The International and Comparative Law Quarterly Volume 30, Part 3, July 1981 THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION [Start: Page 537] By A. E. ANTON FN1 INTRODUCTION International child abduction exposes the mechanisms of private international law to the rare scrutiny of public opinion. The seizing of a child by a parent or other relative and its removal to another country, often in dramatic circumstances, arouses the interest of the popular press and, through it, of the general public and its representatives in Parliament. All tend to ask why the law can so seldom offer remedies in those cases. It is hardly an answer to say that, though such abductions are thought to have increased in recent years, the total number of cases is still relatively small. FN2 The risk of harm to the child and the certainty of distress to the parent from whom the child has been taken both suggest that lawyers, and indeed Governments, cannot remain entirely aloof. The deficiencies in the present law were succinctly analysed by Mr. John Stanley M.P. in the course of a House of Commons debate on March 23, 1978 FN3 as including the absence of "mutual enforcement arrangements" between the United Kingdom and other countries, the absence of mechanisms for tracing abducted children, and the absence of legal aid in enforcement proceedings overseas. In her reply Dr. Shirley Summerskill, then Under-Secretary of State at the Home Office, referred to the Joint Working Paper of the Law Commission and Scottish Law Commission FN4 -- which canvassed solutions to the problem [538] within the United Kingdom - but explained that there was as yet no international agreement on the subject. "Though the evil", she said, "is universally recognised and other countries suffer from this type of problem, it is by no means easy to find a remedy which will be acceptable to all parties". FN5 She explained, however, that discussions on the subject had been taking place within the Council of Europe and had begun under the auspices of the Commonwealth Secretariat and of the Hague Conference on Private International Law. The discussions within the Council of Europe have resulted in a Convention signed at Luxembourg on May 20, 1980 entitled the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. This Convention - cited subsequently as the Council of Europe Convention - is described by Mr. R. L. Jones in the preceding issue of this Quarterly and further elaboration might seem otiose. One point, however, must be made: the Council of Europe Convention in its original conception did not deal with child abduction as such but rather with the recognition and enforcement of custody decisions. In particular, it was intended to fill certain gaps in the Hague Convention of October 5, 1961. FN6 concerning the powers of authorities and the law applicable in respect of the protection of children. The most obvious of those gaps was the absence within the 1961 Convention of mechanisms for the enforcement of decisions with which it was concerned. The Council of Europe Committee of Experts first met in September 1973 and gradually evolved a draft Convention in traditional form compatible with the 1961 Convention and concerned with the recognition and enforcement of custody decisions given by the courts of the Contracting State in which, at the commencement of the proceedings, the child was habitually resident or of which it was a national. Since these twin criteria left open the possibility of conflicting decisions the draft Convention was originally complemented by a second draft Convention providing for the constitution of an ad hoc international tribunal to resolve possible conflicts. For a number of reasons this draft was unacceptable to the majority of member States and work upon it was eventually abandoned. Some delegates, however, to the Council of Europe Committee of Experts, notably the late Mr. W. Baechler of Switzerland, considered that the Convention on recognition and enforcement in its original form did not adequately deal with cases of child abduction.7 In submissions presented to the Committee of Experts in September 1976, the Swiss delegation invited the [539] committee to adopt a third draft Convention which provided for the immediate restoration of a child during a period of three months from any arbitrary interruption of a right of custody in relation to it. Only limited grounds of refusal were admitted. This proposal attracted strong interest, but the Committee eventually decided not to proceed with the preparation of a third Convention but instead to incorporate elements of the Swiss scheme into the Convention on the recognition and enforcement of custody decisions. This may help to explain the present structure of the Council of Europe Convention. The discussions, on the other hand, at The Hague and within the Commonwealth were concerned from the outset with the specific problem of child abduction. At a Special Commission of the Hague Conference on Private International Law held in January 1976, the Canadian delegate proposed that the subject be placed on the agenda of the Conference. A preliminary note was prepared by the Permanent Bureau FN8 and the subject was formally placed on the agenda of the Hague Conference in October 1976. FN9 In August 1977 the Canadian delegates to the meeting of the Commonwealth Law Ministers at Winnipeg stressed once again the need for international agreement on the subject. At a later meeting in May 1980 at Barbados those Ministers had before them a valuable study of the problem in Commonwealth legal systems by Dr. John Eekelaar of Oxford. He suggested, and Ministers agreed, that the Commonwealth Secretariat should follow the discussions at The Hague. The Commonwealth Secretariat did so, and were represented during the final discussions of the draft Hague Convention, In the meantime, following their usual practice, the Hague Conference Secretariat initiated a study of the legal and social aspects of the subject. A thorough comparative and analytical Report FN10 presented by Mr. C. A. Dyer, the First Secretary of the Conference, was submitted to Governments accompanied by a Questionaire. Following Government replies to this Questionaire, a Special Commission was convened in March 1979 at which the nature of the problem was considered, existing Conventions were carefully examined and possible solutions discussed. At a further meeting of the Special Commission in November 1979 a draft Convention was prepared and submitted to Governments for examination. The comments were largely favourable, and this draft and a valuable commentary upon it by Professor E. Perez-Vera of Spain FN11 were the bases of discussions at the XlVth Session of the Hague Conference in October 1980. At that Conference a draft Convention on the [540] Civil Aspects of International Child Abduction was prepared by a Commission including representatives of 28 States. FN12 Immediately thereafter, on October 25, 1980, the Convention was signed on behalf of Canada, FRance, Greece and Switzerland and is likely to be ratified by those and other States. It is the purpose of tHis paper to describe the evolution of thought which led to the development of this Convention, to consider the principles upon which it is based, and to comment on its principal features. CHOICE OF APPROACH It would be instructive, but hardly practicable, to describe in detail the genesis of this Convention. Earlier Conventions were carefully examined, including the Hague Conventions of 1902 FN13 and 1961 FN14 the draft Council of Europe Convention on the Repatriation of Minors FN15 and the available drafts of the Council of Europe Convention on Recognition and Enforcement of Custody Decisions. In many ways the most interesting solution seemed to be that offered by the United States "Uniform Child Jurisdiction Custody Act". FN16 This is designed to establish co-ordinated rules for the assumption of jurisdiction to make a custody determination, FN17 for the recognition in other States of decisions emanating from courts possessing jurisdiction under these rules, FN18 and for the enforcement of such decisions in the same manner as a custody decree rendered in the State where enforcement is sought. FN19 Though this Uniform Law influenced the Law Commission and the Scottish Law Commission in their approach to resolving the problems of child abduction within the United Kingdom, FN20 it was generally thought by members of the Special Commission at the Hague to be unsuitable for adoption internationally by reason of the wide divergencies of rules for the assumption of jurisdiction in different countries, especially where custody is sought in the course of matrimonial proceedings. It was considered, too, though there was [541] less agreement on this point, that the semi-automatic FN21 return of a child, while perhaps more appropriate within a federal or other pluri-legislative State, might be inappropriate within a Convention open to accession by States with different levels of social and legal development. It was decided, therefore, "almost unanimously" not to adopt an approach involving the harmonisation of rules for the assumption of jurisdiction, but to consider the inclusion of rules relating to the recognition of jurisdictional competence. The problems associated with the latter approach were considered with some care by the Special Commission. It became clear, however, that the diversity of views on appropriate criteria for the assumption of jurisdiction in custody was paralleled by an equal diversity of views on appropriate criteria for the recognition of foreign custody decisions. Gaps would be left unless the criteria for recognition were co-extensive with commonly accepted criteria of jurisdiction. The widening, however, of criteria for recognition carried with it the danger of requiring the recognition of decisions proceeding on grounds of jurisdiction thought by some States to be exorbitant and the risk of requiring simultaneously the recognition of more than one decision. The principle that priority should be given to the decision emanating from the proceedings first instituted was decisively rejected; the establishment of an international tribunal to resolve these problems (as the Council of Europe Experts at this time proposed) was generally agreed not to be a Practical answer to the urgent problems which arose in this field; and the giving of precedence to the decisions of the State of the nationality (as in the Hague Convention of 1961) would have had little appeal for the common law and Scandinavian countries. It was considered, moreover, by many delegates within the Special Commission that solutions based on the recognition of decisions were vulnerable to two objections. The first was the practical objection that in many abduction cases there will have been no anterior custody decision: the right breached may have been a right conferred by law. The Council of Europe Convention comes into operation only where there is a custody decision to recognise and enforce, and meets the problem presented by the possible absence of an anterior decision by providing for the recognition and enforcement under the Convention of a retrospective decision (the so-called "chasing order") relating to the custody of the child and declaring his removal to have been unlawful. FN22 The Special Commission at The Hague, however, considered that it would be wrong to require a person seeking the return of an abducted child to go first to the courts of the State of the habitual residence of the child to obtain a [542] "chasing order". Such a requirement might be useful as an option to deal with cases where the facts relating to the abduction or the relevant law were not clear but was inappropriate as a condition for the operation of a convention for the return of abducted children since in many cases the relevant facts and law are clear. The obtaining, moreover, of a "chasing order" might in some countries take a long time to obtain and delay the return of the child. Although, therefore, under Article 15 of the Hague Convention, the courts of a State to which applications for the return of a child have been made may call for a "chasing order", this is merely an option. They are likely to avail themselves of it only when the have substantial doubts which cannot otherwise be resolved. A second, and possibly more fundamental, reason for rejecting an approach based on the recognition of decisions derived from the view that custody decisions, though implemented for a time, may eventually be ignored with the consent, or at least the tacit acquiescence over a period, of the party not having the control of the child. The removal of a child from the person who effectively had it in his care was considered to be legally and morally unacceptable where it was not authorised by the law of the State where the child habitually resided, even where such removal might be consistent with a decision rendered by the courts of the abductor's own State. It was decided, therefore, to draft a Convention which would concern itself with custody rights rather than with custody decisions and which would concentrate upon securing the prompt return of a child who had been removed in breach of custody rights effectively exercised under the law of his habitual residence. Where the child has been so removed, it should be returned forthwith even where the abductor has been awarded the custody of the child in the courts of his own country. This is a novel proposition for judges in several European countries, where such a decision would usually be an effective barrier to any claim for the return of the child. The Special Commission also considered -- and, until recently, this would have been an equally novel proposition for judges in common law countries -- that the courts of the State addressed should order the return of the child, subject to certain limited exceptions, despite the possibility that further inquires might disclose that the child's welfare would be better secured by its remaining in that State. As in the discussion at the Council of Europe, there was a wide diversity of opinion as to the nature of the permissible exceptions and the matter was subject of animated debate. The Commission, however, thought that a provision allowing an inquiry at large into the merits of any custody dispute between the parties would frustrate the objects of the Convention. "In every country", as Dr. Summerskill stated, FN 23"there is a tendency to think that it [543] must be within the child's best interest to be brought up there rather than elsewhere" and she implied that there was a need for this tendency to be overcome before progress could be made in the international regulation of custody disputes. The Hague Convention proceeds on the view that questions of the merits of a custody dispute are best resolved in, and on that account are best left to, the courts of the State of its habitual residence. By placing emphasis on the immediate return of abducted children, the Convention incidentally makes it clear to potential abductors, and to their legal advisers, that the removal of a child to another Contracting State is likely to avail them little. MAIN OUTLINES OF THE CONVENTION Objects ALthough the only express reference to the point is in its title, the Convention is concerned exclusively with the civil aspects of international child abductions. The Convention does not exclude the utilisation by the relevant authorities of the resources of the police or prosecuting authorities, for example, to help in locating a child. But its provisions are designed to set in motion civil proceedings rather than criminal proceedings. The purposes of the Convention, however, are in another respect wider than its title suggests. Article 1(b) includes as an object: to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States. Under Article 2, Contracting States undertake in general terms to take all appropriate measures to secure within their territories the implementation of the objects of the Convention. Articles 6 and 7 provide for the establishment of "central authorities" not only to secure the prompt return of abducted children but to achieve the other objects of the Convention. Article 21 involves those central authorities specifically in securing respect for access rights. it is obviously uncertain what impact these provisions are likely to have. The very existence, however, of a system of central authorities should open the way, as between those States which are prepared to give a measure of discretion to their central authorities, to a useful degree of co-operation between Contracting States in the resolution of international problems of custody and access which may not be connected with child abduction. These wider objects, however, are subsidiary to the primary purpose of the Convention, namely, as Article 1(a) states, to secure the prompt return of children wrongfully removed to or retained in any Contracting State. The Commission started from the assumption that the abduction of a child will generally be prejudicial to its welfare. it followed that, when a child has has been abducted from one country to another, international mechanisms should be available to secure its return either voluntarily or through court proceedings. [544] That return should be prompt. "This appears both from the terms of the preamble and from the duties imposed by various Articles upon States and the courts to "act expeditiously in proceedings for the return of children" and upon the courts to "order the return of the child forthwith". FN24 Application of the Convention As regards the general objects of the Convention, the drafting of Article 1(b) makes it clear that the Convention is concerned only with international situations. In relation, however, to the return of children under Articles 1(a) and 12 of the Convention, there is no specific reference, as there is in Article 1(d) of the Council of Europe Convention, to the removal of a child or the failure to return it across an international frontier. This omission was deliberate. It was thought that the title, preamble and structure of the Convention made it sufficiently clear that the Convention applies only to situations of an international character. Proof, moreover, that a child has been removed across an international frontier may not always be available. A person from whom a child has been abducted may wish to seek the aid of a central authority in another State to trace the child and to discover its whereabouts. The Convention applies only to a child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. FN25 The choice of the criterion of the habitual residence of the child was scarcely contested. it was clearly desirable to select a single criterion. That of the child's nationality seemed inappropriate because the State with the primary concern to protect a child against abduction is that of the place where he or she usually lives. In some systems the criterion of domicile would point to that place, but in others domicile has a technical character which was thought to make its choice inappropriate. Article 4 declares that the Convention ceases to apply once the child attains the age of 16. The selection of that age was much debated but eventually attracted wide agreement. The rule is formulated in such a way that the Convention ceases to apply once the child has attained that age, even where an application has already been presented to a central authority or to a court. This approach was adopted on the ground of its simplicity and practicality. Abductions are usually of younger children. Nothing, however, in the Convention would preclude a State from applying its principles to older children if it considered that course to be desirable. The Convention applies to a child under the age of 16 who, as in Scots law, may already be entitled to choose his own place of residence. Prima facie this may seem contrary to principle, and the Council of Europe Convention only [545] applies to a child "who has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed". FN26 At the Hague, it was thought preferable to avoid the difficulties of proof inherent in a provision of this nature, which might require reference to a number of systems of law. In such cases, moreover, if the test of the child's power to fix its own residence is to be found in th\ law of the State of the child's habitual residence, there will clearly be no breach of the custody or access rights in the sense of the Convention when a child with power to fix its own residence is removed from one country to another. A legal problem arises only when it is removed against its own wishes: such cases will clearly be rare, and the appropriate remedies may be thought to be more in the sphere of the criminal than of the civil law. The decision to confine the application of the Convention to children habitually resident in a contracting State was taken partly on the ground that applications will normally be made, and normally ought to be made, through the central authority of the State of the child's habitual residence and partly on the view that the Convention should be one of a reciprocal character. The fact that its benefits are given only to children habitulally resident in a Contracting State may also persuade States to adhere to the Convention. Nothing, however, would prevent the United Kingdom or any other State in its implementing legislation applying some at least of the provisions of the Convention to children not habitually resident in a Contracting State. FN27 The concept of abduction The term "abduction" is used only in the title to the Convention. The preamble and the text use the technically more accurate concept of the "wrongful removal or retention of a child", though in this paper the two expressions are used synonymously. Article 3 declares that the removal or retention of a child is to be considered wrongful when it is in breach of custody rights attributed to any person, institution or other body under the law FN28 of the State in which the child was habitually resident immediately before the removal or retention. "Custody rights" are not limitatively defined in the Convention but are stated by Article 5(a) to 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". Article 3 makes it clear that those rights of custody are not necessarily rights attributed to a person by a judicial decision, but may be rights attributed by an agreement [546] having legal effect FN29 in that State or even by operation of law. Where the law concedes, or a court grants, joint custody to both parents the removal of the child by one of them without the consent of the other is clearly a wrongful removal in terms of Article 3. It is clear also from the definitions of custody and access in Article 5 that the removal or retention of a child in breach merely of access rights would not be a wrongful removal or retention in the sense of Article 3. It is less clear, but the definition of "rights of custody" in Article 5 at least suggests, that the breach of a right simply to give or to withhold consent to changes in a child's place of residence is not to be construed as a breach of rights of custody in the sense of Article 3. A suggestion that the definition of "abduction" should be widened to cover this case was not pursued. A breach of custody rights is wrongful only if, at the time of the child's removal or retention, "those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention". FN30 This provision reflects the awareness of delegates that a parent who technically has a right to the custody of the child may have acquiesced in the assumption of control over the child by another person or may even have thrust the child upon him. It was thought to be inappropriate, therefore, to allow the former to benefit from the Convention. The Convention covers the case where, following a court order ordering one person to hand over the child to another, the former abducts the child instead of obeying the order. This is apparent from the use in Article 3(a)(b) of the words "or would have been so exercised but for the removal or retention". The same words, however, appear to exclude the application of the Convention where the abduction takes place prior to the court order.. The problems, therefore, presented by the anticipated removal of a child -- whether prior to an application for the custody of a child or following such an application but before the making of a court order transferring custody rights -- would seem to be left for resolution by the laws of Contracting States. Central authorities Following precedents in other Hague Conventions, the present Convention requires States to designate a "central authority" to make administrative arrangements necessary to secure the objects of the Convention. FN31 This does not necessarily mean that a new administrative authority is to be created. It [547] envisages rather that the usual diplomatic channels may be by-passed and that the authority normally handling matters relating to the custody and care of children should be designated to deal with administrative questions arising under the Convention. The main problem for the person from whom the child has been abducted, as Mr. Jones has stressed when discussing the Council of Europe Convention, is the practical one of tracing the child and obtaining in a foreign country assistance with the administrative and legal problems associated with obtaining the return of the child. The central authorities, therefore, are designed to act as a channel for applications under the Convention. They are to take all appropriate measures, whether directly or through other agencies public or private, to discover the whereabouts of the child, to secure his interim protection, and if possible his voluntary return, FN32 to take a variety of steps to facilitate, where necessary, the institution and conduct of legal proceedings, to assist in obtaining legal aid or advice, and to make the practical arrangements necessary for the return of the child. FN 33They are to cooperate with each other and with other relevant agencies in their States to secure the prompt return of children and the achieving of the other objects of the Convention. FN34 The choice of words in he relevant provisions makes it clear that the extent of the role of the central authorities will vary from State to State, but the fact of their existence should itself be a deterrent to potential abductors. Applications under the Convention The Convention imposes no obligation on persons concerned to seek the assistance of central authorities to secure the return of an abducted child. Article 29, indeed, permits persons whose rights have been breached by a wrongful removal or retention to apply directly to the courts of a Contracting State for the return of a child. In this case they receive all the benefits of Chapter III of the Convention and may avoid the delay which may occur when an application is channeled through a central authority. Persons, institutions or other bodies, FN35 however, who claim that their rights have been breached by the wrongful removal or retention of a child will often find it advantageous to apply for assistance under the Convention to a central authority, both because a direct channel of communication becomes available and because central authorities will bear their own costs in the operation of the Convention other than the transportation and other expenses associated with the return of the child. FN36 Such persons may apply to any central authority, but they are likely to find it [548] more convenient to apply through their own central authority. In any case the application must contain the information and specify the grounds of the applicant's claim for the return of the child in accordance with Article 8(2). The application may be supplemented by the materials specified in Article 8(3)(g). That provision refers to the submission of "any other relevant document". These cryptic words are intended to refer inter alia to the model form whose utilisation the Conference recommended to Contracting States in Part F of the Final Acts of the Fourteenth session of the Hague Conference. This model form of request was prepared by a sub-Committee, but was not examined in detail at the Conference. It was decided that its use should not be mandatory and it was left to States to consider whether or not to adopt the model form in their mutual relations. The main argument for its use is that the faithful completion of the form should accelerate the application of the Convention and, in particular, the return of an abducted child. Duties of central authority on receiving application A central authority is thought to be bound to receive applications under the Convention except "where it is manifest that the requirements of the Convention are not fulfilled or" that the application is otherwise not well-founded". FN37 In this case the central authority to which application has been made must give the reasons for its refusal to the applicant or the central authority through which the application was submitted. If the central authority to which application has been made has reason to believe that the child is in another Contracting State, it must transmit the application to the central authority of that State. FN38 If it decides to accept the application, it is likely, first, to take steps to find the child and its present custodian, FN39 possibly through the police or, in some countries, through their child location services. Having discovered the whereabouts of the child, it may, secondly, take or cause to be taken provisional measures to prevent further harm to the child. FN40 Thirdly, it must take all practicable measures "to secure the voluntary return of the child or to bring about an amicable resolution of the issues". FN41 The Convention attaches considerable importance to securing the voluntary return of the child. Article 7(2)(c), which imposes a general duty to this effect, is re-inforced by [549] Article 10 in the context of the provisions in Chapter III for the return of abducted children. Court proceedings to secure the child's return Agreement, however, upon the voluntary return of the child may not be secured and various duties are imposed on central authorities with a view to assisting applicants in court proceedings FN42 to secure the child's return. The central authorities are to exchange information relating to the social background of the child and to provide information of a general character as to relevant aspects of the laws of their own State. FN43 They are to provide or to facilitate the provision of legal aid or advice. FN44 Finally, they are bound to initiate or to facilitate the institution of court proceedings to obtain the return of the child.45 Obligation of the court to return the child The heart of the Convention, however, is to be found in the relatively simple provisions in Article 12 for the return of abducted children. Where a child has been wrongfully removed or retained in the sense of Article 3 and less than a year has elapsed from the date of the wrongful removal or retention to the date when the court proceedings were commenced, then, subject to certain limitatively enumerated exceptions which are discussed below, the court must order the return of the child forthwith. Even after the lapse of this period of one year, the child is to be returned "unless it is demonstrated that the child is now settled in its new environment FN46 -- subject to the same exceptions including the defence (increasingly important with the lapse of time) that the applicant subsequently acquiesced in the child's removal or retention. FN47 The provision for the return of the child after the lapse of a year was introduced into the Convention at a relatively late stage of the discussions and does not sit easily with the other provisions which, being designed essentially to deal with the restoration of the status quo after a recent abduction, give considerable advantages to the applicant. Its introduction, however, was prompted by the view that the mechanisms of the Convention should be available to applicants where an abductor has successfully concealed the whereabouts of the child for a relatively long period. The rule should be an added disincentive to abductors and the child itself is protected by the possible defence that it is now settled into a [550] new environment. It has the practical disadvantage, however, of adding to the period during which central authorities may be required to intervene. Grounds of refusal Most delegates at The Hague were agreed that, after a wrongful removal to or retention in another country, its courts - in principle at least - should order the return of the child forthwith without entering into the merits of any custody dispute between the parties. Some delegates, indeed, argued that the achievement of the main purpose of the Convention would be imperiled if the door were left even slightly ajar to abductors to justify the new situation of the child by an inquiry in the State to which the child had been abducted into what allocation of custody rights was in the best interests of the child. Other delegates, while accepting that in principle an abducted child should be returned forthwith, considered that in certain cases a departure from this principle might be justified in the interests of the child. Which approach each delegate adopted was determined largely by his confidence or lack of confidence both in other legal systems and in the restraint which judges might exercise in intervening. What emerged was inevitably a compromise. It was agreed that a refusal to return the child should not be based on public policy or any analogous general ground. FN48 The Convention should rather limitatively enumerate the exceptions which it allowed. The first exception, which merely re-inforces the concept of an abduction as a breach of effectively exercised rights of custody, is that the court is not bound to order the return of the child when the person opposing its return establishes that, at the time of the child's removal or retention, the person having the care of the child was not actually exercising custody rights or had consented to, or subsequently acquiesced in, the removal or retention. FN49 The second exception arises where the court finds that the child objects to being returned, and has attained an age and degree of maturity at which it is appropriate to take account of its views. FN50 This last rule, although criticised by certain delegates by reason of the vulnerability to pressure of young children, is little more than a corollary of the fact that the Convention applies to children up to the age of 16. The third, and most important, exception arises where the person opposing the child's return establishes that -- FN51 there is a grave risk that his or her return would expose, the child to physical or psychological harm or otherwise place the child in an intolerable situation. [551] This is intended to be a narrow ground of refusal; it is not designed to cover such matters as the child's loss of economic or educational advantages. Apart from harm to the child, it has to be established that the child itself, and not the abductor, would be placed in an intolerable situation. This provision, therefore, would not by itself necessarily exclude a duty to return a child "wrongfully removed" by a political refugee in search of rights of custody imputed to a person under the law of the State from which he has sought refuge. Attempts, therefore, were made to widen this exception notably by introducing a further exception based on Article 10(1)(a) of the Council of Europe Convention. This declares that, when an application for the return of the child is made six months or more after the date of the abduction, (or, if a reservation to that effect is made, in all cases) the recognition and enforcement of a custody decision may be refused- if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to family and children in the State addressed. A substantive provision to this effect was not accepted at The Hague, but - initially at least - a reservation to the same effect was admitted by the narrow margin of one vote. The acceptance of this reservation was criticised by Mr. Dyer on behalf of the Secretariat on the ground that it would lead to an imbalance in the obligations of States under the Convention and certain delegates argued with some emotion that a State adopting such a reservation would be free to enter into the merits in any application for the return of an abducted child. There was clearly a risk, however, that certain States might find it impossible to ratify the Convention unless a wider safety valve was admitted than that approved in Article 13. Informal negotiations to achieve a compromise resulted in the presentation to the Commission of a proposal to delete the reservation and to provide instead that- The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. This proposal attracted the required absolute majority and is embodied in Article 20 of the Convention. Its acceptance may in part have been due to the fact that it states a rule which many States would have been bound to apply in any event, for example, by reason of the terms of their constitutions. The reference in this provision to "the fundamental principles of the requested State" make it clear that the reference is not one to international conventions or declarations concerned with the protection of human rights and fundamental freedoms FN52 which have been ratified or accepted by Contracting States. It is [552] rather to the fundamental provisions of the law of the requested State in such matters. It seems clear, moreover, that the provisions of conventions on human rights and fundamental freedoms (even if ratified by the United Kingdom) are not part of the municipal law of its constituent parts until Parliament has passed legislation giving effect to those provisions. FN53 If the United Kingdom decides to ratify the Hague Convention, it will, of course, be for the implementing legislation or for the courts to specify what provisions of United Kingdom law come within the scope of Article 20. The Article, however, is merely permissive and it is to be hoped that States will exercise restraint in availing themselves of it. Applicant's burden of proof Under the scheme of the Convention the applicant must establish that there was a wrongful removal or retention within the meaning of Article 3 , but he is assisted in several ways. He need not necessarily possess a decision of a court in the State of the habitual residence of the child declaring the child's removal to be wrongful, though under Article 15 the court addressed may request the applicant to obtain such a decision. If he already holds such a decision the applicant's task is facilitated by Article 14, which provides that the courts of the requested State may take direct notice of that decision without recourse to the specific procedures for its recognition which would otherwise be applicable in certain continental systems. If, on the other hand, the applicant does not hold such a decision, the Convention envisages that the court addressed may take notice of the law of the State of the child's habitual residence without necessarily establishing the tenor of that law by evidence. Neither Article 14 nor Article 15 is mandatory in form and it will be for States in their implementing legislation to decide what effect to give to them. An applicant is also assisted by various procedural provisions. He need not find security for costs. FN54 If a national of or habitually resident in a Contracting State, he may be entitled in other Contracting States to benefits under the legal aid or advice schemes of those States. FN55 He may be assisted by the fact that the court authorities of the requested State are bound to take into account information relating to the social background of the child provided by the authorities of the child's habitual residence. FN56 He may be assisted by the rule in Article 30 relating to the admissibility in evidence both of the application itself and of supporting [553] documents. FN57 An applicant may also be protected by the provisions for costs. Defendant's burden of proof It will usually fall, on the other hand, to the person opposing the child's return to establish one or more of the grounds permitting the court to decline to return the child. This is a matter of express provision in relation to the main grounds in Articles 13(1)(a) and (b), but it also arises by implication in relation to Article 12(2), where it evidently will be for the defendant to demonstrate that the child is now settled in its new environment. In relation to the other grounds of refusal in Article 13(2) and Article 20, the Convention is silent as to burden of proof, but it will normally be for the person opposing the child's return to draw the court's attention to these grounds of refusal and to demonstrate their prima facie applicability. Once again, the structure of the Convention gives clear advantages to the applicant. No decision on the merits Articles l2 and 13 of the Convention implicitly reject the view that the function of the court addressed is to consider whether the return of the child is in its best interests. Article 19 goes further and explicitly declares that a decision under the Convention concerning the return of the child shall not be taken to be a determination of the merits of any custody issue. Questions as to the merits are clearly left to be decided by the courts of the former habitual residence of the child after its return to that country. The courts, that is, of other countries have the more limited role under the convention of determining whether there has been a wrongful removal or abduction and, if so, whether the abductor has established one of the specific exceptions specified in Articles 13 and 20. Those courts, indeed, may not proceed with the investigation of merits of a custody dispute pending before them when they have notice of a wrongful removal or retention under Article 13. FN58 They must stay such proceedings until it has been determined that there are grounds for refusing to return the child under the Convention. Prior decisions The Convention, at one stage of the negotiations, contained a rule permitting a refusal to return a child when such return would be inconsistent with a custody decision in the requested State. This provision was open to the objections that the decision may have been a stale one and that the applicant may have [554] acquiesced in its non-observance. Ultimately a compromise was reached, embodied in the present Article 17, that the existence of a decision relating to custody given in or entitled to recognition in the requested State is not by itself a ground for refusing to return the child, but that the judicial authorities of that State may take account of the reasons for that decision in applying the Convention. The language of the qualification is rather elliptic but it is designed to allow those authorities to have regard to the grounds of the anterior decision in considering whether there is a justification under Articles 12, 13 or 20 for declining to return the child. Legal Aid and Costs Article 25 obliges a Contracting State in matters relating to the Convention to concede legal aid and advice to nationals of and to persons habitually resident in other Contracting States on the same conditions as if they were nationals of, or habitually resident in that State. The main provision relating to costs is Article 26. FN59 Central authorities may require the payment of expenses incurred or to be incurred in implementing the return of the child. Otherwise, they may not impose any charges in relation to applications submitted under the Convention. The intention is that each central authority should bear its own costs in applying the Convention. This extends to the expenses of legal proceedings, including those arising from the participation of counsel and solicitors. There is, however, a provision allowing the courts to direct the abductor to pay the applicant's necessary expenses. Contracting States may reserve the right not to assume the burden of meeting counsels' and solicitors' fees. If the United Kingdom decides to ratify the Convention it will be for it to decide whether or not to utilise this reservation. In relation to costs generally, it may be suggested that if, as may be hoped, the provisions of the Convention act as an effective deterrent to abductors, recourse to central authorities in the United Kingdom should be relatively rare. In any case it is understood that the legal aid and advice scheme is already available within the United Kingdom to a foreign parent seeking by judicial proceedings to secure the return of an abducted child. It follows that the implications of the Convention for Government expenditure within the United Kingdom should not be important. Access rights Access rights are not defined in the Convention but are stated in Article 5(b) to include the right to take a child for a limited period of time to a place other than the child's habitual residence. The Convention contains no mandatory [555] provisions for the support of access rights comparable with those of its provisions which protect breaches of rights of custody. This applies even in the extreme case where a child is taken to another country by the parent with custody rights and is so taken deliberately with a view to render the further enjoyment of access rights impossible. It was felt not only that mandatory rules in the fluid field of access rights would be difficult to devise but, perhaps more importantly, that the effective exercise of access rights depends in the long rule more upon the goodwill, or at least the restraint, of the parties than upon the existence of formal rules. Article 21, therefore, establishes open-textured rules for assisting parties to secure the effective exercise of access rights by seeking the intervention of central authorities. The retention, however, of a child by a parent with access rights after the period for their exercise has expired would necessarily be a breach of the custody rights of another person and, therefore, would be considered "wrongful" in terms of Article 3. It will bring into operation, in consequence, the mandatory provisions for the return of the child in Article 12. It was thought, therefore, that if the Convention were widely ratified, its provisions for the prompt return of abducted children might lead to the more liberal concession of rights of visit to parents in a Contracting State other than that of the child's habitual residence. Non-exclusivity The Convention in various Articles makes it plain that its provisions are not designed to be exclusive. Article 2 enjoins Contracting States to take all appropriate measures to secure the objects of the Convention; Article 29 enables parties to apply directly to the courts of Contracting States, "whether or not under the provisions of this Convention"; Article 18 indicates that the provisions of Chapter III do not limit the powers of the courts to order the return of the child at any time; Article 36 makes it clear that Contracting States may agree among themselves to derogate from provisions of the Convention implying restrictions on the return of a child; and Article 34 permits of the utilisation of other international instruments. The Convention, therefore, would not preclude the United Kingdom from utilising the Council of Europe Convention or from applying more rigorous rules for the return of abducted children. CONCLUSION It is thought, therefore, that the Convention provides an attractive instrument for dealing with the problems of international child abduction. it meets the specific problems identified by Mr. John Stanley M.P. of providing mechanisms for tracing abducted children and of securing legal aid to [556] applicants. It possibly does not "provide mutual enforcement mechanisms" of the type which he envisaged; but it does provide what are arguably more effective mechanisms to secure the return of abducted children, The Convention, moreover, has the merit of being simple in application, in its general structure, and in its definition of the key concepts which it utilises. It is simple also in the sense that it admits of no reservations in relation to its central rules and no counter-reservations of any kind. it includes various compromise solutions which ideally some States would have preferred not to make; but the fact that these compromises were admitted points to the feeling among delegates that as few States as possible should be precluded from ratifying the Convention. it was appreciated, that is to say, that the effectiveness of the Convention may depend less upon its precise terms than upon its adoption by a relatively large number of States. -------------------- 1. Member of Scottish Law Commission. The author was chairman of the Commission of the Hague Conference on Private International Law which drafted the Convention. He gratefully acknowledges the advice given to him during the preparation of this paper by Mr. Adair Dyer, First Secretary of the Conference, Mr. R.L. Jones, United Kingdom Delegate to the Conference, and of Mr. Ian Karsten, Barrister. The paper, however, must not be taken to reflect any views other than those of the author. 2. Comprehensive statistics are not readily available. A questionnaire was submitted to governments in August 1978 by the Permanent Bureau of the Hague Conference on Private International law asking inter alia for information concerning the number of cases involved. Only a few countries submitted figures and the numbers or approximate numbers of reported cases were as follows: Australia (10); Belgium (15); Denmark (8); and France (75) (1977) and (130) (1978). No published statistics are available for the United Kingdom. The scale of the problem, however, is indicated by the fact that the Home Office in a recent 12-month period was asked to take precautions at ports and airports in 691 cases involving 69 different countries. The United States Government reply stated that "while no official statistics were available, published estimates of parental abductions (inter-State and international) range from 25,000 to 100,00 per annum". Most replies suggested that the number of cases was increasing. 3. Hansard (H.C.), vol. 946, col. 1939 4. Working Paper No. 68 and Memorandum No. 23: Custody of Children -- Jurisdiction and Enforcement in the United Kingdom (1976). 5. Hansard (H.C.), vol. 946, col. 1846 6. Hague Conference on Private International Law, Acts and Documents of the 9th Session, Book IV, "Protection of Minors". This Convention has been ratified by Austria, France, Germany, Luxembourg, the Netherlands, Portugal and Switzerland. An English translation appears in (1961) 10 I.ClL.W. 53. 7. See Hague Conference on Private International Law, Acts and Documents of the 13th Session, Book I, dp. 170. 8. "Note on Legal Kidnapping", Preliminary Document No. 9 of September 1976, Acts and Documents of the 13th Session, Book I, p. 121. 9. Acts and Documents of the 13th Session, Book I, pp. 169-172. 10. C. A. Dyer, Questionnaire and Report on the International Abduction of a Child by One Parent, Hague Conference, Preliminary Document No. 1 of Aug 1978. 11. Hague Conference, Preliminary Document No. 6 of May 1980. 12. These included all member States of the Common Market, Australia, Canada, Finland, Norway, Portugal, Spain, Sweden, Switzerland, Japan and the United States. The draft Convention is printed in the Appendix. See infra, p. 556. 13. Markov, Recueil de textes concernant le droit international prive, Book II, 2nd edn., 1960, No. II, pp. 625 et seq. 14. Op. cit. supra, n. 6 15. Opened for signature on May 28, 1970; see Explanatory Report on the European Convention on the Repatriation of Minors (Council of Europe, Strasbourg, 1971). 16. National Conference of Commissioners on Uniform State Laws, Master Edition of Uniform Laws Annotated, vol. 9, p.103. For a scholarly commentary on the Uniform Act, see the article by the late Professor Brigitte M. Bodenheimer in (1977) 65 California Law Review, pp. 978 et seq. 17. Section 3 18. Section 13 19. Section 15 20. Op. cit. supra, n. 4. 21. The Uniform Law itself allows of some exceptions. Cf. sections 3(a)(3), 8 and the footnote to s 15. Section 3(a)(3) allows of the assumption of jurisdiction "in an emergency to protect the child because he has been subject to or threatened with mistreatment or abuse or is otherwise neglected". 22. Article 22 23. Hansard (H.C.), vol 946, col. 1849 24. Cf. Articles 1(a), 2, 11, 12 and 27. 25. Article 4 26. Article 1(a) 27. Cf. Article 18. 28. The reference to the law of the State of the habitual residence was intended to include its rules of private international law. The words "person, institution or other body" were chosen because of their generality. They were intended to apply to private institutions as well as public institutions and to bodies whether without or without legal personality. 29. The words "having legal effect" were preferred to "enforceable". In some States a custody agreement has no legal effect unless completed before a notary or other public official and it may have legal effect without necessarily being enforceable. 30. Article 3(1)(b). Too much must not be read into the words "actually exercised". A mother who is in hospital and has left the care of a child to its grandmother is thought to "actually exercise" her right of custody. 31. Articles 6 and 7. Article 6(2) makes special provision for federal and other states with more than one system of law. 32. A matter discussed below. 33. Article 7(2) 34. Article 7(1) 35. Article 8 is not confined to applications by natural persons, and the words used were selected for their width. 36. Article 26(2). This proposition may be qualified where a reservation is made in terms of Arts. 26(3) and 42. 37. Article 27 38. Article 9 39. Article 7(2)(a) 40. Article 7(2)(b) 41. Article 7(2)(c) 42. The Convention uses the expression "judicial or administrative proceedings". The words "administrative proceedings" are used because in some countries, such as Denmark, Norway and Switzerland, custody proceedings may take place before administrative authorities. The proceedings, however, are of a quasi-judicial character. The expressing "court proceedings" will be used in this article to denote both types of proceedings. 43. Article 7(2)(d) and (e) 44. Article 7(2)(g) 45. Article 7(2)(f) 46. Article 12(2) 47. Article 13(1)(a) 48. The Convention contains no clause allowing of the refusal to return a child on the ground of public policy. It was argued, however, by Professor Barile of Italy that, even in the absence of a public policy clause a court might (and indeed must) apply its own rules of public policy, since they express the fundamental principles of its juridicial order. 49. Article 13(a)(a) 50. Article 13(2) 51. Article 13(1)(b) 52. Such as the United Nations International Convention on Civil and Political Rights of December 16, 1966 -- cf. Article 24(1) -- and the United Nations Declaration of the Rights of th Child, proclaimed by the General Assembly on December 20, 1959 -- cf. Principle 2. 53. See R v. Chief Immigration Officer, Heathrow Airport and Another, ex parte Salamat Bibi [1976] 3 All E.R. 843 at p. 847; Ahmad v Inner London Education Authority [1978] Q.B. 30 at p. 41; Malone v Metropolitan Police Commissioner [1970] 2 All E.R. 620 at pp. 628, 637, 638; Surjit Kaur and Another v Lord Advocate (June 6, 1980, as yet unreported but discussed by W. Finnie in (1980) 25 Journal of the Law Society of Scotland pp. 434-438). 54. Article 22 55. Article 25 56. Article 13(3) 57. This rule, however, does not prevent a court drawing its own conclusions as to the weight of the evidence submitted. 58. Article 16 59. The Convention also contains, in Art. 22, a provision, common in Hague Conventions, excluding security for costs as a condition of the initiation of judicial proceedings.