CHECKLIST OF ISSUES TO BE CONSIDERED AT THE THIRD MEETING OF THE SPECIAL COMMISSION TO REVIEW THE OPERATION OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION drawn up by Adair Dyer, Deputy Secretary General, and Sharon Detrick, temporary legal assistant TITLE OF THE CONVENTION Question 1: Has the reference to "civil aspects" or the use of the term "international child abduction" in the title of the Convention given rise to any questions in practice? Commentary: 1 The Convention's title uses the term "international child abduction" to indicate the problem with which the Convention deals, whilst the Convention's operative text refers to the "wrongful removal of a child" to any Contracting State or to the "wrongful retention of a child" in any Contracting State. 2 Deeming it essential that the Convention's title should attract attention and be understandable to the public at large, the drafters decided to use the term "abduction" because of its common usage. On the other hand, it was felt that the term "abduction" lacked the legal exactitude necessary for use in the Convention's operative text, also considering that it could be associated with a criminal offence and studies had shown that the problem of international parental child abduction was generally far removed from the offences associated with terms such as "abduction", "kidnapping", "enlevement" or "secuestro". It was therefore decided that the title should clearly indicate that the Convention only aimed to regulate the "civil aspects" of the phenomenon, leaving criminal and extradition proceedings aside and providing solely for civil remedies, and that the operative text of the Convention should use the terms "wrongful removal" and "wrongful retention" (see Perez-Vera Report, paragraphs 53, 55). This decision was also in line with the traditional purpose of the Hague Conference on private international law, namely to "work for the progressive unification of the rules of private international law" (Article 1, Statute). The reference to "private" law has generally been felt to exclude criminal law which is normally classified under public law. Question 2: To what extent do criminal proceedings and extradition proceedings intersect with the operation of the Convention? Commentary: 3 An interface can exist between the civil aspects of international parental child abduction, as dealt with in the Convention, and criminal aspects, in particular in those Contracting States where international parental child abduction can constitute a criminal offence. Opinions vary as to whether the institution of criminal proceedings or extradition proceedings may help or hinder the process of obtaining the return of the child under the Convention. Indeed, the Central Authorities of a number of countries systematically discourage the institution of such proceedings, since the object should not be to punish the abducting parent. The fear of imprisonment may even deter the abducting parent from returning to the State of the child's habitual residence with the child to participate in civil proceedings on the merits of the custody issue. Criminal proceedings may also hamper the conclusion of an amicable resolution, and might also interfere with the child's right to maintain personal relations with both parents (see Articles 9 and 10 Convention on the Rights of the Child). Furthermore, extradition of the abductor, even if it is provided for under an applicable bilateral treaty, does not ensure return of the child. 4 It has been argued that a criminal prosecution should never be used as a justification for refusing to return a child under Article 13 b. However, it has also been argued that criminal prosecution might be a legitimate reason for use of Article 13 b (see also paragraphs 98-101 on Article 13 b). 5 In some cases Interpol has played a helpful role in locating abducted children. It is noteworthy that, for this purpose, Interpol will act equally well on the basis of a missing persons report as on a criminal complaint. At the second meeting of the Special Commission, in 1993, among the "Conclusions on the main points discussed by the Special Commission", was the conclusion that: Interpol can play a constructive and helpful role in locating abducted children. It is not necessary to institute criminal proceedings in order to seek such help, which may be obtained on the basis of a missing persons report, and indeed criminal proceedings may be counter-productive in particular cases. Central Authorities of a number of countries systematically discourage the institution of such proceedings. It is up to each country to determine what use could be made of the Interpol communications network, in connection with child abductions. 6 Australia has brought to the attention of the Permanent Bureau that it is considering whether to introduce criminal penalties for international parental child abduction comparable to those existing in the United States, Canada and the United Kingdom. Because Australia is aware of criticism directed at the harsh operation of such penalties in some cases, it is most interested in the experiences of those Contracting States with criminal penalties for international parental child abduction. PREAMBLE Question 3: Has the Preamble of the Convention given rise to any questions in practice? Commentary: 7 There is a difference between the Convention's Preamble and operative text, in that the Preamble speaks of the desire of the States signatory to the Convention "... to establish procedures to ensure [the] prompt return [of children] to the State of their habitual residence", whilst the operative text speaks only of the return of children without specifying that this should be to the place of their habitual residence before removal or retention abroad, or to any other place for that matter. 8 One of the reasons for requiring the return of the child to his or her State of habitual residence was the desire to prevent the jurisdiction of the courts of that State from being evaded by the abducting parent with impunity. However, in the drafting of the Convention, a proposal to the effect that the return of children should always be to their State of habitual residence before removal or retention abroad was not accepted. It was felt that including such a provision would make the Convention's application so inflexible as to be useless. In particular, it was envisaged that in some cases the applicant parent might no longer live in what was the State of the child's habitual residence prior to removal or retention abroad. The Convention's silence on the place to where the child must be returned was therefore to be understood as allowing the competent authorities of the requested State to return the child directly to the applicant, regardless of the latter's place of residence (see Perez-Vera Report, paragraph 110). In practice, the failure to specify that the return of the child is to a particular place, or person, has also made it possible in appropriate cases to return the child to the State of his or her habitual residence accompanied by and temporarily under the care and control of the abducting parent, until the competent authorities of that State might rule otherwise. 9 At least one Contracting State, Australia, has implemented the Convention under regulations which require that the child be returned to the jurisdiction of the former habitual residence. The Permanent Bureau is of the opinion that this is a permissible choice for a Contracting State to make in the implementation of the Convention. One court, in New Zealand, concluded that the Convention requires the result mandated by the Australian regulations. This interpretation might have been avoided if the court had felt free to consult the Perez-Vera Report. 10 The language in the Preamble referring to "the interests of children" has been cited in a number of court decisions which have found the Convention compatible with Article 3 of the Convention on the Rights of the Child and with domestic legislation on this point. E.g. McCall and McCall (1995) FLC S 92-551 (Full Court of the Family Court of Australia at Melbourne, 29 September 1994), pages 11 and 15 of typescript Reasons for Judgment; Murray v. Director, Family Services ACT (1993) FLC S 92-416 (Full Court of the Family Court at Sydney of Australia, 6 October 1993), typescript opinion at pages 31-32; Wilner v. Osswald, Supreme Court of Argentina, 14 June 1995, paragraph 10 of the majority's opinion; De L and Director General, NSW Department of Community Services and ANOR, High Court of Australia, 10 October 1996, page 3 of Reasons for Judgment; Thomson v. Thomson, [1994] SCR 551 at 599 (Supreme Court of Canada). CHAPTER I - SCOPE OF THE CONVENTION ARTICLE 1 - THE AIMS OF THE CONVENTION Question 4: Have the objects of the Convention as set out in Article 1 given rise to any questions of interpretation? Commentary: 11 The Permanent Bureau is not aware that the objects of the Convention, as set out in Article 1, have ever given rise to questions of interpretation. In some cases the courts have quoted Article 1 as part of setting the overall textual framework for consideration of another question under the Convention (see e.g. In re H., [1991] 3 W.L.R. 68, at 76 (H.L.), published in The Weekly Law Reports, 28 June 1991, p. 68, the House of Lords also citing the Preamble). 12 The objects are sometimes set out prominently in brochures or pamphlets published and distributed by the Central Authorities of the various Contracting States for the information of the public. A recent example is the following pamphlet issued by the German Central Authority in which the language of Article 1 is tracked on page 1 and set out in full on page 14 (in German translation): Internationales Kindesentfuhrung - Hinweise zur Ruckfuhrung aus dem Ausland und zur Durchsetzung des Umgangsrechts im Ausland (herausgegeben vom Generalbundesanwalt beim Bundesgerichtshof 1996) 13 Similarly Article 1 is tracked on page 2 of the Quarterly Progress Report (1 January-31 March 1996) of the National Center for Missing and Exploited Children, which handles incoming applications for the Central Authority of the United States. Such references back to the objects of the Convention may be very helpful in getting the public to understand its thrust. ARTICLE 2 - GENERAL OBLIGATION OF CONTRACTING STATES Question 5: Have any problems of implementation arisen under Article 2? Commentary: 14 Adequate implementation measures by each Contracting State are vital to the successful operation of the Convention. Problems of implementation may arise for a number of reasons. One may be that the implementing legislation is inadequate. For example, it may be possible for a litigant to delay the proceedings through appeals which are not handled under expedited procedures (see also paragraph 76, Article 11). Another may lie in the enforcement of court orders for the return of children. In several cases many months of delay have been experienced in obtaining the return of the child after a court has ordered such return (see also paragraphs 87-88 on Article 12). In practice, the implementing legislation adopted has varied from extremely short to very elaborate. The Permanent Bureau has the implementing legislation of a number of countries on file. It is broadly recognised that carefully- drafted and thought-out implementing legislation may be very important to achieving satisfactory operation of the Convention. 15 It has been brought to the attention of the Permanent Bureau by the Australian Central Authority and others that in some cases where applications have been sent to the Central Authorities of countries which have recently acceded to the Convention, the applications could not be accepted on the grounds that the Convention was not yet in operation because the appropriate legislation had not been passed by their Parliament. 16 Problems of implementation may also arise because insufficient measures have been taken to ensure that the Central Authority is given the resources and the powers to enable it to fulfil its obligations under the Convention (see also paragraphs 55 and 57 on Article 7). At the Special Commission's second meeting, in 1993, among the "Conclusions on the main points discussed by the Special Commission", was the conclusion that: The Central Authorities designated by the States Parties play a key role in making the Convention function. They should act dynamically and should be provided with the staff and other resources needed in order to carry out their functions effectively. The lack of resources in some countries to properly implement the Convention in this regard may be noted with concern. 17 The absence of ready access for an applicant to competent legal counsel on a pro bono basis or at an affordable fee can also cause problems of implementation (see also paragraphs 152-154 on Article 25 and paragraphs 155-160 on Article 26). 18 Problems of implementation may also arise because the courts or other competent authorities of Contracting States are not aware of the Convention's principles or how to comply with the provisions of the Convention. The Australian Central Authorities have suggested that perhaps an information package could be prepared for new Contracting States that could be disseminated in their countries, in order to ensure that the courts or other competent authorities have knowledge of the Convention's operation and application in the established Contracting States. Other governments have proposed, along broader lines, that information on their procedures for dealing with Hague Convention cases be submitted by all Contracting States to the Permanent Bureau for distribution to all Central Authorities or, more generally, that questions concerning organisational structures in the Contracting States be discussed. One government raised the question of whether development of a non-binding code of practice, or agreed guidance notes, would be useful for judges called upon to rule on Hague Convention applications. Question 6: What are "the most expeditious procedures available" in your country? (See also paragraphs 74-76 on Article 11.) Commentary: 19 The last sentence of Article 2 specifies one of the particular implementation measures envisaged for securing the objects of the Convention, namely the use by Contracting States of the most expeditious procedures available. This obligation applies in particular with respect to proceedings under the Convention for the return of children. Nonetheless, it also conveys the importance of the use of speedy procedures in matters of custody or access rights, as Article 2 also seeks to encourage States to draw inspiration from the Convention's provisions in resolving problems similar to those with which the Convention deals, but which do not fall within its scope ratione personae or ratione temporis. 20 The requirement to use the most expeditious procedures available does not impose an obligation upon Contracting States to bring new procedures into their national law. It is limited to requesting them, in any question concerning the subject-matter of the Convention, to use the most expeditious procedures available in their own law. Thus, some States in their implementing legislation have adopted for proceedings for the return of children expedited procedures which already existed in their judicial practice for certain other types of proceedings. This "borrowing" of summary proceedings may be supplemented by specific procedural provisions, such as limiting the time for appeal from an adverse decision and limiting the number of levels to which appeal can be made (it does occur that litigants delay the proceedings for the return of the child through appeals because they are not handled under expedited procedures). Both provisions tend to promote the rapid and efficacious operation of the Convention. The implementing legislation of the Federal Republic of Germany regarding expeditious procedures, for example, contains all of the features mentioned. 21 At the Special Commission's second meeting, in 1993, among the "Conclusions on the main points discussed by the Special Commission", was the conclusion that: Delay in legal proceedings is a major cause of difficulties in the operation of the Convention. All possible efforts should be made to expedite such proceedings. Courts in a number of countries normally decide on requests for return of a child on the basis only of the application and any documents or statements in writing submitted by the parties, without taking oral testimony or requiring the presence of the parties in person. This can serve to expedite the disposition of the case. The decision to return the child is not a decision on the merits of custody. 22 Australia has dealt with the criticism directed at the requirement of the attendance of overseas applicants through changes in its legislation, and by Family Court decisions holding that Convention proceedings must be dealt with expeditiously on the papers, that oral evidence is not permitted and no adverse inference is to arise because the overseas applicant is unavailable for cross examination of his or her affidavit evidence. However, the Australian Central Authorities have been advised by Central Authorities in some countries, e.g. Sweden, Germany, the Netherlands and France, that Australian applicants will not succeed in obtaining the return of children unless they attend the hearing of the case in that country. These requirements that the applicant attend in person should be discussed by the Special Commission. 23 Scotland has also recently implemented expedited procedures which should ensure that most cases will be decided on affidavits only. 24 Spain has recently adopted implementing legislation which should speed up proceedings brought under the Convention for the return of children from Spain. The Protection of Children Act, adopted on 15 January 1996, modifies certain provisions of the Civil Code and the Civil Proceedings Act (La Ley de Enjuiciamiento Civil). The Second Section of Title IV of Book III of this Act contains Articles 1.901 to 1.909 under the heading "Measures concerning the return of minors in cases of international abduction" (Medidas relativas al retorno de menores en los supuestos de sustraccion internacional). These provisions set out expedited procedures, give the courts ample powers to take any necessary provisional measures, and mandate that, if the child is ordered returned, the abductor is to bear the costs of the proceedings and travel costs of the applicant, as well as those of the child who is returned. ARTICLE 3 - THE WRONGFUL NATURE OF A REMOVAL OR RETENTION Question 7: Have the terms "rights of custody", "under the law of the State", "habitually resident" or "actually exercised" in Article 3 been interpreted by the courts in your country? 25 Article 3 is one of the key provisions of the Convention, since the setting into motion of the Convention's machinery for the return of the child depends upon its application. The duty to order the return of a child, as provided for in Article 12, arises only if the child's removal or retention is considered "wrongful" under the terms of Article 3, i.e. in breach of rights of custody attributed to a person, an institution or any other 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 at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. 26 At the second meeting of the Special Commission, in 1993, among the "Conclusions on the main points discussed by the Special Commission", was the conclusion that: The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression "rights of custody", for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention. "rights of custody" 27 Article 5 of the Convention partially but not exhaustively defines the term "rights of custody", for the purposes of the Convention, as including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence (see also paragraph 48 on Article 5). 28 Joint custody after separation or divorce by reason of a court order is a phenomenon which has increased in many States over the past decade. Generally speaking, removal of a child from his or her State of habitual residence to the territory of another jurisdiction without the consent of the other joint custodian has been held to amount to a violation of the latter's custody rights. 29 Article 5 specifically provides that custody rights include the right to determine the child's place of residence. Courts in a number of countries have found that the right of a parent who has rights of access, under the express terms of a court order, to be consulted before the child's residence may be removed from the territory of the State of habitual residence amounts to a right of custody. Therefore, such a right to be consulted creates joint custody within the meaning of the Convention (C. v. C., [1989], 2 All E.R. 465, 1 W.L.R. 654 (C.A.); Cour d'appel d'Aix-en-Provence (6e Ch.) 23 mars 1989, Revue critique de droit international prive 79(3) juill.-sept. 1990, p. 529 (note Yves Lequette); Full Court of the Family Court of Australia at Perth, Appeal No 52 of 1991, 22 May 1991); Wolfe v. Wolfe [1993] 10 FRNZ 174, 177-178; Gross v. Boda, Court of Appeal of New Zealand, 2 December 1994). This has also been held in cases where the custodian had the obligation to consult the court which granted custody rights to him or her before removing the child from the territorial jurisdiction of that court (In re J., [1989] 3 All E.R. 590, 3 W.L.R. 825 (Fam.D.); Superior Court of the State of California for the County of Los Angeles, Case No BD 051876, 9 December 1991); but see Seroka v. Bellah, 1995 SLT 204, discussed by Balfour and Crawford in Scottish Law and Practice Quarterly, Vol. 1, No 5 (October 1996) at pages 414-415. In the case of Morris, the Ontario Court of Justice, Divisional Court, in a decision released 12 June 1996, ruled, inter alia, that the Provincial Division of the Ontario Court had been exercising rights of custody as an institution, where it was exercising jurisdiction over a claim by the grandmother for access at the time when the parents removed the child to England (see page 13 of typescript opinion). The same court in the case of Kinnersley-Turner, heard 26 September 1996, ruled that the Bath County Court in England had been exercising rights of custody which were breached by the child's removal, where it was seized with an action for custody and had ordered that the child not be removed from England. The court cited and quoted the opinion of La Forest J of the Supreme Court of Canada in Thomson v. Thomson (1994), 6 R.F.L. (4th) 290, at p. 316 and 322. 30 The Supreme Court of Canada in Thomson v. Thomson had ruled that a temporary custody order issued by a Scottish court banning removal of the child from Scotland while the proceeding was pending created rights of custody for the holder of access rights, but left open the question of whether a final order would do so. "under the law of the State" 31 The term "law" in the phrase "under the law of the State" should be understood in its widest sense, embracing both written and customary rules of law, and the interpretations placed upon them by case-law and experts (see e.g. Wolfe v. Wolfe, op. cit., paragraph 29). In addition, because the adjective "internal" is not used, the reference to "law" also extends to rules of private international law (see Perez-Vera Report, paragraph 66). Likewise, a broad approach is taken as regards the sources in the law of the State from which custody rights may derive. While not exhaustive, Article 3 lists the following sources: (1) by operation of law; (2) by reason of a judicial or administrative decision; (3) by reason of an agreement having legal effect under the law of the State (e.g. Petition of Fuentes Bordera, opinion 18 August 1994, 1995 SLT 1176, mentioned by Balfour and Crawford, op. cit., paragraph 29, at page 416). 32 The source "by operation of law" was included in order to protect custody rights which were exercised prior to any decision thereon (see Perez-Vera Report, paragraph 68). This is important, because the number of cases in which the child is removed prior to a decision on the child's custody are quite frequent. "habitually resident" 33 "Habitual residence" is a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from "domicile".Therefore, the Convention does not contain a definition of habitual residence, but rather leaves it to the court's discretion to determine on the facts of the particular case before it. It is generally taken to refer to the centre of the child's life. 34 In certain cases, the courts have been faced with questions, particularly regarding the termination of habitual residence and the creation of a new habitual residence. Generally, it has been held that where both parents have rights of custody within the meaning of the Convention at the time of the child's removal, there can be no immediate termination of the former habitual residence, nor is a new habitual residence acquired, without the consent of both parents. 35 The term "habitual residence" has been the subject of a certain number of recent commentaries and critiques, especially as it has been applied in cases brought under the Hague Child Abduction Convention. Since the factual situations are of infinite variability, it is difficult to make valid generalisations. Recent commentaries include R.D. Leslie, "Recent Scottish cases on habitual residence", 1996 SLT 145. Trial separations between the parents sometimes give rise to disputes as to whether the children's habitual residence has changed. See Ian L.S. Balfour and Elizabeth B. Crawford, "The Hague Convention on International Child Abduction: recent Scottish cases", in Scottish Law and Practice Quarterly, Vol. 1, No 5 (October 1996) at pp. 416-417 and cases there discussed. 36 Dr Eric Clive of the Scottish Law Commission discussed the concept at a one-day conference held in Edinburgh on 25 November 1996 (Conference materials at pp. 47-60) and observed (page 53) that he had not been able to find a case in which the courts did not find habitual residence to be present when the person had been residing in one country for a period of as much as one year. The Permanent Bureau, subject to correction by anyone who produces a case, also believes that continuous periods of residence of at least one year have uniformly been held to constitute habitual residence, regardless of intention. A recent decision by the Superior Court of Quebec illustrates the point. The mother and father and children had moved from Quebec to California with the intention to stay there three years. At the end of that period the father had decided to stay, and the mother without his consent removed the children back to Quebec. The Quebec court had no difficulty in finding that the children's habitual residence before removal had been in California, despite the original intention that the stay in California be temporary and limited to a period of three years (D. v. B., 17 May 1996, Superior Court of Quebec, affirmed by the Court of Appeal of Montreal, 27 September 1996). In another case, even where there was an agreed order by which custody of the child would alternate between the parents periodically, the child's stay for two years in Sweden during the first such period was held to create habitual residence in Sweden (judgment of the Supreme Administrative Court, 9 May 1996 in Case No 7505-1995). A temporary military posting for two years out of an expected three-year period was held to have constituted habitual residence of a US serviceman's children in Iceland in the English case of Re A and others (minors) (abduction: habitual residence), [1996] 1 All E.R. 24, cited by Clive, op. cit., at p. 52. 37 In the case of Rydder v. Rydder (United States Court of Appeals for the Eighth Circuit, 13 February 1995), the father sought return of the children either to Sweden or to Poland, whichever had been their habitual residence. The family had a registered domicile in Sweden but had lived for two years in Poland where the father had a temporary job. He was due to extend his working period in Poland when the mother took the children to the United States under circumstances constituting wrongful removal. The United States Court considered the two possible habitual residences which had been plead in the alternative and decided, without undue difficulty, that the children's habitual residence had been in Poland immediately before their removal and therefore they were ordered returned to Poland. "actually exercised" 38 The requirement that the rights of custody violated have been "actually exercised" at the time of the retention or removal appears as a part of the applicant's prima facie case for the return of the child under Article 3 b and again as a possible affirmative defence under Article 13 a. The issue of actual exercise of custody rights has not arisen much. However, there are cases where it has been plead as an affirmative defence by the person opposing return (see further paragraphs 89-90 on Article 13). 39 At the Special Commission's second meeting, in 1993, it was pointed out that the question of whether or not a parent was "actually exercising" custody rights should be determined with reference to the particular acts which a parent was able to carry out in the exercise of such rights. The two subsequent rulings by the United States Court of Appeals for the Sixth Circuit in Friedrich v. Friedrich helped to elucidate the issue. In this case the mother, a United States servicewoman, claimed that the father had ejected her and the child from the family apartment in Germany, but it was also shown that the child and the father had spent some time together after the mother had removed the child to her US military base in Germany and before she had removed the child to the United States. 40 The trial court had originally held that the child's habitual residence immediately before removal was in the United States, based on the mother's claim that she had been forced to leave the family apartment in Germany. In the first appeal the court reversed on this issue, finding that removal from the apartment did not constitute a forced removal from Germany and that, the military base being on land which belonged to Germany, the habitual residence remained in Germany. 41 The Appellate Court expressed doubt as to whether the facts supported a finding that the father's actions in the case terminated his custody rights and remanded the case to the District Court with instructions to make a specific enquiry as to whether under German law Mr Friedrich was exercising his custody rights at the time of the child's removal (decision filed 22 January 1993, reported 983 F2nd 1396). 42 On remand the trial court examined German law and concluded that Mr Friedrich had not given up the exercise of his custody rights under that law before the child's removal from Germany, noting that during the interim time between the removal from the apartment and the removal of the child from Germany he "remained in contact with Mrs Friedrich and with Thomas during this period and did not exhibit an intention or a willingness to terminate his parental rights" (the United States District Court Southern District of Ohio, decision of 28 April 1994, pp. 4-5). When the mother appealed from this decision the United States Court of Appeals for the Sixth Circuit upheld the District Court, finding inter alia as follows: ... an American decision about the adequacy of one parent's exercise of custody rights is dangerously close to forbidden territory: the rights of the custody dispute. The German court in this case is perfectly capable of taking into account Mr Friedrich's behaviour during the August 1991 separation, and the German court presumably will tailor its custody order accordingly. A decision by an American court to deny return to Germany because Mr Friedrich did not show sufficient attention or concern for Thomas' welfare would preclude the German court from addressing these issues - and the German court may well resolve them differently. Accordingly, the court found: The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. (Friedrich v. Friedrich 78 F3rd 1060, 1065 (13 March 1996)). After further discussion, the court went on to state: We therefore hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to "exercise" those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. (78 F3rd 1060, 1066). In a footnote the court stated: The situation would be different if the country of habitual residence had a legal rule regarding the exercise of custody rights clearly tied to the Hague concept of international removal. If, for example, Germany had a law stating that, for the purposes of the Convention, mere visitation without financial support during a period of informal separation does not constitute the "exercise" of custody rights, we would, of course, be bound to apply that law in this case. (78 F3rd 1060, 1066, FN6) 43 The Permanent Bureau doubts that many countries, if any at all, have adopted a definition of "actual exercise of custody rights" clearly tied to the Hague Convention's concept of wrongful removal. In fact, it seems unlikely that many domestic laws have any specific legal concept of "actual exercise of custody rights" even for domestic law purposes. In any case, it would be interesting to know whether any of the countries which have become Parties to the Convention have defined "actual exercise" of rights of custody as a term of legal art. ARTICLE 4 - CONVENTION'S SCOPE RATIONE PERSONAE Question 8: Has the age-limit of 16 years under Article 4 given rise to any problems in practice? Commentary: 44 Article 4 provides that the Convention applies with respect to any child under the age of 16 years who was habitually resident in a Contracting State immediately before any breach of custody or access rights. 45 In cases where the child has almost attained the age of 16 years at the time the application for return is filed, or at the time of the wrongful removal, the approach of some Contracting States is to suspend the procedures when the child attains the age of 16 years. Other Contracting States continue to apply the Convention's principles, even though the child has attained the age of 16 years, but the child's views tend to become a factor of crucial importance (see Article 13, second paragraph). As regards the latter approach, it may be noted that Article 4 does not prevent Contracting States from applying the Convention's principles under its own laws in cases involving children who have attained the age of 16 years, or even children above the age of 16 years. 46 The Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, aside from leaving intact the application of the Hague Child Abduction Convention (Article 50), contains its own provisions concerning jurisdiction following a wrongful removal or retention (Article 7). Coupled with the recognition and enforcement provisions of Chapter IV of this new Convention, this provision may provide an independent remedy for child abduction when the new Treaty has entered into force. 47 The provisions of Article 4 relating to the habitual residence of the child have been explicitly referred to in cases involving applications for organising or securing rights of access (see further paragraph 146 on Article 21). ARTICLE 5 - CERTAIN TERMS USED IN THE CONVENTION Question 9: Have the definitions in Article 5 of the terms "rights of custody" (see also paragraphs 27-30 on Article 3) or "rights of access" (see also paragraphs 141- 147 on Article 21) given rise to any questions of interpretation or application? Commentary: 48 The drafters of the Convention decided to include a provision defining the terms "rights of custody" and "rights of access", since an incorrect interpretation of their meaning would risk compromising the Convention's objects. Pursuant to Article 5, custody rights include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. 49 For the purposes of the Convention, "rights of access" include the right to take a child for a limited period of time to a place other than the child's habitual residence. Therefore, the Convention does not exclude other ways of exercising access rights. It merely seeks to emphasize in Article 4 that access rights extend also to what is called "residential access", that aspect of access rights about which the person who has custody of the child may be particularly apprehensive. The phrase "to a place other than the child's habitual residence" indicates that access rights under the Convention also include the right of access across national frontiers (see Perez-Vera Report, paragraph 85). CHAPTER II - CENTRAL AUTHORITIES ARTICLE 6 - CREATION OF CENTRAL AUTHORITIES Question 10: Have any problems arisen in practice concerning the designation of Central Authorities under Article 6? Commentary: 50 The former Yugoslavia ratified the Convention on 27 September 1991, but failed to designate a Central Authority. The Convention entered into force on 1 December 1991, and the following States succeeded to this ratification by depositing a declaration to this effect: Bosnia and Herzegovina, Croatia, and The former Yugoslav Republic of Macedonia. On 22 March 1994, Slovenia, however, acceded to the Convention, since its declaration of independence preceded the ratification of the Convention by Yugoslavia. With the exception of Bosnia and Herzegovina, all of these latter States, and all other Contracting States have designated Central Authorities. Certain cases have nonetheless been handled under the Convention by the Ministry of Justice of Bosnia, pending official designation of a Central Authority. The Permanent Bureau has the name and address of the official dealing with applications under the Convention. 51 In accordance with the liberty to do so under Article 6, Australia, Canada, Mexico and the United Kingdom have designated more than one Central Authority. No problems in practice due to such designations have as yet been brought to the attention of the Permanent Bureau. The Province of Alberta (Canada) recently split its Central Authority into two sections, one at Edmonton and the other at Calgary. If the child is located to the north of Calgary, or if the child's location in the province is unknown, application may be made to the Edmonton office. ARTICLE 7 - OBLIGATIONS OF CENTRAL AUTHORITIES Question 11: Have any of the duties of Central Authorities, as set out in Article 7, raised any problems in practice? Commentary: 52 As regards the duty of Central Authorities under Article 7 a to take all appropriate measures to discover the whereabouts of wrongfully removed or retained children, it is apparent from a number of cases that locating such children can form a problem. In some cases children have even been taken underground for a number of months after a court order for return has been entered. At the Special Commission's first meeting, in 1989, among the "Conclusions on the main points discussed by the Special Commission", was the conclusion that: Central Authorities, in seeking to locate children within their territories, should be able to obtain information from other governmental agencies and authorities and to communicate such information to interested persons. Where necessary, their enquiries should be exempted from legislation or regulations concerning the confidentiality of such information. 53 Furthermore, at the second meeting of the Special Commission, in 1993, among the "Conclusions on the main points discussed by the Special Commission", was the conclusion that: Interpol can play a constructive and helpful role in locating abducted children. It is not necessary to institute criminal proceedings in order to seek such help, which may be obtained on the basis of a missing persons report, and indeed criminal proceedings may be counter-productive in particular cases. Central Authorities of a number of countries systematically discourage the institution of such proceedings. It is up to each country to determine what use could be made of the Interpol communications network, in connection with child abductions. 54 In this regard, the possible future role of Europol can be noted. Ms Mary Banotti, MEP, the European Parliament's mediator for child abduction, has called for Europol to be charged with instituting a registry of missing children. 55 Since the Central Authorities designated by Contracting States play a crucial role in the application of the Convention, a number of the "Conclusions on the main points discussed by the Special Commission" at its second meeting, in 1993, concerned the functioning of the Central Authorities: The Central Authorities designated by States Parties play a key role in making the Convention function. They should act dynamically and should be provided with the staff and other resources needed in order to carry out their functions effectively. Children who have been wrongfully removed or retained abroad are to be returned promptly, according to the Convention. Central Authorities should acknowledge receipt of an application immediately and endeavour to provide follow-up information rapidly. Practical arrangements for the safe return of children should be under contemplation from the commencement of the application. In this connection reference can be made to the article by Professor Carol Bruch, "The Central Authority's Role Under the Hague Child Abduction Convention: A Friend in Deed" (28 Family Law Quarterly 35, 51 (1994)). 56 The general necessity of obtaining a receipt for the arrival of an application, also in connection with the one- year period referred to in Article 12, has frequently been stressed. Such a receipt could be similar to the one used under the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and Restoration of Custody of Children (see Council of Europe document DIR/JUR(93)2) (see also paragraphs 79-80 on Article 12). 57 Powers and resources of the Central Authorities vary considerably from one Contracting State to another. In some Contracting States the Central Authority can give instructions to governmental attorneys who can act on behalf of the applicant, in close liaison with the Central Authority, before the court. In other Contracting States, it is not possible procedurally for the Central Authority to go to court on behalf of the applicant, and, thus, the Central Authority regularly resorts to assisting the applicant in finding a competent counsel to handle the case. Where there is a comprehensive legal aid system available to foreign applicants, this method can still work very effectively. Where there is no such system of legal aid, the Central Authority nonetheless has an obligation under Article 7 g to assist the applicant in finding a competent attorney to act pro bono, or at a fee level which he or she can afford to pay (see also paragraph 157 on Article 26). Question 12: What can be done to improve co-operation between Central Authorities? (See also paragraph 18 on Article 2.) Commentary: 58 The Permanent Bureau at present sends out about five or six circulars per year to the Central Authorities, and to a limited number of interested persons, in order to keep them informed of changes in the personnel, contact numbers or addresses of other Central Authorities, as well as to inform them of new ratifications of or accessions to the Convention. It has been suggested that Central Authorities should inform the Permanent Bureau of their telephone numbers and the hours at which they can be contacted at the weekend and in case of emergency. In some cases where communication between the respective Central Authorities has broken down, mediation might be sought in order to rebuild relations of trust and confidence. CHAPTER III - RETURN OF CHILDREN ARTICLE 8 - APPLICATIONS TO CENTRAL AUTHORITIES Question 13: Have any questions arisen as to who may make an application under Article 8? Commentary: 59 Article 8 provides that applications may be made by "any person, institution or other body claiming that a child has been removed or retained in breach of custody rights". The terms of this phrase should be interpreted in the light of Articles 3 and 5 of the Convention. 60 In the vast majority of cases the application under Article 8 is made by a parent claiming that his or her child(ren) has been removed or retained in breach of his or her custody rights. The Permanent Bureau is further aware of at least one case where a governmental agency entrusted with the custody of a child made the application. The agency claimed that both parents had collaborated in the removal of the child, and that they had done so in breach of its custody rights (see Tribunal de grande instance de Quimper (1ere Chambre, 1ere Section), 6 November 1990, R.G. 90. 1883). 61 Generally speaking, situations whereby institutions have been accorded custody rights do not cause any real problems, as long as the relevant institution is an administrative one. If a court is involved, however, problems may arise, e.g. in the case of the English concept of a "ward of court". The main problem with this concept is the fact that a private individual is conferred custody over the child at the same time as the child is made a ward of court. As a result, the question arises as to the legal means at the disposition of the person in whose interest the wardship exists. In one case in England the child had been made a ward of court, following which the mother took the child to the United States. The father requested that the court make a determination under Article 15 of the Convention that the child had been wrongfully removed from the place of the child's habitual residence. The English court granted the request, however, and did not even prejudge whether the father could also submit an application under Article 8 in the United States for the return of the child, based on the mother's breach of the English court's custody rights (Re J (A Minor) (Abduction: Ward of Court), [1989] 3 All E.R. 590). In one case the concept that a court has a right of custody and that to remove a ward from the jurisdiction is in breach of that court's right of custody was taken further, and applied to a situation where there was no wardship. In that case, a mother was granted custody and the father access by a court in Ontario. The mother left Canada with the child and went to England. The father petitioned the English High Court for return of the child. The application was dismissed because, inter alia, there was no breach of any right to custody on the part of the father. This was reversed on appeal, however, and the child was ordered to be returned to Canada. The Court of Appeal took the view that the Canadian court had a right to custody as it had the right to determine the place of the child's residence, and the mother had acted in breach of that right (B. v. B. (Child Abduction: Custody Rights) [1992] 3 W.L.R. 865). See further paragraph 29, supra. Question 14: Has the form or content of applications made under Article 8 given rise to any problems? Commentary: 62 When the Convention was adopted by the Fourteenth Session, in 1980, a recommended form for applications for return of children was also adopted (see Actes et documents of the Fourteenth Session (1980), tome III, Child Abduction, pp. 423, 424). This form is not mandatory. Nevertheless, most Central Authorities have adopted it in substance, and many have issued printed forms for this purpose, which have proved to be helpful. 63 The importance has been stressed of multilingual application forms, filled out in typescript, giving the date of the abduction and with attached a certificate or affidavit concerning the relevant law on custody rights. The latter has proved to be especially important in cases where there is no outstanding custody order at the time of the child's removal or retention, and a breach is alleged of joint custody rights attributed by operation of law (see also paragraph 32 on Article 3). The cases seem to indicate that some applicants seek a "chasing order" under Article 15 from the local court before making an application abroad (see also paragraphs 121-123 on Article 15), while in many cases a certificate or affidavit under Article 8 f is obtained and attached. So far as is known, the accuracy of attached certificates or affidavits has not been contested in any case. The Australian Central Authorities have brought to the attention of the Permanent Bureau that certain problems have arisen with the standard application form of the United States, because it does not require applicants to address the question whether they have rights of custody within the meaning of the Convention. The Australian legislation prevents the Central Authorities from taking a matter before the Family Court unless they have evidence of the applicant's rights of custody. Therefore, in cases where there are no court orders, they need information on the relevant US legislation granting the rights of custody. The Australian Attorney General's Department, in its letter to the Permanent Bureau dated 25 September 1996, stated that three applications from the United States had recently been rejected because of the lack of copies of relevant legislation! 64 At the first meeting of the Special Commission, in 1989, it was brought forth that all attached documents should be certified copies, not only those mentioned under Article 8 e of the Convention, because certified copies would more likely command respect than mere photocopies. 65 It is important that a Central Authority has the authority to fill out and sign application forms in a language other than the original one, once an application has been filed with it. Question 15: Have any questions arisen as regards the Central Authority to which an application should be made? (See also paragraphs 68-69 on Article 9.) Commentary: 66 Article 8 of the Convention allows an applicant to apply either to the Central Authority in the State of the child's habitual residence or to the Central Authority of any other Contracting State of his or her choice, which is usually the Central Authority of the State in which the applicant believes that the child is located. Sometimes an applicant applies directly to the Central Authority, or even to the competent judicial or administrative authority, of the State in which he or she believes that the child is located. It is advisable that the Central Authority of the State of the child's habitual residence be informed of such an application, especially in the light of its possible later participation in the process of the return of the child. Question 16: Do you have statistics concerning applications handled under the Convention? Commentary: 67 If so, please forward such statistics to the Permanent Bureau in advance of the 1997 Special Commission meeting. The preferred format has been specified in the Permanent Bureau's circular of 3 December 1996 directed to the Central Authorities. ARTICLE 9 - TRANSMISSION OF THE APPLICATION TO THE CENTRAL AUTHORITY OF THE STATE WHERE THE CHILD IS LOCATED Question 17: Has any application received by the Central Authority in your country been transmitted to the Central Authority of another Contracting State because there was reason to believe that the child was located in that State? Commentary: 68 Article 8 of the Convention allows an applicant to apply either to the Central Authority in the State of the child's habitual residence or to the Central Authority of any other Contracting State of his or her choice, which is usually the Central Authority of the State in which the applicant believes that the child is located. This may not, however, be the case. Therefore, and in light of the duty of co-operation amongst Central Authorities under the first paragraph of Article 7 of the Convention, Article 9 places the duty upon any Central Authority to transmit an application to the Central Authority of the State in which it has reason to believe that the child is located, and to inform the applicant of the transmission. This duty arises also when a Central Authority is informed of a case by another Central Authority, but reaches the conclusion that the child is in fact located in a different country. In such a case, the requested Central Authority must inform the requesting Central Authority of the transmission of the application. The Permanent Bureau is not aware of any cases in which the duty of Central Authorities under Article 9 has come into play. 69 Sometimes an applicant applies directly to the Central Authority, or even to the competent judicial or administrative authority, of the State in which he or she believes that the child is located. It is advisable that the Central Authority of the State of the child's habitual residence be informed of such an application, especially in the light of its possible later participation in the process of the return of the child. ARTICLE 10 - VOLUNTARY RETURN OF THE CHILD Question 18: What types of measures are used by the Central Authority in your country pursuant to Article 10 to obtain the voluntary return of children? Commentary: 70 Article 10 is closely related to Article 7 c of the Convention, which places the duty upon Central Authorities to take appropriate measures, either directly or through intermediaries, to secure voluntary returns of children or other amicable resolutions. The provisions of Article 10, however, apply only with respect to the Central Authority where the child is located, i.e. the requested Central Authority. 71 In 1989, at the first meeting of the Special Commission, many experts expressed the view that the voluntary return of the child should be discussed after an application has been brought before the competent judicial or administrative authorities, but before the case is heard. This would prevent such discussions from delaying the formal proceedings and might persuade the abducting or retaining parent to accept an amicable resolution. Thus, the word "voluntary" in Article 10 does not only refer to cases where the abducting or retaining parent is not under legal pressure. 72 In practice, voluntary returns of children generally do not occur unless the application has already been brought before the competent judicial or administrative authorities and the abducting or retaining parent is faced with probable formal proceedings. The Permanent Bureau welcomes information from Central Authorities on any measures they have undertaken, either directly or through intermediaries, to obtain voluntary returns of children. Question 19: To what extent have voluntary returns of children been obtained under Article 10? Commentary: 73 Some of the statistics submitted to the second meeting of the Special Commission, in 1993, included statistics on the voluntary return of children or other amicable resolution of the issues. The Permanent Bureau's preferred format includes a column for such statistics. Voluntary return of the child is generally equated with court-ordered return for the purpose of assessing the success of the Treaty. ARTICLE 11 - THE USE OF EXPEDITIOUS PROCEDURES BY JUDICIAL OR ADMINISTRATIVE AUTHORITIES Question 20: Has the first paragraph of Article 11 led to any problems of application? (See also paragraphs 19-24 on Article 2.) Commentary: 74 It has been brought to the attention of the Permanent Bureau that some inferior courts take a "merits of custody" approach to deciding cases, rather than the strict "appropriate forum" approach required by the Convention (see also paragraph 132 on Article 19). The suggestion has been brought forth that perhaps this problem could be dealt with by countries agreeing that Hague Convention cases should be heard by superior courts. In Australia, for example, Hague Convention cases are always heard in the Family Court, which is a federal court, rather than in Magistrate courts. In the United States, an application may be brought either in federal court or in state court, at the applicant's option. 75 Application of the Convention by a large number of widely-dispersed lower courts means that the particular court taking jurisdiction over a Hague application may be doing so for the first time. Under these circumstances there may be an undue tendency to delay proceedings in order to obtain detailed social reports which are irrelevant to the Hague Convention application. Question 21: Have the procedures of the second paragraph of Article 11 been employed? Commentary: 76 One government would like to have the question taken up as to whether the six-weeks' time period should be made binding, in order to expedite procedures. Another government proposed that Article 11 might be amended to provide for appeals to take place within a specific timescale, and in any case that delays both at first instance and on appeal be discussed. The reference was to "fast-track" appeals. ARTICLE 12 -DUTY TO RETURN THE CHILD Question 22: Have any questions arisen in practice concerning the application of the first paragraph of Article 12? (See also paragraph 130 on Article 18.) Commentary: 77 Article 12 is very important because it specifies those situations in which the competent authorities of the State where the child is located are obliged to order his or her return. 78 The Permanent Bureau is not aware of any problems concerning the application of the first paragraph of Article 12. Most Contracting States interpret this provision as meaning that, if proceedings for the return of a child are started within one year of the wrongful removal or retention, then the child has to be returned forthwith. Questions have arisen, however, concerning the determination of the beginning date of this one-year period (see paragraphs 79-80 infra). Question 23: Have any questions arisen in practice concerning the determination of the beginning date of the one-year period referred to in the first and second paragraphs of Article 12? Commentary: 79 Some conflict has arisen in a number of cases as to when the time should begin to run and when it should stop running. A typical case in this context is where the child has been removed from his or her State of habitual residence for a visit of a certain length of time abroad with a parent, to which the other parent has consented, and the respective parent and child stay longer than was originally consented to by the left-behind parent. In the Explanatory Report by Elisa Perez-Vera, it is stated that the beginning date of the one-year period in cases of wrongful retention should be understood as that on which the child ought to have been returned to his or her custodian(s), or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of the child's habitual residence. Thus, the decisive date is when the consent of the left-behind parent to the duration of the visit actually ends, and not when the child was actually removed from his or her State of habitual residence (see Perez-Vera Report, paragraph 108). 80 Another typical case is where the child has been wrongfully retained by a parent within the State of the child's habitual residence for some period of time before being removed by that parent to another State. The House of Lords in the United Kingdom addressed this issue within the context of Article 35 of the Convention, taking the position that the relevant moment under Article 12, first paragraph, is the time when the child is first removed across a frontier, even if a child has been abducted and held internally within the country of his or her habitual residence for some period of time before being removed across a frontier (see In re H, 3 W.L.R. 68, 75-78). Question 24: Has the second paragraph of Article 12 been interpreted or applied? Commentary: 81 It is clear that following the wrongful removal or retention the child can become settled into his or her new environment after a certain amount of time, and that in those circumstances the return of the child may not be in his or her best interests. To deal with this problem the use of an inflexible time-limit beyond which the provisions of the Convention could not be invoked, however, was not deemed desirable. The solution adopted in Article 12 is that a distinction is made between those cases where a period of less than one year has elapsed between the date of the wrongful removal or retention and the date of the commencement of the proceedings before the competent authorities and those cases where a period of one year or more has elapsed. The first paragraph of Article 12 provides that, in the former cases, the competent authorities are required to order the return of the child forthwith. The second paragraph provides that, in the latter cases, they are also required to do so, "unless it is demonstrated that the child is now settled in its new environment." Because this provision actually functions as a possible exception to the duty to order the return of the child forthwith, it is closely connected to the possible exceptions to this duty which are set out in Article 13 of the Convention. 82 The second paragraph of Article 12 does not state how the fact "that the child is now settled in its new environment" is to be proved, but, according to the Perez- Vera Report , 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, whilst at the same time preserving the contingent discretionary power of the internally competent authorities in this regard (see Perez-Vera Report, paragraph 109). In any case, the proof or verification of a child's establishment in a new environment opens up the possibility of longer proceedings than those envisaged in the first paragraph. As much for these reasons as for the fact that the return will, in the very nature of things, always occur much later than one year after the wrongful removal or retention, the Convention does not speak in paragraph 2 of return "forthwith" but merely of return. A period of mutual access may be needed in order to renew the child's familiarity with the bereft parent and avoid the disruption of another overly abrupt change. 83 The term "environment" is not defined in the Convention, and it may be taken that it refers both to the physical and the human environment of the child. Because of the greater dependence of a small child, the primary caretaker may take on greater weight as part of the total environment while, as children grow older and gain more mobility, their friends and schools as part of the human environment take on more weight, as may also the natural environment. 84 At the second meeting of the Special Commission, in 1993, it was brought forth that two different approaches had been developed by different courts for dealing with the question of which elements should be considered relevant and necessary for the determination as to whether the child has settled in the new environment, namely a restrictive approach and a less restrictive approach. The former approach asks for the child to be integrated as part of the surrounding community, and not only the immediate household of the abducting parent. The latter approach considers that the child has settled in the new environment when he or she has lived almost exclusively within the "new" family, which may be especially applicable to cases concerning very young children. 85 The Supreme Court of Austria affirmed the decisions of the lower courts to refuse return of a 3-year-old girl to Spain on grounds that a year had already passed when the father applied for her return, and she was settled in her new environment. The girl had been only one year old when she was removed (Oberster Gerichtshof, 17 May 1990, G Z 7 Ob 573/90). 86 In the case David S. v. Zamira S. (NYFamCt Kingscty, No V196959-60/90, 1/31/91, published in: 17 Family Law Reporter 15 (1991) 2001f), the New York Family Court ordered the return of two children to their father in Ontario, having found that the mother's removal of the children was wrongful, and that she had not met her burden of proving that the children were now settled in the new environment. In particular, the court held that the children had not yet established either significant ties with the new community or meaningful relationships. As they were only, respectively, ages three and almost one and one half, they were not yet involved in school, extra- curricular, community, religious or social activities which children of an older age would be. Furthermore, the court held that the mother had not rebutted the inference that the children continued to have substantial, meaningful connections to Ontario. Referring to the arguments used by the New York Family Court in the case David S. v. Zamira S., the District Court, County of Adams, State of Colorado, USA (Case No 90 DR 1138, Division B, 8 May 1991) refused return of a 20-month-old girl on the ground that she was settled in her new environment. The motion for return of the child to England had been filed more than one year after the wrongful retention, which had taken place when the child was two months old. The District Court held that, although there had not been a showing that the child was in pre-school, there had been a showing that the child had established significant ties to the community by virtue of having been there as long as the child had been, including a bonding with the extended family, and other children in the community. Question 25: Have any problems been experienced in enforcing orders for the return of children? Commentary: 87 One problem of implementation of the Convention concerns the enforcement of court orders for the return of children. In several cases many months of delay have been experienced in obtaining the return of the child after a court has ordered such return. In Preliminary Document No 2 of the meeting of the Special Commission in January 1993, attention was called to the "cascade" of measures for enforcement which were systematically written into the orders for return of children issued by the courts of the Federal Republic of Germany. 88 Several governments have mentioned difficulties and delays in obtaining the enforcement of return orders as a topic which should be discussed by the Special Commission. A recent decision by the Supreme Court of Austria appears to re-open the question of return, on application by a parent who had successfully evaded enforcement of orders for return of the child (see paragraph 96). ARTICLE 13 - POSSIBLE EXCEPTIONS TO THE RETURN OF THE CHILD Question 26: Have the courts of your country refused to order the return of any child on grounds set out in Article 13 a? If so, was the refusal based on: Commentary: a Failure actually to exercise the custody rights? 89 The situation envisaged under Article 13 a is that in which the left-behind parent did not actually exercise custody rights at the time of the removal or retention by the other parent, and the removal or retention was therefore not wrongful under Article 3 of the Convention (see commentary on Article 3, paragraphs 38-43). The Convention includes no definition of "actual exercise" of custody, but Article 13 a expressly refers to the care of the person of the child. According to the Perez-Vera Report, custody is exercised effectively when the custodian is concerned with the care of the child's person even if, for perfectly valid reasons (illness, education, etc.) in a particular case, the child and his or her guardian do not live together. It follows that the question of whether custody is actually exercised or not must be determined by the individual judge, according to the circumstances of each particular case. Furthermore, proof that custody was not actually exercised does not form an exception to the duty to return the child if the dispossessed guardian was unable to exercise his or her rights precisely because of the action of the abductor (see Perez-Vera Report, paragraph 115). 90 In some cases the return of the child has been refused because the court has held that the custody rights were not effectively exercised by the left-behind parent at the time of the child's removal or retention. In two German cases, for example, the parents had ended their relationship and were living separately. It was held that at the moment one of the parents had left the family home, and the care of the child(ren) had become the primary responsibility of the other parent, he or she had stopped effectively exercising his or her custody rights (AG Hamburg-Altona 11 September 1991 - 351 F 128/91; IPRax 1992, 390, note E. Jayme; Sumampouw, Les nouvelles cnventions de La Haye: leur application par les juges nationaux, tome V, 1996, p. 148; OLG Dusseldorf 14 July 1993 - 4 UF 66/93; FamRZ 1995, 181; Sumampouw, op. cit. pp. 149-150). Cf. Friedrich v. Friedrich, discussed under Article 3 in this Checklist (paragraphs 39-42). b Consent to, or subsequent acquiescence in the removal or retention? 91 In those cases where consent to the removal or retention is claimed, the circumstances of the case usually clarify the scope of the consent actually given. When the consent has been to a temporary removal, this often is shown by the return date on a round-trip airline ticket. As regards claims of acquiescence, there have been problems in some cases determining whether the action of the left- behind parent constitutes subsequent acquiescence or an attempt to negotiate an amicable resolution of the issues. For example, in one case the court found that an offer from the father to drop the Hague Convention application for return of the child, if the mother would concede certain property to him, amounted to acquiescence. The court ignored the condition of property arrangements and found that, by making the offer, the father had acquiesced in the move of the child's habitual residence: Tribunal de grande instance de Paris, 31 October 1990, R.G. 90/37163 (unpublished); this decision was upheld by the Cour d'appel de Paris (1ere Ch. C.), 24 May 1991, which decision was reversed by the Cour de cassation (1ere Ch. Civ.) 16 July 1992 Gazette du Palais 18-19 novembre 1992, p. 8 (commentary by A. Cornec in his study at pp. 4-5); Recueil Dalloz Sirey, 1993, Jurisprudence, p. 570 (note Massip). 92 In a very recent case in England, the Court of Appeal found that it was necessary for an aggrieved parent having recourse to a religious court over the abduction of a child abroad to make it clear that such recourse was ancillary to civil proceedings for his summary return, in order to avoid the presumption of acquiescence. The Court of Appeal so held in giving reasons for allowing an appeal brought by the mother against the decision of the High Court, directing the immediate return to Israel of three children aged three, two and 16 months (H (Minors), 19 July 1996, FAMF 96/0914/F). The father's appeal to this decision was allowed by the House of Lords on 11 November 1996, when it reversed the decision of the Court of Appeal. The return of the children to Israel occurred on 28 November 1996. The written opinions by the House of Lords had not yet been issued, as of 5 December 1996. 93 Negotiated settlements may be in the best interests of the child and the parents. But a parent will be reluctant to enter into any negotiations if, as soon as he or she even envisages the child remaining in the new environment, this is deemed to constitute acquiescence. The recent decision of the House of Lords, as well as the decision by the French Cour de cassation on 16 July 1992, are encouraging in this regard. They checked a trend which would have discouraged negotiations, and instead tend to preserve the necessary margin for negotiations directed towards voluntary solutions. Question 27: Have the courts of your country refused to order the return of any child on grounds set out in Article 13 b? Commentary: 94 Certain recurring fact patterns over the years have continued to put pressure on the rigorous application in the courts of different countries of the criteria for refusal to return the child under this provision. In some cases there have been allegations of domestic violence within the family prior to the wrongful removal or retention of the child. In most cases these are allegations of violence directed against the parent/abductor and only very rarely have there been allegations of violence directed to the child. 95 Courts in these situations tend to have confidence in the willingness and ability of the courts in the place of the child's habitual residence to sort out these claims and take the necessary protective measures, especially since the evidence relating to any alleged violence, aside from the direct testimony of the abducting parent, is normally to be obtained in the country of the child's habitual residence before the removal. Courts in many jurisdictions have increasingly tried to decide Hague Convention applications on the basis of affidavits, if at all possible, in order to avoid the necessity for the applicant to travel abroad for what should normally be a summary proceeding. For example, rules of procedure in Scotland were recently tightened in this direction. It goes without saying that corroborating evidence is especially difficult to obtain and produce for a proceeding abroad if it is to be other than affidavit evidence. Increasingly, courts and other authorities are resorting to direct contacts in order to exchange information and clarify the situation surrounding the return of a child. 96 A recurring situation in which Article 13 b allegations have been made is where a young child (under three or four years) has been removed by a parent who asserts that s(he) has been the child's primary caretaker, that (s)he will not return if the child is ordered returned and therefore that the return of the child will cause psychological damage because of separation from that parent. When such allegations are carried up on appeal, in some countries this can result in a very substantial delay which, extending the child's period of total dependency on the abducting parent, exacerbates the possible psychological damage. On rare occasions, further resistance to enforcement of the return order, such as by hiding the child, has resulted in delays even after the order has become final and these very delays caused by the abductor have been cited again as reasons for not returning the child because of the increased possibility of psychological harm. See decision of the Supreme Court (Oberster Gerichtshof) of Austria, 15 October 1996, docket number 4 Ob 2288/96s. 97 In most cases, the courts of the States Parties to the Convention have interpreted the spirit of the Convention in such a way as to oppose this claim of harm which the abductor herself or himself is inflicting on the child. This type of delaying tactic has rarely been successful and in the end decisive rulings by authoritative appellate or constitutional courts have resulted in the return of the child in the individual case and as well have given guidance to the lower courts to be increasingly rigorous in their application of Article 13 b claims. The 1989 English Court of Appeals case of C. v. C. was a pioneer in this respect and recent decisions, such as the second decisions of the United States District Court and Court of Appeals in Friedrich v. Friedrich as well as several recent rulings by the Constitutional Court of the Federal Republic of Germany, have pursued this trend. In one of the latter cases, the Permanent Bureau, concerned over allegations made by the petitioner that the Oberlandesgericht's return order would cause a violation of certain provisions of the German Constitution, took the occasion to submit a memorandum to the Second Senate of the German Constitutional Court supporting the constitutionality of the Convention's application. The court's ruling in that case (2 BvR 982/95 and 983/95, order of 10 October 1995) has been published in German in RabelsZeitschrift, July 1996 issue, together with the memorandum which had been submitted to the court in this case by the Max-Planck- Institute in Hamburg supporting constitutionality of the ruling. An English translation of the court's order was published in the May 1996 issue of International Legal Materials (35 I.L.M. 529), together with the original English text of the Permanent Bureau's memorandum (see also Pirrung, "The German Constitutional Court Confronted with Punitive Damages and Child Abduction", in E Pluribus Unum - Liber Amicorum Georges A.L. Droz (1996), page 341). Two subsequent rulings by the German Constitutional Court have confirmed and solidified its acceptance of the constitutionality of the Hague Convention's application in similar situations (2 BvR 233/96, order of 15 February 1996; 2 BvR 1075/96, order of 15 August 1996). 98 The English Court of Appeal's case of C. v. C., mentioned above, has also been widely cited as an example of a court taking "undertakings" (promises) from an applicant for the return of a child in a case where the abductor of a very young child has claimed that it is not tolerable for her or him to return and that such parent's failure to return will result in separation from the child which will be psychologically harmful to the child. This is to be distinguished from the situation where the parent simply refuses to return, because here (s)he is supporting the refusal by reference to circumstances which may make it impossible for the parent to return and care properly for the child after return, such as (1) criminal proceedings against that parent which might result in incarceration, (2) an ex parte custody order awarded to the other parent by the court in the country of the child's habitual residence which would mean that exclusive care and control of the child could immediately be taken over by the other parent upon return, or (3) certain financial or personal disadvantages, such as lack of support in that country, inability to work there or even expiration of the parent's visa to enter that country. The upshot of this type of case is that the court may consider that the return of the child under the conditions cited would prevent the return of the parent in question and therefore cause the child grave psychological damage or create an intolerable situation. In these circumstances the court has sometimes placed the burden on the applicant parent to show that the conditions upon return can be made tolerable, and this has been done, for example, by such actions as (1) the applicant and his or her attorney making an affidavit that criminal proceedings will not be pursued against the abductor parent, (2) having a sole custody order in favour of the applicant parent vacated, or (3) an undertaking that the sole custody rights granted under such an order will not be exercised until the courts in the country of the child's habitual residence have acted and, in some cases, by commitments for the provision of adequate support and a separate place to live for the abductor parent and the child during the period after return until the courts of the child's habitual residence have made a decision on custody. 99 In certain cases (The Police Commissioner of South Australia v. Temple, (1993) FLC 92-424; In the matter of R, Supreme Court of Ireland, 19 December 1994, reported in The Irish Times, 20 March 1995, p. 16) such "undertakings", when made in the form of requirements for return by the lower court, have been reduced in their scope upon appeal. The appellate courts have reasoned that, even though certain undertakings may be necessary in the particular case in order to avoid grave risk of psychological injury to the child or an intolerable situation, the undertakings required should be kept to the very minimum which is required in order to open up a tolerable situation on return for the abductor parent and child together. 100 A deficiency of the system of taking undertakings, as it is presently known, is that the courts in the other country are not bound to enforce such promises. In some cases, the undertakings have been renounced by the applicant after return and at least one court has experienced difficulty in finding even that the court of the child's habitual residence has the power to enforce such an undertaking made to a foreign court (McOwan v. McOwan, Family Court of Australia, Kay J, 8 December 1993, (1994) FLC, paragraphs 92-451). One government has proposed that the problem of enforcement of such undertakings be a topic for discussion by the Special Commission and that information be exchanged on the status of such promises in the various jurisdictions, so that functionally-equivalent terms for the various jurisdictions may be identified. 101 Parallel to and fulfilling the same functional purpose as undertakings has been the development, primarily in the courts of the United States, of "safe harbour" orders. Certain attorneys in the United States, anticipating the same types of considerations which have caused the courts of certain other countries to require "undertakings" in particular types of cases, have attempted to meet the same functional need by having the court of the child's habitual residence enter, at the request of the parent applying for the child's return to that country, what is called in the practice a "safe harbour" order. This term in fact covers a variety of possible instruments which may include affidavits of the applicant and his or her lawyer in that jurisdiction that criminal proceedings will not be filed or pursued. In some cases this takes the form of a request that an order be entered setting aside a previous sole custody order in favour of the applicant and confirming certain temporary arrangements to be effective following return of the child, such as separate housing to be made available by the applicant for the returning parent and the child and temporary support during the period of litigation following return. A safe harbour order concerning certain of these points was in force, for example, in the case decided by the German Constitutional Court on 10 October 1995 (35 I.L.M. 529) (see paragraph 97, above). A rather unusual type of safe harbour order was entered into spontaneously upon consultation between the judges in the two different countries in D. v. B., decided by the Superior Court (Family Division) of the District of Terrebonne, Province of Quebec, Canada, on 17 May 1996 (later affirmed in a split decision by the Court of Appeal of the Province of Quebec, Greffe de Montreal, on 27 September 1996). The abducting parent in this case had argued that the children should not be returned to California because of grave risk under Article 13 b and because of the children's alleged right to remain in Canada guaranteed by Section 6(1) of the Canadian Charter of Rights and Freedoms. After rejecting these defenses, the court considered the expression of concern by counsel that the abductor would be at a disadvantage in the California court because of having refused to comply with that court's order to return with the children. The court, in order to inform itself of the procedural status of the California proceedings, called the judge in that state who offered to sign an additional order, clarifying his 7 March 1996 order, in order to ensure that it was an interim order only. The clarifying order of the California court dated 17 May 1996 was apparently faxed immediately since the Quebec judge entered the order for return of the children on the same date. The California order, as set out in the Quebec order of 17 May 1996, reads as follows: FILED MAY 17 1996 STEPHEN V. LOVE County Clerk Santa Clara County by M. Terry Deputy SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA In re Marriage of: No FL 055808 Petitioner: D. and Respondent: B. ORDER On May 16, 1996, this Judge spoke with the Honorable Roger Baker, Federal Judge in Canada. He is reviewing the Petitioner's claim that, under the Hague Treaty, California has jurisdiction over the two minor children, L. and K. This Court wishes to clarify the order filed on March 7, 1996. That order granted the Petitioner father sole legal and sole physical custody of the two children. This was done after the mother refused to return the children to California, and the judge in Canada, with whom I spoke on the telephone, indicated that he felt he was not bound by the Uniform Child Custody Jurisdiction Act. That custody order filed March 7, 1996, is a mere interim order until a full and complete evaluation of this case can be made, including psychological testing. Under California law, a permanent child custody or visitation order cannot be made without mediation first occurring (California Family Code Sections 3170 and 3175). The former orders the court to set every case for mediation in which custody and access are in dispute. Section 3175 requires that mediation be set before or concurrent with any hearing on custody. By local rule, evaluation follows failed mediation. Thus, the Court Orders as follows: 1. If the Canadian Court returns the children to California, the parties shall report to Department 119 on the first court day after the children return, at 9.00 am, for an emergency screening to set another interim order to establish a parenting plan while this Court does a complete evaluation including psychological testing. 2. The children may remain in the mother's custody pending the emergency screening. DATED: May 17, 1996 (S) James W. Stewart JAMES W. STEWART Judge of the Superior Court 102 The Permanent Bureau thinks that this type of consultation, in order to clarify any difficulties or obstacles which may raise a problem in the proceedings, is exemplary and may help to encourage other courts to use the practical and direct means of communication at hand in order to clarify any points which are not clear. Several governments have stressed the importance of continued involvement of the Central Authorities with ensuring the safety of the child after return. Question 28: Has the return of any child been refused based on an objection by the child under Article 13, second paragraph? If so, what was the age of the child(ren)? Commentary: 103 Under Article 13, second paragraph, the courts of a country to which a child has been wrongfully removed have the discretion to refuse to order his or her return if they find that: (1) the child objects to being returned; and (2) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. These two factors which are to be considered by the courts are illustrated in Urness v. Minto (1993). This case involved two children, J., aged twelve, and K., aged nine. Both children gave evidence. The Edinburgh Court of Session held that there was no doubt about the "genuine and heartfelt character of [J.'s] objection of returning to the United States". As regards K., however, it was not entirely clear that, while objecting to his return, he was expressing his own views, or those of his mother, brother and stepfather. J., moreover, "had achieved a level of maturity and was sufficiently intelligent to form the firm views he expressed"; whereas K. "had not achieved the degree of maturity to enable the court to rely on his expressed objection to returning to America". Accordingly, Article 13, second paragraph, was established so far as J. was concerned, but not K. (1994 S.C.L.R. 109 and 392, especially at pp. 117F-119C). (Nonetheless, K. was not returned because of the court's view that sending him back without his brother would have been intolerable.) 104 In an earlier Swedish case, Shamsi v. Heijkenskjold- Shamsie, the appellate court honoured the wishes of a fourteen-year-old girl to remain with her mother in Sweden but at the same time ordered the return of a younger brother, age nine, to England. A lower court had refused return of both children based on their expressed preferences, but the appeals court would give weight only to the wishes of the older sibling (judgment of 19 June 1990, No 1731-1990, Sundsvall Admin. Ct. App. (Swed.)). This case contrasts with the cases in which courts have refused to split siblings. Under this approach, if the older child objects and is found to have the age and maturity at which his or her views should be taken into account, then the refusal to return the younger child who does not have such age and maturity may be based on Article 13 b on the theory that separation of the younger child from the older sibling would cause a grave risk of psychological damage to the younger child. A reverse application of this approach was rejected by the Court of Appeal of Manitoba (Canada) in Chalkley v. Chalkley, the judgment in which was delivered on 13 January 1995. The elder sister was fifteen years old at the time of the appeal and the younger child was three years old. The motions judge had found that the older child, who was fourteen years old at the time of the hearing, should not be returned both because her physical health problems would place her in an intolerable situation under Article 13 b and because she expressed a strong preference to remain in Canada. However, the motions judge had found that an order to return the younger child would cause psychological harm to the older child. The appellate court found that refusal to return the younger child on this basis was in error, and that there was no evidence that the younger child's separation from the older child would create any kind of risk for the younger child. Thus the court found that the younger child should have been returned to England and granted the appeal in so far as it related to the younger child. This result was said by the court to have come about in part because of the considerable disparity of the ages between the siblings. 80 105 The question of splitting siblings was also involved in the decision of the Celle Higher Regional Court (Federal Republic of Germany) entered on 20 October 1994. In this case, the father and the Youth Welfare Office appealed from the judgment of the Verden District Family Court ordering return to England of two boys who had been retained following visitation with their father. The court found that the two boys, then aged 7 and 9 years old, had during the hearing before the appellate court expressly and decisively objected to their return and the court found that the children had attained an age and maturity in view of which it appeared appropriate to take their opinion into account. In this, the appellate court did not share the view of the lower court, which had thought that there could be no question of any consideration of the wishes of the children at these ages. 106 In this connection, the court stated: "The level of their maturity is not to be determined in abstract terms, nor according to the criterion of the children's welfare in the event of a subsequent custody arrangement, but solely in terms of its specific relation to the required decision as to the return of the children" (English translation of the German court's order). The court related in detail the results of its hearing of the views of the two children and the court found that the older boy's refusal was not based "on a sudden impulse or temporary mood" as often occurs with children, nor on any "emotional influence" brought to bear by the respondent, nor on any continuing holiday mood "now that the holidays had been over for almost two months." The younger boy's opposition to returning was also to be seen and considered "in the light of the close relationship to his brother." 107 The government of one State Party to the Convention has suggested, as a subject of consideration by the Special Commission of March 1997, "the extent to which the wishes of the children themselves should be taken into account in Convention cases". 108 In the Perez-Vera Report, paragraph 30, it is pointed out that a provision such as Article 13, second paragraph, is absolutely necessary, in particular because the Convention applies, ratione personae, to all children under the age of sixteen, and it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against his or her will. During the course of the drafting of Article 13, second paragraph, all efforts to agree on a minimum age at which the views of the child could be taken into account failed, because all the ages suggested seemed artificial, even arbitrary. It therefore seemed best to leave the application of this clause to the discretion of the competent authorities. 109 Article 13, second paragraph, of the Convention is in line with Article 12 of the 1989 United Nations Convention on the Rights of the Child, which provides: "1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law." 110 Commentators have expressed the view that the wishes of the child should override his or her return only in exceptional circumstances, thereby stressing the importance of the Convention proceedings continuing as summary proceedings and not being transformed into custody and access proceedings. This view corresponds with the strict interpretation which is to be given to the possible exceptions under Articles 13 and 20 to the general rule that wrongfully removed or retained children should be returned immediately to their country of habitual residence, and that the courts of that country should make the orders relating to their long-term future. Furthermore, attention has been drawn to the potential problem of the child being coached and put under pressure, or even "brainwashed", by the abducting parent, and the unsuitability of the child being expected to "choose" between parents. 111 There appears to be little change in the trend described in the Checklist for the second meeting of Special Commission, in 1993, namely that the case law from different countries shows that: (1) courts have heard and given some weight to the opinions of children who seem to object and are between nine and fourteen years of age; and (2) the older the child the more likely for his or her views to be conclusive as regards the decision on his or her return. The most recent case law submitted to the Permanent Bureau by means of the standard forms, where Article 13, second paragraph, forms the article upon which disposition of the case is based, include: High Court Of Australia, Canberra, De L, No 7C 96/032, 10 October 1996; Family Court of Australia, Melbourne, Victoria, Brand & Paterson, No ML 8947, 18 December 1995; Amtsgericht Zossen, Zossen, Germany, No 6F 130/96, 12 July 1996; Oberlandesgericht Bamberg, Bamberg, Germany, No UF 102/96, 11 July 1996; Amtsgericht Obernburg, Obernburg, Germany, No F 466/95, 29 March 1996. 112 Two additional questions in connection with the application of the second paragraph of Article 13 were raised in one of the recent cases mentioned above which was decided by the Full Court of the Family Court of Australia at Sydney, 18 March 1996, in a split decision which was subsequently overturned by the High Court of Australia on 10 October 1996 (De L and Director General, NSW Department of Community Services and ANOR). Two girls, 9 and 11 years of age respectively, were found by the Court Counsellor to have clearly expressed their wishes to remain with their mother in Australia. One question raised was whether the preferences expressed amounted to having "objected" as meant in the second paragraph of Article 13. The trial court found that the children had objected to being returned and thus refused to order the return of the children to the United States. 113 On appeal, all three judges of the Full Court found that the evidence as to the children's wishes was not sufficient to establish their objection to being returned. Two of the judges thought that the children should be promptly returned to the United States unless the abducting parent was unable to obtain a visa to enter the United States, in which case a further report should be prepared to determine whether the children objected to being returned to the United States in the absence of that parent, while the Chief Justice felt that the case should be referred back to the trial judge for further consideration of whether the children objected to return. 114 The decision of the Full Court was reversed by the High Court of Australia on 10 October 1996, which ordered that the matter be remitted to a single judge of the Family Court for re-hearing in order to determine whether the children objected to being returned within the meaning of the second paragraph of Article 13 of the Convention. 115 The High Court of Australia found that it did not have to consider the question raised as to whether the new Regulation 16 of Australia, placing the onus upon the person opposing the application to show that the child objected, was valid or not. (The Permanent Bureau had submitted an opinion letter supporting the validity of this new regulation, which was challenged on the ground that the second paragraph of Article 13, unlike the first paragraph, does not expressly place the onus on the person opposing return.) The application in the particular case had been commenced under the previous Regulation 16, which had not assigned any onus of proof under the second paragraph of Article 13, and the High Court of Australia ruled that the regulation under which the proceeding had begun continued to apply until the completion of the pending application. The court found that no particular gloss should be added to the word "objects", but that a literal view of this term should be taken. The High Court found that the judge of the Family Court, upon re-hearing, should exercise its powers for the preparation of a report by a family and child counsellor or welfare officer as to the question of whether the children objected to returning or not. One Justice of the High Court felt that the new Regulation 16 should have been applied, as had been assumed by the Lower Courts, and that the new regulation was valid. This Justice also expressed concern about delay in the handling of the case in the Australian courts, as had one of the Justices of the Full Court. Nonetheless, because of the lapse of time and the effect which this may have had upon the formulation of an objection by the children, or even upon the question of grave risk, this Justice joined in the decision of other members of the court to remand the case for a summary proceeding on this issue. 116 At the second meeting of the Special Commission, in 1993, the question was discussed of whether the child herself or himself could initiate a request by contacting the Central Authority. The Convention itself is silent on this point. On the one hand, certain experts stated that such a claim would go beyond the purposes of the Convention. Others, however, considered that nothing in the Convention precluded such a claim, and that it could be particularly useful if the child were being held abroad involuntarily in a place unknown to the parent left behind. In such a case, the child might not be able to communicate with the parent left behind, but might be able to contact the Central Authority where he or she is being held. It is noteworthy that in the English case of Re M (A Minor), a thirteen-year-old boy, represented by his own counsel, successfully appealed from an order for his return (Court of Appeal, London, No 93/1690/F, 21 December 1993). Question 29: Has the third paragraph of Article 13 entered into play in any cases where Article 13 has been invoked? Commentary: 117 Article 13, third paragraph, contains a procedural provision that seeks, on the one hand, to compensate for the burden of proof placed on the person who opposes the return of the child and, on the other hand, to increase the usefulness of information supplied by the authorities of the State of the child's habitual residence. Such information, emanating from either the Central Authority or any other competent authority, may be particularly valuable in allowing the requested competent authorities to determine the existence of those circumstances which underlie the exceptions contained in Article 13, first and second paragraphs (see Perez-Vera Report, paragraph 117). Nevertheless, it is important that courts avoid unnecessary delay in the proceedings in order to obtain information relating to the child's social background. Delay for such purposes would tend to move the proceedings towards a hearing on the merits of the custody issue, rather than a return proceeding with narrow grounds for refusal to return, as envisaged under the Convention. ARTICLE 14 - RELAXATION OF THE REQUIREMENTS OF PROOF OF FOREIGN LAW Question 30: Have any questions arisen in practice concerning the application of Article 14? Commentary: 118 Under the Convention the removal or retention of a child is to be considered wrongful where it is in breach of the actual exercise of custody rights attributed under the law of the State in which the child was habitually resident immediately before the removal or retention (see Article 3). As a result, the competent authorities of requested States will have to take that law into consideration when deciding whether a child should be returned (see Article 12). The purpose of Article 14 is to alleviate any problems for the proof of that law or for recognition of foreign decis