Did the Hague Convention on the Civil Aspects of International Child Abduction Recognize Indigenous Groups and Culture?

Abstract

<p>Among the profound challenges related to family law and child custody conflict has been the impact of globalization on the consequences to children from marriage and divorce, and nonmarried parental separation. Most nations implemented family justice courts decades ago where one judge, within an adversarial fact-finding system, applied that nation's variation on the "best interests of the child" factors to parents who resided in that country with their child. As child custody conflict and removal of a child without consent from both parents became more transnational in the 1970s, the Hague Convention on the Civil Aspects of International Child Abduction (Convention) was developed and eventually adopted by 1980. By treaty, signatory nations consent to a process which utilizes each nation's family justice courts as the means for the return of children to their "habitual residence." This article, however, argues that the Convention may not have originally bound Indigenous groups, with their own treaties and contracts, within nation-states. Even if the Convention was binding on Indigenous populations within nation-states, the Convention should protect fundamental and human rights established by the signatory nation, including protecting culture and language. For purposes of this analysis, this paper examines the 2022 New Zealand trial court opinion, <i>Mercer v. Mercer</i>.</p>