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38 Tex. Int'l L.J. 41 (2003)
Patching Up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA

handle is hein.journals/tilj38 and id is 51 raw text is: Patching Up the Abduction Convention: A Call
for a New International Protocol and a
Suggestion for Amendments to ICARA
LINDA SILBERMANt
SUMMARY
I.    IN TROD UCTION  ........................................................................................................  4 1
II.   SOME INITIAL OBSERVATIONS WITH RESPECT TO INTERNATIONAL CHILD
A B D U CTIO N  .............................................................................................................. 42
III.  RECENT PROBLEMS UNDER THE ABDUCTION CONVENTION ................................... 43
A. Ne Exeat Clauses and Custody Rights ............................................................ 45
B.   The Related Issue of Under-Enforcement ofAccess Rights ............................ 48
C.   The Unwarranted Expansion of Defenses ..................................................... 50
IV.   THE NEED FOR AMENDMENTS TO ICARA ............................................................... 56
A.   Complications of Concurrent Jurisdiction .......................... 56
B.   Concerns Over Obtaining Legal Representation ............................................ 60
V .   C O N C LU SIO N   ............................................................................................................... 6 1
I. INTRODUCTION
The 1980 Hague Convention on the Civil Aspects of the Child Abduction' is not
always part of international litigation symposia, where the focus is more likely to be on
strictly commercial matters.     But it is especially fitting to include this subject in a
symposium     issue  honoring    Professor   Russell Weintraub.       Professor   Weintraub's
t Martin Lipton Professor of Law, New York University School of Law; B.A., 1965, University of Michigan;
J.D., 1968, University of Michigan Law School. Kim Seelinger and Ion Hazzikostas, students at New York
University School of Law, offered valuable research assistance. My thanks also to Peter Pfund, former Assistant
Legal Adviser for Private International Law, U.S. Department of State, and Jeffrey Kovar, the present Assistant
Legal Adviser for Private International Law, U.S. Department of State, for their helpful comments on an earlier
draft. The Filomen D'Agostino and Max E. Greenberg Research Fund provided financial support for this paper, as
well as my continuing research, on international child abduction. I was privileged to serve as expert consultant to
the Hague Conference on Private International Law during the Second Special Commission Meeting on the
Operation of the Child Abduction Convention in 1993, as a member of the U.S. State Department delegation to
both the Third and Fourth Special Commission Meetings on the Child Abduction Convention in 1997 and 2001,
respectively, and as a member of the U.S. delegation to a Common Law Judicial Conference on International
Custody in September 2000. 1 was also part of the U.S. State Department delegation to the Special Commission
that negotiated over a series of years the 1996 Hague Protection of Children Convention. The views expressed in
this article are my own and do not reflect the views of the Department of State.
1. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89
[hereinafter Abduction Convention]. As of August 30, 2002, the Abduction Convention is in effect in seventy-
three countries.

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