The Hague Convention on the Civil Aspects of International Child Abduction as applied to non-signatory nations: getting to square one.

• Author: Cordin, Lora

1. Introduction

2. The Hague Convention in a Nutshell

   1. Provisions

      1. Wrongful Removal or Retention

      2. Habitual Residence

      3. Discretionary Exceptions

   2. Limitations

      1. Mechanics

      2. Non-Signatories

3. Non-Convention Country Cases

   1. Abductions to Non-Signatory Nations

   2. Abductions from a Non-Signatory Nation

   1. Australia

   2. Great Britain

   3. The United States

4. Conclusion

1. INTRODUCTION

   Children can't be divided with community property. They're not the good china, the record collection, the cute little etchings on the wall that someone bought on holiday in Scotland.(1)

   [C]hild abduction is not an act of love. It has never been and never will be. It's the ultimate revenge on the other partner--and the pain never leaves.(2)

   The problem of international child abduction is not a new one. From 1978-1996, more than 5,500 international child abductions by parents have been reported to the U.S. Department of State.(3) Nor is the problem uniquely American. One activist has noted that child abduction is an "international phenomena and is not confined to countries from the west or east, north or south, but wherever there are marital disputes."(4) Most kidnappings occur in multi-cultural nations with high immigration.(5) For example, between the years 1987 and 1995, 317 children were abducted from Australia and 242 children abducted from other countries were brought into Australia.(6) In 1995 alone, 196 children were abducted from Britain to Europe.(7)

   The custodial parent of an abducted child faces many challenges. Provided the child is located, the parent must bring a custody proceeding in a foreign and often hostile country.(8) This is an expensive, time consuming, and emotional process.(9) Furthermore, the child suffers greatly from the psychological trauma of abduction.(10)

   The international community responded to these challenges by drafting the Hague Convention on the Civil Aspects of International Child Abduction (Convention).(11) Based on the premise that abduction is detrimental to the welfare of children, the Convention's provisions are designed to return the parties to the factual status quo preceding the abduction.(12) In the sixteen years of its existence, the Convention has been largely successful, both as a vehicle for returning an abducted child where appropriate(13) and as a deterrent to future abductions.(14)

   One commentator suggested that the Convention would "reeducate" foreign judiciaries and child welfare authorities.(15) "Reeducation" refers to the abandonment of the practice of using the child's interests to justify keeping the wrongfully removed child in the country to which he or she was abducted.(16) Courts would "lose their tendency to believe that foreign countries are detrimental to any child's welfare."(17) This concept highlights an important Convention principle and will prove useful analyzing abduction cases that fall outside the Convention.

   Part I of this Comment will provide a general overview of the Convention's provisions and note its limitations."(18) It will also discuss current movements to improve the Convention. Part II will then examine how certain signatory countries approach and decide cases involving a non-Convention country.(19) This Comment will primarily focus on the approaches of the United States, Australia, and Great Britain, but will also consider some alternate remedies from other countries. This Comment will also highlight the difficulties which a parent may encounter in obtaining an appropriate forum to hear a custody dispute without the Convention's guidance. Part III will briefly conclude with a call for more action by signatory nations to alleviate the complications that arise when the Convention does not apply.

2. THE HAGUE CONVENTION IN A NUTSHELL

   1. Provisions

      The Hague Convention is the starting point once a child has been wrongfully removed from or retained in another country.(20) It focuses on procedure and jurisdiction rather than on the merits of any underlying custody issue, and it is not an extradition treaty.(21) The Convention addresses the issue of whether there has been a "wrongful removal or retention," and, if so, it mandates the summary return of the child to the place of his or her "habitual residence."(22) Only then may a court consider the underlying merits of a custody case.(23) Thus, the Convention merely empowers a court to determine the merits of an abduction, and not the merits of any custody claim.(24) The custody issues are left for the courts of the child's habitual residence to resolve once the child returns.(25) The State of habitual residence has the most significant interest in the dispute and is the best situated with information necessary to adequately assess the child's best interests in a custody determination.(26)

      1. Wrongful Removal or Retention

      A removal or retention is wrongful when it is in breach of another's custody rights under the laws of the State of habitual residence where those rights were actually exercised or would have been exercised but for the removal or retention.(27) A formal custody decree from the State of habitual residence need not exist in order to obligate a court to return the child.(28) Nor is the, absence of a formal custody decree reason to decline return.(29) Furthermore, that the forum court itself had issued a custody order is not per se a ground for refusing return.(30) The abducting parent will often seek and obtain a custody decree in the forum country before the left-behind parent initiates Convention proceedings.(31) The Convention does, however, allow the forum court to consider the reasons for that custody decision in applying the Convention.(32)

      2. Habitual Residence

      In any Convention proceeding, determining "habitual residence" is a threshold issue.(33) For instance, the Convention only applies if a child was habitually residing in a "Contracting State" immediately before any breach of custody or access rights.(34) The usual remedy under the Convention is to summarily return the child to his or her habitual residence.(35) In addition, the laws of the State of habitual residence determine custody.(36) Yet the Convention's provisions do not define the term "habitual residence." According to some commentators, this was a deliberate omission.(37) The drafters considered the child's habitual residence to be a factual issue, and thus distinguishable from domicile.(38) Courts may consequently assess a child's habitual residence free from technical or standardized constraints.(39) Indeed, most courts have come to believe that habitual residence centers on the child's life and can only be altered "by a change in geography [prior to the abduction] and the passage of time, not by changes in parental affection and responsibility."(40) The primary factor courts consider is the degree of "settled purpose" in the residence.(41) To phrase it succinctly: "All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."(42)

      3. Discretionary Exceptions(43)

      An abducting parent may still avoid a return order by establishing a defense under Article 13 or Article 20.(44) These provisions represent a compromise among the drafting nations which were divided as to whether to permit any possible justification for the abductor's actions.(45) To remain true to the Convention's principles and to avoid judicial overreaching, the drafters specifically enumerated permissible bases upon which a court may refuse return.(46) The defenses are only grants of discretion which stem from the belief that, in certain situations, the child's interests may require more than his or her summary return.(47) Even so, fear of abuse has prompted courts and commentators to emphasize that they must narrowly interpret these provisions.(48) An inquiry under these articles may not become a comprehensive investigation into the merits of the underlying custody case.(49) Thus, merely asserting a possibility that the abduction was justified is not sufficient to convince a court to exercise its discretion.(50) It is also important to remember that a prima facie case of an exception does not mandate that a court refuse return.(51)

      Article 13(a) permits a court to deny return if the petitioner was either not "actually exercising" custody rights at the time of removal, or had consented to or subsequently acquiesced to the removal or retention.(52) The first part of section (a) is merely a corollary to Article 3, which states that for a removal or retention to be "wrongful," a party must have been exercising custody rights at that time.(53) The second part of Article 13(a) looks at a left-behind parent's conduct with regard to the removal.(54) A court may, in its discretion, refuse return upon finding consent or acquiescence.(55) One court has defined acquiescence as "conduct inconsistent with the summary return of the child . . . . It does not have to be a long-term acceptance of the existing state of affairs."(56) Yet the current trend is to limit the interpretation of "acquiescence."(57) Most courts are reluctant to encourage loopholes in the Convention and have declined to find acquiescence even where the left-behind parent acted ambiguously.(58)

      It would thus appear that any judicial discretion under the acquiescence exception focuses on the parent's interests and not on those of the child.(59) Recently, however, the English Court of Appeals stated its considerations for proceeding under this provision.(60) By invoking an Article 13(a) defense, a parent calls upon the court to exercise its discretion, which necessarily entails accounting for the child's best interests.(61) The English courts nevertheless keep this discretion in check by balancing the child's interests against the Convention's fundamental purpose to return the child to the State from which he or she was wrongfully removed.(62)

      Under Article 13(b), a court may refuse to return a child if...