Child abduction

• Author: International Law Group

F(ather) and M(other) married in California in 1994 and soon became the parents of C(hild). F who was an American citizen and M, who was Irish, maintained their family home in California until December 1998. In that month, M kept C in Ireland after the end of an agreed holiday there. F filed proceedings against M in the Dublin courts under the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, eff. U.S., July 1988]. They resulted in a July 1999 consent order for C's return to California.

M, however, failed to appear at a hearing before the California courts later that month and took no further part in the legal proceedings. Shortly after her arrival in the United States, M re- abducted C, this time to England, where they took assumed names to avoid detection. The California court made an interim custody order in the father's favor in October 1999. Four years later M and C were found. Pursuant to a police protection order, the government removed C (who is now nine) from M's custody and placed C in foster care. Proceedings were instituted in the U. K. Family Court under the Child Abduction and Custody Act of 1985 (CACA). F asked the Court to direct that M and C remain within the Court's jurisdiction throughout the proceedings.

The Court then addresses the issue of whether a legal foundation exists to permit some sort of arrangements for the interim care of a child in Hague Convention cases. Section 5 of the CACA regarding interim powers provides that: "Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application." [¶ 2]

The Court next perceived a potential clash between the power to give such directions under CACA Section 5 and certain provisions of the Children Act of 1989 (CA). The Court first examines the treaty obligations that Parliament undertook in ratifying the Hague Convention. "The Preamble ... recites that its States signatory desire 'to establish procedures to ensure [the] prompt return to the State of their habitual residence' of children wrongfully removed or retained elsewhere."

Articles 1 and 2 read in these terms: "Article 1. The objects of the present Convention are - (a) to secure the prompt...