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Department of State Legal Analysis of Hague
Convention
51 FR 10494-01
1986 WL 133056 (F.R.)
(Cite as: 51 FR 10494)
NOTICES
DEPARTMENT OF STATE
[Public Notice 957]
Hague International Child Abduction Convention; Text and Legal Analysis
Wednesday, March 26, 1986
*10494 On October 30, 1985 President Reagan sent the 1980 Hague Convention
on
the Civil Aspects of International Child Abduction to the U.S. Senate and
recommended that the Senate give early and favorable consideration to the
Convention and accord its advice and consent to U.S. ratification. The text
of the Convention and the President's Letter of Transmittal, as well as the
Secretary of State's Letter of Submittal to the President, were published
shortly thereafter in Senate Treaty Doc. 99-11. On January 31, 1986 the
Department of State sent to Senator Lugar, Chairman of the Senate Committee
on
Foreign Relations to which the Convention was referred, a detailed Legal
Analysis of the Convention designed to assist the Committee and the full
Senate in their consideration of the Convention. It is believed that broad
availability of the Letters of Transmittal and Submittal, the English text
of
the Convention and the Legal Analysis will be of considerable help also to
parents, the bench and the bar, as well as federal, State and local
authorities, in understanding the Convention, and in resorting to or
implementing it should the United States ultimately ratify it. Thus, these
documents are reproduced below for the information of the general public.
Questions concerning the status of consideration of the Convention for U.S.
ratification may be addressed to the Office of the Assistant Legal Adviser
for
Private International Law, Department of State, Washington, D.C. 20520
(telephone: (202) 653-9851). Inquiries on the action concerning the
Convention taken by other countries may be addressed to the Office of the
Assistant Legal Adviser for Treaty Affairs, Department of State (telephone:
(202) 647-8135). Questions on the role of the federal government in the
invocation and implementation of the Convention may be addressed to the
Office
of Citizens Consular Sevices, Department of State (telephone: (202)
647-3444).
Peter H. Pfund,
Assistant Legal Adviser for Private International Law.
Appendices:
A--Letters of Transmittal and Submittal from Senate Treaty Doc. 99-11
B--English text of Convention
C--Legal Analysis
BILLING CODE 4710-08-M
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
BILLING CODE 4710-08-C
*10503 Appendix C--Legal Analysis of the Hague Convention on the Civil
Aspects
of International Child Abduction
Introduction
The Hague Convention on the Civil Aspects of International Child Abduction
consists of six chapters containing forty-five articles. While not formally
incorporated into the Convention, a model form was prepared when the
Convention was adopted by the Hague Conference on Private International Law
and was recommended for use in making application for the return of
wrongfully
removed or retained children. A copy of that form is annexed to this Legal
Analysis. (The form to be used for the return of children from the United
States may seek additional information.)
Table of Contents
To facilitate understanding of the Convention by the Senate and the use and
interpretation of the Convention by parents, judges, lawyers and public and
private agency personnel, the articles are analyzed and discussed in the
following categories:
I. Children Protected by the Convention
(Preamble, Article 1)
A. Age (Articles 4, 36, 18, 29, 34, 13)
B. Residence (Article 4)
C. Timing/cases covered (Article 35)
D. Effect of custody order concerning the child
1. Existing custody orders (Articles 17, 3)
2. Pre-decree removals or retentions (Article 3)
II. Conduct Actionable Under the Convention
A. International "child abduction" not criminal: Hague Convention
distinguished from extradition treaties (Article 12)
B. "Wrongful removal or retention" (Articles 1, 3, 5(a))
1. Holders of rights protected by the Convention (i.e., with respect to whom
the removal or retention is wrongful)
(a) "Person, institution or other body" (Article 3(a), (b))
(b) "Jointly or alone" (Article 3(a), (b))
2. Defined
(a) Breach of "custody rights" (Articles 3(a), 5(a))
(b) "Custody rights" determined by law of child's habitual residence
(Articles 3(a), 31, 32, 33)
(c) Sources of "Custody rights" (Article 3, last paragraph)
i. Operation of law (Articles 3, 15)
ii. Judicial or administrative decision (Article 3)
iii. Agreement having legal effect (Article 3)
(d) "Actually exercised" (Articles 3(b), 5, 8(c), 13)
III Judicial Proceedings for Return of the Child
A. Right to seek return (Articles 29, 12, 34, 8)
B. Legal advice and costs (Articles 25, 26, 42)
C. Pleading requirements (Articles 8, 24)
D. Admissibility of evidence (Articles 30, 23)
E. Judicial promptitude/status report (Article 11)
F. Judicial notice (Article 14)
G. Court determination of "wrongfulness" (Articles 15, 3, 11, 12, 14)
H. Constraints upon courts in requested states in making substantive custody
decisions (Article 16)
I. Duty to return not absolute
1. Temporal qualifications
(a) Article 4
(b) Article 35
(c) Article 12
2. Article 13 limitations on return obligation
(a) Legislative history (Articles 13, 20)
(b) Non-exercise of custody rights (Articles 13(a), 3(b))
(c) Grave risk of harm/intolerable situation (Article 13(b))
(d) Child's preference (Article 13)
(e) Role of social studies
3. Article 20
4. Custody order no defense to return (Article 17)
J. Return of the child (Article 12)
1. Return order not on custody merits (Article 19)
2. Costs, fees and expenses shifted to abductor (Article 26)
IV. Central Authority
(Articles 1, 10, 21)
A. Establishment of Central Authority (Article 6)
B. Duties (Article 7)
C. Other Tasks (Articles 8, 9, 10, 11, 15, 21, 26, 27, 28)
1. Processing applications (Articles 8, 9, 27, 28)
2. Assistance in connection with judicial proceedings
(a) Request for status report (Article 11)
(b) Social studies/background reports (Article 13)
(c) Determination of "wrongfulness" (Article 15)
(d) Costs (Article 26), reservation (Articles 42, 22)
V. Access Rights--Article 21
A. Remedies for breach (Articles 21, 12)
B. Defined (Article 5(b))
C. Procedure for obtaining relief (Articles 21, 8, 7)
D. Alternative remedies (Articles 18, 29, 34)
VI. Miscellaneous and Final Clauses
A. Article 36
B. Articles 37 and 38
C. Articles 42, 43 and 44
D. Articles 39 and 40
E. Article 41
F. Article 45
Annexes
--Recommended Return Application Form
--Bibliography
Guide to Terminology Used in the Legal Analysis
"Abduction" as used in the Convention title is not intended in a criminal
sense. That term is shorthand for the phrase "wrongful removal or retention"
which appears throughout the text, beginning with the preambular language
and
Article 1. Generally speaking, "wrongful removal" refers to the taking of a
child from the person who was actually exercising custody of the child.
"Wrongful retention" refers to the act of keeping the child without the
consent of the person who was actually exercising custody. The archetype of
this conduct is the refusal by the noncustodial parent to return a child at
the end of an authorized visitation period. "Wrongful retention" is not
intended by this Convention to cover refusal by the custodial parent to
permit
visitation by the other parent. Such obstruction of visitation may be
redressed in accordance with Article 21.
The term "abductor" as used in this analysis refers to the person alleged to
have wrongfully removed or retained a child. This person is also referred to
as the "alleged wrongdoer" or the "respondent."
The term "person" as used in this analysis includes the person, institution
or other body who (or which) actually exercised custody prior to the
abduction
and is seeking the child's return. The "person" seeking the child's return
is also referred to as "applicant" and "petitioner."
The terms "court" and "judicial authority" are used throughout the analysis
to mean both judicial and administrative bodies empowered to make decisions
on
petitions made pursuant to this Convention. "Judicial decree" and "court
order" likewise include decisions made by courts or administrative bodies.
"Country of origin" and "requesting country" refer to the child's country
("State") of habitual residence prior to the wrongful removal or retention.
"Country addressed" refers to the country ("State") where the child is
located
or the country to which the child is believed to have been taken. It is in
that country that a judicial or administrative proceeding for return would
be
brought.
"Access rights" correspond to "visitation rights."
References to the "reporter" are to Elisa Perez-Vera, the official Hague
Conference reporter for the Convention. Her explanatory report is recognized
by the Conference as the official history and commentary on the Convention
and
is a source of background on the meaning of the provisions of the Convention
available to all States becoming parties to it. It is referred to herein as
the "Perez-Vera Report." The Perez-Vera Report appears in Actes et *10504
documents de la Quatorzieme Session (1980), Volume III, Child Abduction,
edited by the Permanent Bureau of the Hague Conference on Private
International Law, The Hague, Netherlands. (The volume may be ordered from
the
Netherlands Government Printing and Publishing Office, 1 Christoffel
Plantijnstraat, Post-box 20014, 2500 EA The Hague, Netherlands.)
I. Children Protected by the Convention
A fundamental purpose of the Hague Convention is to protect children from
wrongful international removals or retentions by persons bent on obtaining
their physical and/or legal custody. Children who are wrongfully moved from
country to country are deprived of the stable relationships which the
Convention is designed promptly to restore. Contracting States are obliged
by Article 2 to take all appropriate measures to implement the objectives of
the Convention as set forth in Article 1: (1) To secure the prompt return of
children wrongfully removed to or retained in any Contracting State; and (2)
to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in other Contracting States.
While these objectives are universal in their appeal, the Convention does
not
cover all children who might be victims of wrongful takings or retentions. A
threshold inquiry, therefore, is whether the child who has been abducted or
retained is subject to the Convention's provisions. Only if the child falls
within the scope of the Convention will the administrative and judicial
mechanisms of the Convention apply.
A. Age
The Convention applies only to children under the age of sixteen (16). Even
if a child is under sixteen at the time of the wrongful removal or retention
as well as when the Convention is invoked, the Convention ceases to apply
when
the child reaches sixteen. Article 4.
Absent action by governments to expand coverage of the Convention to
children
aged sixteen and above pursuant to Article 36, the Convention itself is
unavailable as the legal vehicle for securing return of a child sixteen or
older. However, it does not bar return of such child by other means.
Articles 18, 29 and 34 make clear that the Convention is a nonexclusive
remedy in cases of international child abduction. Article 18 provides that
the Convention does not limit the power of a judicial authority to order
return of a child at any time, presumably under other laws, procedures or
comity, irrespective of the child's age. Article 29 permits the person who
claims a breach of custody or access rights, as defined by Articles 3 and
21,
to bypass the Convention completely by invoking any applicable laws or
procedures to secure the child's return. Likewise, Article 34 provides that
the Convention shall not restrict the application of any law in the State
addressed for purposes of obtaining the child's return or for organizing
visitation rights. Assuming such laws are not restricted to children under
sixteen, a child sixteen or over may be returned pursuant to their
provisions.
Notwithstanding the general application of the Convention to children under
sixteen, it should be noted that the wishes of mature children regarding
their
return are not ignored by the Convention. Article 13 permits, but does not
require, the judicial authority to refuse to order the child returned if 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." The role
of
the child's preference in return proceedings is discussed further at
III.I(2)(d), infra.
B. Residence
In order for the Convention to apply the child must have been "habitually
resident in a Contracting State immediately before any breach of custody or
access rights." Article 4. In practical terms, the Convention may be invoked
only where the child was habitually resident in a Contracting State and
taken
to or retained in another Contracting State. Accordingly, child abduction
and retention cases are actionable under the Convention if they are
international in nature (as opposed to interstate), and provided the
Convention has entered into force for both countries involved. See
discussion
of Article 38, VI.B, infra.
To illustrate, take the case of a child abducted to California from his home
in New York. The Convention could not be invoked to secure the return of
such
child. This is true even if one of the child's parents is an American
citizen and the other a foreign national. The Uniform Child Custody
Jurisdiction Act (UCCJA) and/or the Parental Kidnapping Prevention Act (PKPA),
domestic state and federal law, respectively, would govern the return of the
child in question. If the same child were removed from New York to Canada,
application under the Convention could be made to secure the child's return
provided the Convention had entered into force both for the United States
and
the Canadian province to which the child was taken. An alternative remedy
might also lie under other Canadian law. If the child had been removed from
Canada and taken to the United States, the aggrieved custodial parent in
Canada could seek to secure the child's return by petitioning for
enforcement
of a Canadian custody order pursuant to the UCCJA, or by invoking the
Convention, or both.
C. Timing/Cases Covered
Article 35 states that the Convention shall apply as between Contracting
States only to wrongful removals or retentions occurring after its entry
into
force in those States. Following a strict interpretation of that Article,
the Convention will not apply to a child who is wrongfully shifted from one
Contracting State to another if the wrongful removal or retention occurred
before the Convention's entry into force in those States. However, under a
liberal interpretation Article 35 could be construed to cover wrongful
removal
or retention cases which began before the Convention took effect but which
continued and were ongoing after its entry into force.
D. Effect of Custody Order Concerning the Child
1. Existing Custody Orders
Children who otherwise fall within the scope of the Convention are not
automatically removed from its protections by virtue of a judicial decision
awarding custody to the alleged wrongdoer. This is true whether the decision
as to custody was made, or is entitled to recognition, in the State to which
the child has been taken. Under Article 17 that State cannot refuse to
return a child solely on the basis of a court order awarding custody to the
alleged wrongdoer made by one of its own courts or by the courts of another
country. This provision is intended to ensure, inter alia, that the
Convention
takes precedence over decrees made in favor of abductors before the court
had
notice of the wrongful removal or retention.
Thus, under Article 17 the person who wrongfully removes or retains the
child
in a Contracting State cannot insulate the child from the Convention's
return
provisions merely by obtaining a custody order in the country of new
residence, or by seeking there to enforce another country's order. Nor may
the alleged wrongdoer rely upon a stale decree awarding him or her custody,
the provisions of which have been *10505 derogated from subsequently by
agreement or acquiescence of the parties, to prevent the child's return
under
the Convention. Article 3.
It should be noted that Article 17 does permit a court to take into account
the reasons underlying an existing custody decree when it applies the
Convention.
12. Pre-Decree Removals or Retentions
Children who are wrongfully removed or retained prior to the entry of a
custody order are protected by the Convention. There need not be a custody
order in effect in order to invoke the Convention's return provisions.
Accordingly, under the Convention a child will be ordered returned to the
person with whom he or she was habitually resident in pre-decree abduction
cases as well as in cases involving violations of existing custody orders.
Application of the Convention to pre-decree cases comes to grips with the
reality that many children are abducted or retained long before custody
actions have been initiated. In this manner a child is not prejudiced by the
legal inaction of his or her physical custodian, who may not have
anticipated
the abduction, and the abductor is denied any legal advantage since the
child
is subject to the return provisions of the Convention.
The Convention's treatment of pre-decree abduction cases is distinguishable
from the Council of Europe's Convention on Recognition and Enorcement of
Decisions Relating to the Custody of Children, adopted in Strasbourg, France
in November 1979 ("Strasbourg Convention"), and from domestic law in the
United States, specifically the UCCJA and the PKPA, all of which provide for
enforcement of custody decrees. Although the UCCJA and PKPA permit
enforcement of a decree obtained by a parent in the home state after the
child
has been removed from that state, in the absence of such decree the
enforcement provisions of those laws are inoperative. In contrast to the
restoration of the legal status quo ante brought about by application of the
UCCJA, the PKPA, and the Strasbourg Convention, the Hague Convention seeks
restoration of the factual status quo ante and is not contingent on the
existence of a custody decree. The Convention is premised upon the notion
that the child should be promptly restored to his or her country of habitual
residence so that a court there can examine the merits of the custody
dispute
and award custody in the child's best interests.
Pre-decree abductions are discussed in greater detail in the section dealing
with actionable conduct. See II.B(2)(c)(i).
II. Conduct Actionable Under the Convention
A. "International Child Abduction" not Criminal: Hague Convention
Distinguished From Extradition Treaties
Despite the use of the term "abduction" in its title, the Hague Convention
is
not an extradition treaty. The conduct made actionable by the
Convention--the wrongful removal or retention of children--is wrongful not
in
a criminal sense but in a civil sense.
The Hague Convention establishes civil procedures to secure the return of
so-
called "abducted" children. Article 12. In this manner the Hague
Convention seeks to satisfy the overriding concern of the aggrieved parent.
The Convention is not concerned with the question of whether the person
found
to have wrongfully removed or retained the child returns to the child's
country of habitual residence once the child has been returned pursuant to
the
Convention. This is in contrast to the criminal extradition process which is
designed to secure the return of the fugitive wrong-doer. Indeed, when the
fugitive-parent is extradited for trial or to serve a criminal sentence,
there
is no guarantee that the abducted child will also be returned.
While it is uncertain whether criminal extradition treaties will be
routinely
invoked in international custody cases between countries for which the Hague
Convention is in force, nothing in the Convention bars their application or
use.
B. Wrongful Removal or Retention
The Convention's first stated objective is to secure the prompt return of
children who are wrongfully removed from or retained in any Contracting
State.
Article 1(a). (The second stated objective, i.e., to ensure that rights of
custody and of access under the law of one Contracting State are effectively
exercised in other Contracting States (Article 1(b)), is discussed under the
heading "Access Rights," V., infra.) The removal or retention must be
wrongful
within the meaning of Article 3, as further clarified by Article 5(a), in
order to trigger the return procedures established by the Convention.
Article 3 provides that the removal or retention of a child is to be
considered wrongful where:
(a) it is in breach of custody rights attributed to a person, an institution
or another body, either jointly or alone, under the law of the State in
which
the child was habitually resident immediately before the removal or
retention;
and (b) at the time of the removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but for
the removal or retention.
This Article is a cornerstone of the Convention. It is analyzed by
examining two questions:
1. Who holds rights protected by the Convention (or, with respect to whom is
the removal or retention deemed to be wrongful); and
2. What are the factual and legal elements of a wrongful removal or
retention
1. Holders of Rights Protected by the Convention
(a) "Person, institution or other body". While the child is the ultimate
beneficiary of the Convention's judicial and administrative machinery, the
child's role under the Convention is passive. In contrast, it is up to the
"person, institution or other body" (hereinafter referred to simply as "the
person") who "actually exercised" custody of the child prior to the
abduction,
or who would have exercised custody but for the abduction, to invoke the
Convention to secure the child's return. Article 3 (a), (b). It is this
person who holds the rights protected by the Convention and who has the
right
to seek relief pursuant to its terms.
Since the vast majority of abduction cases arises in the context of divorce
or separation, the person envisioned by Article 3(a) most often will be the
child's parent. The typical scenario would involve one parent taking a child
from one Contracting State to another Contracting State over objections of
the
parent with whom the child had been living.
However, there may be situations in which a person other than a biological
parent has actually been exercising custody of the child and is therefore
eligible to seek the child's return pursuant to the Convention. An example
would be a grandparent who has had physical custody of a child following the
death of the parent with whom the child had been residing. If the child is
subsequently removed from the custody of the grandparent by the surviving
parent, the aggrieved grandparent could invoke the Convention to secure the
child's return. In another situation, the child may be in the care of foster
parents. If custody rights exercised by the foster parents are breached, for
instance, by abduction of the child by its biological parent, the foster
parents *10506 could invoke the Convention to secure the child's return.
In the two foregoing examples (not intended to be exhaustive) a family
relationship existed between the victim-child and the person who had the
right
to seek the child's return. However, institutions such as public or private
child care agencies also may have custody rights the breach of which would
be
remediable under the Convention. If a natural parent relinquishes parental
rights to a child and the child is subsequently placed in the care of an
adoption agency, that agency may invoke the Convention to recover the child
if
the child is abducted by its parent(s).
(b) "Jointly or alone". Article 3 (a) and (b) recognize that custody rights
may be held either jointly or alone. Two persons, typically mother and
father, can exercise joint custody, either by court order following a
custody
adjudication, or by operation of law prior to the entry of a decree. The
Convention does not distinguish between these two situations, as the
commentary of the Convention reporter indicates:
Now, from the Convention's standpoint, the removal of a child by one of the
joint holders without the consent of the other, is wrongful, and this
wrongfulness derives in this particular case, not from some action in breach
of a particular law, but from the fact that such action has disregarded the
rights of the other parent which are also protected by law, and has
interfered
with their normal exercise. The Convention's true nature is revealed most
clearly in these situations: it is not concerned with establishing the
person
to whom custody of the child will belong at some point in the future, nor
with
the situations in which it may prove necessary to modify a decision awarding
joint custody on the basis of facts which have subsequently changed. It
seeks, more simply, to prevent a later decision on the matter being
influenced
by a change of circumstances brought about through unilateral action by one
of
the parties. Perez-Vera Report, paragraph 71 at 447-448.
Article 3(a) ensures the application of the Convention to pre-decree
abductions, since it protects the rights of a parent who was exercising
custody of the child jointly with the abductor at the time of the abduction,
before the issuance of a custody decree.
2. "Wrongful Removal or Retention" Defined
The obligation to return an abducted child to the person entitled to custody
arises only if the removal or the retention is wrongful within the meaning
of
the Convention. To be considered wrongful, certain factual and legal
elements must be present.
(a) Breach of "custody rights". The removal or retention must be in breach
of
"custody rights," defined in Article 5(a) as "rights relating to the care of
the person of the child and, in particular, the right to determine the
child's
place of residence."
Accordingly, a parent who sends his or her child to live with a caretaker
has
not relinquished custody rights but rather has exercised them within the
meaning of the Convention. Likewise, a parent hospitalized for a protracted
period who places the child with grandparents or other relatives for the
duration of the illness has effectively exercised custody.
(b) "Custody rights" determined by law of child's habitual residence. In
addition to including the right to determine the child's residence (Article
5(a)), the term "custody rights" covers a collection of rights which take on
more specific meaning by reference to the law of the country in which the
child was habitually resident immediately before the removal or retention.
Article 3(a). Nothing in the Convention limits this "law" to the internal
law of the State of the child's habitual residence. Consequently, it could
include the laws of another State if the choice of law rules in the State of
habitual residence so indicate.
If a country has more than one territorial unit, the habitual residence
refers to the particular territorial unit in which the child was resident,
and
the applicable laws are those in effect in that territorial unit. Article
31. In the United States, the law in force in the state in which a child was
habitually resident (as possibly preempted by federal legislation enacted in
connection with U.S. ratification of the Convention) would be applicable for
the determination as to whether a removal or retention is wrongful.
Articles 32 and 33 also control, respectively, how and whether the
Convention
applies in States with more than one legal system. Perez-Vera Report,
paragraphs 141 and 142 at 470.
(c) Sources of "custody rights". Although the Convention does not
exhaustively list all possible sources from which custody rights may derive,
it does identify three sources. According to the final paragraph of Article
3, custody rights may arise: (1) by operation of law; (2) by reason of a
judicial or administrative decision; or (3) by reason of an agreement having
legal effect under the law of that State.
i. Custody rights arising by operation of law. Custody rights which arise by
operation of law in the State of habitual residence are protected; they need
not be conferred by court order to fall within the scope of the Convention.
Article 3. Thus, a person whose child is abducted prior to the entry of a
custody order is not required to obtain a custody order in the State of the
child's habitual residence as a prerequisite to invoking the Convention's
return provisions.
In the United States, as a general proposition both parents have equal
rights
of custody of their children prior to the issuance of a court order
allocating
rights between them. If one parent interferes with the other's equal rights
by unilaterally removing or retaining the child abroad without consent of
the
other parent, such interference could constitute wrongful conduct within the
meaning of the Convention. (See excerpts from Perez-Vera Report quoted at
II.B.1(b), supra.) Thus, a parent left in the United States after a
pre-decree
abduction could seek return of a child from a Contracting State abroad
pursuant to the Convention. In cases involving children wrongfully brought
to or retained in the United States from a Contracting State abroad prior to
the entry of a decree, in the absence of an agreement between the parties
the
question of wrongfulness would be resolved by looking to the law of the
child's country of habitual residence.
Although a custody decree is not needed to invoke the Convention, there are
two situations in which the aggrieved parent may nevertheless benefit by
securing a custody order, assuming the courts can hear swiftly a petition
for
custody. First, to the extent that an award of custody to the left-behind
parent (or other person) is based in part upon an express finding by the
court
that the child's removal or retention was wrongful within the meaning of
Article 3, the applicant anticipates a possible request by the judicial
authority applying the Convention, pursuant to Article 15, for a court
determination of wrongfulness. This may accelerate disposition of a return
petition under the Convention. Second, a person outside the United States
who obtains a custody decree from a foreign court subsequent to the child's
abduction, after notice and opportunity to be heard have been accorded to
the
absconding parent, may be able to invoke either the Convention or the UCCJA,
or both, to secure the child's return from the United States. The UCCJA may
be preferable inasmuch as its enforcement provisions are not subject to the
exceptions contained in the Convention.
ii. Custody rights arising by reason of judicial or administrative decision.
Custody rights embodied in judicial or *10507 administrative decisions fall
within the Convention's scope. While custody determinations in the United
States are made by state courts, in some Contracting States, notably the
Scandinavian countries, administrative bodies are empowered to decide
matters
relating to child custody including the allocation of custody and visitation
rights. Hence the reference to "administrative decisions" in Article 3.
The language used in this part of the Convention can be misleading. Even
when custody rights are conferred by court decree, technically speaking the
Convention does not mandate recognition and enforcement of that decree.
Instead, it seeks only to restore the factual custody arrangements that
existed prior to the wrongful removal or retention (which incidentally in
many
cases will be the same as those specified by court order).
Finally, the court order need not have been made by a court in the State of
the child's habitual residence. It could be one originating from a third
country. As the reporter points out, when custody rights were exercised in
the State of the child's habitual residence on the basis of a foreign
decree,
the Convention does not require that the decree have been formally
recognized.
Perez-Vera Report, paragraph 69 at 447.
iii. Custody rights arising by reason of agreement having legal effect.
Parties who enter into a private agreement concerning a child's custody have
recourse under the Convention if those custody rights are breached. Article
3. The only limitation is that the agreement have legal effect under the law
of the child's habitual residence.
Comments of the United States with respect to language contained in an
earlier draft of the Convention (i.e., that the agreement "have the force of
law") shed some light on the meaning of the expression "an agreement having
legal effect". In the U.S. view, the provision should be interpreted
expansively to cover more than only those agreements that have been
incorporated in or referred to in a custody judgment. Actes et documents de
la
Quatorzieme Session, (1980) Volume III. Child Abduction, Comments of
Governments at 240. The reporter's observations affirm a broad
interpretation
of this provision:
As regards the definition of an agreement which has "legal effect" in terms
of a particular law, it seems that there must be included within it any sort
of agreement which is not prohibited by such a law and which may provide a
basis for presenting a legal claim to the competent authorities. Perez-Vera
Report, paragraph 70 at 447.
(d) "Actually exercised". The most predictable fact pattern under the
Convention will involve the abduction of a child directly from the parent
who
was actually exercising physical custody at the time of the abduction.
To invoke the Convention, the holder of custody rights must allege that he
or
she actually exercised those rights at the time of the breach or would have
exercised them but for the breach. Article 3(b). Under Article 5, custody
rights are defined to include the right to determine the child's place of
residence. Thus, if a child is abducted from the physical custody of the
person in whose care the child has been entrusted by the custodial parent
who
was "actually exercising" custody, it is the parent who placed the child who
may make application under the Convention for the child's return.
Very little is required of the applicant in support of the allegation that
custody rights have actually been or would have been exercised. The
applicant need only provide some preliminary evidence that he or she
actually
exercised custody of the child, for instance, took physical care of the
child.
Perez- Vera Report, paragraph 73 at 448. The Report points out the
informal nature of the pleading and proof requirements; Article 8(c) merely
requires a statement in the application to the Central Authority as to "the
grounds on which the applicant's claim for return of the child is based."
Id.
In the scheme of the Convention it is presumed that the person who has
custody actually exercised it. Article 13 places on the alleged abductor the
burden of proving the nonexercise of custody rights by the applicant as an
exception to the return obligation. Here, again, the reporter's comments are
insightful:
Thus, we may conclude that the Convention, taken as a whole, is built upon
the tacit presumption that the person who has care of the child actually
exercises custody over it. This idea has to be overcome by discharging the
burden of proof which has shifted, as is normal with any presumption (i.e.
discharged by the "abductor" if he wishes to prevent the return of the
child.)
Perez-Vera Report paragraph 73 at 449.
III. Judicial Proceedings for Return of Child
A. Right To Seek Return
When a person's custody rights have been breached by the wrongful removal or
retention of the child by another, he or she can seek return of the child
pursuant to the Convention. This right of return is the core of the
Convention. The Convention establishes two means by which the child may be
returned. One is through direct application by the aggrieved person to a
court in the Contracting State to which the child has been taken or in which
the child is being kept. Articles 12, 29. The other is through application
to the Central Authority to be established by every Contracting State.
Article
8. These remedies are not mutually exclusive; the aggrieved person may
invoke either or both of them. Moreover, the aggrieved person may also
pursue remedies outside the Convention. Articles 18, 29 and 34. This part
of the report describes the Convention's judicial remedy in detail. The
administrative remedy is discussed in IV, infra.
Articles 12 and 29 authorize any person who claims a breach of custody
rights
within the meaning of Article 3 to apply for the child's return directly to
the judicial authorities of the Contracting State where the child is
located.
A petition for return pursuant to the Convention may be filed any time after
the child has been removed or retained up until the child reaches sixteen.
While the window of time for filing may be wide in a particular case without
threat of technically losing rights under the Convention, there are numerous
reasons to commence a return proceeding promptly if the likelihood of a
voluntary return is remote. The two most crucial reasons are to preclude
adjudication of custody on the merits in a country other than the child's
habitual residence (see discussion of Article 16, infra) and to maximize the
chances for the child's return by reducing the alleged abductor's
opportunity
to establish that the child is settled in a new environment (see discussion
of
Article 12, infra).
A petition for return would be made directly to the appropriate court in the
Contracting State where the child is located. If the return proceedings are
commenced less than one year from the date of the wrongful removal or
retention, Article 12 requires the court to order the return of the child
forthwith. If the return proceedings are commenced a year or more after the
alleged wrongful removal or retention, the court remains obligated by
Article
12 to order the child returned unless it is demonstrated that the child is
settled in its new environment.
Under Article 29 a person is not precluded from seeking judicially- ordered
return of a child pursuant to laws and procedures other than the Convention.
Indeed, Articles 18 and 34 make clear that nothing in the Convention limits
the power of a court to return a child at any time by applying *10508 other
laws and procedures conducive to that end.
Accordingly, a parent seeking return of a child from the United States could
petition for return pursuant to the Convention, or in the alternative or
additionally, for enforcement of a foreign court order pursuant to the UCCJA.
For instance, an English father could petition courts in New York either for
return of his child under the Convention and/or for recognition and
enforcement of his British custody decree pursuant to the UCCJA. If he
prevailed in either situation, the respective court could order the child
returned to him in England. The father in this illustration may find the
UCCJA remedy swifter than invoking the Convention for the child's return
because it is not subject to the exceptions set forth in the Convention,
discussed at III.I., infra.
B. Legal Advice and Costs
Article 25 provides for the extension of legal aid and advice to foreign
applicants on the same basis and subject only to the same eligibility
requirements as for nationals of the country in which that aid is sought.
Article 26 prohibits Central Authorities from charging applicants for the
cost and expenses of the proceedings or, where applicable, those arising
from
the participation of legal counsel or advisers. This provision will be of no
help to an applicant, however, if the Contracting State in question has made
a
reservation in accordance with Articles 26 and 42 declaring that it shall
not
be bound to assume any costs resulting from the participation of legal
counsel
or advisers or from court proceedings, except insofar as those costs may be
covered by its system of legal aid and advice.
It is expected that the United States will enter a reservation in accordance
with Articles 26 and 42. This will place at least the initial burden of
paying for counsel and legal proceedings on the applicant rather than on the
federal government. Because the reservation is nonreciprocal, use of it will
not automatically operate to deny applicants from the United States free
legal
services and judicial proceedings in other Contracting States. However, if
the Contracting State in which the child is located has itself made use of
the
reservation in question, the U.S. applicant will not be eligible for
cost-free
legal representation and court proceedings. For more information on costs,
including the possibility that the petitioner's costs may be levied on the
abductor if the child is ordered returned, see III.J 2 and IV.C (d) of this
analysis.
C. Pleading Requirements
The Convention does not expressly set forth pleading requirements that must
be satisfied by an applicant who commences a judicial return proceeding. In
contrast, Article 8 sets forth the basic requirements for an application
placed before a Central Authority (discussed IV.C(1), infra) for the return
of
the child. Since the objective is identical--the child's return--whether
relief is sought through the courts or through intercession of the Central
Authority, it follows that a court should be provided with at least as much
information as a Central Authority is to be provided in a return application
filed in compliance with Article 8. To ensure that all necessary information
is provided, the applicant may wish to append to the petition to the court a
completed copy of the recommended model form for return of a child (see
Annex
A to this analysis).
In addition to providing the information set forth in Article 8, the
petition
for return should allege that the child was wrongfully removed or retained
by
the defendant in violation of custody rights that were actually being
exercised by the petitioner. The petition should state the source of the
custody rights, the date of the wrongful conduct, and the child's age at
that
time. In the prayer for relief, the petitioner should request the child's
return and an order for payment by the abducting or retaining parent of all
fees and expenses incurred to secure the child's return.
Any return petition filed in a court in the United States pursuant to the
Convention must be in English. Any person in the United States who seeks
return of a child from a foreign court must likewise follow the requirements
of the foreign state regarding translation of legal documents. See
Perez-Vera Report, paragraph 132 at page 467.
D. Admissibility of Evidence
Under Article 30, any application submitted to the Central Authority or
petition submitted to the judicial authorities of a Contracting State, and
any
documents or information appended thereto, are admissible in the courts of
the
State. Moreover, under Article 23, no legalization or similar formalities
may be required. However, authentication of private documents may be
required. According to the official report, "any requirement of the internal
law of the authorities in question that copies or private documents be
authenticated remains outside the scope of this provision." Perez-Vera
Report,
paragraph 131 at page 467.
E. Judicial Promptitude/Status Report
Once an application for return has been filed, the court is required by
Article 11 "to act expeditiously in proceedings for the return of children."
To keep matters on the fast track, Article 11 gives the applicant or the
Central Authority of the requested State the right to request a statement
from
the court of the reasons for delay if a decision on the application has not
been made within six weeks from the commencement of the proceedings.
F. Judicial Notice
In ascertaining whether there has been a wrongful removal or retention of a
child within the meaning of Article 3, Article 14 empowers the court of the
requested State to take notice directly of the law and decisions in the
State
of the child's habitual residence. Standard procedures for the proof of
foreign law and for recognition of foreign decisions would not need to be
followed and compliance with such procedures is not to be required.
G. Court Determination of "Wrongfulness"
Prior to ordering a child returned pursuant to Article 12, Article 15
permits
the court to request the applicant to obtain from the authorities of the
child's State of habitual residence a decision or other determination that
the
alleged removal or retention was wrongful within the meaning of Article 3.
Article 15 does not specify which "authorities" may render such a
determination. It therefore could include agencies of government (e.g.,
state attorneys general) and courts. Central Authorities shall assist
applicants to obtain such a decision or determination. This request may only
be made where such a decision or determination is obtainable in that State.
This latter point is particularly important because in some countries the
absence of the defendant-abductor and child from the forum makes it legally
impossible to proceed with an action for custody brought by the left-behind
parent. If an adjudication in such an action were a prerequisite to
obtaining a determination of wrongfulness, it would be impossible for the
petitioner to comply with an Article 15 request. For this reason a request
for a decision or determination on wrongfulness can not be made in such
circumstances consistent with the limitation in Article 15. Even if local
law permits an adjudication of custody in the absence of the child and
defendant (i.e., post- abduction) or would otherwise allow a petitioner to
obtain a determination of *10509 wrongfulness, the provisions of Article 15
will probably not be resorted to routinely. That is so because doing so
would convert the purpose of the Convention from seeking to restore the
factual status quo prior to an abduction to emphasizing substantive legal
relationships.
A further consideration in deciding whether to request an applicant to
comply
with Article 15 is the length of time it will take to obtain the required
determination. In countries where such a determination can be made only by a
court, if judicial dockets are seriously backlogged, compliance with an
Article 15 order could significantly prolong disposition of the return
petition, which in turn would extend the time that the child is kept in a
state of legal and emotional limbo. If "wrongfulness" can be established
some other way, for instance by taking judicial notice of the law of the
child's habitual residence as permitted by Article 14, the objective of
Article 15 can be satisfied without further prejudice to the child's welfare
or undue delay of the return proceeding. This would also be consistent with
the Convention's desire for expeditious judicial proceedings as evidenced by
Article 11.
In the United States, a left-behind parent or other claimant can petition
for
custody after the child has been removed from the forum. The right of action
is conferred by the UCCJA, which in many states also directs courts to hear
such petitions expeditiously. The result of such proceeding is a temporary
or permanent custody determination allocating custody and visitation rights,
or joint custody rights, between the parties. However, a custody
determination on the merits that makes no reference to the Convention may
not
by itself satisfy an Article 15 request by a foreign court for a
determination
as to the wrongfulness of the conduct within the meaning of Article 3.
Therefore, to ensure compliance with a possible Article 15 request the
parent
in the United States would be well-advised to request an explicit finding as
to the wrongfulness of the alleged removal or retention within the meaning
of
Article 3 in addition to seeking custody.
H. Constraints Upon Courts in Requested States in Making Substantive Custody
Decisions
Article 16 bars a court in the country to which the child has been taken or
in which the child has been retained from considering the merits of custody
claims once it has received notice of the removal or retention of the child.
The constraints continue either until it is determined that the child is not
to be returned under the Convention, or it becomes evident that an
application
under the Convention will not be forthcoming within a reasonable time
following receipt of the notice.
A court may get notice of a wrongful removal or retention in some manner
other than the filing of a petition for return, for instance by
communication
from a Central Authority, from the aggrieved party (either directly or
through
counsel), or from a court in a Contracting State which has stayed or
dismissed
return proceedings upon removal of the child from that State.
No matter how notice may be given, once the tribunal has received notice, a
formal application for the child's return pursuant to the Convention will
normally be filed promptly to avoid a decision on the merits from being
made.
If circumstances warrant a delay in filing a return petition, for instance
pending the outcome of private negotiations for the child's return or
interventions toward that end by the Central Authority, or pending
determination of the location of the child and alleged abductor, the
aggrieved
party may nevertheless wish to notify the court as to the reason(s) for the
delay so that inaction is not viewed as a failure to proceed under the
Convention.
I. Duty To Return not Absolute
The judicial duty to order return of a wrongfully removed or retained child
is not absolute. Temporal qualifications on this duty are set forth in
Articles 12, 4 and 35. Additionally, Articles 13 and 20 set forth grounds
upon which return may be denied.
1. Temporal Qualifications
Articles 4, 35 and 12 place time limitations on the return obligation.
(a) Article 4. Pursuant to Article 4, the Convention ceases to apply once
the
child reaches age sixteen. This is true regardless of when return
proceedings were commenced and irrespective of their status at the time of
the
child's sixteenth birthday. See I.A., supra.
(b) Article 35. Article 35 limits application of the Convention to wrongful
removals or retentions occurring after its entry into force between the two
relevant Contracting States. But see I.C., supra.
(c) Article 12. Under Article 12, the court is not obligated to return a
child when return proceedings pursuant to the Convention are commenced a
year
or more after the alleged removal or retention and it is demonstrated that
the
child is settled in its new environment. The reporter indicates that "(T)he
provision does not state how this fact is to be proved, but it would seem
logical to regard such a task as falling upon the abductor or upon the
person
who opposes the return of the child . . ." Perez-Vera Report, paragraph 109
at
page 459.
If the Convention is to succeed in deterring abductions, the alleged
abductor
must not be accorded preferential treatment by courts in his or her country
of
origin, which, in the absence of the Convention, might be prone to favor
"home
forum" litigants. To this end, nothing less than substantial evidence of the
child's significant connections to the new country is intended to suffice to
meet the respondent's burden of proof. Moreover, any claims made by the
person resisting the child's return will be considered in light of evidence
presented by the applicant concerning the child's contacts with and ties to
his or her State of habitual residence. The reason for the passage of time,
which may have made it possible for the child to form ties to the new
country,
is also relevant to the ultimate disposition of the return petition. If the
alleged wrongdoer concealed the child's whereabouts from the custodian
necessitating a long search for the child and thereby delayed the
commencement
of a return proceeding by the applicant, it is highly questionable whether
the
respondent should be permitted to benefit from such conduct absent strong
countervailing considerations.
2. Article 13 Limitations on the Return Obligation
(a) Legislative history. In drafting Articles 13 and 20, the representatives
of countries participating in negotiations on the Convention were aware that
any exceptions had to be drawn very narrowly lest their application
undermine
the express purposes of the Convention--to effect the prompt return of
abducted children. Further, it was generally believed that courts would
understand and fulfill the objectives of the Convention by narrowly
interpreting the exceptions and allowing their use only in clearly
meritorious
cases, and only when the person opposing return had met the burden of proof.
Importantly, a finding that one or more of the exceptions provided by
Articles
13 and 20 are applicable does not make refusal of a return order mandatory.
The courts retain the discretion to order the child returned even if they
consider that one or more of the exceptions applies. Finally, the wording of
each exception represents a compromise to accommodate the different legal
systems and tenets of family law in effect in the *10510 countries
negotiating
the Convention, the basic purpose in each case being to provide for an
exception that is narrowly construed.
(b) Non-exercise of custody rights. Under Article 13(a), the judicial
authority may deny an application for the return of a child if the person
having the care of the child was not actually exercising the custody rights
at
the time of the removal or retention, or had consented to or acquiesced in
the
removal or retention. This exception derives from Article 3(b) which makes
the Convention applicable to the breach of custody rights that were actually
exercised at the time of the removal or retention, or which would have been
exercised but for the removal or retention.
The person opposing return has the burden of proving that custody rights
were
not actually exercised at the time of the removal or retention, or that the
applicant had consented to or acquiesced in the removal or retention. The
reporter points out that proof that custody was not actually exercised does
not form an exception to the duty to return if the dispossessed guardian was
unable to exercise his rights precisely because of the action of the
abductor.
Perez-Vera Report, paragraph 115 at page 461.
The applicant seeking return need only allege that he or she was actually
exercising custody rights conferred by the law of the country in which the
child was habitually resident immediately before the removal or retention.
The
statement would normally include a recitation of the circumstances under
which
physical custody had been exercised, i.e., whether by the holder of these
rights, or by a third person on behalf of the actual holder of the custody
rights. The applicant would append copies of any relevant legal documents or
court orders to the return application. See III. C., supra, and Article 8.
(c) Grave risk of harm/intolerable situation. Under Article 13(b), a court
in
its discretion need not order a child returned if there is a grave risk that
return would expose the child to physical harm or otherwise place the child
in
an intolerable situation.
This provision was not intended to be used by defendants as a vehicle to
litigate (or relitigate) the child's best interests. Only evidence directly
establishing the existence of a grave risk that would expose the child to
physical or emotional harm or otherwise place the child in an intolerable
situation is material to the court's determination. The person opposing the
child's return must show that the risk to the child is grave, not merely
serious.
A review of deliberations on the Convention reveals that "intolerable
situation" was not intended to encompass return to a home where money is in
short supply, or where educational or other opportunities are more limited
than in the requested State. An example of an "intolerable situation" is one
in which a custodial parent sexually abuses the child. If the other parent
removes or retains the child to safeguard it against further victimization,
and the abusive parent then petitions for the child's return under the
Convention, the court may deny the petition. Such action would protect the
child from being returned to an "intolerable situation" and subjected to a
grave risk of psychological harm.
(d) Child's preference. The third, unlettered paragraph of Article 13
permits
the court to decline to order the child returned if the child objects to
being
returned and has attained an age and degree of maturity at which it is
appropriate to take account of the child's views. As with the other Article
13 exceptions to the return obligation, the application of this exception is
not mandatory. This discretionery aspect of Article 13 is especially
important because of the potential for brainwashing of the child by the
alleged abductor. A child's objection to being returned may be accorded
little if any weight if the court believes that the child's preference is
the
product of the abductor parent's undue influence over the child.
(e) Role of social studies. The final paragraph of Article 13 requires the
court, in considering a respondent's assertion that the child should not be
returned, to take into account information relating to the child's social
background provided by the Central Authority or other competent authority in
the child's State of habitual residence. This provision has the dual purpose
of ensuring that the court has a balanced record upon which to determine
whether the child is to be returned, and preventing the abductor from
obtaining an unfair advantage through his or her own forum selection with
resulting ready access to evidence of the child's living conditions in that
forum.
3. Article 20
Article 20 limits the return obligation of Article 12. It states: "The
return of the child under the provisions of Article 12 may be refused if
this
would not be permitted by the fundamental principles of the requested State
relating to the protection of human rights and fundamental freedoms."
The best explanation for this unique formulation is that the Convention
might
never have been adopted without it. The negotiating countries were divided
on the inclusion of a public policy exception in the Convention. Those
favoring a public policy exception believed that under some extreme
circumstances not covered by the exceptions of Article 13 a court should be
excused from returning a child to the country of habitual residence. In
contrast, opponents of a public policy exception felt that such an exception
could be interpreted so broadly as to undermine the fabric of the entire
Convention.
A public policy clause was nevertheless adopted at one point by a margin of
one vote. That clause provided: "Contracting States may reserve the right
not to return the child when such return would be manifestly incompatible
with
the fundamental principles of the law relating to the family and children in
the State addressed." To prevent imminent collapse of the negotiating
process
engendered by the adoption of this clause, there was a swift and determined
move to devise a different provision that could be invoked on the rare
occasion that return of a child would utterly shock the conscience of the
court or offend all notions of due process.
The resulting language of Article 20 has no known precedent in other
international agreements to serve as a guide in its interpretation. However,
it should be emphasized that this exception, like the others, was intended
to
be restrictively interpreted and applied, and is not to be used, for
example,
as a vehicle for litigating custody on the merits or for passing judgment on
the political system of the country from which the child was removed. Two
characterizations of the effect to be given Article 20 are recited below for
illumination.
The following explanation of Article 20 is excerpted from paragraph 118 of
the Perez-Vera Report at pages 461-2:
It is significant that the possibility, acknowledged in article 20, that the
child may not be returned when its return 'would not be permitted by the
fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms' has been placed in the last article
of
the chapter: it was thus intended to emphasize the always clearly
exceptional
nature of this provision's application. As for the substance of this
provision, two comments only are required. Firstly, even if its literal
meaning is strongly reminiscent of the terminology used in international
texts
concerning the protection *10511 of human rights, this particular rule is
not
directed at developments which have occurred on the international level, but
is concerned only with the principles accepted by the law of the requested
State, either through general international law and treaty law, or through
internal legislation. Consequently, so as to be able to refuse to return a
child on the basis of this article, it will be necessary to show that the
fundamental principles of the requested State concerning the subject-matter
of
the Convention do not permit it; it will not be sufficient to show merely
that its return would be incompatible, even manifestly incompatible, with
these principles. Secondly, such principles must not be invoked any more
frequently, nor must their invocation be more readily admissible than they
would be in their application to purely internal matters. Otherwise, the
provision would be discriminatory in itself, and opposed to one of the most
widely recognized fundamental principles in internal laws. A study of the
case law of different countries shows that the application by ordinary
judges
of the laws on human rights and fundamental freedoms is undertaken with a
care
which one must expect to see maintained in the international situations
which
the Convention has in view.
A.E. Anton, Chairman of the Commission on the Hague Conference of Private
International Law that drafted the Convention, explained Article 20 in his
article, "The Hague Convention on International Child Abduction," 30
I.C.L.Q.
537, 551-2 (July, 1981), as follows:
Its acceptance may in part have been due to the fact that it states a rule
whch many States would have been bound to apply in any event, for example,
by
reason of the terms of their constitutions. The reference in this provision
to "the fundamental principles of the requested State" make it clear that
the
reference is not one to international conventions or declarations concerned
with the protection of human rights and fundamental freedoms which have been
ratified or accepted by Contracting States. It is rather to the fundamental
provisions of the law of the requested State in such matters . . . If the
United Kingdom decides to ratify the Hague Covention, it will, of course, be
for the implementing legislation or the courts to specify what provisions of
United kingdom law come within the scope of Article 20. The Article,
however, is merely permissive and it is to be hoped that States will
exercise
restraint in availing themselves of it.
4. Custody Order no Defense to Return
See I.D.1, supra, for discussion of Article 17.
J. Return of the Child
Assuming the court has determined that the removal or retention of the child
was wrongful within the meaning of the Convention and that no exceptions to
the return obligation have been satisfactorily established by the
respondent,
Article 12 provides that "the authority concerned shall order the return of
the child forthwith." The Convention does not technically require that the
child be returned to his or her State of habitual residence, although in the
classic abduction case this will occur. If the petitioner has moved from the
child's State of habitual residence the child will be returned to the
petitioner, not the State of habitual residence.
1. Return Order not on Custody merits
Under Article 19, a decision under the Convention concerning the return of
the child shall not be taken to be a determination on the merits of any
custody issue. It follows that once the factual status quo ante has been
restored, litigation concerning custody or visitation issues could proceed.
Typically this will occur in the child's State of habitual residence.
2. Costs, Fees and Expenses Shifted to Abductor
In connection with the return order, Article 26 permits the court to direct
the person who removed or retained the child to pay necessary expenses
incurred by or on behalf of the applicant to secure the child's return,
including expenses, costs incurred or payments made for locating the child,
costs of legal representation of the applicant, and those of returing the
child. The purposes underlying Article 26 are to restore the applicant to
the financial position he or she would have been in had there been no
removal
or retention, as well as to deter such conduct from happening in the first
place. This fee shifting provision has counterparts in the UCCJA (sections
7(g), 8(c), 15(b)) and the PKPA (28 U.S.C. 1738A note).
IV. Central Authority
In addition to creating a judicial remedy for cases of wrongful removal and
retention, the Convention requires each Contracting State to establish a
Centeral Authority (hereinafter "CA") with the broad mandate of assisting
applicants to secure the return of their children or the effective excercise
of their visitation rights. Articles 1, 10, 21. The CA is expressly
directed by Article 10 to take all appropriate measures to obtain the
voluntary return of children. The role of the CA with respect to visitation
rights is discussed in V., infra.
A. Establishment of Central Authoirty
Article 6 requires each Contracting State to designate a Central Authority
to
discharge the duties enumerated in Articles 7, 9, 10, 11, 15, 21, 26, 27,
and
28.
In France, the Central Authority is located within the Ministry of Justice.
Switzerland has designated its Federal Justice Office as CA, and Canada has
designated its Department of Justice. However, each Canadian province and
territory in which the Convention has come into force has directed its
Attorney General to serve as loal CA for cases involving that jurisdiction.
In the United States it is very unlikely that the volume of cases will
warrant the establishment of a new agency or office to fulfill Convention
responsibilities. Rather, the duties of the CA will be carried out by an
existing agency of the federal government with experience in dealing with
authorities of other countries.
The Department of State's Office of Citizens Consular Services (CCS) within
its Bureau of Consular Affairs will most likely serve as CA under the Hague
Convention. CCS presently assists parents here and abroad with child
custody- related problems within the framework of existing laws and
procedures. The Convention should systematize and expedite CCS handling of
requests from abroad for assistance in securing the return of children
wrongfully abducted to or retained in the United States, and will provide
additional tools with which CCS can help parents in the United States who
are
seeking return of their children from abroad.
The establishment of an interagency coordinating body is envisioned to
assist
the State Department in executing its functions as CA. This body is to
include
representatives of the Departments of State, Justice, and Health and Human
Services.
In addition to the mandatory establishment of a CA in the national
government, Contracting States are free to appoint similar entities in
political subdivisions throughout the country. Rather than mandating the
establishment of a CA in every state, it is expected that state governments
in
the United States will be requested on a case-by-case basis to render
specified assistance, consistent with the Convention, aimed at resolving
international custody and visitation disputes with regard to children
located
within their jurisdiction.
B. Duties
Article 7 enumerates the majority of the tasks to be carried out either
directly by the CA or through an intermediary. The CA is to take "all
appropriate measures" to execute these responsibilities. Although they are
free to do so, the Convention does not obligate Contracting States to amend
their internal laws to discharge *10512 Convention tasks more efficaciously.
See Perez-Vera Report, paragraph 63 at page 444.
The following paragraphs of subsections of Article 7 of the Convention are
couched in terms of the tasks and functions of the United States CA. The
corresponding tasks and functions of the CA's in other States party to the
Convention will be carried out somewhat differently in the context of each
country's legal system.
Article 7(a). When the CA in the United States is asked to locate a child
abducted from a foreign contracting State to this country, it would utilize
all existing tools for determining the whereabouts of missing persons.
Federal resources available for locating missing persons include the
FBI-operated National Crime Information Center (NCIC) computer (pursuant to
Pub. L. No. 97-292, the Missing Children Act), the Federal Parent Locator
Service (pursuant to section 9 of Pub. L. No. 96-611, the Parental
Kidnapping
Prevention Act) and the National Center for Missing and Exploited Children.
If the abductor's location is known or suspected, the relevant state's
Parent
Locator Service or Motor Vehicle Bureau and the Internal Revenue Service,
Attorney General and Secretary of Education may be requested to conduct
field
and/or record searches. Also at the state level, public or private welfare
agencies can be called upon to verify discreetly any address information
about
the abductor that may be discovered.
Article 7(b). To prevent further harm to the child, the CA would normally
call upon the state welfare agency to take whatever protective measures are
appropriate and available consistent with that state's child abuse and
neglect
laws. The CA, either directly or with the help of state authorities, may
seek a written agreement from the abductor (and possibly from the applicant
as
well) not to remove the child from the jurisdiction pending procedures aimed
at return of the child. Bonds or other forms of security may be required.
Article 7(c). The CA, either directly or through local public or private
mediators, attorneys, social workers, or other professionals, would attempt
to
develop an agreement for the child's voluntary return and/or resolution of
other outstanding issues. The obligation of the CA to take or cause to be
taken all appropriate measures to obtain the voluntary return of the child
is
so fundamental a purpose of this Convention that it is restated in Article
10.
However, overtures to secure the voluntary return of a child may not be
advisable if advance awareness by the abductor that the Convention has been
invoked is likely to prompt further flight and concealment of the child. If
the CA and state authorities are successful in facilitating a voluntary
agreement between the parties, the applicant would have no need to invoke or
pursue the Convention's judicial remedy.
Article 7(d). The CA in the United States would rely upon court personnel or
social service agencies in the child's state of habitual residence to
compile
information on the child's social background for the use of courts
considering
exceptions to a return petition in another country in which an abducted or
retained child is located. See Article 13.
Article 7(e). The CA in the United States would call upon U.S. state
authorities to prepare (or have prepared) general statements about the law
of
the state of the child's habitual residence for purposes of application of
the
Convention in the country where the child is located, i.e., to determine
whether a removal or retention was wrongful.
Articles 7 (f) and (g). In the United States the federal CA will not act as
legal advocate for the applicant. Rather, in concert with state authorities
and interested family law attorneys, the CA, through state or local bodies,
will assist the applicant in identifying competent private legal counsel or,
if eligible, in securing representation by a Legal Aid or Legal Services
lawyer. In some states, however, the Attorney General or local District
Attorney may be empowered under state law to intervene on behalf of the
applicant-parent to secure the child's return.
In some foreign Contracting States, the CA may act as the legal
representative of the applicant for all purposes under the Convention.
Article 28 permits the CA to require written authorization empowering it to
act on behalf of the applicant, or to designate a representative to act in
such capacity.
Article 7(h). Travel arrangements for the return of a child from the United
States would be made by the CA or by state authorities closest to the case
in
cooperation with the petitioner and/or interested foreign authorities. If it
is necessary to provide short-term care for the child pending his or her
return, the CA presumably will arrange for the temporary placement of the
child in the care of the person designated for that purpose by the
applicant,
or, failing that, request local authorities to appoint a guardian, foster
parent, etc. The costs of transporting the child are borne by the applicant
unless the court, pursuant to Article 26, orders the wrongdoer to pay.
Article 7(i). The CA will monitor all cases in which its assistance has been
sought. It will maintain files on the procedures followed in each case and
the ultimate disposition thereof. Complete records will aid in determining
how frequently the Convention is invoked and how well it is working.
C. Other Tasks
1. Processing Applications
Article 8 sets forth the required contents of a return application submitted
to a CA, all of which are incorporated into the model form recommended for
use
when seeking a child's return pursuant to the Convention (see Annex A of
this
analysis). Article 8 further provides that an application for assistance in
securing the return of a child may be submitted to a CA in either the
country
of the child's habitual residence or in any other Contracting State. If a CA
receives an application with respect to a child whom it believes to be
located
in another Contracting State, pursuant to Article 9 it is to transmit the
application directly to the appropriate CA and inform the requesting CA or
applicant of the transmittal.
It is likely that an applicant who knows the child's whereabouts can
expedite
the return process by electing to file a return application with the CA in
the
country in which the child is located. The applicant who pursues this course
of action may also choose to file a duplicate copy of the application for
information purposes with the CA in his or her own country . Of course, the
applicant may prefer to apply directly to the CA in his or her own country
even when the abductor's location is known, and rely upon the CA to transfer
documents and communicate with the foreign CA on his or her behalf. An
applicant who does not know the whereabouts of the child will most likely
file
the return application with the CA in the child's State of habitual
residence.
Under Article 27, a CA may reject an application if "it is manifest that the
requirements of the Convention are not fulfilled or that the application is
otherwise not well founded." The CA must promptly inform the CA in the
requesting State, or the applicant directly, of its reasons for such
rejection. Consistent with the spirit of the Convention and in the absence
of any prohibition on doing so, the applicant should be allowed to correct
the
defects and refile the application.
Under Article 28, a CA may require the applicant to furnish a written *10513
authorization empowering it to act on behalf of the applicant, or
designating
a representative so to act.
2. Assistance in Connection With Judicial Proceedings
(a) Request for status report. When an action has been commenced in court
for
the return of a child and no decision has been reached by the end of six
weeks, Article 11 authorizes the applicant or the CA of the requested State
to
ask the judge for a statement of the reasons for the delay. The CA in the
country where the child is located may make such a request on its own
initiative, or upon request of the CA of another Contracting State. Replies
received by the CA in the requested State are to be transmitted to the CA in
the requesting State or directly to the applicant, depending upon who
initiated the request.
(b) Social studies/background reports. Information relating to the child's
social background collected by the CA in the child's State of habitual
residence pursuant to Article 7(d) may be submitted for consideration by the
court in connection with a judicial return proceeding. Under the last
paragraph of Article 13, the court must consider home studies and other
social
background reports provided by the CA or other competent authorities in the
child's State of habitual residence.
(c) Determination of "wrongfulness". If a court requests an applicant to
obtain a determination from the authorities of the child's State of habitual
residence that the removal or retention was wrongful, Central Authorities
are
to assist applicants, so far as practicable, to obtain such a determination.
Article 15.
(d) Costs. Under Article 26, each CA bears its own costs in applying the
Convention. The actual operating expenses under the Convention will vary
from one Contracting State to the next depending upon the volume of incoming
and outgoing requests and the number and nature of the procedures available
under internal law to carry out specified Convention tasks.
Subject to limited exceptions noted in the next paragraph, the Central
Authority and other public services are prohibited from imposing any charges
in relation to applications submitted under the Convention. Neither the
applicant nor the CA in the requesting State may be required to pay for the
services rendered directly or indirectly by the CA of the requested State.
The exceptions relate to transportation and legal expenses to secure the
child's return. With respect to transportation, the CA in the requested
State is under no obligation to pay for the child's return. The applicant
can therefore be required to pay the costs of transporting the child. With
respect to legal expenses, if the requested State enters a reservation in
accordance with Articles 26 and 42, the applicant can be required to pay all
costs and expenses of the legal proceedings, and those arising from the
participation of legal counsel or advisers. However, see III. J 2 of this
analysis discussing the possibility that the court ordering the child's
return
will levy these and other costs upon the abductor. Even if the reservation
under Articles 26 and 42 is entered, under Article 22 no security, bond or
deposit can be required to guarantee the payment of costs and expenses of
the
judicial or administrative proceedings falling within the Convention.
Under the last paragraph of Article 26 the CA may be able to recover some of
its expenses from the person who engaged in the wrongful conduct. For
instance, a court that orders a child returned may also order the person who
removed or retained the child to pay the expenses incurred by or on behalf
of
the petitioner, including costs of court proceedings and legal fees of the
petitioner. Likewise, a court that issues an order concerning visitation may
direct the person who prevented the exercise of visitation rights to pay
necessary expenses incurred by or on behalf of the petitioner. In such
cases, the petitioner could recover his or her expenses, and the CA could
recover its outlays on behalf of the petitioner, including costs associated
with, or payments made for, locating the child and the legal representation
of
the petitioner.
V. Access Rights--Article 21
A. Remedies for Breach
Up to this point this analysis has focussed on judicial and administrative
remedies for the removal or retention of children in breach of custody
rights.
"Access rights," which are synonymous with "visitation rights", are also
protected by the Convention, but to a lesser extent than custody rights.
While
the Convention preamble and Article 1(b) articulate the Convention objective
of ensuring that rights of access under the law of one state are respected
in
other Contracting States, the remedies for breach of access rights are those
enunciated in Article 21 and do not include the return remedy provided by
Article 12.
B. Defined
Article 5(b) defines "access rights" as including "the right to take a child
for a limited period of time to a place other than the child's habitual
residence."
A parent who takes a child from the country of its habitual residence to
another country party to the Convention for a summer visit pursuant to
either
a tacit agreement between the parents or a court order is thus exercising
his
or her access rights. Should that parent fail to return the child at the end
of the agreed upon visitation period, the retention would be wrongful and
could give rise to a petition for return under Article 12. If, on the other
hand, a custodial parent resists permitting the child to travel abroad to
visit the noncustodial parent, perhaps out of fear that the child will not
be
returned at the end of the visit, this interference with access rights does
not constitute a wrongful retention within the meaning of Article 3 of the
Convention. The parent whose access rights have been infringed is not
entitled under the Convention to the child's "return," but may request the
Central Authority to assist in securing the exercise of his or her access
rights pursuant to Article 21.
Article 21 may also be invoked as a precautionary measure by a custodial
parent who anticipates a problem in getting the child back at the end of a
visit abroad. That parent may apply to the CA of the country where the child
is to visit the noncustodial parent for steps to ensure the return of the
child at the end of the visit--for example, through appropriate imposition
of
a performance bond or other security.
C. Procedure for Obtaining Relief
Procedurally Article 21 authorizes a person complaining of, or seeking to
prevent, a breach of access rights to apply to the CA of a Contracting State
in the same way as a person seeking return of the child. The application
would contain the information described in Article 8, except that
information
provided under paragraph (c) would be the grounds upon which the claim is
made
for assistance in organizing or securing the effective exercise of rights of
access.
Once the CA receives such application, it is to take all appropriate
measures
pursuant to Article 7 to promote the peaceful enjoyment of access rights and
the fulfillment of any conditions to which the exercise of those rights is
subject. This includes initiating or facilitating the institution of
proceedings, either directly or through intermediaries, to organize or
protect
access rights and to secure respect for conditions to which these rights are
subject.
*10514 If legal proceedings are instituted in the Contracting State in which
the noncustodial parent resides, Article 21 may not be used by the
noncustodial parent to evade the jurisdiction of the courts of the child's
habitual residence, which retain authority to define and/or condition the
exercise of visitation rights. A parent who has a child abroad for a visit
is not to be allowed to exploit the presence of the child as a means for
securing from the CA (or court) in that country more liberal visitation
rights
than those set forth in a court order agreed upon in advance of the visit.
Such result would be tantamount to sanctioning forum-shopping contrary to
the
intent of the Convention. Any such application should be denied and the
parent directed back to the appropriate authorities in the State of the
child's habitual residence for consideration of the desired modification.
Pending any such modification, once the lawful visitation period has
expired,
the custodial parent would have the right to seek the child's return under
Article 3.
The Perez-Vera Report gives some limited guidance as to how CA's are to
cooperate to secure the exercise of access rights:
. . . it would be advisable that the child's name not appear on the passport
of the holder of the right of access, whilst in 'transfrontier' access cases
it would be sensible for the holder of the access rights to give an
undertaking to the Central Authority of the child's habitual residence to
return the child on a particular date and to indicate also the places where
he
intends to stay with the child. A copy of such an undertaking would then be
sent to the Central Authority of the habitual residence of the holder of the
access rights, as well as to the Central Authority of the State in which he
has stated his intention of staying with the child. This would enable the
authorities to know the whereabouts of the child at any time and to set in
motion proceedings for bringing about its return, as soon as the stated
time-limit has expired. Of course, none of the measures could by itself
ensure that access rights are exercised properly, but in any event we
believe
that this Report can go no further: the specific measures which the Central
Authorities concerned are able to take will depend on the circumstances of
each case and on the capacity to act enjoyed by each Central Authority.
Perez-Vera Report, paragraph 128 at page 466.
D. Alternative Remedies
In addition to or in lieu of invoking Article 21 to resolve
visitation-related problems, under Articles 18, 29 and 34 an aggrieved
parent
whose access rights have been violated may bypass the CA and the Convention
and apply directly to the judicial authorities of a Contracting State for
relief under other applicable laws.
In at least one case it is foreseeable that a parent abroad will opt in
favor
of local U.S. law instead of the Convention. A noncustodial parent abroad
whose visitation rights are being thwarted by the custodial parent resident
in
the United States could invoke the UCCJA to seek enforcement of an existing
foreign court order conferring visitation rights. Pursuant to section 23 of
the UCCJA, a state court in the United States could order the custodial
parent
to comply with the prescribed visitation period by sending the child to the
parent outside the United States. This remedy is potentially broader and
more meaningful than the Convention remedy, since the latter does not
include
the right of return when a custodial parent obstructs the noncustodial
parent's visitation rights, i.e., by refusing to allow the other parent to
exercise those rights. It is possible that a parent in the United States
seeking to exercise access rights with regard to a child habitually resident
abroad may similarly find greater relief under foreign law than under the
Convention.
VI. Miscellaneous and Final Clauses
A. Article 36
Article 36 permits Contracting States to limit the restrictions to which a
child's return may be subject under the Convention, i.e., expand the return
obligation or cases to which the Convention will apply. For instance, two or
more countries may agree to extend coverage of the Convention to children
beyond their sixteenth birthdays, thus expanding upon Article 4. Or,
countries may agree to apply the Convention retroactively to wrongful
removal
and retention cases arising prior to its entry into force for those
countries.
Such agreement would remove any ambiguity concerning the scope of Article
35.
The Department of State is not proposing that the United States make use of
this Article.
B. Articles 37 and 38
Chapter VI of the Hague Convention consists of nine final clauses concerned
with procedural aspects of the treaty, most of which are self-explanatory.
Article 37 provides that states which were members of the Hague Conference
on
Private International Law at the time of the Fourteenth Session (October
1980)
may sign and become parties to the Convention by ratification, acceptance or
approval. Significantly, under Article 38 the Convention is open to
accession by non-member States, but enters into force only between those
States and member Contracting States which specifically accept their
accession
to the Convention. Article 38.
C. Articles 43 and 44
In Article 43 the Convention provides that it enters into force on the first
day of the third calendar month after the third country has deposited its
instrument of ratification, acceptance, approval or accession. For countries
that become parties to the Convention subsequently, the Convention enters
into
force on the first day of the third calendar month following the deposit of
the instrument of ratification. Pursuant to Article 43, the Convention
entered into force on December 1, 1983 among France, Portugal and five
provinces of Canada, and on January 1, 1984 for Switzerland. As of January,
1986 it is in force for all provinces and territories of Canada with the
exception of Alberta, the Northwest Territories, Prince Edward Island and
Sasketchewan.
The Convention enters into force in ratifying countries subject to such
declarations or reservations pursuant to Articles 39, 40, 24 and 26 (third
paragraph) as may be made by each ratifying country in accordance with
Article
42.
The Convention remains in force for five years from the date it first
entered
into force (i.e., December 1, 1983), and is renewed tacitly every five years
absent denunciations notified in accordance with Article 44.
D. Articles 39 and 40
Article 39 authorizes a Contracting State to declare that the Convention
extends to some or all of the territories for the conduct of whose
international relations it is responsible.
Under Article 40, countries with two or more territorial units having
different systems of law relative to custody and visitation rights may
declare
that the Convention extends to all or some of them. This federal state
clause was included at the request of Canada to take account of Canada's
special constitutional situation. The Department of State is not proposing
that the United States make use of this provision. Thus, if the United
States ratifies the Convention, it would come into force throughout the
United
States as the supreme law of the land in every state and other jurisdiction.
E. Article 41
Article 41 is another provision inserted at the request of one country, and
is best understood by reciting the reporter's explanatory comments:
Finally a word should be said on Article 41, since it contains a wholly
novel
provision in *10515 Hague Conventions. It also appears in the other
Conventions adopted at the Fourteenth Session, i.e., the Convention on
International Access to Justice, at the express request of the Australian
delegation.
This article seeks to make it clear that ratification of the Convention by a
State will carry no implication as to the internal distribution of
executive,
judicial and legislative powers in that State.
This may seem self-evident, and this is the point which the head of the
Canadian delegation made during the debates of the Fourth Commission where
it
was decided to insert such a provision in both Conventions (see P.-v. No. 4
of the Plenary Session). The Canadian delegation, openly expressing the
opinion of a large number of delegations, regarded the insertion of this
article in the two Conventions as unnecessary. Nevertheless, Article 41 was
adopted, largely to satisfy the Australian delegation, for which the absence
of such a provision would apparently have created insuperable constitutional
difficulties. Perez-Vera Report, paragraph 149 at page 472.
F. Article 45
Article 45 vests the Ministry of Foreign Affairs of the Kingdom of the
Netherlands, as depository for the Convention, with the responsibility to
notify Hague Conference member States and other States party to the
Convention
of all actions material to the operation of the Convention.
Annex A
The following model form was recommended by the Fourteenth Session of the
Hague Conference on Private International Law (1980) for use in making
applications pursuant to the 1980 Hague Convention on the Civil Aspects of
International Child Abduction for the return of wrongfully removed or
retained
children. The version of the form to be used for requesting the return of
such children from the United States will probably seek additional
information, in particular to help authorities in the United States in
efforts
to find a child whose whereabouts are not known to the applicant.
Request for Return
Hague Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction.
--
Requesting Central Authority or Applicant
--
Requested Authority
Concerns the following child: ------------who will attain the age of 16 on
------------, 19--.
Note.--The following particulars should be completed insofar as possible.
I--Identity of the Child and its Parents
1 Child
Name and first names.....
Date and place of birth.....
Passport or identity card No., if any.....
Description and photo, if possible (see annexes)......
2 Parents
2.1 Mother:
Name and first names.....
Date and place of birth.....
Nationality.....
Occupation.....
Habitual residence.....
Passport or identity card No., if any.....
2.2 Father:
Name and first names.....
Date and place of birth.....
Nationality.....
Occupation.....
Habitual residence.....
Passport or identity card No., if any.....
2.3 Date and place of marriage.....
II--Requesting Individual or Institution (who actually exercised custody
before the removal or retention)
3 Name and first names
Nationality of individual applicant.....
Occupation of individual applicant.....
ADDRESS.....
Passport or identity card No., if any.....
Relation to the child.....
Name and address of legal adviser, if any.....
III--Place Where the Child Is Thought To Be
4.1 Information concerning the person alleged to have removed or retained
the child
Name and first names.....
Date and place of birth, if known.....
Nationality, if known .....
Occupation.....
Last known address.....
Passport or identity card No., if any.....
Description and photo, if possible (see annexes).....
4.2 Address of the child.....
4.3 Other persons who might be able to supply additional information
relating
to the whereabouts of the child.....
IV--Time, Place, Date and Circumstances of the Wrongful Removal or Retention
.....
V--Factual or Legal Grounds Justifying the Request
.....
VI--Civil Proceedings in Progress
.....
VII--Child Is To Be Returned To:
a. Name and first names .....
Date and place of birth .....
ADDRESS .....
Telephone number .....
b. Proposed arrangements for return of the child .....
VIII--Other Remarks
.....
IX--List of Documents Attached*
FN*E.g. Certified copy of relevant decision or agreement concerning
custody or access; certificate or affidavit as to the applicable law;
information relating to the social background of the child; authorization
empowering the Central Authority to act on behalf of applicant.
.....
DATE .....
Place .....
Signature and/or stamp of the requesting Central Authority or applicant
.....
Annex B.--Bibliography
Explanatory Report by E. Perez-Vera, Hague Conference on Private
International Law, Actes et documents de la Quatorzieme session, vol. III,
1980, p. 426.
Anton, A.E.--The Hague Convention on International Child Abduction; 30 Int'l
& Comp. L.Q. (1981), p. 537.
Bodenheimer, B.--The Hague Convention on International Child Abduction; XIV
Fam. L.Q. (1980), p. 99.
Chatin, L.--Les conflicts relatifs a la garde des enfants et au droit de
visite en droit international prive; Travaux du Comite francais de droit
international prive, Seance du 12 mai 1982, Publication du Ministere de la
Justice.
Crouch, R.E.--Effective Measures Against International Child Snatching; 131
New L.J. (1981), p. 592.
Deschenaux, D.--La Convention de La Haye sur les aspects civils de
l'enlevement international d'enfants, du 25 octobre 1980; XXXVII
Schweizerisches Jahrbuch fur internationales Recht (1981), p. 119.
Dyer, A.--International child abduction by parents; 168 Recueil des Cours de
l'Academie de droit international de La Haye (1980), p. 231.
Eekelaar, J.M.--The Hague Convention on the Civil Aspects of International
Child Abduction; Explanatory Documentation prepared for Commonwealth
Jurisdictions, Commonwealth Secretariat, 1981.
Farquhar, K.B.--The Hague Convention on International Child Abduction Comes
to Canada; 4 Can. J. Fam. L. (1983), p. 5.
Frank, R.J.--American and International Responses to International Child
Abductions, 16 N.Y.U. J. Int'l L. & Pol. (Winter 1984), p. 415.
Hoff, P., Schulman, J. and Volenik, A.--Interstate Child Custody Disputes
and
Parental Kidnapping: Policy, Practice and Law. Legal Services Corporation--
American Bar Association, 1982.
Huesstege, R.--Internationale Kindesentfuehrungen und *10516
Landesverfassungsrecht; IPRax (1982), p. 95--Der Uniform Child Custody
Jurisdiction Act--Rechtsvergleichende Betrachtungen zu Internationalen
Kindesentfuehrengen, Verlag fur Standesamtswesen, Frankfurt am Main, 1982.
Morgenstern, B.R.--The Hague Convention on the Civil Aspects of
International
Child Abduction: The Need for Ratification; 10 N.C.J. Int'l L. & Com. Reg.
(1985), p. 463.
Reymond, P.H.--Convention de La Haye et Convention de Strasbourg. Aspects
comparatifs des conventions concernant l'enlevement d'un enfant par l'un de
ses parents; Revue de droit suisse 1981, p. 329.
Schulman, J.--cf. Hoff, P.
Vink, E.L.M.--Enkele civielrechtelijke aspecten van de internationale
ontvoeringen van kinderen door een van de ouders; Leiden, mai 1981.
Volenik, A.--cf. Hoff, P.
Westbrook, G.R.--Law and Treaty Responses to International Child Abductions;
20 Va. J. Int'l L. (1980), p. 669.
[FR Doc. 86-6495 Filed 3-25-86; 8:45 am]
-01, 1986 WL 133056 (F.R.)
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