the global age, especially those in migrations, technological advances, and in the juridical systems themselves, have created conditions that promote abductions.
Simply consider the growing number of marriages and couples of diversified cultural and ethnic origins, the increased frequency and reduced costs of international transport of people, the opening of borders, the lack of preventive strategies and coordinating measures to control these borders effectively when minors are transported.
We can asseverate that the international abduction of children violates innumerable rights as recognized by the Convention on Children’s Rights. Among others, the separation of a child from his/her parents against his/her will, his/her right to a full development, since he/she is prevented from living with both parents and acquire a clear definition of the complementary roles both parents play in his/her upbringing.
No doubt, family ties are severed and the family-life environment is put at serious risk, especially the emotional aspect of the child, violating the rights of guard, custody, visitation, and other rights of a civil matter.
Also, the basic rights of a subject to preserve his/her identity, in the ample sense of the concept, since he/she is separated not only from an important part of his family, but also from his/her cultural, religious, and social heritage.
This way, a violation of rights enclosed in the concept of “higher interest” of the child is generated, being that the simple fact of the international abduction brings violence upon the child, not necessarily physical, the parental alienation, and the manipulation to which the child is subjected by the abducting parent. Undoubtedly, the articles of the Convention that collect and protect the right to life, education, identity, free relationship with his/her parents and the family are being violated, not omitting the possible existence of other siblings, etc. there are also the political right, such as nationality, etc. such a situation violates the obligation held by the States to guarantee social peace and the protection of children, along with his/her development and welfare.
The most harmful effect is the hindrance of the right of the child to grow up amidst his/her family, with both parents participating in his/her upbringing and development, both psychological and emotional, an obstacle set by the abducting parent, that separates him/her not only from his/her usual residence, but also from the other parent. It is one of the rights of children and adolescents, as established by international norms to maintain a personal relation and contact with both parents on a regular basis, unless there are exceptional circumstances.
Children who are the victims of abduction are exposed to serious risks and dangers, not only emotional but also physical, since, generally, these children are forced into a nomadic life, under false identities and even deprived of the necessary education and medical attention.
We cannot ignore either, the circumstances prior to the abduction. These are usually specific conflicts that range from domestic violence and abuse to disagreeing concepts concerning the formation of children. Likewise, and even though the family conditions vary from case to case, it may be that the child is living with both parents, with only one of them because they are separated or even divorced; there may exist a regime of visitations; one of the parents may be living abroad; the child may have a regular contact with the abductor, or barely knows him/her. In every case, the abduction is the culmination of a series of conflicts and arguments within the couple, always developing in a situation of violence and profound damage to the rights of the abducted child, where he/she is taken away from his/her place of habitual residence, from his/her well known and loved environment, and where his/her family and social life were centered, thus avoiding contact with the parent left behind, together with all the other people with whom he/she had close contact. In some cases, separated from his/her mentoring adult.
The reparation of the inflicted damage is achieved, among other things, by the restitution within the time frame established by the conventions. The principle of cooperation with, trust, and respect for, the juridical system of the other State has paramount relevance.
The inclusion of tools that are common to the States, tools that facilitate the restitution process, and accelerate it is fundamental. The child must be restituted as swiftly as possible to the place where he/she has his family, friends, school, native language, etc, and the Justice System must resolve everything concerning the patria potestas, tenure, and visitations.
It must be made clear that when an international restitution is processed, the patria potestas, the tenure or visitations are not at stake. They are issues pertaining to the jurisdiction of the country of the habitual residence of the child or adolescent. As the training of operators specializing in the subject is key to guarantee the restitution of transported or illegally retained minors, it is equally important that the States develop and put into practice social programs that foster the safekeeping of children and adolescents, knowing their opinions, and guard them in case they do not have other relatives. The States must also facilitate a direct contact with parents who live in different States, providing the adequate assistance.
Finally, this tool permits the access to specialized information, and aims to provide contents that will contribute to improve the treatment, be it preventive or resolving, of cases related to the international abduction and consequent restitution of children and adolescents.