Executive Summary:Common Law Judicial Conference on International Child Custody

 

Background

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("Child Abduction Convention" and "Convention") is a multilateral treaty which seeks to protect children from the harmful effects of international abduction and retention by establishing administrative and judicial remedies to bring about their prompt return. The Convention also seeks to secure protection for rights of access. Today sixty-two countries are parties to the Convention ("State Parties"). Its popularity reflects the scope of the international child abduction problem, and the desire of nations around the world to provide both a deterrent and a solution. While the growing number of State Parties is very encouraging, ultimately the Convention’s success depends on how well the Central Authorities and courts in State Parties carry out their respective roles in implementing and interpreting the Convention to fulfill its objectives.

Twenty years of experience under the Convention has yielded a body of case law that reveals both problems and promise in how courts approach Convention cases. Several international judicial conferences have been convened in recent years to promote better understanding, cooperation, and communication between judges in State Parties who hear Convention cases, and to seek greater uniformity in how the Convention is interpreted. The U.S. Department of State hosted the most recent judicial conference aimed at improving operation of the Child Abduction Convention, the Common Law Judicial Conference on International Child Custody , which took place in Washington, D.C. on September 17-21, 2000.

Common Law Judicial Conference on International Child Custody

Over the course of 3.5 days, delegations from six Common Law countries-- Australia, Canada, Ireland, New Zealand, United Kingdom and the United States -- exchanged information and opinions about how courts are, and should be, handling international child abduction cases, and in particular, cases involving the Child Abduction Convention. The comparative law discussions revealed similarities and differences in judicial interpretations of, and implementing procedures for, the Convention.

The delegations were headed by judges and comprised also of Central Authority personnel, practitioners, and academics. William Duncan, Deputy Secretary of the Hague Conference on Private International Law, informed the conversation with a global view of the Convention’s implementation. Adair Dyer, Mr. Duncan’s predecessor at the Hague Conference and the recognized ‘father’ of the Child Abduction Convention, served as moderator. Observers from twenty other nations (Argentina, Austria, Belgium, Costa Rica, Denmark, Finland, France, Germany, Netherlands, Hong Kong, Hungary, Israel, Mauritius, Northern Ireland, Norway, Romania, Spain, and Sweden) also attended the conference, along with private and government attorneys, Office of Children’s Issues officers, and representatives of the National Center for Missing and Exploited Children and the American Bar Association Center on Children and the Law.

Delegates and observers had numerous opportunities to become acquainted during the breaks and lunches that punctuated the focused discussions. Evening receptions hosted by the United States, United Kingdom, and Canada provided delegates with additional opportunities for informal conversation.

The degree of preparation for the Conference is evident in the excellent papers submitted by the delegations and disseminated at the conference. Information about conference materials may be obtained by contacting the conference organizers, Attorney-Advisers Beth H. Cooper and Margaret McMahon in the Department of State’s Office of Children’s Issues. They may be reached by phone (202-663-2640), or via e-mail (cooperbh@state.gov;mcmahonm@state.gov). The materials will be placed on the Office of Children’s Issues’ web site at http://travel.state.gov/children''s_issues.html.

Conference Agenda

Overview

The delegations presented national reports; discussed the role of judges in Child Abduction Convention cases and non-Convention cases, and in preventing abductions; compared varying court interpretations of exceptions to the Convention; and were apprised of recent innovations implemented by the Permanent Bureau of the Hague Conference to foster more uniform interpretation of the Convention by State Parties.

At working lunches on the second and third days of the conference, a judge from each delegation and other invited experts met to formulate ‘best practices’ based primarily on the preceding sessions. Patricia M. Hoff, official reporter of the conference, led these discussions and prepared the Best Practices document which was discussed and approved, with amendments, at the final session. It is set forth in entirety at the end of this report.

National Reports

On the first morning of the conference each delegation gave an oral summary of its written report on the country’s substantive law and procedures relevant to the Hague Child Abduction Convention. The reports covered: court organization; provision of legal representation; speed of proceedings (including appeals); rules of evidence applicable to Hague Convention proceedings; enforcement of court orders; education of the judiciary and attorneys; Central Authority; Hague Convention statistics; criminal parental kidnapping laws; and implementing legislation. Based upon the national reports and ensuing discussion, resolutions were adopted addressing the desirability of providing legal aid to petitioners who invoke the Convention ( Best Practice, 7) ; the need for courts to manage cases with a view toward prompt disposition ( Best Practice, 2) ; the responsibility of Central Authorities to process applications expeditiously ( Best Practice, 3) ; and the need for effective enforcement mechanisms in Contracting States ( Best Practice 4) .

Exceptions to the return obligation

Presentations were made on three exceptions to the return obligation, followed by discussions of different interpretations these exceptions have received and issues surrounding their use. The United Kingdom delegation presented on Article 12 ( i.e., the child is settled in its new environment). Ireland’s delegation presented on Article 13b ( i.e., grave risk of harm). New Zealand’s delegation presented on Article 13 (i.e., mature child objects to return). Overall it can be said that the exceptions to return raise many issues and have received varying interpretations in the Common Law countries.

Article 12. On the question of what it means to be ‘settled in its new environment,’ the delegations agreed there is no settled answer. Some courts interpret it to require long-term settlement; for others, short-term settlement suffices. A recurring question judges face is whether ‘environment’ refers only to the child’s environment with the caretaker-parent, or also to the surrounding community. The conferees respectfully disagreed as to whether a court retains discretion to order a child’s return after finding that it is settled in its new environment.

Delegations expressed differing views on whether the 12-month period is tolled when the child cannot be located. Courts that reject the tolling argument may nevertheless refuse to order a child’s return after 12 months if the child is not settled in its new environment. The moderator opined that a child who has been hidden and living on the run under an assumed name could not be ‘settled’ within the meaning of Article 12, and thus an exception would not lie even after a year has passed ( i.e., tolling would be immaterial).

Article 13b. The Article 13b grave risk/intolerable situation defense also raises numerous issues and has received varying interpretations. As threshold matter there is the obvious question of what constitutes ‘grave risk’ sufficient to deny return? The delegations considered whether an abductor should be allowed to benefit from a ‘grave risk’ that results from the abduction itself ( i.e., allegations that return would psychologically harm the child were the child to be separated from the primary carer/abductor). There was considerable concern about cases involving allegations of domestic violence, including whether a child’s safety could be ensured if return was ordered. The group considered whether the absence of legal aid, or the pendency of criminal proceedings against the alleged abductor, in the country of habitual residence, might pose an intolerable situation justifying the exception.

All delegations agreed that the Convention envisions a narrow construction for Article 13b ( Best Practices , 5). There was also general agreement that courts need information about protective services available in the country of habitual residence to provide assurance that the child will be adequately protected upon return; that courts should trust their counterparts to act in the best interests of children upon their return; and that close intercountry judicial cooperation is needed to create mutual trust.

Article 13. Article 13''s exception based on a mature child’s objections to return is another very gray area on which some consensus among judges would be beneficial. For example, in the absence of a fixed age in the Convention, jurisdictions -- and individual judges within jurisdictions -- differ on the age at which a child’s views should be considered. When a child is deemed old and mature enough to be heard, what is the relevant objection? Is it that the child doesn’t want to return to a specific country, or that the child objects to being returned to a specific parent? How should a court evaluate whether there is a rational basis for the child’s views? How should a court treat allegations of ‘parent alienation syndrome’? How should courts deal with sibling groups? The delegations were keenly aware and concerned that this defense has been used as a delaying tactic, particularly when psychological evaluations are sought by the respondent and ordered by the court.

Safe return

Issues surrounding the safe return of the child (and, in a growing number of cases, the abducting parent) were discussed extensively following an in-depth presentation on the topic by the Australian delegation. The propriety and timing of requiring ‘undertakings’ (or similar devices with different names) was discussed. ( Best Practices, 6 .) All agreed that the requested court needs information about safety measures available in the requesting country, and the delegates explored how this information might be provided. The delegations agreed that a judge is much more likely to order a child returned, even in the face of safety concerns, if there is mutual cooperation and communication with the counterpart judge in the requesting jurisdiction, and a clear understanding of how the child’s best interests will be safeguarded upon return. There was general agreement that a protocol outlining the Central Authority’s role in this process would be helpful.

Relocation cases

The delegates discussed Convention cases wherein the ‘abductor’ is the primary-caretaker parent who has removed the child from the child’s country of habitual residence and gone ‘home’ with the child to that parent’s country of origin, and the person seeking return under the Convention is the noncustodial parent. How courts in the child’s country of habitual residence treat relocation requests cases may actually trigger some of these ‘abduction’ cases. The delegates compared their courts’ respective approaches to international relocation cases. Although the standards courts apply in relocation cases vary widely, there was general agreement that restrictive approaches to relocation can adversely affect the operation of the Convention. (See Best Practices , 9).

Access Rights

The Canadian delegation’s presentation on access rights struck a common chord with the delegations: the Convention’s remedy is inadequate and alternative remedies are needed. A resolution was adopted urging countries to pursue other solutions, including the Hague Convention on the Protection of Children and court-referred mediation in appropriate cases. ( Best Practices, 8 ).

The Judge’s Role in International Parental Child Abduction Cases

Several presentations focused on the roles judges play in international child abduction cases.

Child Abduction Convention Cases

The Rt. Hon. Lord Justice Thorpe characterized judges as ‘the great undeveloped resource toward the practical enhancement of the Convention.’ He underscored the importance of judges networking with their counterparts in other countries who are hearing Hague cases and facing similar problems. He made a persuasive case for designating "liaison" judges in every country to facilitate judicial communication and cooperation about Hague cases, and a resolution was adopted to this effect ( Best Practices, 1(e)) . Delegations also concurred with his views that international judicial conferences promote effective operation of the Hague Convention and should be supported, and that limiting the number of courts that hear Hague cases is generally desirable (albeit not feasible in every country). ( Best Practices, 1(a) and (d) ).

Non-Convention Cases

Whereas the Child Abduction Convention provides a mechanism for returning abducted children to State Parties, abductions to countries not parties to the Convention are much more difficult (and sometimes impossible) for judges and parties to resolve. There was some discussion of bilateral agreements with certain countries that have opened a door to facilitating return of, or access to, abducted children. The judges adopted a resolution calling upon their governments to explore the possibility of treaty and bilateral approaches to resolve abduction and access cases involving countries not party to the Convention. ( Best Practices, 11 ).

Prevention

The judiciary has an important role in preventing international abductions. The Hon. William Rigler presented a paper on U.S. approaches to prevention, which led to more generalized discussion of the need for a proactive judiciary to be aware of the possibility of abductions, and to safeguard against them. The delegations adopted a resolution to this effect. ( Best Practices, 10 ).

The Hague Conference’s Supporting Role

The Hague Conference on Private International Law won praise from the six delegations for its ongoing and innovative efforts to promote the effective and efficient operation of the Child Abduction Convention. William Duncan described preparations now underway for the Fourth Special Commission meeting on the Child Abduction Convention, which will take place at the Hague in the Spring. He also reported that the Permanent Bureau has recently instituted publication of the International Child Protection: The Judge’s Newsletter (a Publication of the Hague Conference on Private International Law). Among other things, the newsletter seeks to facilitate judicial networking and information-sharing about the Child Abduction Convention .

Taking advantage of the Internet to disseminate information about the Child Abduction Convention, the Permanent Bureau of the Hague Conference has recently created

INCADAT : International Child Abduction Database (www.incadat.com), a database of significant case law arising out of the Child Abduction Convention. Marion Ely, the Permanent Bureau’s lawyer who has spearheaded the INCADAT project, described the content of the database and explained its use.

The Hague Conference hopes that the database will serve to facilitate the uniform interpretation of the Child Abduction Convention across all of the State Parties, by giving judges, Central Authorities, lawyers, parents, and policy makers ready access to reliable information about what is happening in other States. The information will be invaluable to those charged with making critical judicial decisions, and it will make a unique contribution to the development of mutual understanding and best practice, which is essential for the Convention’s operation. INCADAT will be an indispensable learning tool for countries that become parties to the Convention in the future.

The delegations took notice that funding for this invaluable innovation is not within the Permanent Bureau’s operating budget. It has come into being through generous outside support. A resolution was adopted recognizing the importance of adequate funding for the Permanent Bureau so that it may provide services such as INCADAT. ( Best Practices, 13 ).

Future Conferences

Two meetings of interest to judges and other Child Abduction Convention experts are scheduled for next year. The Fourth Special Commission Meeting on operation of the Child Abduction Convention will take place at the Hague on March 22-28, 2001. The Permanent Bureau of the Hague Conference on Private International Law looks forward to increased judicial participation at that meeting consistent with the resolution adopted at this conference ( Best Practices , 12). The 2001 World Conference on Family Law and the Rights of Children and Youth will take place in Bath, England on September 20-22, 2001.

Concluding session

The Best Practices document that follows was adopted at the final session of the Conference. The official reporter moderated the session.

THE COMMON LAW JUDICIAL CONFERENCE ON INTERNATIONAL CHILD CUSTODY

BEST PRACTICES

Judges representing the six delegations (Australia, Canada, Ireland, New Zealand, United Kingdom and the United States) attending the Common Law Judicial Conference on International Child Custody hosted by the U.S. Department of State (Washington, D.C., September 17-21, 2000) propose the following ‘best practices’ to improve operation of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("Hague Child Abduction Convention"). The views expressed are those of the judicial members of the delegations, and do not necessarily reflect the official views of their countries or judiciaries.

1. This Conference supports the conclusions adopted at the analogous Judicial Seminar on the International Protection of Children at the Conference Centre De Ruwenberg, June 3-6 2000, and adopts parallel resolutions, as follows:

2. Prompt decision-making under the Hague Child Abduction Convention serves the best interests of children. It is the responsibility of the judiciary at both the trial and appellate levels firmly to manage the progress of return cases under the Convention. Trial and appellate courts should set and adhere to timetables that ensure the expeditious determination of Hague applications.

3. Central Authorities likewise have a responsibility to process Hague applications expeditiously. Delays in the administrative process can adversely affect judicial return proceedings.

4. It is recommended that State parties ensure that there are simple and effective mechanisms to enforce orders for the return of children.

5. The Article 13b ''grave risk'' defense has generally been narrowly construed by courts in member states. It is in keeping with the objectives of the Hague Child Abduction Convention to construe the Article 13b grave risk defense narrowly.

6. Courts in many jurisdictions regard the use of orders with varying names, e.g., stipulations, conditions, undertakings, as a useful tool to facilitate arrangements for return and/or alleviate Article 13b concerns. Such orders, limited in scope and duration, addressing short-term issues and remaining in effect only until such time as a court in the country to which the child is returned takes control, are in keeping with the spirit of the Hague Child Abduction Convention.

7. Left-behind parents who seek a child''s return under the Hague Child Abduction Convention need speedy and effective access to the courts. Lack of legal representation is a significant obstacle to invoking the Convention''s remedies. To overcome this obstacle, left-behind parents should be provided promptly with experienced legal representation, where possible at the expense of the requested state.

8. It is widely agreed that the problem of enforcing access rights internationally, though intertwined with international child abduction cases, is not adequately addressed by the Hague Child Abduction Convention. Other legal and judicial solutions should be pursued, including prompt consideration of the 1996 Hague Convention on the Protection of Children (which provides, inter alia, a mechanism for handling international access cases), and court-referred mediation in appropriate cases (to help parents make their own arrangements for international access).

9. Courts take significantly different approaches to relocation cases, which are occurring with a frequency not contemplated in 1980 when the Hague Child Abduction Convention was drafted. Courts should be aware that highly restrictive approaches to relocation can adversely affect the operation of the Hague Child Abduction Convention.

10. Judges need to be alert to the possibility of international child abduction, and can be instrumental in preventing abductions by entering and enforcing orders for appropriate safeguards.

11. Abductions to countries which are not parties to the Hague Child Abduction Convention pose serious obstacles for left-behind parents who seek return of, or access to, their children. Those government bodies responsible for foreign affairs might usefully explore the possibilities of treaty and bilateral approaches to resolve these cases, which approaches have already met with some success.

12. Given the vital role of judges in the operation of the Hague Child Abduction Convention, each country participating in this conference should endeavor to have at least one judge expert in the Convention in its delegation at the Fourth Special Commission meeting at the Hague in March 2001.

13. The support of the activities of the Permanent Bureau of the Hague Conference on Private International Law is critical to its role in coordinating and disseminating information to the international community. This support should extend to special projects and services provided by the Permanent Bureau, including the International Child Abduction Database ("INCADAT") developed by the Permanent Bureau, which will be of significant assistance to the judiciary, Central Authorities, legal profession, and the parties. The judges at this Conference recognize the importance of the Permanent Bureau being adequately funded.

APPENDIX

CONFERENCE DELEGATE LIST

Australia

The Honorable Justice Joseph V. Kay
Mr. Stephen Bourke
Mr. Murray Green
Mr. Danny Sandor

Canada

The Honorable Justice Jacques Chamberland
The Honorable Madam Justice Robyn Moglove Diamond
Ms. Manon Dostie
Ms. Denise Gervais
Ms. Joan MacPahil, QC
Ms. Tracy Reid
Mr. Michel Voghel

Ireland

The Honorable Justice Cathryn McGuinness
Mr. Robert Browne
Mr. Brian Ingoldsby

New Zealand

His Honor Judge Patrick D. Mahony
Mr. Kieron McCarron
Ms. Mary O’Dwyer

United Kingdom

Rt. Hon Dame Elizabeth Butler-Sloss
Rt. Hon Lord Justice Mathew Thorpe
The Honourable Lord Justice Iain Bonomy
His Honour Judge Ian Karsten, QC
Ms. Sheila Barker
Mr. Mark Everall, QC
Ms. Amanda Finlay
Mr. Michael Hinchliffe
Professor Nigel Lowe
Mr. Michael Nicholls
Ms. Janys M. Scott

United States

The Honorable James D. Garbolino
The Honorable Linnea R. Johnson
The Honorable Sidney H. Stein
The Honorable William Rigler
Mr. William M. Hilton
Ms. Mary B. Marshall
Professor Linda Silberman

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William Duncan, Deputy Secretary General, Hague Conference on Private International Law
Adair Dyer, Moderator
Patricia M. Hoff, Conference Reporter

***

Conference Organizers

Beth H. Cooper, Attorney-Adviser, Department of State, Office of Children’s Issues
Margaret McMahon, Attorney-Adviser, Department of State, Office of Children’s Issues
Ann McGahuey, Citizens Services Specialist, Department of State, Office of Children’s Issues

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