Diplomacy in a parental abduction case and the interests of the child

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN:
2628-6998, https://worldmediation.org/journal/

On 29 September 2016 a two-year-old girl, called Insiya, was kidnapped, and taken from her mother in the Netherlands. The kidnapping was violently carried out by three men who took Insiya from her grandmother’s house in Amsterdam after her mother had just left the house. She was taken to her father, who then smuggled her to India. 

Because India is not a party of the Hague Abduction Convention, Insiya’s mother is dependent on Dutch political pressure on India for Insiya’s return to the Netherlands. There have been lawsuits in both the Netherlands and India. However, Insiya still is not back with her mother. The Dutch government has been using diplomacy for several years now, but so far without result.

Keywords
Diplomacy, child abduction, international parental child abduction, kidnapping, the Hague Abduction Convention.

Introduction
Every year Worldwide several thousand children are internationally abducted. They were abducted by their own father or mother, rather than by strangers. Usually, the parents are in the process of getting a divorce or are already divorced and one of them wants to return to the country of origin. If they want to take their children abroad, permission must be given by the parent that stays behind. If this does not happen, or when children are not returned, it is classed as “international parental child abduction.” 

Main content
The case of Insiya is very complicated. It is both a violent kidnapping and an international parental child abduction. India is not one of the 91 parties of the Hague Abduction Convention, which contains agreements on the approach to international child abduction. There were many court cases, both in the Netherlands and India. On 13 April 2018, the Bombay high court ruled that Insiya was to stay in India. On 28 August 2019, a Dutch court ruled that Insiya should be returned to the Netherlands. Her father was also sentenced to 9 years in prison and a fine of € 45.000. So far, India is not cooperating, as Dutch court verdicts are not automatically binding in India. Apparently, the father also does not want to participate in a contact recovery scheme ordered by the Indian court. 

According to the website bringinsiyaback.nl Insiya has only got Dutch nationality and many questions at a political level have been raised as to why Insiya still hasn’t been returned to the Netherlands. Dutch authorities have requested the return of Insiya via diplomatic channels, and they will continue the pressure until she is back. In an interview with crime reporter John van de Heuvel, Prime Minister Mark Rutte said the matter is repeatedly being discussed with India. He has hope but cannot give any certainty. According to the mother’s lawyer, Peter Plasman, it is because of international and economic interests that Insiya has not yet been returned. He suspects that the Netherlands is not strong enough in comparison to India and they do not want to risk friendly connections that can be broken.

So how is Insiya, now an eight-year-old girl, who has been living in India for almost 6 years? Have there been attempts at a diplomatic level to enforce the terms of the divorce, and is it a matter of which party, or country, wins? What interests do both countries have, and what are her father’s and mother’s interests? What if Insiya has a good and safe life in India, is settled in a school, has nice friendships, and has a good relationship with her father? The violent kidnapping is obviously unacceptable and must be condemned, but is it not more the question of when and how that is done in the interest of Insiya? Is it acceptable that the Netherlands wants to have Insiya immediately returned to her mother, bearing in mind she barely knows her mother, and that her father has to spend nine years in jail? Could this be traumatic and cause even more harm to Insiya? In the Hague Abduction Convention, the immediate return of children who are illegally transferred or detained in a contracting state also has exceptions, for example, when the child is settled in its new environment. 

Perhaps Insiya is happy in India and does not want to go back? What does Insiya herself want, and how can this be properly arranged for her? How can she get to know and build a relationship with her mother? Research shows that children want to have a voice in decisions that affect their lives. A possible return should only take place when Insiya decides she wants to return and when she is ready to return.

Potential solution
In order to get a good solution for everyone, the first step is awareness at both a diplomatic level and among the parents. They need to understand that it is not in Insiya’s best interest to get her to the Netherlands immediately unless Insiya is mistreated and unsafe in India. The responsibility lies with India to ensure that Insiya leads a safe life and to intervene when this changes. The first priority should be to restore contact with her mother, which has also been called for by the Indian court. Diplomats can support this by making a plan as to what is needed to get the parents to sit down together again and to organize and facilitate the discussions for this. Together they can then also choose a mediator who will lead the discussions. The mediator must be as independent as possible and has to be someone who has “no” ties with the Netherlands or India and can preferably communicate in both the father’s and mother’s languages (translation by an interpreter can if provided if necessary). Having the diplomats present during the conversations might give the parents confidence and encourage a positive result for all parties. It could also prevent disagreements at a diplomatic level about the outcome. It must be clear that the conversations which have to take place between the parents will not be about when Insiya returns to the Netherlands, but that the parents will initially talk to each other again about how contact between Insiya and her mother can be restored. This is not aimed at enforcing the sentence imposed by the Dutch Court, but Insiya’s rights and best interests.

To properly involve Insiya in the process, an independent professional should be appointed to talk to Insiya and guide her through the entire process. What image does Insiya have of her mother, and does that correspond with reality? In what way would she like to wish to restore contact without having to feel guilty towards her father? The outcome of the conversation with Insiya can be discussed in the mediation. They can discuss what is feasible, keeping Insiya’s best interest in mind. “If” contact is restored, it is important that Insiya is also monitored throughout and that this can be included in the mediation again in order to work on the most pleasant contact moments for Insiya, her mother, and her father. 

The mediation process
This process requires a mediator (a conflict manager and peace messenger) who creates customized strategic steps, creates a clear overview, and highlights interests. In this case, mediation is probably not a voluntary process for the parents. However, mediation could be an opportunity for a change in the conflict and can lead to the creation of a common productive future for the parents and Insiya. So it is important that the mediator listens closely and speaks wisely.

The first goal is to establish a respectful conversation between the parents and at the very least that they can listen to each other. Only the safe boundaries of the rules of conduct allow a respectful conversation. At the start of the mediation, the rules of conduct must be discussed and the mediator has to make a good introduction in which the mediator mentions that they are there as parents of Inisya (they have an interdependence).

The mediator is the linking element and asks selected questions to create space for the mother’s and father’s interests and wishes and to identify the core problem and all minor conflicts that may influence the core problem. The parents should reveal and describe their needs hidden behind the individual viewpoints and in this way, understand and accept each other’s perspectives and needs. The mediator has the task of checking if both parties understand each other in this. If one of the parents cannot comprehend things or it is alien to their conscience, the mediator has the task of asking for more explanation and double-checking with the other party if it is clear. When unknown information is revealed, it can create more respect for the other person. They have to grant each other sufficient room, which means that they feel that their needs and interests are respected and accepted by each other. When they really understand each other, they get more opportunities to grant each other room. And when they accept each other’s needs, a new escalation can be avoided. The actual solution to this conflict can only be achieved by the satisfaction of their needs.

The mediator has to realize a conflict analysis or mapping and display the father’s and mother’s similarities. To create a good analysis, it is important the mediator asks open questions (what, who, where, when, how, why). Closed questions can be used to control the conversation. In this way, talking about common points of interest, there is a possibility that the destructive conflict will be turned into a constructive conflict and that the complete conflict may be seen through a positive mindset. If this happens, a cooperative environment will arise. Turning the competitive environment into a cooperative one is very important. A competitive environment minimizes communication and is subject to many misunderstandings. It may cause tension and tension cause stress. Stress might lead to irrational actions. Experience has shown that such a situation can only make the conflict worse. To turn a destructive conflict into a constructive one, the mediator needs to use different communication techniques. The first step is to create a rapport. This can be done through a respectful conversation, showing empathy, and mirroring body language or speech patterns. When the father or mother of Insiya is down, sad, negative or angry, it is possible to change his/ her attitude by showing with body language that you are open to dialogue and from this attitude mirror his/ her positive communicative patterns by changing to a more positive pattern. When the mediator notices there is a rapport, then (s)he can test if the conversation partner will follow her/his communication pattern (then the conversation partner is open to our/other arguments).

It is important that the mediator continuously monitors their rapport. When the father or mother abandons the adopted communication patterns and presents contrary behavior patterns, the rapport is ended consciously (mismatching). As a result of mismatching, the mediator has to stop the conversation about the topic and/ or end the session. It indicates the end of the capability to pay attention properly.

When the mediator wants to check whether information has been properly understood, (s)he can summarize the message to be confirmed. The father and/ or mother can also hear the original statement being rephrased by another person, find herself or himself confronted with the personal statement, and is able to reflect upon the proper attitude. When it is needed the mediator can use reframing of a problem or situation. By reframing, the message will have been formulated in a new way and will give possibilities to see positive aspects.

The mother and father have to understand how they themselves think and how this influences their perception and decision-making patterns. The mediator has to help them look at the conflict from a helicopter view so they can see the big picture. When this works, the next step is to discuss the interests and wishes of Insiya and, finally how they can initiate this and create a long-lasting settlement for Insiya and thereby for themselves and both countries. This international macro-conflict is at the diplomatic level a cold conflict and is a good example of a conflict whose origins lie in a micro-conflict. At a micro level, so for the parents, it is a hot conflict. 

Conclusion
In this case, the passage of time means that Insiya is probably rooted in India now. In the Netherlands, the focus is on the kidnapping, not the interests of Insiya. Immediate return is not in the best interest of Insiya and is not a solution to the problems. The question is whether it is at all in Insiya’s interest to return after 6 years. She probably does not speak the Dutch language, barely knows her mother (can she communicate at all with her mother in a language?), and has no connection with the country. It is important that Insiya’s needs, wishes, and interests are included in decision-making. In addition, the most important thing is that Insiya gets in touch with her mother, as this is her right. It is certainly not a good solution that agreements about her return or contact recovery are made at a diplomatic level. The parents will have to make the agreements, they have to implement them, and they can indicate what is and is not feasible. Under the guidance of a good mediator, the fears, needs, and interests of the parents can be discussed, and the way can be cleared for long-term contact recovery for Insiya. However, diplomats can show, by staying involved in the case, how important it is that the parents enter into a dialogue and come to a solution in the interest of Insiya.

References
www.bringInsiyaback.nl

wetten.nl – Regeling – Verdrag betreffende de burgerrechtelijke aspecten van internationale ontvoering van kinderen – BWBV0002010 (overheid.nl)

Wat kan er nog gedaan worden om de ontvoerde Insiya terug te brengen naar Nederland? “Ik blijf vechten” – AT5

Proefschrift: De toepassing van het Haags Kinderontvoeringsverdrag in Nederland en het belang van het kind – Recht.nl

Insiya Hemani | NL Times

Shehzad Hemani vs Nadia Rashid on 13 April, 2018 (indiankanoon.org)

Advocaten: Rechter in India besluit dat ontvoerde Insiya bij vader blijft | Binnenland | ed.nl

VOICE Project – Voice of the Child in International Child Abductions in Europe • MiKK e.V. (mikk-ev.de)