How could Alessia's case
have gone so"BADLY WRONG?"
I. GENDER & NATIONAL BIAS
See Chicago Journal International Law
"Whose Best Interest? International Child Abduction Under Hague Convention."
Spring 2002; by Leto, Marisa":
INTRODUCTION: "The primary legal remedy for parents of children abducted to foreign nations is the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") ratified by the United States on October 25, 1980. As of July 2001, the treaty was in force between the US and fifty other national signatories. The Hague Convention is designed to return children to their "habitual residence" where a court of proper jurisdiction will determine custody. The Treaty however has been largely ineffective in accomplishing this objective. It has failed to meet its goal in large part because of reliance on an essentially subjective best interest standard that facilitates foreign nations' manipulation of the treaty and their wrongful retention of foreign children within their borders. The subjectiveness of the best interest standard enables judges to make discretionary decisions." "Discretion often takes the form of gender biases, national biases, and judgments regarding the "acclimatization" of children to their environment that is often due to judicial delay. The result is substantive non-compliance with the Hague Convention."
Conflict of English Policy & Procedure
The English Law Society; Family Law Protocol (2nd edition): 3.4.11 “Solicitors should be aware that international child abduction cases should be issued in or immediately transferred to the High Court "to be considered by [full-time] High Court judges.”
3.4.1 “Proceedings should be heard by a [full-time]
High Court judge wherever possible." Yet they assigned a Deputy Circuit Judge to sit in the High Court for Alessia's case!
“ Deputy High Court Judges and Section 9 Judges should [not] deal with Hague and Brussels II cases.”
(See Sect 9 ('Venue') in Reunite International's
'Practical Case Management of Child Abduction Cases')
“A reservation incompatible with the object and purpose of a treaty is [void] as a matter of International law.” - Vienna Convention on Law of Treaties, Art. 19, 1155 U.N.T.S. 331.
Lord Justice Thorpe targeted by Fathers For Justice in the United Kingdom.
II. WORDS ARE ONE THING,
A Double Standard
Prominent Brazilian Attorney, João Paulo Lins e Silva, delivered a key-note lecture to the international community at the Hague Convention entitled "Parental Alienation Syndrome" only to then wrongfully retain Sean Goldman in Brazil... so too did Lord Justice Thorpe, prominent Head Judge of England's International Family Justice. Thorpe ironically distributed a paper he wrote entitled 'The Case for Judicial Activism' to the Hague Community at the Family Law Conference in South Africa on January 26, 2007 and then turn around and violated the Hague Convention on the very grounds he listed in his paper. Both men were guilty of the very obstructions they were advocating against.
For starters, if Thorpe's paper was to stand (even in principle) then it must support the "well-established procedural rules" he so eloquently insists are standard in the UK; namely that ‘International’ Hague cases are NOT to be heard by Deputy or Circuit judges "whose training & experience are more likely to be national than international." As just illustrated in the Chicago Law Journal article, decisions by such judges are likely to be compounded by arbitrary opinions and prejudices - especially in a 'matriarchal' society, failing for example to adhere to 'alien' foreign concepts pursuant to Hague Convention Articles 16 & 19, which absolutely forbid a foreign court to factor opinions on ANY merits relating to custody issues during a Hague proceeding...
- the BULK of Alessia's
foreign judgment in the UK
As Lord Justice Thorpe illustrated, learning to set aside (inherent) gender-bias tendencies, especially those which traditionally have been a cultural part of a ' matriarchical ' society is not a simple task for any judge... "He is steeped in the laws of his own land and may well be convinced of their superiority. He may have an equal faith in the beliefs and values of the society within which he works...” and therefore, Hague cases in the UK are (supposed) to be heard only by 1 of 18 “senior-specialist judges.” However, a deputy circuit judge was assigned to Bart's case.
The same Deputy Circuit Judge also had a decision reversed and remanded in another Hague Abduction case, nearly identical to Alessia's. The most disturbing element of that case was that it had been unanimously overturned & remanded for the exact same procedural errors exhibited in Alessia's case by the very same Appellate judge who refused to reverse and remand the decision under the very same precedent.
Lord Justice Thorpe described how that case had gone so 'Badly Wrong.'
Case No: B4/2010/2466; Neutral Cit No: ‘’ EWCA Civ 1546: COURT OF APPEAL (CIVIL DIV)
See Paras 12-20, 27, 40 of this case.
III. 4 REASONS WHY ALESSIA'S CASE
WENT SO 'BADLY WRONG'
Gender & National Bias;
No consistency in judgments;
No adherence to Convention Articles;
Intentional Court Delays & Blocking of evidence;
(1) The Deputy Circuit judge not only made the same procedural errors in both cases, he used nearly identical gender-bias language against both foreign fathers. The only difference in the two cases was that the Court of Appeals correctly defended the Hague Convention by overruling the Deputy Judge in the referenced case below, but refused to even allow Alessia's father "permission" to appeal or adduce ANY evidence to prove his case had been procurred by fraud.
(2) Secondly, the 'Hague Guide to Good Practice' specifically states on page 85: "Delay in legal proceedings is a major cause of difficulties in the operation of the Convention. All possible efforts should be made to expedite such proceedings. Both the Hague Convention and European Law mandates that Hague proceedings are to be completed within "SIX weeks - yet they dragged Alessia's case for more than TEN MONTHS. Further Hague courts in a number of countries normally decide on requests for return of a child on basis: "only of the application and any documents statements in writing submitted by the parties, without taking oral testimony or requiring the presence of the parties in person. This can serve to expedite the disposition of the case. The decision to return the child is not a decision on the merits of custody[.]"
See Page 85:
The Hague Convention is ONLY to determine 'Jurisdiction'; NEVER custody; Articles 16 & 19
(3) The UK Court of Appeal specifically declared the Deputy Judge in the mirrored case to Alessia's, disregarded the Hague Convention's "cardinal case management rules:
" (1) " First of all, oral evidence in Hague cases is [very] seldom ordered"... "There should be [no] departure from well-recognized propositions that Hague applications are for peremptory orders to be decided on written evidence; amplified by oral submissions; “namely Oral-Evidence is to be very much the ‘exception rather than the course’ and it is calculated to cause more confusion than good by distracting from the main decision at hand...
and is to be no more than 30-40 minutes.”
(4) Nevertheless, the Deputy Circuit Judge in Alessia's case ordered TWO FULL DAYS of oral-evidence, centered entirely on trying to discredit the American father and focusing on merits of custody issues rather than the purpose and objectives of the Hague Convention; the result of which distracted the Deputy Judge from focusing on the proper issues at hand. Paragraph after paragraph of the foreign judgment, the Deputy judge focused on merits of custody issues in an abhorrent violation of Convention Articles 16 & 19; the result of which caused the Deputy Judge to lose his independence and impartiality to such an extent that both the hearing and decision resulted in a mistake that ran contrary to the purpose & objectives of the Hague Convention. In any event, fresh evidence authenticated by the U.S. Department of State confirms a conspiracy to kidnap the child and that the foreign judgment had been procured by fraud.
Case No: B4/2010/2466; Neutral Cit No: ‘’ EWCA Civ 1546:
COURT OF APPEAL (CIVIL DIV) Paras 12-20, 27, 40: As illustrated by the UK Court of appeal, this was “a case of plain abduction” denied by a Deputy Circuit Judge in what appears to be gender-bias. Despite the clear admittance of unlawful abduction, the judicial exercise & language made by the Deputy judge towards the father below was nearly identical to those made towards Alessia's father.'
The Court of Appeals specifically citing: [Emphasis added]:
¶ 12: “Accordingly it is necessary to pose an answer to the question, why has this case gone so [badly] wrong?” […]
¶ 13: “Now there are a number of [cardinal] case management rules that seem to me to have been disregarded on 23 September. First of all oral evidence in Hague cases is [very seldom ordered]. […] There should be [no] departure from the well-recognized proposition that Hague applications are for peremptory orders to be decided on written evidence amplified by oral submissions.”
¶ 18: “The impression created by this [aberration] was plainly very strong. The judge was highly critical of the father both as a witness of truth and also as a parent.” He (HHJ Jenkins) expressed his views in his Para at 20 thus:
"I am sorry to say that the father's evidence was that of a self-centred man who appears to care very little for the true welfare of his child. It appeared to be motivated almost entirely by a sense of his own rights."
As in Alessia's case, despite the Deputy Judge recognizing that this was a clear case of “unlawful” child abduction by the mother below, he condones the mother’s unlawful activities in the very same manner he condoned Alessia’s mother for her unlawful, “perhaps fraudulent actions,” as he had declared. Alessia’s mother stated under oath that she committed fraud against the United States "for the good of Alessia's grandparents", while the mother below committed unlawful child abduction “for her own good.” This judge takes the same position of this mother and actually finds the evidence of her “unlawful” removal “impressive” …
19. The judge was [appreciative] of the mother's evidence. He said in the following paragraph: "The mother's evidence, in contrast, I found impressive. She said that she realised that she had removed V [unlawfully], but "for her own good." While the father seemed hardly to know his daughter, mother was clearly closely and sensitively involved with her needs. I thought that the strain that the mother showed went beyond the normal effect of giving evidence and presenting her case. I find her to be a parent who had been at the outer limits of her ability to cope, but who has now recovered her balance. I believe that she would be pushed back to the edge by an order that V should return."
The Court of Appeals corrected these irrelevant opinions as follows:
¶ 20: “Now, [that] is essentially the language of a judge undertaking a [welfare] investigation and expressing a [welfare] conclusion. It is [not] the language of a judge who is focused on determination of a [single] [issue] for which oral evidence has been provided, namely: did the father acquiesce in the abduction of his daughter?”
The other Lord Justice agreed; adding that the reason for the wrong judgment to begin with, was in the deputy judge allowing himself to get distracted from the relevant issues that he should have been focusing on instead of the irrelevant ones that Article 16 & 19 forbid in the first place. It is a federal felony to remove a child or retain a child from the other parent, and is it was not the duty of this judge to look for excuses to condone the “unlawful” and/or “fraudulent” actions of the crime (that he recognized had been committed) to circumvent the objectives and purposes of an International Treaty created to return those children...
¶ 40 to 42,: “namely that Oral evidence is to be very much the ‘exception rather than the course’ and it is calculated to cause more confusion than good by distracting from the main decision at hand"...
“and is to be no more than 30-40 minutes.”
THE DEPUTY JUDGE WASTED TWO FULL DAYS
OF ORAL-EVIDENCE ON ALESSIA'S CASE
“ Deputy High Court Judges and Section 9 Judges should [not] deal with Hague and Brussels II cases.”
(See Reunite International, Practical Case Management of Child Abduction Cases)
* It should be noted in fairness to the UK, that foreign and domestic judgments IN ALL COURTS (including the US) make mistakes. It was for this reason appeallate procedures have been put into place. Supreme Court decisions in the UK, US, and the European Union have outstanding records of fairness and justice and have in fact over-ruled many errors in judgments made by these UK judges (and other judges) in order to right wrong decisions, maintain objectives of the Convention, maintain public faith in the judicial process and ultimately to ensure no perversion of justice occurs.
WE NEED YOUR VOICE
The United States is certain that: (1) had all evidence (and fresh evidence) been allowed pursuant to Convention Article 30, and (2) had the 'Laws of the State' of Alessia's prior habitual residence been 'properly considered' pursaunt to Hague Convention Articles 3, 14, & 15; and (3) had all of the well-established prior Convention cases been properly considered, then there is more than a reasonable argument that the foreign decision, or a part thereof, would have been discovered to be plainly-wrong and it is highly plausible that two different minds would have reached a widely different decision in an Appellate court. Unfortunately for Bart & Alessia, permission to do so was denied in breach of Human Rights & Due Process.