"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other contracting States."

A. Undertakings, safe harbour orders, mirror orders;

B. Criminal proceedings against the taking parent;

C. Problems relating to enforcement; and

D. Direct judicial communication

"Unless contracting States can feel reasonably assured that when children are returned under the Hague Convention, their welfare will be protected, there is a serious risk that the contracting States and Courts will become reluctant to order the return of children." ⁴

"... the Hague Convention and the Regulations [implementing the Convention in Australian law] contemplate that it is in the best interests of the child for issues such as custody and access to be determined in the courts of the country of the child's habitual residence unless the exceptions referred to in regulation 16 are made out.

The issue in a Hague Convention application is purely one of form, subject to those exceptions, and the paramountcy principle is accordingly not relevant." ⁸

"The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting state has faith in the domestic law of the other Contracting States to deal in a proper fashion with matters relating to the custody of children under the age of 16. Necessarily, proceedings under the Regulations are to be seen as standing apart from [proceedings relating to the custody, guardianship or welfare of, or access to, a child]. It follows that they are not subject to the paramountcy principle." ²²

"... the interests of the children in remaining here should not be sacrificed on the altar of comity between nation States." ²⁴

"Where the system of law of the country of habitual residence makes the best interests of the child paramount and provides mechanisms by which the best interests of the child can be protected and properly dealt with, it is for the Court of that country and not the country to which the child has been abducted to determine the best interests of the child.

... There may well be cases, for example where the laws of the home country may emphasise the best interests of the child are paramount but there are no mechanisms by which that might be achieved, or it may be established that the Courts of that country construe such provisions in a limiting way, or even that the laws of that country do not reflect the principle that the best interests of the child are paramount." ²⁶

"There is a presumption that upon return to the jurisdiction, a competent body will resolve the competing claims over the children. The position was explained by the Full Court in Gsponer v Director General CSV :

"There is no reason why this Court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child's welfare."

Even so, it is no offence to judicial comity to appreciate that Contracting States may have systems which, in practice, differentially facilitate or impede access to such a competent body." ²⁸

"This issue has been of some concern to the Chief Justice of the Family Court since his involvement in a number of cases where an abducting parent has fled a domestic violence situation or has been left destitute on return to the country of habitual residence. In Cooper v Casey (1995) FLC ¶92-575 Nicholson CJ said that the Convention imposes an obligation on Central Authorities to take responsibility for ensuring the protection of children returned under the Convention. Although a similar approach was taken by the NZ Court of Appeal in [ A v Central Authority for New Zealand ] , the acceptance of such an obligation had not received much support from other countries who were consulted about this issue prior to the 1997 Special Commission meeting at The Hague." ³⁰

"Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures—

...
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;"

"Following discussion of Australia’s proposal, delegations appeared to accept the following proposals:

1 It is essential to the integrity of the Convention to ensure the safety of children on their return to their country of habitual residence, in order to alleviate possible concerns and the reluctance of judges to order the return of children where issues of (alleged) abuse or violence arise.

2 An increase in the number of refusals to return, in cases where such issues arise, would not be desirable. Accordingly, a narrow interpretation of Article 13 b of the Convention should be encouraged by strengthening the role of Central Authorities in co-operating to facilitate awareness of government or public resources available to parents and children. In that context, Central Authorities should be prepared and encouraged by their respective States to adopt a flexible approach to their obligations under Article 7 h of the Convention.

Conclusions

In view of the above proposals, delegations are urged to adopt the following conclusions:

1 To the extent permitted by the powers of their Central Authority and by the legal and social welfare systems of their country, Contracting States accept that Central Authorities have an obligation under Article 7 h to ensure appropriate child protection bodies are alerted so they may act to protect the welfare of children upon return until the jurisdiction of the appropriate court has been effectively invoked, in certain cases.

2 It is recognised that, in most cases, a consideration of the child’s best interests requires that both parents have the opportunity to participate and be heard in custody proceedings. Central Authorities should therefore co-operate to the fullest extent possible to provide information respecting, legal, financial, protection and other resources in the requesting State, and facilitate contact with these bodies in appropriate cases.

[3 - The measures which may be taken in fulfilment of the obligation under Article 7 h to take or cause to be taken an action to protect the welfare of children may include, for example:

a alerting the appropriate protection agencies or judicial authorities in the requesting State of the return of a child who may be in danger;

b advising the requested State, upon request, of the protective measures and services available in the requesting State to secure the safe return of a particular child;

[c providing the requested State with a report on the welfare of the child;]

d encouraging the use of Article 21 of the Convention to secure the effective exercise of access or visitation rights.]" ³¹

"The delegation of Italy agreed with the suggested changes regarding Conclusion 1. The Italian experts did not object to the wording of Conclusions 2 and 3. They suggested, regarding Conclusion 3, that one item be added, to provide that applications for return, should include, whenever possible, a description of the services or measures available in the requesting State for the protection of the child or the returning parent. The delegation of Austria with respect to Conclusion 2, preferred the wording suggested in Working Document No 20 to that suggested by the Canadian experts. In addition, the Austrian experts wished Conclusion 2 to specify that returning parents should be given assistance even when ex parte custody orders have been issued after the abduction and that such orders should not prejudge the final outcome of the proceedings. The experts also wished that Conclusion 3 c), be deleted and that it be clearly stated, under Conclusion 3 b, that information was only required upon request. The delegation of France, with respect to Conclusions 1 and 2, reminded the meeting that the French Central Authority could not ensure that custody proceedings would be instituted upon return, although it could commit to assist the parent in all possible ways, in particular by contacting other authorities or services. The French experts found Conclusion 3 to be too specific and would prefer it more open ended. Regarding Conclusion 3 c), it was pointed out that the French Central Authority could not provide information beyond the measures taken upon the return, for it lacked the resources needed for a long term follow-up. Other experts expressed similar concerns as those mentioned above, including those regarding Conclusions 3 b) and 3 c). Experts also wished that it be made clear that the purpose of the proposal was to protect the child and not to reward the abducting parent.

The square brackets around Conclusion No 3 reflect the doubts of certain experts as to whether this provision should be retained and the internal square brackets around sub-paragraph c reflect particular doubt as to the acceptability of this provision." ³²

"The acceptance of the resolution was important as abducting parents often raise arguments that they face harm or an intolerable situation (by which they often mean no accommodation, no financial support, no access to legal aid, domestic violence) if they return with children to foreign countries.

At the least, this additional responsibility requires the Central Authority for each country to provide information about services relating to social security, legal aid, emergency accommodation, or domestic violence protection which are available in the city or area to which the abducting parent is asked to return with the children.

In Australia it is accepted that the obligation also involves, where necessary, a Central Authority in commencing proceedings in the courts to ensure the protection of the welfare of children (eg. to enforce an undertaking by the parent who sought the return of the children to provide accommodation or financial support)." ³³

"Until the signatories to the Convention are prepared to develop an effective protocol to secure, to the optimum extent practicable, the safety and welfare of returning children, along the lines proposed by the Government of Australia, it is incumbent upon courts hearing Article 13(b) defences to asses the allegations made carefully and fairly, if necessary taking oral evidence to resolve critical factual disputes, and, in accordance with the requirements of Article 13, to refuse to order a return, where the evidence genuinely establishes a sufficient degree of risk." ³⁵

"It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction...

This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence. Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations... Undertakings have their place in the arrangements designed to smooth the return of and protect the child for the limited time before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child." ³⁸

"Given the preamble's statement that "the interests of children are of paramount importance", courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L., supra; C. v. C., supra; P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155 (Eng. H.C. (Fam. Div.)); and Re A. (A Minor) (Abduction), supra. Through the use of undertakings, the requirement in Article 12 of the Convention that "the authority concerned shall order the return of the child forthwith" can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child's habitual residence, and any short-term harm to the child is ameliorated." ⁴⁰

"I am satisfied that undertakings may be given by a party to proceedings under the [Child Abduction and Enforcement of Custody Orders Act 1991] and accepted by the court. They are entirely consistent with the 1991 Act and the Hague Convention, they are for the welfare of the child during the transition from one jurisdiction to another. Undertakings may be of particular relevance to very young children.

Undertakings in this situation are compatible with the Act and international law which have as their objectives the desire to protect children internationally from the harmful effects of their wrongful removal from the country of their habitual residence and the establishment of procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of access.

Furthermore, undertakings which are for the welfare of the child are in accord with the constitutional protection of the child and its welfare.

Undertakings may also protect a parent in their role and in the exercise of their rights under the Constitution. Consequently I am satisfied that undertakings may be accepted in cases under the 1991 Act."

"... the conditions as to accommodation and maintenance as identified by the learned trial judge are reasonable. However, in addressing the long term education, maintenance of the child, and bi-annual visits by the child to Ireland, the learned trial judge considered matters more appropriately determined in the Spanish courts."

"... they were not essential for my decision as to whether the terms of Article 13(b) had been met. Nevertheless they were offered and I think it would be appropriate to record them in the Minute of Proceedings in words which appropriately reflect the terms, both express and implied, of what was offered." ⁴⁸

"1. While undertakings are not necessary to operation of the Convention, there are good arguments that their use can be consistent with the Convention. Undertakings are most cleanly consistent with the Convention where they facilitate Article 12's objective of ensuring the return of abducted children "forthwith;" minimize the use of non-return orders based on Article 13; and do not undercut the provisions of Articles 16 and 19, which clearly contemplate that return proceedings under the Convention should be jurisdictional and that substantive issues relating to custody, including maintenance, should be left to the court in the child's place of habitual residence.

2. As a corollary to the above, undertakings should be limited in scope and further the Convention's goal of ensuring the prompt return of the child to the jurisdiction of habitual residence, so that that jurisdiction can resolve the custody dispute. Undertakings that do more than this would appear questionable under the Convention, particularly when they address in great detail issues of custody, visitation, and maintenance." ⁴⁹

"We also note that in order to ameliorate any short-term harm to the child, courts in the appropriate circumstances have made return contingent upon "undertakings" from the petitioning parent. Thomson v. Thomson, 119 D.L.R.4th 253 (Can.Sup. 1994). The district court, on its own initiative, heard testimony about the undertakings Mr. Feder was willing to make in the event that Evan returned to Australia and was not accompanied by Mrs. Feder. Given its denial of Mr. Feder's petition, however, the court did not assess the need for or the adequacy of those undertakings. If on remand the court decides that Evan's return is in order, but determines that Mrs. Feder has shown that an unqualified return order would be detrimental to Evan, the court should investigate the adequacy of the undertakings from Mr. Feder to ensure that Evan does not suffer shortterm harm. See Re O, 2 FLR 349 (U.K.Fam. 1994) (exacting appropriate undertakings is legitimate in Convention cases)."

"A potential grave risk of harm can, at times, be mitigated sufficiently by the acceptance of undertakings and sufficient guarantees of performance of those undertakings. Necessarily, the "grave risk" exception considers, inter alia, where and how a child is to be returned. n13 The undertakings approach allows courts to conduct an evaluation of the placement options and legal safeguards in the country of habitual residence to preserve the child's safety while the courts of that country have the opportunity to determine custody of the children within the physical boundaries of their jurisdiction. Given the strong presumption that a child should be returned, many courts, both here and in other countries, have determined that the reception of undertakings best allows for the achievement of the goals set out in the Convention while, at the same time, protecting children from exposure to grave risk of harm. See, e.g., Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (Blondin II); Turner v. Frowein, 253 Conn. 312, 752 A.2d 955 (Conn. 2000); Thomson v. Thomson [1994] 3 S.C.R. 551, 599 (Can.); P. v. B. [1994] 3 I.R. 507, 521 [*38] (Ir. S.C.). See generally Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 156-72 (1999).

A good example of this approach is the Second Circuit's recent decision in Blondin II. The district court had denied the father's petition to return the children to France because the mother had established that returning the children to their father's custody would pose a grave risk of harm. See Blondin v. Dubois, 19 F. Supp. 2d 123, 127-29 (S.D.N.Y. 1998) (Blondin I). The Court of Appeals vacated the district court's judgment and remanded the case to allow the [*39] district court to consider "remedies that would allow the children's safety to be protected [in France] pending a final adjudication of custody." Blondin II, 189 F.3d at 250.

Yet, there may be times when there is no way to return a child, even with undertakings, without exposing him or her to grave risk. Thus, on remand in Blondin, the district court found that the "return of [the children] to France, under any arrangement, would present a 'grave risk'" because "removal ... from their presently secure environment would interfere with their recovery from the trauma they suffered in France; ... returning them to France, where they would encounter the uncertainties and pressures of custody proceedings, would cause them psychological harm; and ... [one of the children] objects to being returned to France." Blondin v. Dubois, 78 F. Supp. 2d 283, 294 (S.D.N.Y. 2000) (Blondin III), appeal filed, No. 00-6066 (2d Cir. Jan. 20, 2000) (emphasis added). "

"Consideration was given in the course of argument as to whether a Court had power to attach conditions to any order made by it. It seems reasonably clear there can be no power to attach conditions to an order under s 12 in the absence of a finding in favour of a defence under s 13. On the other hand, if such a defence has been made out and the Court is concerned solely with the exercise of his discretion under s 13 of the Act, then it may be possible that conditions could be attached, unless the statutory provisions dealing with conditions in the Act, ss 26, 27 and 28 imply no authority for the imposition of other conditions. See H v H (1995) 12 FRNZ 498. Nevertheless, as has already been stressed in this judgment, it is not the role of a New Zealand Court to interfere with the functions and responsibilities of the relevant Central Authorities and the courts of another jurisdiction. It would be an unusual case which might give rise to the consideration of conditions. No finding is made on this issue." ⁵³

"15 (1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

"... the effect of reg 15(1) is to provide that, in making an order in relation to the return of a child from Australia, the court may include in its order a condition the court considers appropriate to give effect to the Convention.

...

It is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the Court may impose such conditions on the removal of the child ‘as the Court considers to be appropriate to give effect to the Convention’. Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the Court has to exercise discretion judicially, having regard to the subject-matter, scope and purpose of the Regulations." ⁵⁷

"... Regulation 15(3) does not enable the Court to place conditions on the return of the child. It merely enables the Court to place conditions on the temporary removal of the child from one place to another before the return of the child is ordered." ⁶¹

"... in our view it was a matter for his Honour to consider which conditions if any he thought it proper to impose, or what undertakings to require, and we are not persuaded that he fell into error. In particular, in the absence of evidence as to United States law and practice on the matter, we see no reason to assume that the undertakings required by his Honour would be less effective in carrying out the intent of the Convention than orders expressed as conditions." ⁶⁴

"If undertakings are to be given it is important to make sure they can be enforced. There does not appear to be any existing mechanism by which the Court that extracts the undertaking can ensure that it is complied with. There does not appear to be any legal basis upon which the court of the State in which the child has been returned, can require compliance with an undertaking given to another Court." ⁶⁶

"One way to avoid this difficulty is for undertakings to be lodged in both the Court hearing the Convention application and a proper Court in the jurisdiction to which the child is to be returned in order to overcome enforcement difficulties. .... In Re S (Child Abduction: Acquiescence) [1998] 2 FLR 893, Sir Stephen Brown P recorded undertakings given by an American father to the English court to not harass the mother and to agree to a de novo custody hearing in California. He ordered that a copy of his reasons for judgment including those undertakings be provided to the Californian court." ⁶⁷

"Once the primary jurisdiction is established then mirror orders in the other and the effective use of the Convention gives the opportunity for collaborative judicial function." ⁶⁹

"It is not clear from these replies whether the common law concept that a party may give undertakings to the Court and that the failure to abide by such undertakings constitutes a contempt of Court is a normal part of the Italian legal code. It may well be that this also applies to many other non common law jurisdictions. In the instant case an additional complication is that the content of the Order of this Court made on the 12 February, 1997 was not conveyed to the Italian Court until the 23 April, 1997 and even then not translated until the 5 May, 1997. The child E had already been removed from the custody of her mother on the 5 March, 1997. Clearly this Court cannot know the reasons for the lengthy delay in conveying the content of the Order of 12 February, 1997 to the Italian Court and of having it translated. Nor can it know whether any attempt was made by the legal representatives of the mother to have the Order legally enforced in Italy. The answer given by the Central Authority for Italy does not in fact make it clear whether it is the Order itself which may be recognised as enforceable or whether the undertakings as apart from the Order may be recognised as enforceable. Unfortunately it appears to me that the situation is now such that there is no useful further action that this Court can take in the matter." ⁷³

"In a case where the Court finds, as I have here, that an Article 13(b) grave risk would be established unless alleviated by undertakings offered or required, and honoured or enforced, it is reasonable . . . for this Court to consider whether the undertakings will be adequately enforceable in the requesting State.

The best practice where such issues arise would be for general information concerning its available processes of enforcement of undertakings to be requested from the Central Authority of the home State pursuant to the provisions of Article 7(e), and consistent with the relaxation upon the reception of evidence as the foreign law which Article 14 provides. However if as here, sufficient information cannot be derived from that source then it may well be necessary to direct the parties to file expert evidence in the more conventional manner

If in relation to any particular Contracting State that process revealed the absence of machinery adequate to give backing to undertakings the observance of which the English Court relied upon to relieve the children of risk of an intolerable situation, then it would be relevant to consider whether the parent proffering the undertakings genuinely intended to honour them."

"... there may be some scope for developing probably on a bi-lateral basis at least to start with, communication and discussion between Central Authorities so that each may have the opportunity of explaining and, it may be, justifying the approach their domestic Courts take to issues which commonly arise in Convention cases. Such an issue may well be these Courts use of undertakings designed to smooth the speedy passage home and to the door of the proper Court of children who should never have been taken from its jurisdiction. By such discussions and the exchange of views and information it may be that comity would be strengthened, and an understanding achieved that neither country wishes to cause any offence to the Courts of the other, nor to seek to interfere with or to influence what that Court then does.

Moreover, it may well be that if such opportunity for the exchange of views does assist to promote co-operation, it should be possible in an appropriate case for the Central Authority of the requested State to liaise with its counterpart in the requesting State to put in place measures agreed by the parties or reasonably required as a proper pre-condition of return."

"We also should not lose sight of the fact that there may be other ways to accomplish the objectives of proposed undertakings. For example, it might be possible for the parties to propose a consent order to the appropriate U.S. court prior to entry of the return order in the United Kingdom. In this connection, you may be interested to know that the private bar in the United States occasionally seeks to facilitate the return of children abducted from the United States by having the left-behind parent seek entry, by the appropriate U.S. court, of an order addressing interim issues of custody and support. We understand that private lawyers sometimes recommend use of these orders, which they call "safe-harbor" orders, in cases where the foreign court may be reluctant to return a child to the United States unless such issues are addressed in some fashion. Where a Safe-harbor order has been entered in the United States, there may be no reason for a foreign court even to consider entering undertakings as part of a basic return order." ⁷⁷

"does not support conditioning the issuance of a return order on the acquisition of a safeharbor order from a court in the requesting state." ⁷⁹

"Although not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, Bangladesh of course has a fully-developed legal system. But within that legal system, the interpretation of child welfare will inevitably and properly be reflective of the culture, traditions and institutions of the state. It does not follow that if the issue of J's future were to be determined by a court in that state, following a breach of the contact, that the mother's relationship with J or the importance of his rooting within this society would receive the same evaluation as in this legal system. That is not to criticise the system of law in Bangladesh, but simply to notice its necessary difference.

Accordingly, it seems to me that to preclude the possibility of competitive litigation within two systems, reflecting different traditions and cultures, it is desirable to confine the risk of competitive litigation by putting in place, wherever possible, whatever buttresses can be devised for the primary adjudication in this jurisdiction. It seems to me that the appearance within the Family Law Reports of the cases of re T and re A whatever may have provoked that appearance, is useful as offering to practitioners a precedent for the sort of mechanisms appropriate where the friendly foreign jurisdiction roots its family justice system in Islamic law.

There is obviously in this case the possibility of notarised agreements. There is the possibility of mirror orders." ⁸¹

"As it happens, for some years now, more often of course in unreported but not infrequently in reported cases, Family Division judges and judges of the Court of Appeal have advocated in appropriate cases that the parties before them, where contact or a move to live abroad is in contemplation, should provide precisely that form of cordon sanitaire in that foreign jurisdiction which in this case the parties would seek to create here for their child.

Thus, England's judges have invited parties to go off and get mirror orders or their non-common law equivalents in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt and even in Saudi Arabia." ⁸⁴

"Then there is the category of case, of which this one is typical, where a foreign court is making provision for contact to take place in another jurisdiction, in this case England. In that category of case it is important that there should be the possibility for orders to be made in advance of and against the arrival of the child so that the parties and the foreign court may have confidence that if either of them seeks to take advantage of the presence of the child in the contact jurisdiction, the court there will not lend itself to any such attempt.

The classic anxiety is of course that, the child having come for contact with the parent in England for a limited period, the parent in England either attempts to remove the child to a third country and to keep the child there, or refuses at the end of the contact to allow the child to return to his country of residence. Armed with a consent order already made in the English jurisdiction, an English judge would virtually inevitably order return first and investigation of the merits in the residence jurisdiction." ⁸⁵

1. How can contracting States to the Convention and common law jurisdictions in particular, best contribute to giving effect to the 1997 resolution? Would fuller, more specific and widely promoted implementation of the 1997 resolution concerning Article 7(h) minimise the need for undertakings, mirror orders or safe harbour orders?

2. Is it sufficient that the 1997 resolution would seem to be accepted as giving rise to a responsibility upon Central Authorities "to provide information about services relating to social security, legal aid, emergency accommodation, or domestic violence protection" ? Where sworn/affirmed evidence has alleged child or partner abuse as a defence to return, should there not be an automatic obligation upon the Central Authority to where the child is returned to convey that evidence to the appropriate child protection and/or criminal investigation authorities?

3. Difficulties have been observed in seeking to use the mechanisms of undertakings, mirror orders or safe harbour orders in non-common law jurisdictions. How should these be addressed?

4. What approach should be adopted to give effect to Singer J's suggestion in Re O (Child Abduction: Undertakings) that "in the absence of machinery adequate to give backing to undertakings the observance of which the English Court relied upon to relieve the children of risk of an intolerable situation, then it would be relevant to consider whether the parent proffering the undertakings genuinely intended to honour them."

5. Is it consistent with the Convention for courts to:-

Should different considerations apply where a consent order is proposed?

6. What benefits, if any, are seen in the use of anticipatory mirror orders and reciprocal registration provisions vis a vis contracting States to the Convention? To what extent would there be cost savings or expedition of an application to return a child if such an order existed?

"Except in a very few cases, where overt defiance of the court is a pronounced element in the situation, it is not the judge or the court that the law is protecting, but the successful party. Therefore, the Commission recommends that the summary procedure be retained as the normal means of punishing disobedience with an order made in favour of a party to civil proceedings….On the very rare occasions that the conduct of the respondent in contempt proceedings arising out of disobedience amounts to a flagrant challenge to a court’s authority it would be appropriate for the relevant court to impose punishment for the disobedience. In such a case the focus of the relevant proceedings shifts from merely upholding the rights of an aggrieved party to upholding the authority of the court." ¹⁰⁰

"The NCYLC believes that child abduction is a violation of the rights of the child and for this reason alone, abducting a child from Australia, to Australia and within Australia should be criminalised.

For the NCYLC the motives behind criminalisation are a mixture of punishment (for a wrong done against a child) and deterrence. In this way it is hoped that the criminalisation of parental child abduction shows parents, and those aiding parents, that they do not have a property right in a child and that taking advantage of a child’s vulnerability will not be tolerated..." ¹⁰³

C. PROBLEMS RELATING TO THE ENFORCEMENT OF RETURN ORDERS

" 14(1) [Application where child removed to, or retained in, Australia: Form 2] In relation to a child who is removed from a convention country to, or retained in, Australia, the responsible Central Authority may apply to a court in accordance with Form 2 for:

" 20(1) [Arrangements by Central Authority] Where an order is made under regulation 16, ¹⁰⁵ the responsible Central Authority shall cause such arrangements as are necessary to be made in accordance with the order for the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention."

" 20(2) [No notification that order stayed] If, within 7 days after the making of an order under regulation 16, the responsible Central Authority has not been notified that the order has been stayed in accordance with subrule 1(10) of Order 32 of the Rules of Court, the child shall be returned to the country in which he or she habitually resided immediately before his or her removal or retention."

"Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures –

8. to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child." (emphasis added)

"I have little doubt that what the father was doing, was seeking to avoid the Court dealing with this matter, and putting the matter off as long as possible.When he adopted that course, I asked the responsible authority whether they wished to make an application as to the disposition of the child. Mrs Flohm, for the authority, indicated that, although the authority had hitherto been reluctant to make such an application, she felt that in the circumstances she ought to make it, and the application was made. The basis of the application is undoubtedly a concern that, since the father was, on the departmental case at least, prepared to abduct the child from its mother in the former Yugoslav Republic of Macedonia, that there was a real risk that if he saw these proceedings as running against him, that he may take similar steps in relation to the child in Australia, to either remove the child from its present address and remove it to other parts of Australia, or elsewhere.

Speaking for myself, I think that there is a significant risk of this happening. I propose, in view of the father’s attitude, as I indicated to him, to continue to deal with the appeal today, and if he is unable to advance any further material before the Court we will take into account the arguments that are contained in the appeal book and in the material that he has already advanced, and we will consider the appeal on that basis. In order, however, to protect the child from the possibility of removal from its present address, it seems to me that the only appropriate and proper course that this court should take is to order that, until further order, an order be made in terms of paragraph two of the application of the Central Authority."

"The only thing I add is that in the father’s own material he indicates:

I perceive there to be a real risk that any order that we make, if the appeal is dismissed, could be defeated by the actions of the father."

"The judge, when the case is already pending elsewhere, is required to communicate with his or her counterpart in the other state. However, the judicial communication is a wild card in this otherwise orderly business. Anything might happen, and it is a process usually not controlled or even witnessed by counsel." ¹²⁹

(a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.

(b) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under Section 10 and shall consult the child custody registry established under Section 17 concerning the pendency of proceedings with respect to the child in other states . If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

(c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 20 through 23 of this Act. If a court of this State has made a custody judgment before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the most appropriate forum.

Sec. 8. Inconvenient Forum.

(a) A court which has jurisdiction under this Act to make an initial or modification judgment may decline to exercise its jurisdiction any time before making a judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

…

(d) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the most appropriate court and that a forum will be available to the parties.

Sec. 24 . International Application.

The general policies of this Act extend to the international area. …"

" SECTION 110. COMMUNICATION BETWEEN COURTS.

(a) A court of this State may communicate with a court in another State concerning a proceeding arising under this [Act].

(b) Communications between courts that affect the substantive rights of a party must be made in a manner that allows the parties to participate, or allows the parties to present jurisdictional facts and legal arguments to the courts, before a final determination is made as to which forum is appropriate. A record must be made of those communications between courts. The record may consist of notes or transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of a telephone call, a memorandum of other electronic communications between the courts, or a memorandum made by one or more courts after the communication.

(c) Communications between courts on schedules, calendars, court records, and other matters that do not affect the substantive rights of the parties may occur without informing the parties. A record need not be made of those communications.

Comment
This section emphasizes the role of judicial communications under the Act. It contains the authorization for a court to communicate concerning any proceeding arising under this Act. This includes communication with foreign tribunals and tribal courts. Communication can occur in many different ways such as by telephonic conference and by on-line or other electronic communication. The Act does not preclude any method of communication and recognizes that there will be increasing use of modern communication techniques.

Language has been added to emphasize the role of the parties in the communication process. If the communication between the courts involves relatively inconsequential concerns such as scheduling, calendars or consultation on other minor matters, the communication can occur without the parties being informed or participating. Included within this type of communication would be matters of cooperation between courts under Section 112.

However, on all matters which could affect the parties' substantive rights, a court must communicate with another court in a manner which allows the parties to participate or to present jurisdictional facts and arguments. In particular this includes communications that are required under Section 204 (Emergency Jurisdiction), Section 206 (Simultaneous Proceedings), Section 207 (Forum Non Conveniens), and Section 305 (Simultaneous Proceedings). In any event, a record of the communication must be made. No particular form of communication is required to inform the parties that a communication between courts is scheduled. An informal communication is sufficient.

The purpose of this section is to regularize the communication process between courts. It preserves the flexibility necessary to accommodate busy judicial schedules while including protection for the parties against unauthorized ex parte communications. A full discussion of the problem can be found in State ex rel. Grape v. Zach, 524 N.W.2d 788 (Neb. 1994).

SECTION 204. TEMPORARY EMERGENCY JURISDICTION.

(a) A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

…
(d) A court of this State that has been asked to make a child-custody determination under this section, upon being informed that a child-custody proceeding has been commenced, or a child-custody determination has been made, by a court of a State having jurisdiction under Sections 201 through 203, shall immediately communicate with the other court. A court of this State that is exercising jurisdiction pursuant to Sections 201 through 203, upon being informed that a child-custody proceeding has been commenced, or a child-custody determination has been made by a court of another State under a statute similar to this section shall immediately communicate with the court of that State. The purpose of the communication is to resolve the emergency and protect the safety of the parties and the child.

Comment

...
The communication between courts is to be accomplished in accordance with Section 110. The communication under this section affects the substantive rights of the parties and therefore the provisions of that section on participation of parties and making of the record are applicable.

SECTION 206. SIMULTANEOUS PROCEEDINGS.

(a) Except as otherwise provided in Section 204, a court of this State may not exercise its jurisdiction under this [article] if at the time of the commencement of the proceeding a proceeding concerning the custody of the child had been previously commenced in a court of another State having jurisdiction substantially in conformity with this [Act], unless the proceeding is stayed by the court of the other State because a court of this State is a more convenient forum under Section 207.

(b) Except as otherwise provided in Section 204, a court of this State, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 209. If the court determines that a child-custody proceeding was previously commenced in a court in another State having jurisdiction substantially in accordance with this [Act], the court of this State shall stay its proceeding and communicate with the court of the other State. If the court of the State having jurisdiction substantially in accordance with this [Act] does not determine that the court of this State is a more appropriate forum, the court of this State shall dismiss the proceeding.

(3) proceed with the modification under conditions it considers appropriate.

…
Comment

…

Under this Act, the simultaneous proceedings problem will arise only when there is no home State and more than one significant connection State. For those cases this section retains the "first in time" rule of the UCCJA. Subsection (b) retains the UCCJA's policy favoring judicial communication. Communication between courts is required when it is determined that a proceeding has been commenced in another State. The communication is governed by Section 110. It is a communication that affects the substantive rights of the parties.

SECTION 306. SIMULTANEOUS PROCEEDINGS. If a proceeding for enforcement under this [article] has been or is commenced in this State and a court of this State determines that a proceeding to modify the determination has been commenced in another State having jurisdiction to modify the determination under [Article] 2, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding."

"Pending U.S. Legislation in Cross-Border Cases

The first initiative involves legislation passed in 1998 in both the U.S. House of Representatives and the U.S. Senate. That legislation promoted—indeed mandated—that United States courts cooperate and communicate with courts of other countries involved in transnational insolvency cases. Also included in the legislation, however, were controversial "consumer" bankruptcy provisions that, coupled with the threat of a presidential veto, doomed passage of the entire bill in conference committee. Nonetheless, the sections involving international judicial cooperation and communication in transnational insolvency cases were approved without dissent.

The successor to the 1998 legislation, H.R. 3150, a nascent "Chapter 15" for the U.S. Bankruptcy Code, creates the architecture for administration of United States cross-border insolvency cases. Patterned after the United Nations Committee on International Trade Law’s Model Law on Cross-Border Insolvency, which was developed over five years and involved forty-five countries, H.R. 3150 establishes a comprehensive mechanism for courts dealing with cross-border insolvency cases.

Central to the legislation are two principles:

The mandate to cooperate is subject to and limited by the enacting country’s "public policy," and the court’s discretion, but it is mandatory nonetheless. This mandate assures that, to the extent possible, collaborative and accommodating strategies must be used by judges in transnational insolvency cases. In the context of the entire structure of the new Chapter 15, that means United States judges may, under certain circumstances, defer to or harmonize their procedures and orders with judges of foreign courts."

"CANON 3:

The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of office prescribed by law. In the performance of these duties, the following standards apply:

A. Adjudicative Responsibilities:

4. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:

1. A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:
   • the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and
   • the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.
2. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
3. A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.
4. A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
5. A judge may initiate or consider any ex parte communications when expressly authorized by law to do so."

"the principle which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views of opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court."

"a judge is to try a case on the evidence and arguments presented in open court by the parties or their legal representatives by reference to those matters alone."

"it would require at least statutory authority to permit a judge to discuss with a counsellor out of court any question of substance relating to an issue in proceedings for custody pending before that judge."

"that jurisdiction to determine [proceedings for custody] is a matter vested in the Family Court, and it cannot be exercised in the privacy of a judge's chambers. This is incompatible with the intention of the parliament"

"I have now had a rather sad letter from the maternal grandmother and I enclose a copy of her two letters, and my brief acknowledgment, together with copy of my order.

I wonder if you could pass this on to someone who might be able to give the matter some attention. These Hague Convention cases do sometimes seem to produce harsh results, but the policy is clear.

Obviously I am not suggesting there is anything amiss in the way the matter is being handled in Australia; my intervention is simply as a matter of humanity, and to show that we do care."

"the provisions of the Hague Convention appear however to limit the role of the Central Authority to securing the safe return of the child, and for making arrangements for organising and securing the effective exercise of rights of access (see Article 7).

It would also seem appropriate that the Central Authority should be required to enquiry whether appropriate arrangements are made for the welfare of the child once the child is returned in accordance with the Hague Convention order. Unless contracting states can feel reasonably assured that when children are returned under the Hague Convention, their welfare will be protected, there is a serious risk that contracting States and courts will become reluctant to order the return of children."

"The views of Justice Singer, a well respected judge of the English High Court and a judge well versed in The Convention, as to judicial collaboration exemplifies the highest standards of the reach of The Convention.

This is the second known case under The Convention where judicial collaboration has been used, the first being Diab vs Benoit (Canada 1996) Prov. of Quebec, Dist. of Terrebonne No 700-04-001386-967, available on Hilton House Web Site as: http://www.hiltonhouse.com/cases/Diab_cdn.txt

The concept of judicial collaboration should be used whenever there is any concern about the logistics of returning a child to his/her habitual residence.

Judicial collaboration can and should be used when ever there needs to be a seamless movement of children from one contracting state to another.

The High Court's use of E-Mail, telephone contact and FAX are in harmony with Art. 7(h) of The Convention:

The proper and effective use of judicial collaboration may also seen by the recent United States Court of Appeals Case Blondin v Dubois (2nd Cir 1999) --- Fed.App.3d ---; No.98-2834; 17 Aug 1999, available on Hilton House Web Site."

¹ Family Law Council, Parental Child Abduction , Commonwealth of Australia, January 1998, p.10.

² Regulation 5(1)(c) of the Family Law (Child Abduction Convention) Regulations .

³ (1994) FLC ¶92-451.

⁴ (1994) FLC ¶92-451at 80,692.

⁵ An important point raised at the Washington Conference by the delegation from the United Kingdom was that the approach of courts in contracting States to applications for relocation of a child or "leave to remove a child from the jurisdiction" will impact upon the tendency for children to be removed illicitly. The most recent Australian authority in this regard provides guideline guidance to the correct approach to such applications which are determined according to the paramountcy principle: A and A : Relocation Approach [2000] FamCA 751 sourced from http://www.familycourt.gov.au/html/2000.html applying the High Court of Australia decision in AIF v AMS (1999) FLC ¶92-852.

⁶ (1993) FLC ¶92-416.

⁷ A significant relevant feature of the Australian court system is that while first instance jurisdiction under the Family Law Act 1975 (Cth) is widely dispersed, all appeals from such matters, including appeals from decisions under the Family Law (Child Abduction Convention) Regulations are heard by the Full Court of the Family Court of Australia (which typically comprises three judges, at least two of whom are members of the Appeal Division of the Court) thereby assisting in the development of a specialist intermediate level appellate level jurisprudence. At present, there are seven judges of the Appeal Division: Nicholson CJ, Ellis, Lindenmayer, Finn, Kay, Holden and Coleman JJ. Appeals from the Full Court of the Family Court of Australia are by special leave or certificate to the highest court of the land, the High Court of Australia.

⁸ (1993) FLC ¶92-416 at 80,258-9.

⁹ (1995) FLC ¶92-551.

¹⁰ See para. 19 of the Explanatory Report of the Convention ( Actes et documentes de la Quatorzieme session 6 au 25 Octobre 1980, Tome III ); see also A.E. Anton, (1980) "The Hague Convention on International Child Abduction", Vol 30 International and Comparative Law Quarterly , at 542. McCall's case also rejected an argument that there was an inconsistency between the Convention and the United Nations Convention on the Rights of the Child, thereby endorsing a view which had expressed in Murray's case.

¹¹ C v C (1989) 1 WLR 654 (CA); also indexed as Re C (A Minor)(Abduction [1989] 1 FLR 403.

¹² (1998) Fam LR 7 (decision delivered 29 April 1992, Second Division of the Inner House, Court of Session); see Singh v Singh (1997) SC 68 concerning welfare considerations once an exception to the policy of return has been made out.

¹³ Friedrich v. Friedrich , 78 F.3d 1060 (6 ^th Cir. 1996); see also PH Pfund "The Hague Convention on International Child Abduction, the International Child Abduction Remedies Act, and the Need for Availability of Counsel for all Petitioners" (1990) XXIV Family Law Quarterly, No.1 at p. 39.

¹⁴ [1994] NZFLR 132 per Hammond J.

¹⁵ [1996] 2 NZLR 517; also indexed as A v A [1996] NZFLR 529.

¹⁶ [1999] IESC 8 (8 ^th December 1999) at para 31 sourced from http://www.bailii.org/ie/cases/IESC/1999/8.html .

¹⁷ (1994) 6 RFL (4th) 290 at 318. See also W.(V.) v. S. (D.) , [1996] 2 S.C.R. 108 at paras 76 and 77 sourced from http://www.canlii.org/ca/cas/scc/1996/1996scc48.html .

¹⁸ (1996) FLC ¶92-706.

¹⁹ Family Law (Child Abduction Convention) Regulations made pursuant to s111B of the Family Law Act 1975 (Cth) with jurisdiction conferred by s 39(5)(d) of the Act; the constitutional validity of the Regulations as they then stood was confirmed by the Full Court of the Family Court of Australia in McCall and McCall:State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC ¶92-551. The present regulations were held to be valid by the High Court of Australia in DJL v The Central Authority (2000) FLC ¶93-015 ( Laing v The Central Authority (1999) FLC ¶92-849 on appeal).

²⁰ The Australian approach of drafting Regulations led to a range of interpretative difficulties: see the discussion by the Full Court in Laing v The Central Authority (1999) FLC 92-849.

²¹ (1996) FLC ¶92-706 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

²² (1996) FLC ¶92-706 at 83,454-5. See also the discussion by Kirby J at 83,468-9.

²³ Articles 12 and 13 of the Convention set out defences to the obligation to order return:

"Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

"Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—

a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

In respect of Article 13b, the "grave risk" defence is usually based on alleged abuse. The High Court of Australia has granted special leave to appeal in a case where a child’s disability (autism) is denied by the left-behind parent and said to lead to grave risk of psychological or physical harm or other intolerable situation if the child is returned. Evidence as to whether there is a facility for the treatment of the child would also seem in issue. The Full Court of the Family Court of Australia judgment upholding the trial Judge’s decision to order return to Greece is P v Commonwealth Central Authority [2000] FamCA 461 sourced from http://www.familycourt.gov.au/judge/2000/html/p_text.html . Special leave to appeal to the High Court of Australia was granted on 24 November 2000 – D.P. v Commonwealth Central Authority (D5-00); transcript of the special leave hearing sourced from http://www.hcourt.gov.au .

²⁴ Re T (Abduction: Children’s Objections to Return [2000] 2 FLR 192 at 220, Sedley and Simon Brown LJJ agreeing.

²⁵ [1996] 2 NZLR 517; also indexed as A v A [1996] NZFLR 529.

²⁶ [1996] 2 NZLR 517 at 522-3. See also P.Q. Petitioner (27 April 2000, Outer House, Court of Session) sourced from http://www.scotcourts.gov.uk/opinions/PAT1004.html . There, Lady Paton at first instance in the Outer House of the Court of Session found a grave risk defence made out. The case involved allegations of physical and sexual abuse of the children by their father, where the mother had, from the start, brought the allegations to the attention of the authorities and the courts in the abducted-from country (c.f., Starr v. Starr , 1999 S.L.T. 335). Lady Paton said (at para 65): "The facts speak for themselves, and in the rather unusual circumstances of this case, I consider that there is indeed reason to assume that the courts in France might not, for whatever reason, be able or willing to provide adequate protection for G and B (cf. Friedrich cit. sup.) ... As was emphasised in Friedrich v Friedrich, cit. sup., the reason for any apparent lack of ability or willingness on the part of a Hague Convention court to provide adequate procedures or remedies is irrelevant. The explanation might be a lacuna in the legal system itself (which is unlikely in view of the highly-developed and sophisticated system existing in France), or it might simply be the personal view or judgement of someone operating within the system, or some other reason. I do not consider that it is necessary for R.S. [the respondent mother to the application for return] to establish whether the lack of protection resulted from the court system itself or from the actings or decisions of particular office-bearers within that system or from some other source. Applying the test in Friedrich v Friedrich, ("when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection"), it is unnecessary in my view to identify or to explain the reason for any apparent incapacity or unwillingness to provide adequate protection." .

²⁷ One important social context is the frequent claim of child abuse and/or domestic violence by abducting mothers: see Miranda Kaye (1999) "The Hague Convention and the Flight From Domestic Violence: How Women and Children are Being Returned By Coach and Four" Vol 13 International Journal of Law, Policy and the Family 191.

²⁸ The Honourable Alastair Nicholson Advancing Children's Rights and Interests : The Need for Better Inter-Governmental Collaboration , the 1996 Sir Ronald Wilson Lecture, Perth Australia, 13 November 1996, sourced from http://www.familycourt.gov.au/papers/html/nicholson2.html .

²⁹ Report of the third Special Commission meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction (17-21 March 1997) drawn up by the Permanent Bureau, sourced from http://www.hcch.net/e/conventions/reports28e.html .

³⁰ Jennifer Degeling, The Welfare of the Child on Return to their Country of Habitual Residence , Paper presented at the Biennial Conference for State and Commonwealth Central Authorities, Canberra Australia, 27-28 October 1999.

³¹ Report of the third Special Commision meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction (17-21 March 1997) drawn up by the Permanent Bureau, sourced from http://www.hcch.net/e/conventions/reports28e.html at page 22.

³² Report of the third Special Commision meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction (17-21 March 1997) drawn up by the Permanent Bureau, sourced from http://www.hcch.net/e/conventions/reports28e.html at page 23.

³³ Jennifer Degeling The Welfare of the Child on Return to their Country of Habitual Residence , Paper presented at the Biennial Conference for State and Commonwealth Central Authorities, Canberra Australia, 27-28 October 1999. In this regard, it should be a weight towards confidence in returning children to Australia that most delegate State and Territory Central Authorities of Australia are the heads of the government departments responsible for child protection and a further two are Commissioners of the Police Service of that State. Contracting States can therefore legitimately expect that all delegate State and Territory Central Authorities should have close and efficient operational working arrangements between child protection and police services, especially the units with responsibility for the criminal aspects of family violence allegations. Of course, contracting States with otherwise located Central Authorities may have protocols or other systemic mechanisms which have the same benefits.

³⁴ Australia, England and Wales, New Zealand, Canada (New Brunswick, Saskatchewan, Quebec) and United States of America.

³⁵ David Harris QC Is the Strength of the Hague Convention Being Diluted by the Courts? Paper presented at the 8 ^th National Family Law Conference, Hobart Australia 24-28 October 1998 at para 5.64.

³⁶ [1989] 1 FLR 403.

³⁷ [1995] 1 FLR 1021.

³⁸ [1995] 1 FLR 1021 at 1024-5.

³⁹ (1994) 6 RFL (4th) 290 at 318.

⁴⁰ (1994) 6 RFL (4th) 290 at 318 per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory and Iacobucci JJ; the minority of L'Heureux-Dubé J and McLachlin J (as she then was) held that domestic legislation permitting "transitory orders" could also be invoked " provided, of course, as is the case here, that the purpose of the transitory order not be to hamper the objectives of the Convention and that the return of the child in the proper jurisdiction not be delayed to the point of frustrating the purpose of the Convention " (emphasis in the original).

⁴¹ [1989] 1 FLR 403.

⁴² [1989] 2 FLR 475.

⁴³ [1995] 1 ILRM 201.

⁴⁴ The headnote states: "Budd J ordered that the child should be returned to Spain on the implementation of certain conditions. The conditions were to the effect that the plaintiff should provide accommodation for the defendant and the child, appropriate maintenance for the child until she was 18, and health insurance for the defendant and child. Furthermore, he should provide for the child's education and supply funds to enable the defendant and the child to travel to Ireland twice a year."

⁴⁵ (1998) Fam LR 7 (decision delivered 29 April 1992) - the Second Division of the Inner House of the Court of Session.

⁴⁶ (1998) Fam LR 7 at 11.

⁴⁸ [1999] ScotCS 114 (1st June, 1999) at para 12 sourced from http://www.scotcourts.gov.uk/opinions/P6_4_99.html

⁴⁹ August 10 1995 Correspondence from Department of State "Annex B" to The Hague Convention and the United States of America: Report on Hague Convention Operations , Lord Chancellor's Child Abduction Unit Central Authority for England and Wales sourced from http://www.hiltonhouse.com.

⁵⁰ (3rd Cir. 1995) 63 Fed.3d 217 sourced from http://www.hiltonhouse.com. Although there was dissent as to other matters, there would seem to have been no conflict of view in respect of undertakings.

⁵¹ Sourced from http://laws.lp.findlaw.com/getcase/1st/case/991747.html .

⁵² [1996] 2 NZLR 517 (CA); also indexed as A v A [1996] NZFLR 529.

⁵³ [1996] 2 NZLR 517 at 524.

⁵⁴ (1994) FLC ¶92-451.

⁵⁵ Regulation 14(1) includes "an order for the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention" . Regulation 16 sets out how a court must deal with applications under reg 14(1).

⁵⁶ (1996) FLC ¶92-706.

⁵⁷ (1996) FLC ¶92-706 at 83,456-7.

⁵⁸ (1996) FLC ¶92-706.

⁵⁹ (1993) FLC ¶92-424.

⁶⁰ Police Commissioner of South Australia v Temple (1993) FLC ¶92-365.

⁶¹ Police Commissioner of South Australia v Temple (1993) FLC ¶92-365 at 80,363.

⁶² (1999) FLC ¶92-842.

⁶³ The undertakings were as follows:

" PROVIDED the FATHER files an Undertaking in Form 41A in this Court and, in respect of Undertakings in paragraphs (c), (d), (e) and (f) carries them into effect:

a) that he agrees and will agree to a Stay of the Orders, if any, of the courts in the United States of America, relating to the custody of the children and he will not remove, nor support the removal, of the children from the care and control of the MOTHER until the issue of custody is heard and determined by those Courts;

(b) that he agrees to co-operate with the MOTHER to ensure that the Courts of the United States of America determine the issue of custody of the children without delay;

(c) that he will take all necessary steps to support the MOTHER's applications to Immigration authorities in the United States of America for her and the children to return to and remain in that country as long as necessary to enable the issue of custody of the children to be heard and determined by the Courts of that country.

(d) that he will pay to the Australian Central Authority sufficient moneys to pay for airline tickets from Australia to the United States of America for the MOTHER and the children.

(e) that he will pay to the Australian Central Authority for the payment to the MOTHER the sum of $US5,000 to cover the initial cost of temporary accommodation for the MOTHER and the children.

(f) that he will pay to the Australian Central Authority for payment to the MOTHER the sum of $US5,000 to cover the initial cost of living expenses for 14 days for the MOTHER and the children." (1999) FLC ¶92-842 at 85,856-7.

⁶⁴ (1999) FLC ¶92-842 at 85,858.

⁶⁵ (1994) FLC ¶92-451.

⁶⁶ (1994) FLC ¶92-451at 80,691.

⁶⁷ The Honourable Joseph Victor Kay The Hague Convention – Order or Chaos? An update on a paper first delivered to a Family Law Conference in Adelaide in 1994 , paper presented at New York University U.S.A, September 1999, sourced from http://www.familycourt.gov.au/papers/html/kay.html

⁶⁸ [1998] 1 FLR 422.

⁶⁹ [1998] 1 FLR 422 at 427.

⁷⁰ 18 October 1998 sourced from Lexis.

⁷¹ Mrs Justice McGuinness is now a Justice of the Supreme Court of Ireland.

⁷² At a hearing on 10 February 1998 inter alia to enforce the father's undertakings, the trial Judge first discovered that on 13 January 1998, the father had been charged in Italy with offences in connection with the sexual abuse of the child.

⁷³ It is understood that this problem would not arise in the Canadian Province of Quebec under its Civil Code: personal communication with The Honourable Justice Jacques Chamberland.

⁷⁴ (1993) FLC ¶92-424.

⁷⁵ (2000) FLC ¶93-007.

⁷⁶ (2000) FLC ¶93-007 at 87,178.

⁷⁷ August 10 1995 Correspondence from Department of State "Annex B" to The Hague Convention and the United States of America: Report on Hague Convention Operations , Lord Chancellor's Child Abduction Unit Central Authority for England and Wales sourced from http://www.hiltonhouse.com.

⁷⁸ (2000) FLC ¶93-007.

⁷⁹ August 10 1995 Correspondence from Department of State "Annex B" to The Hague Convention and the United States of America: Report on Hague Convention Operations , Lord Chancellor's Child Abduction Unit Central Authority for England and Wales sourced from http://www.hiltonhouse.com.

⁸⁰ [1999] EWCA 3184 (15th July, 1999) sourced from http://www.bailii.org/ew/cases/EWCA/1999/3184.html .

⁸¹ The cases cited therein are: re T (Staying Contact in Non-Convention Country) [1999] 1 FLR 262; re A (Security for Return to Jurisdiction (Note) [1999] 2 FLR 1.

⁸² [2000] 1 FLR 435.

⁸³ In respect of proceedings in Australia see ss69C and 69E Family Law Act 1975 (Cth).

⁸⁴ [2000] 1 FLR 435 at 439.

⁸⁵ [2000] 1 FLR 435 at 441.

⁸⁶ In respect of Australia see Part VII Division 13 Subdivisions C and D Family Law Act 1975 (Cth) and Schedule 1A of the Family Law Regulations 1984 made pursuant to Reg 14. The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children represents a multi-lateral approach. As at 1 August 2000 the Convention was not yet in force and no common law jurisdiction was a signatory: Linda Silberman (2000) "The 1996 Hague Convention on the Protection of Children: Should the United States Join?" Vol 34 Family Law Quarterly 239.

⁸⁷ Sections 70F and 70L Family Law Act 1975 (Cth).

⁸⁸ See Regulation 23 Family Law Regulations 1984.

⁸⁹ Regulation 23(5) Family Law Regulations 1984.

⁹⁰ Section 70G Family Law Act 1975 (Cth).

⁹¹ Section 69C Family Law Act 1975 (Cth) provides:

"1) Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.

(2)Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:

Section 69E Family Law Act 1975 provides.

"1) Proceedings may be instituted under this Act in relation to a child only if:

(2) In this section:
relevant day, in relation to proceedings, means:

⁹² [2000] 1 FLR 435.

⁹³ Paul Ward (1999) "Common Law Undertakings and the Civil Code - The Irish Experience" Fam Law 50.

⁹⁴ Family Law Council, Parental Child Abduction , Commonwealth of Australia, January 1998.

⁹⁵ Section 65ZA (for completed proceedings and s65ZB (for pending proceedings) of the Family Law Act 1975 (Cth) .

⁹⁶ Section 4AB of the Crimes Act 1904 (Cth) provides that the monetary value of a penalty unit is $112.

⁹⁷ Section 35 of the Family Law Act 1975 (Cth) provides that the Family Court of Australia has the same powers to punish contempts of its power and authority as is possessed by the High Court Australia but section 35 is made subject to s112AP.

⁹⁸ In the Marriage of Vergis (1977) 3 Fam LR 11,398, FLC ¶90-275.

⁹⁹ Section 112AD of the Family Law Act 1975 (Cth).

¹⁰⁰ Australian Law Reform Commission, Contempt , ALRC 35, 1987.

¹⁰¹ In the Marriage of Schwartzkopf (1992) 15 Fam LR 545, FLC ¶92-303.

¹⁰² In the Marriage of Lindsay, (1995) 19 Fam LR 649.

¹⁰³ National Children and Youth Law Centre, Submission to the Family Law Council Inquiry into Parental Child Abduction, Commonwealth of Australia , 1998, p26.

¹⁰⁴ Family Law Council, Parental Child Abduction , Commonwealth of Australia, 1998, pp31-32.

¹⁰⁵ Should be 15. Regulation 16 is really a "sign post" provision setting out when the Court must not and may make orders for return.

¹⁰⁶ Regulation 15(1)(b).

¹⁰⁷ See generally Preamble and Article 1(a).

¹⁰⁸ [1998] FamCA 1557; (1998) FLC ¶92-831.

¹⁰⁹ See DJL v The Central Authority (2000) FLC ¶93-015 ( Laing v The Central Authority (1999) FLC ¶92-849 on appeal to the High Court of Australia).

¹¹⁰ [1998] FamCA 1557; (1998) FLC ¶92-831.

¹¹¹ As part of the obligations of the Central Authority to secure the whereabouts of the child and take provisional measures (Article 7(b) of the Convention).

¹¹² Section 35 Family Law Act 1975 (Cth).

¹¹³ Family Court of Australia, Family Court of Western Australia, Federal Magistrates Service.

¹¹⁴ Section 112AP Family Law Act 1975 (Cth).

¹¹⁵ Section 112AD Family Law Act 1975 (Cth).

¹¹⁶ Section 112AA Family Law Act 1975 (Cth)

¹¹⁷ Section 4 Family Law Act 1975 (Cth).

¹¹⁸ Section 112AD(4) Family Law Act 1975 (Cth).

¹¹⁹ (unreported), Family Court of Australia, 5 December 1997.

¹²⁰ (unreported), Family Court of Australia, 8 June 1999.

¹²¹ (unreported) Family Court of Australia, Bell J 24 March 1999.

¹²² [1998] 1 FLR 422.

¹²³ Reported as Re: HB (Abduction: Child Objections) (No. 2) [1998] 1 FLR 564.

¹²⁴ [1999] NSWSC 644 sourced from http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1999/644.html .

¹²⁵ Re: Baby A [1999] NSWSC 787 sourced from http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1999/787.html .

¹²⁶ See article by John Eades, Law Society Journal (February 2000) p. 52.

¹²⁷ Secretary, Department of Health and Community Services v. JWB and SMB (Marion’s Case) (1992) 175 CLR 218.

¹²⁸ Section 67ZC Family Law Act 1975 (Cth) .

¹²⁹ Richard Crouch, Attorney, discussing the US Parental Kidnapping Prevention Act (The PKPA) http://patriot.net/~crouch/flnc/abd.html .

¹³⁰ The Colorado Lawyer March 1999 Vol. 28, No. 3 http://www.cobar.org/tcl/1999/march/judges.htm .

¹³¹ Adopted by the Michigan Supreme Court effective October 1, 1974, incorporating amendments effective through January 18, 1994 http://www.michbar.org/directory/code.html .

¹³² (1986) 10 Fam LR 917.

¹³³ (1993) 17 Fam LR 377; (1994) FLC ¶92-451.

¹³⁴ [2000] 1 FLR 803.