Wednesday, 6 March 2013

God made me do it! The little-used child abduction defence

Across the Atlantic, a Virginian Amish-Mennonite pastor faces up to three years in prison for his part in a parental child abduction.

According to the modern repository of all knowledge (that is, Wikipedia), “the Mennonites are a Protestant group based around the church communities of the Christian Anabaptist denominations named after Menno Simons (1496–1561) of Friesland (a part of the Holy Roman Empire of the German Nation), who, through his writings, articulated and thereby formalized the teachings of earlier Swiss founders.

Mennonite Pastor Kenneth Miller following last year's trial
So that’s clear then…

The pastor, Kenneth Miller, is awaiting sentence.  He was found guilty last year of helping a woman flee the country with her daughter, rather than share custody of the child with her (gasp!!) former lesbian partner.

The couple, Lisa and Janet, had entered into a civil union in Vermont in 2000.  Lisa gave birth to their daughter, Isabella, in 2002.  The couple separated in 2003.  A Vermont Family Court Judge gave custody of Isabella to Lisa and gave Janet regular access. 

Lisa then moved to Virginia, became a conservative Christian, renounced homosexuality and sought full custody of the child.  She stopped abiding by the court order as far as access was concerned.  The frustrated Family Court Judge warned that a transfer of custody to Janet was a possibility if Lisa’s defiance of court orders continued.

It is around this time that Pastor Miller comes into the story…

Isabella and Janet
According to reports from the time of his trial last August, Miller arranged for Lisa and Isabella to be taken by car from Virginia to Buffalo, New York.  There, they crossed into Canada.  A Mennonite from Ontario took them to the airport in Toronto.  From there, they flew to Mexico and on to Nicaragua, where they are still believed to be in hiding.  The prosecution led evidence that Miller specified that the flights from Canada must not touch down on American soil, and that he gave mother and daughter Mennonite garb to wear as a disguise.

At the end of the four-day trial, it took a federal jury only four hours to find Miller guilty of abetting international parental kidnapping.

Two months after the abduction, the Vermont Family Court judge transferred custody of Isabella to Janet. 

And so the hour now approaches when Miller will be sentenced.  In advance of Monday’s hearing, Miller has penned a four-page letter to the Federal Court Judge.  Western society is seeking to re-engineer and redefine marriage, family and parenthood, he writes.  That's why he helped Lisa and Isabella flee the country in 2009, after the erstwhile lesbian came to him begging for help.
"If it is true that my actions flow out of my faith in Jesus, and from my deeply held moral believes — and I sincerely think they do — then it must follow that whatever judgment is being brought against me by the United States of America, is judgment on my faith and conscience and deeply help moral beliefs," he wrote.

"I was faced with a woman in distress who needed help to protect her daughter from what seemed to be an inhumane court decree," Miller said, writing from the gaol where he has been held for refusing to tell the authorities about others involved in the case.

In his letter, Miller sought to justify why he helped Lisa and why he refused to implicate others in the abduction. 

"After more than three weeks of incarceration ... I find my faith and conscience and moral convictions considerably strengthened," he wrote. "My position remains the same. I am unable for reasons of faith and conscience ... to answer certain questions before the federal grand jury. I take no delight in burdening the court, but find myself compelled to this position by my deeply held religious beliefs."

Prosecutors have asked the Judge to sentence Miller to the maximum three-year gaol term. 

Those who know me will be able to anticipate my views about Miller’s stance, and his apparent belief that his religious views are a trump card capable of seeing off secular obligation and civic responsibility.  So I don’t propose to bang on about that too much here.  I’ll look instead at the reaction Miller might receive had his antics occurred in the UK. 

It is a criminal offence here, under the Child Abduction Act 1984, for a person (other than a parent or guardian) to take, detain or keep a child under the age of sixteen from another’s lawful control.  A person can be guilty of abetting a crime under the Child Abduction Act 1984.  The maximum penalty is seven years.  According to the Crown Prosecution Service’s sentencing manual, aggravating factors for this offence may include: 

·                    breach of court order or defiance of legal process;
·                    sophistication;
·                    removal to another country, and
·                    resulting impact upon victim and family
Prosecutions under the Child Abduction Act 1984 are not common, and certainly are not the standard response to every parental child abduction situation.  However, I have known of several prosecutions brought successfully against some pretty egregious child abductors and their supporters, who found themselves serving long gaol terms for their actions.  Plenty of time to consider their “faith and conscience and moral convictions”. 

Beyond the criminal law, English family court Judges are not reticent when it comes to dealing with individuals (and those who help them do so) that defy court orders.  Disobedience of a court direction is a civil contempt of court.  So long as procedural niceties are observed, a civil contempt (if proven) may be punished by levying a fine, seizing the contemnor’s assets and / or sending him or her to prison for up to two years.  The same goes for any person who, knowing of the existence of a court order and the obligations under it, helps the contemnor defy the court order.

During the course of my career, I have known many individuals who have learned the hard way just how readily a Family court Judge will punish a contempt of court relating to parental child abduction by sending them to gaol. 

Moving on from these punitive responses, contemporary mental health professionals who work with abducted children report the profound psychological impact the experience often has.  It is hugely traumatic for the children affected.  Parental child abduction almost always involves an unexpected separation from a parent and wider family members.  It involves a removal from a familiar environment and home, and from friends.  Children who are abducted report feeling a sense of loss and shock which seems unbearable.  The psychological harm done to a child through abduction does not just affect him or her during childhood, but may carry on into later life.  The experience also profoundly affects the left-behind parent, who will often feel a similar sense of shock and loss.  Left-behind parents report it being similar to the feelings following a sudden bereavement.

I’m quietly confident that there is no god.  But, if I’m wrong, here’s hoping that said deity ensures everyone in this case gets the outcome a universal sense of justice and morality demands:  that Miller goes to gaol for the three years, that Isabella is returned home, and that Janet is able to resume her role as one of the most important people in her daughter’s life.   

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