I think you make a very good point. It seems to me the template for the abductor is that they know they can buy themselves at least five years with the child, and still not really pay much of a price for their actions. And during the course of those five years they'll try their darndest to bankrupt the LBP, break his will, his spirit, and hopefully he'll give up before they ever face their day of reckoning in the courts. The abductor has the odds in her favor with very little downside. Why not give it a shot? After all, there are no tough consequences, just a cushy relocation package back to Canada.
I suppose the counter argument would be that even if it's six years later, mother and son return to Canada, so we should be grateful the process worked, albeit slowly. The problem is the passage of time, precious time lost with a child, and the issue of re-adjustment culturally, linguistically, etc for the child. That is why Francois gave in on some of these things -- it's in his son's best interest to have a transition period. I just hate how the Brazilian courts think of this as a success because it is not. They need to fix a broken system that allows the abducted child to stay with the taking parent pending a lengthy appeals process that drags on for many, many years. They need to find a way to get these cases to the federal courts quickly and enforce a return order from the court of first instance -- no appeals, no BS. Work something out where the appeals can play out while the child is home in his country of habitual residence, I don't care how they do it, just do it. Brazil is officially non-compliant with the Hague according to our State Dept. They can't just say "sorry that's the way things work in the Brazilian courts."
I am just learning about this area of law, thanks to all of you, but from what I researched, mediation is one of the methods that many countries use to try and resolve these Hague cases, as tweinstein mentioned with Brazil. Theoretically, it does make sense to at least try to get the parties to come to a mutual agreement first as you would do in many civil legal cases. Even in criminal cases there is some sort of negotiations when there is plea bargaining. However, as we all know, the parties in these child abduction cases do not come to the mediation table at equal bargaining positions (see LukieD's quote above). The abductor has possession of the child, and is most likely in a country where they know that the legal system will take years (if ever) to resolve the issue and therefore they have little incentive to negotiate. Of course, if both parties considered the best interest of the child, that would facilitate a quick negotiation of the matter, but we all know that most people who abduct his/her child, are not thinking of the best interest of that child in the first place.
In any case, wouldn't HR3240 help in the mediation of these cases in the abducting country, as it would give the LBP more bargaining leverage during mediation?With all that being said however, isn’t mediation of these cases in the country where the child was abducted contrary to the dictates of the Hague Convention which requires the return of the abducted child to the place of habitual residence within six weeks? Upon return, it is then up to the court in that jurisdiction to determine custody and that is where mediation of the terms of custody should take place. In that way BOTH parents can have access to their child, even during mediation, and BOTH can participate in raising him/her. Ideally this would be done in peaceful compliance with the custody agreement. OK, I know I’m talking ideal world here, but isn’t that what these children deserve!
