Between tort law, contract law, and child law: how to compensate the left-behind parent in international child abduction cases.
This Article deals with a unique intersection between civil (tort and/or contract) law, criminal law, family and child law, and international law.
Perhaps one of the most traumatic crises that can occur to an individual is having his child abducted by the other parent and taken to another country. The widely ratified 1980 Hague Convention on the Civil Aspects of International Child Abduction is designed to enable the crisis to be resolved as quickly as possible by mandating that the authorities in the state to which the child has been abducted order return of the child to the state of his habitual residence immediately preceding the abduction, unless one of the narrow exceptions in the Convention is established.
However, this remedy by itself does not put the left-behind parent in the position he or she was in before the abduction. In particular, the process of recovering the child often places a considerable financial burden on the left-behind parent. For example, he may incur costs in identifying the whereabouts of the child, in traveling to and staying in the state of abduction, and in paying the legal costs of submitting an application for the child's return in the courts of the requested state. Furthermore, the discovery that his child has been abducted together with the uncertainty as to whether and when he will recover the child and the lack of or reduced contact with the child will often cause considerable emotional distress. The issue of compensation for the left-behind parent is not discussed in the existing literature.
This Article examines, therefore, the extent to which it is appropriate to require the abductor to compensate the left-behind parent and the preferred framework for the provision of such compensation. We present four alternative models: the tort model (in which the left-behind parent brings a civil tort claim against the abducting parent), the contract model (in which the left-behind parent brings a civil contract claim against the abducting parent when a contract between the parents has been breached), the criminal model (in which compensation is awarded in criminal proceedings against the abducting parent), and the Abduction Convention model (in which compensation is awarded by the court of the state which is requested to return the child, as part of the proceedings under the Hague Convention). We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. After concluding that the Abduction Convention model is the preferred model, we discuss various dilemmas that arise in implementing this model and consider how to find an appropriate balance between the objectives of tort law and those of child law, as expressed in the Abduction Convention.
Among other considerations, this Article examines the delicate question of whether, in determining the compensation, courts should consider the background of the abduction, and in particular, the relationship between the abductor and the left-behind parent, the relationship between the left-behind parent and the child, contributory negligence or comparative fault on the part of the left-behind parent, the social background of the family, any involvement by the authorities, and the possibility that the abductor has acted out of frustration and despair due to mistreatment by the authorities.
This article deals with a unique question of an intersection between civil (tort and contract) law, international law, family and child law, and criminal law. The goal is to try to find the most appropriate method of compensating the left-behind parent in cases of international child abduction. (1) While this is an independent issue, separate from the question of whether the court should order the return of the child, the context of the proceedings for return of the child is clearly relevant. Indeed, the questions which arise in this situation are far more complex than issues of recovery of costs and expenses which arise routinely in other types of legal proceedings because of the combination of several factors: the international element, the domestic context of the dispute, the need to take into account the impact on the child, and the social background to the abduction, which may involve issues concerning the responsibility of welfare and law enforcement agencies. In fact, it is this combination which makes the issue of compensation for the left-behind parent unique and deserving of discussion and analysis.
The Hague Convention on the Civil Aspects of International Child Abduction (2) [hereinafter AC] mandates the judicial or administrative authorities in the state to which the child has been wrongfully removed or retained [hereinafter "the requested state" or the "state of refuge"] to order immediate return of an abducted child to the state of his habitual residence [hereinafter "the requesting state" or the "state of origin"] prior to the abduction, (3) unless one of the narrow exceptions in the Convention is established. (4) More than eighty countries have ratified the AC, and more than a thousand applications to return abducted children are made under the Convention each year. (5)
One of the primary objectives of the AC is to restore the status quo ante. (6) While return of the child to the state of habitual residence does indeed fulfill this objective in relation to the physical situation of the child, this remedy by itself does not put the left-behind parent in the position he was in before the abduction. In particular, the process of recovering the child often requires the left-behind parent to incur considerable financial expense. For example, he may incur costs in identifying the whereabouts of the child, including payments to private investigators, in traveling to and staying in the requested state, in addition to the legal costs involved in bringing an application for return of the child in the courts of the requested state. In addition, the time involved in traveling to the requested state is likely to lead to a loss of earnings. Furthermore, the discovery that his child has been abducted, together with the uncertainty as to whether and when he will recover the child and lack of or reduced contact with the child, will often cause considerable emotional distress and even trauma to the left-behind parent. Sometimes it is necessary for the parent to undergo psychotherapy or other forms of treatment in order to recover psychologically from this harrowing experience. (7)
However, the power to award reimbursement of expenses other than legal costs in AC proceedings (8) is not widely used, and tort actions for damages--the natural framework, within which compensation can be claimed for other financial and non-financial losses--are seldom brought. (9) In two recent Israeli cases, which seem to be unique worldwide, left-behind parents have succeeded in a tort claim brought against the abducting parent and have been awarded compensation for losses which they suffered as a result of the abductions and the need to take legal action. (10)
While the tort model may seem natural and obvious--if harm has been caused by the abduction, there is no reason not to order the abductor to fully compensate the left-behind parent according to tort law for all relevant heads of damages, financial and non-financial--we will see that there are various problems with using this model in the child abduction context.
Accordingly, we think that there is a need to to examine the extent to which it is appropriate to provide compensation for the left-behind parent and to consider the advantages and disadvantages of alternative models for the provision of such compensation. We emphasize at the outset that the possibility of awarding compensation to the left-behind parent should not in any way be seen as derogating from or as an alternative to the central remedy of returning the abducted child. On the contrary, compensation is intended to be an additional remedy awarded after return of the child has been ordered. (11)
Among other considerations, this article examines the relevance of moral blameworthiness, or the delicate question of whether, in determining the extent of compensation, courts should consider the background relationship between the abductor and the left-behind parent, the relationship between the left-behind parent and the child, and the possibility of contributory negligence or comparative fault on the part of the left-behind parent. In particular, in situations where the abductor acted in response to domestic violence, child abuse, or other provocative behavior on the part of the left-behind parent, (12) it seems morally unpalatable to require the victim to compensate the aggressor. On the other hand, complete exoneration from the duty to compensate may be seen as condoning the abductor's illegal action and inconsistent with a policy of encouraging victims of abuse and violence to turn to welfare and law enforcement agencies for assistance rather than to take the law into their own hands. Thus, it may be thought appropriate to also consider the extent to which the abductor had already sought such help, particularly if he only resorted to self-help out of frustration and desperation when the relevant authorities failed to provide him with protection. (13)
We present four models for compensating the left-behind parent and the preferred framework for the provision of such compensation. We analyze the advantages and disadvantages of each model from both a theoretical and practical perspective. Part II presents the tort model. Under this model, the left-behind parent brings a tort claim against the abducting parent. In Part III, we present a similar civil action model, the contract model, in which the left-behind parent brings a claim for breach of contract against the abducting parent. The third model, presented in Part IV, is the criminal model, under which compensation is awarded to the left-behind parent within the framework of criminal proceedings against the abducting parent. The provision of compensation in criminal proceedings is a recognized remedy for victims of criminal offenses in some legal systems. Under the fourth and final model, to be presented in Part V, compensation is awarded as part of the AC proceedings by the court of the state which is requested to return the child. (14) A limited version of this model is currently found in art. 26 of the AC, which confers upon a court making a return order the power to award reimbursement of some of the expenses incurred by the left-behind parent. Since the essence of the model is that the compensation is awarded within the framework of the AC proceedings, it will be convenient to refer to this model as the AC model, although we will be considering a broader version of the model currently found in the AC.
In the final section, Part VI, we start with a comparative summary of the advantages and disadvantages of the models presented and conclude that the AC model is the preferred model, largely because it makes compensation an accessible remedy for the left-behind parent in all AC cases, without the need for him to bring a separate civil action and irrespective of whether criminal proceedings are instigated. We then proceed to discuss the various dilemmas which arise in designing the exact contours of the ideal model and to consider what additions or amendments need to be made to the current formulation of that model in article 26 of the AC in order to achieve the optimal balance between the objectives of the various relevant areas of law.
Two of the main parameters for analyzing and bases for discussing the different models to be presented in this article will be compatibility with the objectives of child law--as expressed in the AC, the most comprehensive global instrument governing the law relating to international child abduction--and of tort law, which is the usual and most natural means of obtaining compensation for financial and non-financial harm. Since we are concerned with compensation for harm caused by child abduction, these parameters are relevant even when considering models in which compensation is awarded on a basis other than tort law or AC proceedings. Accordingly, we will begin by briefly explaining the main objectives of the AC and of tort law, along with other substantive and procedural parameters, which will be used both in the analysis of the different models to be presented in Parts II, III, IV, and V, and in designing the appropriate contours of the proposed model in Part VI.
I. Parameters for Assessing Models for Compensating the Left-Behind Parent
In this Part we consider the parameters according to which, in our view, models for compensating the left-behind parent should be assessed. Since the issue is compensation for the left-behind parent in international child abduction cases, there is no doubt that it should be compatible, in so far as possible, both with the objectives of the AC and with the theoretical bases for awarding compensation in tort law, which deals with awarding compensation for civil wrongs, and in contract law, where the abduction involves violation of an agreement. Furthermore, since we are concerned with legal liability of parents, we have to consider general principles which underpin legal relationships within the family, such as the doctrine of family autonomy and the best interests of the child. In addition, we will examine a number of other substantive and procedural parameters that arise in the current context, such as the relevance of moral blameworthiness, the burden of separate proceedings, and res judicata. Some of these parameters are not clear-cut, and we will briefly set out the dilemmas involved. We will suggest solutions to these dilemmas in Part VI.
A. The Objectives of the AC
The AC expressly states that its objects are:
(a) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) To ensure that rights of custody and access (15) under the law of one Contracting State are effectively respected in other Contracting States. (16)
The Preamble to the AC explains that the rationale behind these objectives is the belief that "the best interests of children are paramount in custody matters." The objective of prompt return is based on the premise that the welfare of children is best promoted by reversing the effect of abductions as quickly as possible for three reasons. (17) Firstly, this will negate the harm often caused to children who are suddenly removed from their environment. Secondly, the knowledge that immediate return will be ordered is likely to deter potential abductors. Thirdly, the child's interests can best be protected by litigating the merits of the dispute (18) in the forum conveniens, which will usually be the place of the child's habitual residence. Accordingly, the requested state is not permitted to consider the merits of the custody dispute between the parents and its role is limited to determining whether the conditions for application of the Convention are met (19) and, if so, whether one of the exceptions applies. Although it is clear that the premise that prompt return promotes the child's welfare will not be true in every single case, any attempt to ascertain what the child's welfare requires automatically jeopardizes the objective of prompt return in all cases. The drafters, therefore, chose a mechanism of mandatory return, which requires the judicial or administrative authorities in the requested state to order return of a wrongfully removed or retained child without any investigation of the merits of the case, (20) subject to a number of narrowly drawn exceptions. (21)
While the Preamble of the AC leaves little doubt that the central objective of the Convention is the protection of the interests of children, the reference to recognition of rights of custody and access in the objects of the Convention, together with the use of breach of custody rights attributed to a person, institution, or other body as the trigger for the mandatory return mechanism, (22) shows that an additional objective is the protection of the parental rights of the left-behind parent. This is because the question of whether return must be ordered is triggered by the breach of parental 23 custody rights. Restoration of the status quo ante by returning the child is thus also perceived as achieving justice between the parents.
Finally, an additional, albeit subsidiary, objective of the mechanism of mandatory return is to uphold the rule of law. In other words, the abductor is not allowed to gain any advantage as a result of his wrongdoing. (24)
However, care has to be taken in applying the principles of justice between the parents and the rule of law in the context of child abduction for two reasons. Firstly, even though the act of removal or retention has been held to be wrongful, it is not necessarily morally blameworthy. (25) Abduction does not take place in a vacuum and is usually just one action in a series of actions and words on the part of both parties in a deteriorating intimate relationship. While abduction is, of course, a radical step and so cannot be compared to many relatively minor hurtful acts and words common in such a situation, not infrequently the background to abduction is serious physical, emotional, and verbal abuse of the abductor by the left-behind parent. (26) In such circumstances, the return of the child will usually still be mandated in order to protect the interests of the child, or of children generally (27) (although there has been considerable criticism of this approach), (28) but it cannot be justified on the basis of the need to do justice between the parents. Secondly, the interests of the child must take precedence over the principle of the rule of law, and therefore a child should not be returned where it is clear that this will cause him real harm, (29) however blameworthy the abductor might be and however innocent the left-behind parent might be.
B. The Theoretical Basis for Compensation and the Goals of Tort Law
The goals of tort law are compensation, corrective justice, distributive justice, and deterrence. (30) The goal of compensation, or reparation, is to ensure that the tortfeasor (in this case, the abductor) provides monetary compensation equivalent to the injury suffered by the victim (in this case, the left-behind parent) as an expression of the need to return the situation to the status quo ante. (31) In addition to restoring the status quo, monetary compensation also has psychological, symbolic, and educational effects because the reimbursement to the victim forces the tortfeasor to assist in the recovery and rehabilitative process and declares the unacceptability of the act. If the tortfeasor cannot provide compensation for his tortious act, it is socially important to find others who can provide compensation, such as a deep pocket--an employer, for example--that is close to the tortfeasor. The importance of the goal of compensation stems from the need to compensate the injured party, and the question of who pays is less salient. (32) Therefore, this goal is satisfied even where the direct tortfeasor cannot pay, provided the compensation can be obtained from another source, such as an employer or insurer, or from the state or a public fund. (33) Compensation may therefore be achieved even where the left-behind parent's expenses are reimbursed by a legal aid fund, which is a significant difference from the goal of corrective justice.
The goal of corrective justice is to repair damage done in the past, focusing on the tortfeasor and the victim and ignoring any matter or factor external to the incident. (34) Therefore it is the abductor and only the abductor who must rectify the injustice that he has caused to the victim and provide compensation equivalent to the extent of the damage caused.
The next two goals use tort law as an instrument to achieve economic and social achievements. Distributive justice connects all potential parties, not just the tortfeasor and victim, to the distribution of wealth, resources, and benefits in society, based on the criterion of relativity, for the purpose of advancing societal goals. (35) The standpoint is sectorial, but of course this societal goal affects the status of single tortfeasors and victims, after their classification into sectors. In this context, the classification is mainly on the basis of weak versus strong; this refers not only to wealth or lack thereof, but also the divide between individuals and large organizations, women and men, and children and adults. At first glance, it seems that the abductor is the strong party and the left-behind parent is the weak party, so according to this goal, compensation is required in order to change the balance of power between abductors and left-behind parents. However, this may not be true in all cases, given that this goal does not focus on the tortfeasor and the damaged party only, but, for example, on other parties such as the children, and given that sometimes the background suggests a different balance of powers, as in cases in which the left-behind parent abused or maltreated the child or abductor.
As for the goal of deterrence, the threat of litigation and forced compensation will serve as a deterrent for not only the specific tortfeasor being sued, but also potential tortfeasors who might otherwise abduct their children. (36)
Finally, some see the prevention of self-help as another goal of tort law--that is, preventing the victim and his relatives and friends from taking the law into their own hands. (37) In addition, there are scholars who see appeasement as one of the goals of tort law. (38)
C. Autonomy of the Family Unit
The doctrine of autonomy of the family unit is based on the premise that interference by the law in relations between family members, particularly between spouses, is liable to destabilize families to the detriment of the family members and society as a whole. (39) This doctrine explains the common law's traditional reluctance to impose tort liability in disputes between family members, best exemplified by the common law inter-spousal immunity. Accordingly, an apparent substantive difficulty with any model for compensating the left-behind parent which involves a separate legal action between family members is the risk of violation of autonomy of the family unit. (40)
On the one hand, it might seem that this policy is not relevant in the current scenario since the family unit has already broken down (41) and the law has already interfered in the family unit in considering the application under the AC.
On the other hand, however, it is widely recognized that where there is a minor child involved, there is usually a need for a continuing relationship between the parents after divorce and that the nature of this relationship has a significant impact on the child. (42) Thus, the child's welfare (43) will be promoted if the parents can maintain an atmosphere of mutual respect and cooperation, at least for the purposes of making visitation arrangements and coming to joint decisions regarding education, medical treatment, and other important aspects of the child's life. (44) Conversely, interference by the law in the relations between parents is likely to lead to bitterness, which would be detrimental to the welfare of the child. (45) While the fact that there has been an abduction will usually have already made it difficult for the parties to cooperate, the instigation of separate tort or contract proceedings against the abductor is likely to make it impossible to restore mutual trust and respect. The continuing tension between the parents and the resentment of an abductor who is being sued in a tort or contract action will make it harder for the child to maintain regular contact and a healthy relationship with both parents. (46)
Thus, the modern approach to disputes concerning children is to encourage parents to come to their own decisions regarding arrangements for their children, assisted by a mediator if necessary, with minimum external interference. (47) Continued civil litigation between the parents that drags on for years after the conclusion of AC proceedings (48) is inconsistent with this policy of private ordering and will invariably prejudice any chance the parents have of maintaining harmonious relations. In contrast, awarding compensation in the context of AC proceedings, which are to be conducted in any event and ought to be determined quickly, should reduce the negative impact of the quest for compensation on the relations between the family members. Once the proceedings are completed, attempts can be made to restore cooperation between the parents for the benefit of the children. (49)
D. Material Welfare of the Child
Since we are concerned with an issue relating to children, the overriding child law principle of promoting the best interests of the child must be considered. (50) Accordingly, any model which is likely to result in harm to the welfare of the child appears problematic. Where a child's parents are separated, an order that one parent has to pay compensation to the other may be detrimental to the material welfare of the child. Yet, a model that orders compensation for the left-behind parent on the basis of the harm caused to that parent cannot take into account the financial circumstances of the abductor and the consequent effect on the material welfare of the child. (51) In contrast, a model that allows the court some measure of discretion to reduce the compensation can take these factors into account.
It is important to point out that the exact impact of an award of compensation on the material welfare of the child is complex and depends mainly on which parent is awarded custody after the AC proceedings.
In cases in which the left-behind parent is the custodial parent following the return of the child, (52) the compensation paid to him by the abductor will help in supporting the child. Since the left-behind parent's ability to support the child will usually have been adversely affected by the costs involved in locating the child and in bringing proceedings under the AC in the country of refuge, it is clearly important that he be reimbursed for the expenses incurred so that he can now provide adequately for the child. (53) While the need to pay the compensation may well reduce the non-custodial parent's ability to contribute to the support of the child, it seems preferable that the compensation be paid immediately even if this reduces possible support payments in the future because this will avoid the risk that the payments will not in fact be made. Also, the left-behind parent may well be in debt because of the costs incurred in recovering the child and the compensation will enable him to repay this debt and stabilize his financial situation.
On the other hand, if the abductor is the custodial parent after the decision under the AC, (54) any money paid in compensation will reduce the resources available to the abductor to support the child. (55) Thus, the child's material welfare will be prejudiced, unless the abductor has more than adequate means to pay the compensation and support the child.
It also has to be borne in mind, however, that the receipt of the compensation will improve the left-behind parent's financial position and thus increase his ability to contribute to the child's support. Thus, from an economic perspective, the payment of compensation does not actually affect the overall financial position of the two parents together.
E. Moral Blameworthiness
As mentioned above, there are many abduction cases in which the background to the abduction was violence, abuse, or other provocative behavior on the part of the left-behind parent. (56) While it is true that the "correct" response to such provocation would have been to seek assistance from the authorities in the country of origin rather than take the law into one's own hands, there are often understandable reasons why this course of action was not chosen. For example, as a result of the abuse, the abductor may be physically and socially isolated in a country that is foreign to her. (57) Furthermore, in cases of severe violence, the abductor's feeling that the only real assurance of safety is in geographical distance may be justified. (58) Thus, it seems unjust that an abductor would have to pay compensation to the left-behind parent in such a situation.
While in some cases, it will be clear where the moral blameworthiness lies, in other cases the facts will be less clear and any attempt to assess fault is liable to end up with a full-scale investigation into the marital life of the parents. The virtual impossibility of determining the respective responsibility of spouses for marital breakdown and the bitterness caused by the process of doing so were among the main reasons for the demise of fault based grounds for divorce. Thus, a model which allows unfettered discretion to the courts is liable to lead to futile and damaging enquiries into the past.
On the other hand, a compensation model which considers only the actual act of abduction and not the underlying history and cause could produce unjust results.
Accordingly, we will seek middle ground between these two extremes and will examine ways of limiting the court's discretion to consider issues of moral blameworthiness.
F. The Burden of Separate Proceedings
The necessity of instituting separate proceedings in addition to the AC proceedings in order to obtain compensation is burdensome for both parties. It will usually lead to duplication of costs because, among other things, it will require new lawyers (59) to become familiar with, and present to the court, the details of the abduction and the facts relevant to the compensation claimed. In addition, where the language in the two countries is different, there may well be a need to translate the decision in the AC proceedings and other documents relating to those proceedings. Furthermore, there will be delay because the separate action will only be started after the AC proceedings have been completed. (60)
Moreover, in addition to the technical inefficiency of separate proceedings, there is a risk of inconsistency between the two sets of proceedings. In other words, different proceedings mean different considerations, since the various models have different goals: AC proceedings are concerned with the question of whether the child should be returned whereas compensation proceedings are concerned with the responsibility of the abductor to compensate the left-behind parent.
This problem is also relevant to evidence law; in particular, if moral blameworthiness is relevant in the compensation proceedings, (61) the court hearing that case may take a different view of the evidence than the court which heard the same evidence in the AC case in relation to a plea that one of the exceptions applied. The doctrine of res judicata may not prevent controverted findings of fact, since the findings of fact in AC cases may not actually form part of the decision. Thus, for example, a court in AC proceedings may accept that the left-behind parent abused the abductor, but still hold that the grave risk of harm exception is not established. (62) Accordingly, the finding about abuse is not necessary for the decision and so would not be considered res judicata. There is therefore nothing to stop the court hearing the case for compensation from taking a different view of the evidence and find that there has not been any abuse.
Finally, all of the above problems will be exacerbated if the compensation proceedings are prolonged.
G. Res Judicata and Splitting the Damages
If the left-behind parent claims damages in a separate action from the AC proceedings, the abductor is likely to plead estoppel based on resjudicata. (63) If the left-behind parent has already claimed part of his expenses in the course of the AC action in the foreign country, the abductor is likely to argue that he cannot now claim damages a second time in another country on the basis of the same cause of action. Even if he did not claim the expenses in the AC proceedings, the fact that he could have done so may be used to prevent him from claiming them in later proceedings. (64)
The estoppel plea raises a number of procedural complications. In particular, it would be necessary to determine whether the foreign decision is recognized. In addition, it may be necessary to show that the findings made in the foreign decision would have created an issue estoppel if the subsequent tort or contract proceedings had been brought in that foreign Court. (65)
Furthermore, even where there is no issue estoppel, the question may arise as to whether the foreign law would have allowed damages arising out of the same set of facts to be claimed in two separate sets of proceedings, a result which is called "splitting the damages." (66)
The nature of the damage likely to be suffered as a result of the abduction will inevitably lead to problems of determining causation and quantification. For example, where the left-behind parent undergoes psychological treatment after the abduction, it may be difficult to assess to what extent the need for this treatment can be attributed entirely to the abduction.
In addition, it may not be always clear to what extent the left-behind parent is obligated to mitigate his loss. For example, should he be required to stay with friends when attending the AC proceedings and to travel by public transport? We think that reasonableness is the name of the game here, as is usually the case in torts, but the uncertainty as to how these issues will be determined, at least unless and until the courts lay down guidelines, may well discourage parties from settling out of court and will increase legal costs.
These problems will be reduced under models which limit the types of compensation which may be claimed or provide ceilings to the sum which may be awarded
We will now proceed to examine the various models.
II. The Tort Action Model (The Tort Model)
A. Presenting the Model
1. The Basis of Liability
This model treats the abduction, which is the unlawful removal or retention of the child, as a tort, which gives rise to a right of action for compensation. It is important to emphasize that the tort action is completely separate and independent from the proceedings for return of the child under the AC. These are two actions on two different planes, even though the tort action relies on the finding of the court in the AC proceedings that there was a wrongful removal or retention. Invariably, the tort action will be brought in the courts of the requesting state, where the left-behind parent lives, and not in the courts of the requested state, which heard the application under the AC. However, if the abductor has remained and settled permanently in the requested state, rather than return with the child, then the left-behind parent may consider it more efficient to sue him there. (67)
In some countries, it will be possible to rely on the tort of breach of statutory duty, (68) where there is a criminal offense of abduction or where there is a statutory obligation for a parent to make decisions concerning the child in conjunction with the other parent. (69) Alternatively, where there is a breach of a court order concerning custody of the child, this may also be seen as a statutory breach of duty. (70) Another option, in countries where the tort of negligence can include intentional torts, is to rely on the tort of negligence. (71)
First we discuss the tort of breach of statutory duty. This aspect of the model is best illustrated by the Israeli case of Dr. Z.M. v. R.M.P. (72) In this case, under the parties' divorce settlement, the mother had sole custody of the child and the father had visitation rights, but neither party was permitted to take the child outside the jurisdiction without the written consent of the other or of the court. The mother had deceitfully told the father that she was taking the child to relatives in Bulgaria for a holiday in order to get his permission to take the child abroad; she instead took the child to Australia with no intention to return. The father's application to the Australian courts under the AC was successful and the child was returned to Israel to the custody of the father. Some time after recovering the child, the father brought a tort action, in which he claimed compensation for all the expenses not recovered in the Australian proceedings and for his non-financial loss due to emotional distress. The mother's main defense was that the ruling of the Australian court constituted estoppel.
The court held that the mother was liable in tort for the losses caused to the father as a result of the abduction and ordered her to reimburse the father for the proven expenses incurred in tracking the minor as well as for legal fees. It was held that the Australian court ruling did not constitute estoppel. Even though some of these expenses could have been claimed in the Australian court, (73) this did not prevent the left-behind parent from claiming wider reimbursement of expenses at a later date. The judge commented that child abduction should be denigrated, that tracing and recovering the child invariably involved considerable expenditure on the part of the left-behind parent, and that there was no reason why the cost of recovery should not be recovered from the abductor. (74)
In the case of Dr. Z.M., the tort relied upon was breach of statutory duty. Section 63 of the Israeli Torts Ordinance provides that breach of a statutory duty may constitute a tort. (75) Israeli case law has recognized that a penal statutory provision may form the basis of the tort of breach of statutory duty where that provision is intended to benefit or protect an individual. (76) The court in Dr. Z.M. (77) held that the mother's action in taking the child abroad without the father's consent was a breach of her statutory duty under section 373 of the Penal Law, (78) making it an offense to remove a child from the custody of his lawful guardian without the consent of each person having legal custody. (79) The purpose of this provision was not only to uproot the phenomenon of abduction, to act as a deterrent, and to promote public order, but also to protect the specific interest of parents that their children should not be taken from them. Thus, the breach of this statutory duty creates a right of action for the injured parent under section 63 of the Torts Ordinance and may serve as a basis for an action in private law in addition to criminal law. (80)
In the later, similar case of Plonit v. Ploni, (81) the mother had taken the child to England without the father's knowledge or consent. The father instituted proceedings in England under the AC, and the child was returned to Israel. The father then brought an action in tort for financial and non-financial loss: the court held that the abductor was in breach of statutory duty without further discussion, and this point was not raised on appeal. (82) The Israeli Supreme Court confirmed the lower court's decision awarding compensation to the father. (83) The expenses that were awarded included the cost of staying in London while he attended the AC proceedings and the cost of psychotherapy and compensation for emotional distress. Again the defense of estoppel, deriving from res judicata, was rejected since the AC proceedings and the current tort action were based on separate and different causes of the action, even though they arose out of the same facts. In addition, the issue of compensation for the costs incurred by the left-behind parent was not raised in the English proceedings. (84) The court emphasized that in AC proceedings the court does not usually deal with expenses and harm caused to the left-behind parent as a result of the abduction other than the expenses directly incurred in bringing the proceedings. (85)
Now we move to the tort of negligence, which could be used if this tort includes intentional actions. There is clearly a duty of care owed to the left-behind parent by the abductor, in the light of the relationship between them as parents of the child and the foreseeability that abduction will cause damage to the other parent. A duty of care between spouses was acknowledged in cases of spousal abuse--Israeli courts have held that this duty includes the duty to respect one's spouse and to avoid harming him. (86) That kind of duty of care towards the other parent, even after divorce or separation, has also been acknowledged in cases of tort actions for breach of visitation rights. (87) The violation of the visitation arrangements is a breach of the duty of care owed by one parent to the other and can accordingly form the basis of an action for negligence. (88) Similarly, in the current context, wrongful removal or retention of the child by the abductor is a breach of the duty of care owed to the left-behind parent. Accordingly, the ruling of the court in AC proceedings that the child had been unlawfully removed or retained can form the basis of a subsequent action for negligence. (89) Similarly, it is beyond doubt that the abductor's breach of duty of care will cause the left-behind parent to suffer loss, although of course it is always necessary to confirm that the claimed loss satisfies the principles of causation and remoteness of damage.
However, in most common law countries there is a clear-cut division between intentional and unintentional torts, (90) and thus it will be necessary to rely on the intentional torts, not on negligence, since the abduction is of course intentional.
For example, in cases of emotional harm, at least in the United States, it may be possible to rely on the tort of intentional infliction of emotional distress (IIED), referred to in the Restatement (Second) of Torts (1965) (91) and increasingly accepted throughout the United States. (92) In some states, however, IIED is recognized only in cases of severe emotional distress, (93) or as an outcome of physical abuse or child corporal punishment (94) and therefore would not be applicable to cases of abduction.
2. The Heads of Damage and Quantification of the Compensation
There are two main categories of damages--financial and non-financial. Financial damages include the various expenses incurred and loss of income, whereas non-financial damages consist of damages for suffering, both physical and emotional. As mentioned above, a typical case of international child abduction is liable to result in both financial and non-financial losses. However, the situation is complicated by the fact that some of the losses may have been or could have been claimed already in the AC proceedings. In this section, we will consider to what extent the losses should be recoverable in a separate tort action in accordance with the tort model.
The rulings in the two Israeli cases described above illustrate the main problems that are likely to arise in relation to heads of damages and the quantification of damage, the relevance of the fact that costs could have been awarded by the foreign court, the extent of the duty to mitigate damage, and the question of compensation for emotional distress. Thus, these rulings will serve as a convenient starting point for discussion and critical analysis.
In the case of Dr. Z.M., (95) the issue of quantification of the compensation was complicated by the fact that the Australian court had awarded reimbursement of some of the father's expenses, including his flight, accommodation, and visa. In addition, under the Australian regulations his legal costs (96) and the cost of locating the child could have also been recovered. (97) The court held that it would not reopen the sums awarded for items of expenditure included in the decision of the Australian court, but that there was no reason not to award costs which had not been claimed in the Australian court. (98) In particular, the court made clear that the father's choice to pursue his claim for reimbursement of these expenses in Israel at a later stage was not an abuse of legal proceedings. (99)
In contrast, in the case of Plonit v. Ploni, the Israeli Supreme Court held that the father could not claim the cost of representation for the English AC proceedings (100) even though he had not requested this expense in those proceedings, because it was directly connected to and could have been claimed in the English proceedings. On the other hand, the travel, accommodation, and other expenses arising from the four trips to England were not directly connected to the English proceedings and therefore could subsequently be claimed in a tort action in Israel. (101) With respect, this distinction seems artificial because the only reason that the father was in England was to participate in the proceedings and the travel and accommodation expenses could also in theory have been claimed there under Article 26(4) of the AC. (102) Accordingly, the distinction made by the court in the case of Dr. Z.M. between costs which were claimed and those which were not claimed seems more logical. (103)
Two of the heads of expenses claimed in the case of Plonit v. Ploni (104) raise interesting questions. The first concerns the duty to mitigate damage. The mother claimed that she had suggested that the father stay with the Rabbi of the local Jewish community rather than in a hotel. The father denied this and stated that in any event he would not have felt comfortable staying with the Rabbi. The family court accepted his position and awarded reimbursement of hotel costs. This seems to be a logical outcome, as the left-behind parent cannot be expected to mitigate his losses beyond what is reasonable.
The second head of damage raises the issue of causation. The father requested reimbursement for the costs of telephone calls made while in England in the sum of 35,000 NIS (about $10,000). He claimed that he needed to speak to his Israeli lawyer because the mother was putting obstacles in the way of his contact with the child and that he needed to remain in contact with his family in Australia. The court accepted these claims, but reduced the sum to 20,000 NIS to reflect the fact that even if he had been in Israel he would have incurred costs of calls to Australia.
The court in Plonit also ordered reimbursement of the cost of psychotherapy and rejected the mother's argument that since the father had, on previous occasions, been in need of psychotherapy, it was not possible to prove that the current need for treatment was caused by the abduction. In the court's view, it was reasonable to assume that the abduction was the reason behind the need for the psychotherapy, because many people in such a situation require such treatment. In fact, the court acknowledged causation between the abduction and the therapy, even though the father was in therapy even before the abduction. This Supreme Court case can, therefore, be seen as setting a precedent for reimbursement of the costs of psychological treatment following the abduction.
Another source of financial damage is loss of income caused by the need to devote time to searching for the child and initiating and participating in the AC proceedings. In the case of Dr. Z.M., (105) the court did not order damages for loss of income, since the claim that the father did not work for two weeks and therefore lost income was not proven. In principle, we think that, as in other tort actions, there is no reason why compensation for loss of income should not be awarded for the period of searching for the child and perhaps even for the period of the proceedings under the AC.
Finally, the issue of compensation for emotional distress is discussed in both cases. In the case of Dr. Z.M., the court refused to award damages for emotional distress on the basis that the child had been returned to the plaintiff and was now in his custody. (106) The loss of enjoyment of the child's company during the time he was in Australia and the uncertainty of recovery were not sufficient bases to justify awarding damages. (107) Furthermore, in this case not only was the status quo restored, but the father now had the benefit of having custody of his son.
In contrast, in the case of Plonit v. Ploni, (108) damages for emotional distress were recognized and awarded. (109) The court rejected the mother's argument that there was no basis for compensation for emotional distress since the child was returned to Israel, because the implications of this reasoning were that wherever a tortfeasor was forced to cease his tortious conduct by court order, the victim of the tort could not claim compensation for the damages he suffered before that order.
With respect, we think that the approach of the Supreme Court in Plonit is preferable to that of the court in Dr. Z.M. case. In principle, the fact that the child has been returned does not negate the need to compensate the left-behind parent for the anguish he suffered beforehand. In addition, sometimes the impact of emotional distress may linger, even after the reason for that distress disappears, as in post-trauma syndromes.
However, it should be pointed out that in Plonit, the court based its award of compensation for emotional distress mainly on the distress caused by the mother's unsubstantiated accusations that the father had sexually abused the child and the obstacles she put in the way of the father's contact with the child. This basis for compensation would not seem to be of general application and, as a result, the decision cannot be seen as a precedent for awarding compensation for emotional distress in all cases of abduction. It is therefore unclear whether the simple fact of abduction or thwarting contact between the child and the left-behind parent, which is relatively common, would be a sufficient basis for an award of compensation for emotional distress.
However, we argue that, in principle, compensation for emotional distress should be available to left-behind parents. In particular, such compensation is required by the objectives of tort law, set out above in Part I. Furthermore, the child abduction situation cannot be distinguished from other intrafamilial situations, in which damages for emotional distress have been recognized, among them: emotional abuse and neglect; (110) breach or violation of visitation rights; (111) divorcing a Muslim wife against her will; (112) and refusal to give a get (Jewish divorce bill) in the Jewish sector. (113)
We agree with the court in Plonit that the fact that the child has been returned does not cancel out the emotional distress. This is true even where, as a result of the abduction and return, the left-behind parent's position is "improved" because he becomes the custodial parent. However, in this situation it may be appropriate to reduce the amount of damages to take into account the benefit that accrued to him as a result of the tort. Finally, we would mention that the element of emotional distress is likely to be particularly relevant in cases where the child is not returned in the AC proceedings on the basis of one of the exceptions in the AC. In such a case, the abduction results in a permanent significant reduction in contact between the left-behind parent and the child.
The main argument in favor of allowing the left-behind parent to recover compensation from the abductor in a separate tort action is consistency with the objectives of tort law and some of the objectives of the AC.
The damage suffered by the left-behind parent would appear to be within the scope of tort law according to the most widely accepted goals of tort law. (114)
Awarding damages and reimbursement to the left-behind parent is of course compatible with the goal of compensation. The left-behind parent has the right to be reimbursed for the monetary expenses he has incurred as a result of the abduction. By means of this compensation he can also attempt to improve his situation, for example, by funding psychotherapy. Similarly, as discussed above, he should be entitled to compensation for his non-financial losses, such as emotional distress.
Within the framework of corrective justice, compensation serves as a public statement that the action was a tortious wrong, that it should be rectified, and that it is the tortfeasor who should be held responsible for his actions. (115) It may be argued that conducting such a lawsuit in the name of corrective justice may impair the harmony of the family, which in the common law was--and in some countries still is--a basis for inter-spousal immunity, even against an ex-spouse, (116) However, the very filing of a tort lawsuit against a spouse tends to indicate that harmony no longer exists within the family. In many cases, the parents are already divorced or separated and there is no real likelihood that they will live together again. If a tort claim has been filed, it is indicative that the relationship has already deteriorated significantly. (117) Failing to compensate the victim would allow the abductor to avoid responsibility and would not remedy the injustice suffered by the left-behind parent.
However, the conduct of the proceedings or the remedy awarded may have a negative impact on the child, who is likely to suffer as the lawsuit deepens the crisis between his parents. (118) Even if there is no harmony in the family, appeasement is still important for facilitating cooperation between the parents in making decisions concerning the child's upbringing and in relation to visitation arrangements. (119) Because corrective justice focuses only on the two parties to the tort, however, the fact that the child may suffer from the outcome of the tort lawsuit is not considered.
Another option that we suggest is to widen the meaning of corrective justice (120) in the context of civil actions against a spouse in general and in abduction cases in particular, and to consider the impact on the child too, (121) since the child's position is inextricably entwined with that of his parents. Thus, any consideration of corrective justice that only takes into account the parents but not the child is inadequate. In other words, the narrow and strict meaning of this goal, which focuses only on the two direct parties to a tort, is not fully compatible with cases in which the parties are the parents and the children are the subjects of the dispute. Consequently, according to the revised goal of corrective justice, one has to consider the children in these cases. This is particularly true in cases in which the tort is based on an action that is related to the child. In these cases it is not logical to ignore the impact of the lawsuit on the child in assessing the requirements of corrective justice.
However, there may be also positive implications of the lawsuit for the child that should encourage the bringing of a civil action. In cases in which the left-behind parent continues to be the custodial parent, the compensation paid by the abductor will be used to the benefit of the child. This will be significant where the left-behind parent's financial position has been considerably worsened due to the expenses incurred as a result of the abduction. (122)
Another aspect of justice may be the principle that courts frequently reiterate--that the abductor should not be allowed to benefit from his illegal act. This principle is derived both from the need to enforce the rule of law and from the need to do justice between the parents and, as we saw above, is one of the objectives of the AC. Hence, allowing the tort action means that the abductor is not benefiting from the abduction.
Finally, where the tort claim is based on negligence or breach of statutory duty, the possibility of taking into account the left-behind parent's provocative behavior as contributory negligence is also consistent with the concept of corrective justice. (123)
The goal of distributive justice may be relevant in tort litigation against a spouse, when the tortfeasor and the victim belong respectively to strong and weak groups. In some cases, the spouse who suffered injury at the hands of the other is in a clearly inferior position from the perspective of their sectorial belonging. This is sometimes true, for example, when the victim is the mother. But even in cases in which the abductor is the mother, which is more common, (124) her unilateral and illegal action can be seen as turning her into the aggressor and the left-behind father into the helpless victim. Thus, compensating the left-behind parent--even if he is not the weaker party financially--is compatible with distributive justice. However, this portrayal of the situation may well be too simplistic and may not reflect reality in the light of the social background to the abduction. In a situation where the abductor is really the weaker party or where it is not clear which party is the real victim, the goal of distributive justice may not be attainable and so the emphasis needs to be placed on the other objectives of tort law.
In addition, distributive justice requires considering the interests of weak parties other than the plaintiff victim. (125) Thus, if the child's welfare is harmed as result of the deterioration in the relations between his parents caused by the lawsuit, then allowing tort claims in these cases may not be consistent with distributive justice. However, as mentioned above, the impact of the compensation claim on the child's emotional and material welfare depends on the particular circumstances. In some cases, the further deterioration of the relations between his parents may be damaging to the child, while in other cases, where compensation is paid to the custodial parent, this may have a positive impact on his welfare. (126)
Using tort law would also prevent self-help by the left-behind parent, since he would know that the abductor would compensate his financial and non-financial damages. (127)
Blocking tort claims for abduction seems contrary to the goal of deterrence. Recognition of such claims sends the message that the law will intervene even within the family, liability will be imposed and the tortfeasors will bear the social cost of their behavior. (128) Tort law sends the message--both to the specific tortfeasor and to potential tortfeasors--that there are certain values that society is not willing to compromise. Similarly, as we saw above, deterrence is one of the objectives of the AC.
According to the economic argument of optimal deterrence and efficiency the abductor is the cheapest and most efficient avoider of harm, (129) and, moreover, the only avoider. Were it not for his actions, no harm would have been done and no tort would have been carried out. In these cases, the cost of preventing the harm--that is, by simply not abducting the child--is significantly less costly, as it has no cost at all, than the expected monetary or emotional harm to the left-behind parent. Therefore, the tortfeasor should be held liable, since he did not prevent the harm. (130) If he cannot accept the court's decision regarding custody, (131) he has the option to appeal or to request variation of the decision if the circumstances are changed. Similarly, where the abductor has custody and wishes to relocate abroad with the child, he can ask the court for permission to do so. Accordingly, self-help and the use of power and aggression should be dealt with by tort law. This means that monetary expenses should not fall on the victims or on society, but on the tortfeasor.
However, a word of caution should be added. Deterrence research shows that while legal sanctions do constitute an effective deterrent against white collar crime, they have little impact on the perpetrators of crimes of violence. (132) One reason for this is that deterrents are only effective in influencing rational behavior. (133) Often a parental decision to abduct his child is not a decision which is made rationally. Rather, the parent may be influenced by strong emotions, such as a fear of losing his children, resentment against the other party and even a desire for revenge. Legal sanctions will usually have little weight in such circumstances. Similarly, when the abducting parent flees from abuse and violence by the other parent, his major concern is his own and his child's physical and psychological health, and it is extremely unlikely that sanctions will have any impact on him. (134)
Indeed, this hypothesis seems to be borne out by the fact that the number of international abductions seems to have continued to rise since the coming into force of the AC. (135) While lawyers tell about parents who, after consulting with them and being informed about the implications of the AC, decide not to abduct, there are clear limits on the deterrent effect of the AC. Nonetheless, the prospect of having to pay compensation to the left-behind parent, whether or not the child is returned, might tip the balance against abducting for some parents. Thus, allowing left-behind parents to recover tort compensation would strengthen the deterrent effect of the AC.
In summary, the tort model is consistent, in general, with the main goals of tort law. Similarly, the tort model promotes the AC objectives of restoration of the status quo, deterrence, and doing justice between the parents.
There are several disadvantages of allowing a tort action by the left-behind parent against the abductor.
First, as made clear above, the action in tort is separate from the application under the AC for return of the child and will usually be litigated in a different country, and this will lead to duplication of costs and delays, since the tort action will only be started after the AC proceedings have been completed. There is also a risk of inconsistency between the two sets of proceedings. For example, the court hearing the tort case may take a different view of the evidence than the court which heard the AC case. In addition, as stated above, (136) if the abductor raises the plea of estoppel on the basis of the decision in the AC proceedings (res judicata), this will lead to procedural complications.
Another possible problem is uncertainty. The nature of the damage likely to be suffered will inevitably lead to problems of determining causation and quantification of the damage and to questions relating to the scope of the left-behind parent's duty to mitigate his loss.
A substantive difficulty with a separate tort action is the risk of violation of autonomy of the family unit. While the policy of not allowing tort actions between spouses for fear that this might destabilize marriages does appear less relevant where the relationship has already broken down, there is great importance in a continuing reasonable relationship between the parents after divorce because this will enhance the chances that the child will be able to maintain a good relationship with both parents. Thus, the tort action might negatively affect the child's welfare.
Similarly, the fact that the tort model cannot take into account the financial circumstances of the parents means that an award of compensation might have a detrimental effect on the material welfare of the child where the abductor is the custodial parent after the abduction. This argument was raised by the defendant in the case of Plonit, (137) but it was rejected since it was only raised at a late stage. However, the court did comment that it would not accept the argument anyway, since the most significant issue is the relationship between the child and left-behind parent and sometimes taking money from the abductor is the best response to abduction. (138) Effectively, the court is saying that the goal of deterrence is more important than the question of the child's material welfare. While this may be correct from the perspective of tort law, the inability to take into account the child's welfare would seem to be a disadvantage from a child law perspective. In particular, it may not be possible to prevent an order for compensation from substantially damaging the material welfare of the child. (139)
Finally, at first sight, the limited relevance of lack of moral blameworthiness in tort actions would seem to be a clear disadvantage of the tort model. As mentioned above, not infrequently the abduction occurs in response to violence or abusive behavior on the part of the left-behind parent. Sometimes this position is exacerbated by the fact that social and law enforcement agencies have not responded to the abductor's cries for help. As already mentioned above, these situations present a dilemma. On the one hand, exempting the abducting parent from liability to pay compensation is in fact condoning his resort to self-help. On the other hand, it seems unjust that the abducting parent should have to pay compensation in such cases, especially where the left-behind parent's intolerable behavior was the reason for the abduction.
Under the tort model, there would seem to be very limited scope for exempting the abductor from liability or even reducing the liability in such cases because the tort relates only to the act of abduction; it does not allow for consideration of the acts and omissions of the left-behind parent or the authorities (140) prior to that act. However, where the cause of action is based on negligence--that is, breach of duty of care--or on breach of statutory duty, the actions of the left-behind parent, which in some measure triggered the abduction, may be considered as contributory negligence, which would reduce the liability of the abductor. For example, in cases in which the left-behind parent abused or neglected the child, (141) or if the abductor was the custodian and the left-behind parent did not visit the child, contributory negligence might be relevant. Of course, if the left-behind parent's own behavior itself also constitutes a tort, such as assault, the liability of the left-behind parent to the abductor, established in an independent lawsuit, could constitute a set-off to the liability of the abductor to pay compensation for the damage caused to the left-behind parent as a result of the abduction.
While the result of the two options--the independent lawsuit against the left-behind parent and the claim of contributory negligence--may actually be similar, there is a substantive difference between these two options. In the case of set-off, the abductor has to prove all the elements of a separate tort, such as assault, and the sum which he would have received in compensation is then deducted from the sum he has to pay to the left-behind parent as a result of abduction. It is not necessary to show a direct causal connection between the two torts. In contrast, in the case of contributory negligence, the actual liability of the abductor for the abduction is reduced on the basis that the left-behind parent's behavior contributed towards the damage. Thus, it is necessary to show a direct connection between that behavior and abduction.
However, in all other circumstances, the abductor would seem to be liable in tort for all the damage caused, despite the lack of or limited moral blameworthiness on his part.
In summary, the tort model suffers from a number of procedural and substantive disadvantages. The need to institute separate proceedings leads to duplication of costs and may lead to inconsistency with the findings made in the AC decision. Similarly, separate tort proceedings are likely to be prolonged and this is inconsistent with the doctrine of family autonomy and the welfare of the child. Most importantly, under the tort model, the court does not have any discretion to take into account the impact of a compensation award on the material welfare of the child or issues of moral blameworthiness, unless the left-behind parent's actions amount to contributory negligence or to an independent tort against the abductor.
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|Title Annotation:||Introduction through II. The Tort Action Model (The Tort Model), p. 65-99|
|Author:||Schuz, Rhona; Shmueli, Benjamin|
|Publication:||Columbia Journal of Gender and Law|
|Date:||Mar 22, 2012|
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