Navigating the Road between Uniformity and Progress: The Need for a Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction
90 Pages Posted: 30 May 2002 Last revised: 22 Aug 2019
Date Written: 2002
A ground swell of federal cases interpreting the Hague Convention on the Civil Aspects of International Child Abduction is producing some significant doctrinal changes in the United States' Hague Convention jurisprudence. Many of these cases involve a domestic violence victim who flees transnationally with her children to escape her abuser. The Convention was not drafted with this fact pattern in mind, and often works unjustly in these cases. In some recent decisions, courts have adopted novel legal interpretations in an effort to avoid applying the Convention to these abductors. The courts issuing these opinions walk a fine line between creating just solutions to difficult recurring fact patterns and undermining the uniformity that the Convention was supposed to foster. Two recent opinions by the Second Circuit suggest that courts are not always managing this tension between uniformity and progress in a way that strengthens the Convention. The article focuses on two recent cases before the Second Circuit and explains that although the Second Circuit reached the correct substantive outcome in both cases, the Second Circuit also made some critical mistakes of form in its analysis. In particular, in neither case did the Second Circuit acknowledge the weight of contrary authority, work within the existing doctrinal structure, or justify its departure with a purposive analysis. The Article proposes a particular framework of analysis for courts in order to provide greater legitimacy for novel results.
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