Intolerable Situations and Counsel for Children: Following Switzerland's Example in Hague Abduction Cases

Abstract

In the twilight days of 2007, Switzerland took decisive action to protect children who were being harmed by the application of the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Abduction Convention" or "Convention"). 1 Its Parliament passed the Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults ("Swiss Act"). 2 The Swiss Act, which should enter into force in mid-2009, 3 gives important and necessary guidance to Swiss courts about the phrase "intolerable situation" in Article 13(b) of the Hague Abduction Convention. 4 The Swiss Act also directs courts to appoint representatives for children in Hague child abduction proceedings. 5 The United States should follow Switzerland's example and adopt similar reforms. The United States need not pass legislation to do so, but rather U.S. courts should follow Switzerland's lead as the opportunities arise in individual cases. This Article describes the Swiss law and the context for its adoption and then examines the doctrinal and practical significance of its provisions. A few recent U.S. cases are used to illustrate the need for courts in the United States to follow Switzerland's example. For example, the Swiss interpretation of "intolerable situation" might have changed the 2007 decisions of the federal district court in Adan v. Avans. 6 The Swiss approach to appointing counsel for children in Hague child abduction proceedings might also have altered the outcome of a 2008 federal district court decision, Mendez-Lynch v. Pizzutello. After considering potential drawbacks to the Swiss reforms, the Article concludes that the U.S. courts have little to lose, and much to gain by incorporating these Swiss ideas into the adjudication of Hague cases.