The International Journal of Chlldren's Rights 1: 273-292, 1993. Posted on the BBS with permission of Kiuwer Academic Publishers. Copy Right 1993 Printed in the Netherlands. The Hague Convention on the Civil Aspects of International Child Abduction - towards global cooperation Its successes and failures FN 01 ADAIR DYER Permanent Bureau of the Hague Conference on Private International Law Introduction This article talks about both the successes and the failures of the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), which was signed on 25 October 1980. This is an appropriate time to make up such a balance sheet, since this coming weekend will mark what the Dutch call the "copper" anniversary of the Convention, this being half of a silver anniversary, i.e. twelve and a half years. It also marks the point in time when the total number of ratifications of and accessions to this Convention has, with the accession of Mauritius, just reached thirty. That is ten times the number of ratifications which were required to bring it into force in 1983. This number may seem small, being less than one fourth of the number of ratifications of the United Nations Convention on the Rights of the Child (CRC), which was adopted only on 20 November 1989. FN 02 However, these numbers may be placed in perspective when the fact is recalled that the number of Hague Conference Member States in 1980 was only twentynine. Thus, the number of countries which have ratified or acceded has now surpassed the number of States which negotiated the treaty. Moreover, the number of Hague Conference Member States, even with recent additions from Eastern Europe, still only comes to about forty countries. Nonetheless, it may be asked why the pace of ratifications, at an average rate of 2.4 per year, is so much slower than that of the CRC. One obvious point in the response to this question is that the obligations, which a Contracting State takes up under the Hague Convention on the Civil Aspects of International Child Abduction, are much more precise and constraining than are the obligations described in an "umbrella" Convention like the CRC. FN 03 The Hague Convention intrudes upon the jurisdiction of the courts in the country to which the child has been taken, even if that is the country of the child's nationality, and insists that the child be returned (usually to the place of the child's habitual residence immediately before the abduction) so that the courts of another country may exercise jurisdiction over the merits of custody. The execution of this obligation requires discipline on the part of the courts and a willingness to let the best interests of the child be framed, not merely within the context of the judge's own culture, but also in a threedimensional, multicultural setting, including the child's interest in not being abruptly jump-started from one culture to another. This requires the acceptance of new points of view by both judges and populations, which does not happen overnight. The progress of the past twelve and a half years is marked with notable successes, yet the gap between thirty ratifications and accessions and the one hundred and thirty-one which have been garnered by the CRC shows, indeed, just how far there is to go. 1. Successes 1.1. Entry into force in just over three years time Implementation of the Hague Conventions is generally a long and laborious process, since these Conventions are taken into the positive law of the countries which ratify or accede to them. At the request of several States, this text was open for signature immediately after its adoption in the Final Act FN 04 of the Conference's Fourteenth Session, 25 October 1980, and several countries immediately signed: Canada, France, Greece and Switzerland. The Convention entered into force on 1 December 1983 among Canada, France and Portugal, thus being intercontinental from the beginning. It entered into force for Switzerland, as the fourth Party, one month later on 1 January 1984. It will enter into force for Greece on 1 June 1993 following ratification in March of this year. FN 05 1.2. The implementing legislation in most countries has been excellent The Convention has been blessed with well-thought-out implementing legislation. The text can, of course, in those countries whose constitutional systems so permit, be adopted by itself as a "self-executing" treaty, without the need for an implementing law. The vast majority of countries, however, have not taken this option and, although implementing legislation varies considerably from country to country, the effects have mostly been favourable. Issues treated in the implementing legislation include such matters as (i) the jurisdiction of particular courts, (ii) the burden of proof, particularly for defenses offered under Articles 13b and 20 of the Convention, FN 06 (iii) the lifting of confidentiality of certain types of information held by governmental authorities, particularly for purposes of facilitating the process of locating the child, FN 07 (iv) limitation of the period of time for filing an appeal from an adverse judgment in the lower court, FN 08 (v) limitation of the number of appeals possible from an adverse decision, FN 09 (vi) priority as between this Convention and the European Convention on recognition and enforcement of decisions concerning custody and on restoration of custody of children, signed 20 May 1980 (the "Luxembourg Convention") (ETS 105), FN10 (vii) elimination of any custody orders which are incompatible with the order to return the child.' FN11 Much has been said about the difficulty which was experienced in implementing the Convention in Spain, a problem which was dealt with at the first meeting of the Special Commission which met to review the operation of this Convention in October 1989, FN12 as well as at several successive meetings at Strasbourg of the T-CC, the Council of Europe's Custody Convention Committee, which meets to review the operation of the Luxembourg Convention FN13 While those problems have now been significantly ameliorated through more efficient activity of the Spanish Central Authority, the author is of the opinion that the problems originally stemmed in great part from the absence of adequate implementing legislation in Spain. 1.3. The spread of the concept of "international child abduction" When the Hague Conference started its work in 1977, sixteen years ago, "international child abduction" was not a recognized legal concept. The terms most frequently used were "legal kidnapping" or "childnapping". We discovered quickly at The Hague that "legal kidnapping" is an oxymoron, FN14 which although somewhat "catchy" in English is untranslatable into French, the Conference's other official language. Thus, we moved to a more neutral expression which could be rendered into French, "international child abduction". This phrase is used in the title of the Hague Convention, but does not appear in the text, where the concept is broken down into two components: "wrongful removal" of children and their "wrongful retention". (The Luxembourg Convention, incidentally, never utilizes a broader term to encompass these concepts; it refers to "improper removal" and "improper retention", but these ideas in the title of the Convention fall under "restoration of custody". Likewise, the Inter-American Convention FN15 refers to the "international return of minors"). Over the years "international child abduction" has become a recognized topic which appears in the indices and even in the tables of contents of treatises on private international law, as well as treatises on family law. One of the great problems at the beginning of the work at The Hague in the mid1970's was that the topic could not be defined, or even adequately identified. It is an enormous sign of progress to me that now, fifteen years after the issuance of the first report FN16 and questionnaire by the Hague Conference, the topic is well-known, its content is broadly understood and it can be made the subject of a colloquium such as that which is being held here today at Queen Mary and Westfield College. The fact that the concept is readily identifiable must surely enhance the effectiveness of the Hague Convention as a deterrent to wrongful removal or retention of children. 1.4. A steady pace of ratifications and accessions It was known from the beginning that the creation of a cooperating network would be one of the important tests of the success of the Convention. It is obvious that if you have too many countries side by side, one of which is a Party to the Hague Convention and the other is not, abductors will begin to pick and choose their places of refuge, taking children to places which are not Parties to the Hague Convention rather than to places which are. This is true at least for that unknown but significant percentage of abductors who have sufficient mobility and financial independence to be able to choose among places of refuge. It was obvious from the beginning that the Hague Convention would never experience the great rush of ratifications which occurred with the Convention on the rights of the child between its adoption in November 1989, its entry into force already in September 1990 and its achieving one hundred and thirty-one ratifications, as is the case at present, less than three and a half years after its adoption. The ratifications and accessions to the Hague Convention therefore have been largely incremental, but what is important is that they continue without too much of a break and that they build on each other. The passage of the thirtieth ratification or accession does not show a diminution of this process, indeed the contrary. Thus, we know still of a number of countries which are in the process of moving towards ratification, some of these being countries which will help to fill out a particular geographical area already largely covered by the Hague Convention, others being coun tries which may break new ground and open up new geographical areas for this network. 1.5. Solid regional areas blocked in 1.5.1. Western Europe and adjoining parts of Eastern Europe as well as Israel Most of Western Europe, starting from its furthest Western tip, Ireland, is now blocked in. A few major countries remain but are on the way, these being Belgium and Italy. Even the smaller "postage stamps" are being foreclosed, as with the recent accession of Monaco. Liechtenstein and Malta are expected to follow. In Eastern Europe there remain Finland, the Baltic countries, the Czech and Slovak Republics (which signed the Convention as Czechoslovakia), Bulgaria, Russia, Moldavia, Belarus and the Ukraine. The network seems to be progressing step by step to the east, including the recent accessions by Poland and Romania and the ratification by Greece. Italy, Finland and Belgium are expected to ratify in due time. Israel fills out this picture since its ties are mainly with the Western countries, rather than its immediate neighbours. However, Israel does represent a breakthrough in that, as Van Bueren's report has indicated, it is a country with religious courts. FN17 This fact does not seem to have prevented effective implementation of the Convention in Israel. 1.5.2. North America North America, with the ratifications by Canada and the United States and the accession by Mexico, is now filled out and there is no continental place of refuge. This is the largest single solid block of territory which is denied to child abductors by the Hague Convention. It is only incidental that its geographic scope coincides with that of the North American Free Trade Area (NAFTA). However, one may note that, with the recent ratification by Greece, ten out of twelve EC countries are Parties to the Hague Convention and that the other two, Belgium and Italy, have already signed. Effective cooperation in the fight against international child abduction is of great importance for those groups of countries which are in the process of integrating economically and yet retain their separate national identities from a social and political point of view. Economic integration implies greater mobility of people across the frontiers and this can lead to serious problems of international child abduction in the absence of effective cooperation. 1.5.3. Australia/New Zealand Australia joined the Hague Convention on 1 January 1987 and New Zealand acceded several years later. Australia, like Israel, for historical and cultural reasons has had closer ties with Western Europe and North America than with its closer Asian neighbours. New Zealand is similar in that respect and by the time of its accession in 1990 had become the last English-speaking refuge for child abductors. Yet from Australia there has been at least one highly-publicized case of child abduction involving Indonesia and Malaysia. The continued expansion of the network in South-East Asia will be important for Australia as it expands its economic intercourse with the South-East Asian region. 1.6. "Bridgeheads" in other regions 1.6.1. South America Argentina has ratified the Convention and, more recently, Ecuador has acceded to it. These countries at the "tip" and at the "top" of South America straddle a large continental area in between. There is good reason to believe that each of these "bridgeheads" will expand in time towards a fuller network. 1.6.2. Africa Burkina Faso, a "bridgehead" in the centre of West Africa, again offers the possibility for expansion towards a network, since the West African region has close ties with both continental Western Europe and the United Kingdom. Mauritius, the most recent country to accede, is however more of an "outpost". It is the first "postage stamp" island to join the Hague network and thus at least demonstrates that the interest in the Convention is not limited to the continents. 1.6.3. The Caribbean Belize remains for the moment an isolated "outpost" in the Caribbean, between Mexico and Ecuador. However, participation of several Caribbean countries in the work on intercountry adoption of children may presage accession by some of the Spanish-speaking countries of this region. 1.7. A spirit of cooperation among the central Authorities One of the successes of the Hague Convention is the broad spirit of cooperation among the Central Authorities designated by the different countries which are Parties to the Convention. This spirit was well-demonstrated at the Special Commission meeting of January 1993 held in the Peace Palace at The Hague. The spirit of cooperation is promoted through the development of good communications among the Central Authorities. In this respect, the Permanent Bureau at The Hague plays an important role in facilitating communications by getting the Central Authorities to supply telephone and telefax numbers as well as the names of contact persons and the languages which they speak or understand. This is an important breakthrough, the elimination of "bureaucratic anonymity" so that the staff of Central Authorities may deal with their counterparts on a name basis. 1.8. Generally good case law and statistics One of the important successes of the Convention has been that the courts in the countries Parties to the Convention have in general handed down decisions which follow closely its purpose and spirit. As was pointed out earlier, this requires a stretch of comprehension on the part of the judge who must in a way transcend his or her own cultural limits to see the child's problem as multijurisdictional in nature. 1.8.1. Article 13b The key case law has been under Article 13b of the Convention, which provides the principal grounds for refusing the return of a child after a wrongful removal or retention. Here, the English courts have been particularly rigorous, but also courts in other countries have followed closely the spirit of the Convention. Occasionally, particularly when a new country has joined the Convention, local trial courts have reacted against the new concept of the Convention, based on allocation of jurisdiction to decide on the merits, and have proceeded to render decisions under Article 13b which have involved practically speaking an examination and a determination of custody on the merits. Fortunately, in a number of countries, appellate courts have corrected this tendency on the part of the lower courts and maintained the integrity of the Convention's basic principles. These appeals have, in some cases, taken an inordinate amount of time and therefore have failed to achieve the purpose of the Convention, rapid return of the abducted child in the particular case. The appellate decisions, however, have set the standard for subsequent decisions by the trial courts and therefore should lead to much more rapid return of abducted children thereafter. Moreover, many courts have become aware of the importance of speed in dealing with Convention cases, including the appeals of such cases, and have set in their own procedures times as short as one week for the hearing and one week for an appeal. 1.8.2. Article 20 Another major success, aside from the generally satisfactory application of Article 13b of the Convention, is that Article 20 has not yet been successfully used by any abductor as a defence against return of an abducted child. Article 20 was a novel provision among the Hague Conventions, the first ever to refer to "human rights and fundamental freedoms" and therefore was something of an unknown quantity. In Britain, for example, the implementing legislation did not even include Article 20. Article 20 incorporates whatever is left in the Convention of theoretical legal public policy grounds for refusing to return a child, after the factual grounds of physical or psychological risk to the child have been taken into account under Article 13b; but this remnant is very small, possibly even non-existent. The Commission which drafted the Convention consistently refused to allow a general exception to the duty to return children based on "public policy" or on the "general principles of family law of the requested State" but, in extremis, in order to avoid a possible reservation based on the latter grounds, Article 20 was accepted. FN18 It is a matter for cautious satisfaction that, almost 10 years after the Convention entered into force, no abductor has successfully invoked the provisions of Article 20. FN19 1.8.3. Joint custody (Articles 3 and 5a) A third success of the case law under the Convention has been its treatment of the provisions in the Convention referring to joint custody. At the time when the Convention was drawn up in 1979 and 1980, relatively few jurisdictions which were involved in the negotiations even had the idea in their law of joint custody, much less the practice. Yet many countries accepted the idea that parents who are neither legally separated nor divorced exercise their parental authority over the child "jointly". Now it was felt that the treaty had to deal with this situation, because sociological studies carried out by International Social Service showed that a very substantial percentage of removals of children to another country in order to obtain their custody there occurred before any custody order, whether temporary or permanent, had been handed down by a court. FN20 Thus, if the Convention had ignored the cases of joint custody, it would have missed a large number of the practical cases with which it should deal. Article 3 of the Convention therefore applies to violations of rights of custody, whether those rights are exercised "jointly or alone". In 1980 the laws of most of the countries involved in the negotiations did not envisage that a court could order joint custody following separation or divorce even if both parties agreed to joint custody. Joint custody after divorce and the sharing of custody attributes between the two parents, were still in an embryonic stage of development FN21 and thinking was still very much dominated by the traditional rigid concepts of "custody" and "access". Moreover, joint custody after divorce, in those area where it had developed, was being hotly contested as to whether it was a viable institution. FN22 Under the circumstances it was fortunate that the drafters of the Convention gave the prominence to joint custody which it in fact received in Article 3. The 1980's saw a rather rapid expansion of the idea of joint custody after divorce, as well as a trend towards breaking down the traditionally rigid concepts of custody and access in order to allow more flexible breakdowns of parental authority and responsibility as between the two parents after divorce or separation. This trend has been reflected in the United Kingdom in the Children Act 1989, and also was notably reflected in the reform of French divorce law in the mid-1980's which allowed joint custody after divorce for the first time. John Eekelaar, who was the observer for the Commonwealth Secretariat at the Fourteenth Session in 1980, along with certain other participants had seen accurately that the term "rights of custody", as it was defined in the Convention, placed particular stress on the right to determine the place of residence, and that this right could be seen to be shared, even under a traditional English court order for custody to one parent and access to the other, if the court's order restricted the custodian's right to change the residence of the child to another country to the case where consent of the other parent or the court had been obtained. FN23 In the latter part of the 1980's case law in England and Australia confirmed the idea that the right of the parent who had only access, but also had to be consulted and consent before the child could be removed from the jurisdiction, was indeed a "right of custody" under the Convention. This affirmed also the independent, autonomous nature of the concept "rights of custody" as used in the Convention, the result being that this concept is not dependent upon the law of any country but takes on its meaning autonomously from the structure and purposes of the Convention itself. This trend in the case law was accepted on a general basis among the countries which participated in the Special Commission meeting of October 1989 FN24 after the Court of Appeal of Aix-en-Provence in France had ruled that the type of English court order which we have described above creates a form of joint custody within the meaning of the Convention. This decision, handed down in the Spring of 1989, FN25 confirmed that this broad view of the concept of joint custody under the Convention prevails not only in common law countries but also in countries with a continental, civil law tradition. This development of the case law has been important to the overall success of the Convention because it has to some extent mitigated the relative weakness of the Convention's provisions protecting rights of access - and I will get back to these under the list of "failures". Indeed, sociological research carried on in the meantime tends to indicate that the breach of rights of access by a wrongful removal is functionally equivalent to a breach of rights of custody through a wrongful removal. In each case the child is cut off abruptly from a meaningful relationship with one of his or her parents. FN26 1.9. Good co-ordination with the Luxembourg Convention and complementarity with that Convention Another of the successes of the Hague Convention and the Luxembourg Convention is that, although they were drawn up at roughly the same time and cover some of the same subject-matter, they have not interfered with each other. The conventions are in force in parallel among thirteen countries and soon they will be in force in parallel for a fourteenth country, Greece. Thus any interference as between the two conventions could have been a serious problem. Both conventions contain provisions intended to prevent conflict in their application. Yet the science of "conflict of conventions" in the field of uniform law is still in an embryonic stage. The ways in which the courts of different countries have avoided interference between the conventions, however, have differed. The danger was that an abductor will confuse the courts about the application of the two conventions and get the courts to apply to a Hague Convention application grounds of refusal of return drawn from the Luxembourg Convention. The first court asked to do this, the Tribunal de Grande Instance of Toulouse in France, FN27 in a well-reasoned decision, declined to do so and clearly ruled that each convention had to be applied separately to those cases where it was invoked. In some cases the implementing legislation has tried to deal with this question. In Germany the legislation states that the application will be dealt with under the Hague Convention unless the Luxembourg Convention is specified by the applicant. FN28 In the Netherlands the applicant need not specify which treaty is to apply; the courts apply the treaty which they deem to be most effective in order to bring about the return of the child. In any case, after operation in parallel for almost ten years, the two conventions have shown no sign of interfering with each other. There is indeed a certain complementarity between the two conventions. I have mentioned that the Hague Convention's provisions, Article 21, on access, are relatively weak. The Hague Convention does not appear to provide for an action to enforce a foreign access order, FN29 although the Luxembourg Convention does. Thus, when enforcement of a foreign access order is sought and the two conventions are in force in parallel, normally the Luxembourg Convention is used. This successful co-existence and even complementarity between the two conventions can be considered to be a success for each of the conventions. 1.10. Non-Member Countries attracted to the January Special Commission meeting I have mentioned several times the January 1993 Special Commission meeting held to review the operation of the Hague Convention. What I have not mentioned is that a significant number of countries which were not Parties to the Convention and were not Members of the Hague Conference, were nonetheless invited to send observers to the January meeting. This initiative came about because about twenty countries which were not Members of the Hague Conference had been participating in the Conference's work on intercountry adoption of children by invitation as ad hoc members. The fact that the draft Convention on intercountry adoption of children also contained provisions for "Central Authorities" made it seem desirable for these countries to attend the January meeting of Central Authorities if at all possible. FN30 In the end fourteen of these invited countries sent observers. This can be seen as a success since it has broadened the pool of possible countries which may join the Hague Convention in the future. Indeed, at least two of these countries are said to have already started the process, and these are countries which would constitute or expand a bridgehead as referred to above. 1.11. Emulation The emulation of the Hague Convention is also mainly a success story. Even before it entered into force in 1983, France and Portugal drew up a bilateral convention, mainly based on the Hague Convention, to deal with international child abduction cases. That bilateral convention has been so successful that France and Portugal in practice do not use the Hague Convention as between them but rather use the bilateral convention. The Hague Conference's Permanent Bureau is quite happy with this development since, if a bilateral convention based on the Hague Convention works even better than the multilateral model, this is to the benefit of the children and the parents involved. Bilateral conventions between France and Tunisia and Morocco, respectively, do not seem to have been, however, a great success. FN31 In the case of Tunisia, this appears to be because the references in the bilateral treaty allow a general public policy exception to be applied in cases of child abduction. As we have expressed before, the elimination of the general public policy clause was one of the key elements which was necessary for the Hague Child Abduction Convention to succeed. Emulation will be only effective if the key features of the original are retained and copied. This is the case with the Inter-American Convention on international return of minors, signed at Montevideo, 15 July 1989. FN32 There again there was a strong struggle over the public policy clause but in the end a slightly modified form of Article 20 of the Hague Convention was retained for the Inter-American Convention. FN33 The Franco-Algerian agreement is one of a kind, and I cannot speak to its success or failure. Recent bilateral conventions drawn up between Luxembourg and France and Luxembourg and Belgium have a certain potential for mischief. These conventions refer again to the nationality of the parties. Indeed, one of the great advances of the Hague Convention is that it does not mention nationality anywhere except in Article 25 which serves only to eliminate discrimination of the basis of nationality in connection with access to legal aid and advice. Thus one of the most important features of the Convention is that neither the nationality of the child nor those of the parents has any role to play in the operative provisions of the Convention. 1.12. Development of the concept of "joint custody" I have dwelled at length, in the description of the case law under Section 1.8.3 above, on the development in the cases on the concept of joint custody, and I shall not repeat that discussion here. Nonetheless I feel it necessary to say that the development of the concept of joint custody is one of the successes of the Convention. Not only has the use of this concept mitigated the relative weakness of Article 21 of the Convention which deals with rights of access. Also the idea of joint custody of the parents by operation of law before divorce or separation of the parents has been widely accepted despite rather broad variations in the legislation on this subject in the various jurisdictions. In this connection affidavits and copies of legislation supplied by the Central Authorities seem to have brought about ready acceptance on the part of the courts of the requested State of the idea that joint custody by operation of law had existed under the law of the requesting State at the time when the child was removed or retained. The courts have not been unduly "nitpicking" about this concept and this can be deemed to be one of the successes of the Convention, since it would greatly slow down the rapidity with which the Convention works if extended theoretical arguments as to whether joint custody existed or did not were to be allowed by the courts. 2. Failures 2.1. Accessions slow compared to CRC As we have pointed out, the rate of accessions has been minute compared to the CRC. However, the rate has been fast as compared with other Hague Conventions. Thus this is only a relative failure since the expectations for a treaty which was negotiated among twenty-nine Member States of the Hague Conference on private international law only twelve and a half years ago would not be the same as those for a convention adopted by the General Assembly of the United Nations. It is believed in any case that the great and rapid success of the CRC will redound to the benefit of the Hague Child Abduction Convention, since Article 11 of the CRC encourages UN member countries to join conventions such as the Hague Child Abduction Convention. 2.2. Poor initial implementation in some countries The implementation has generally been good, as was noted above, but there are some exceptions. During the initial period of implementation, Spain in particular suffered difficulties in getting the Convention going. As the Convention expands, other failures of this type may occur. The encouraging side of this experience is that through the meetings of the T-CC at the Council of Europe and the 1989 Special Commission meeting of the Hague Conference, political and moral pressure was brought on Spain to improve its implementation, and very substantial steps have been taken to improve the Spanish Central Authority's performance in the past year. This gives reason for hope that, even where there are initial failures, the system has some means for stimulating a country to correct its performance. 2.3. The legal aid gap The reservation of Article 26 of the Hague Convention, which does not have a counterpart in the Luxembourg Convention, has been a source of significant difficulties in the United States. Here the United Kingdom has been the model, since an applicant has immediate access to free legal aid when the Central Authority in the United Kingdom refers the case to a panel solicitor. This has led to a remarkable record of implementation of the Convention in the United Kingdom. In the United States the lack of a comprehensive national legal aid system, and the lack of comprehensive legal systems within the various states, have caused difficulty in obtaining attorneys for applicants at affordable prices. The Central Authority in the United States, which is in the State Department in Washington, D.C., has laboured heroically to obtain pro bono legal counsel in cases where the applicant cannot afford high fees. Intermediary organizations such as the International Academy of Matrimdnial Lawyers have helped greatly in this effort. In two of the American states, California and Washington, the Attorney-General's office and the local district attorneys have effectively played the role of intermediary, which has largely eliminated the problem in those states. However, the problem persists and there have been some cases where the applicant could not afford to hire an attorney and significant delay was experienced in locating a competent attorney who would undertake the handling of the case on a pro bono basis. The geographic scope and population of the United States accentuate the problem. Efforts are being made, initially through "inter-bar" agreements, to fill the legal aid gap in the other states. The first inter-bar agreement between the bars of Paris, France, and Dallas, Texas, provides that each bar will endeavour to facilitate the implementation of the Convention in its respective locality and, in particular, provide for referral of cases to lawyers who are competent to act for applicants under the Convention and who will, in appropriate cases, undertake legal action on apro bono basis. This undertaking has led the Dallas Bar Association to provide a training session for about thirty lawyers in the handling of cases under the Convention, all of these lawyers being willing also in appropriate cases to act on a pro bono basis. It is hoped that this model will spread among the bars in other cities and states of the United States and, therefore, progressively fill the gap left by the absence of comprehensive legal aid systems on the federal and state level. As far as actions to enforce foreign access orders are concerned, the United Kingdom, which is a model in providing legal aid on applications for return of abducted children, itself has a legal aid gap as a result of recent court decisions. The Court of Appeal ruled that children under sixteen, habitually residing in the United Kingdom, fall under the Convention for purposes of Article 21 on access, but that Article 21, which requires Central Authorities to cooperate in helping to organize access, does not provide a right of action under the Convention for enforcement of a foreign custody order. FN34 Unfortunately, the result of this decision was that persons applying for enforcement of a foreign access order will get the assistance of the United Kingdom Central Authorities in finding a lawyer to start court action, but will not obtain automatic legal aid for that purpose. FN35 Indeed, the action itself is not governed by the Convention and therefore falls under the 1989 Children Act unless, of course, it comes from another State Party to the Luxembourg Convention, in which case it falls under the Luxembourg Convention. This fact points out again the complementarity of the Luxembourg Convention, which does not contain any reservation concerning legal aid and therefore should provide an appropriate vehicle for direct enforcement of foreign access orders. 2.4. Relative weakness of provisions on access I have already dwelled on the weakness of Article 21, which was recognized at the time when the Convention was drawn up as being more or less "soft law". In a sense, the relative softness of Article 21 was the price which was paid for the rigorousness of the provisions on return of abducted children. Those States which, during the negotiations, resisted rigorous provisions on return of children and thus favoured an exception or a reservation allowing public policy or the general principles of family law to be invoked, were by and large the same States which opposed rigorous provisions on enforcement of access. In international negotiations, you can only bulldoze resistant States so far. Thus, the counterpart of the elimination of the public policy exception was the mushiness of Article 21. Some countries represented at the January 1993 Special Commission even thought that the Convention might require a Protocol in order to strengthen the provisions on access. For the moment, that idea has not gathered strong support, but the Central Authorities of the States Parties are encouraged to fill the access gap by utilizing as constructively as possible the powers and the obligations which are granted to them under Article 21. Execution of the obligations under Article 21 seems to be notably less vigorous in those countries which are not a Party to the Luxembourg Convention. As I have noted, the Luxembourg Convention, where it is in force between the two countries in question, offers in the European continental area an effective instrument for enforcing foreign access orders. The counterpart of this rigorousness on the access question is the relative softness of the Luxembourg Convention's provision on return of abducted children, particularly when the available reservations have been taken by the Contracting States in question. It is still broadly recognized that, if international access can be arranged with satisfactory precautions against wrongful retention of the children in question, this may contribute to preventing abductions of children by eliminating the frustration which the absence of satisfactory access may create. 2.5. Too much delay in proceedings A continuing refrain at the January 1993 Special Commission meeting, as at the meetings of the T-CC in Strasbourg, has been excessive delay in the proceedings, particularly when an appeal has been made. Here, the record varies considerably among the States. Some countries have very tight and short periods for hearings, and for prosecution of appeals and thus children have been returned in some cases in less than a week. Other cases have dragged on due to the absence of urgency and tight deadlines in the proceedings and due to extended periods of consideration on appeal. The provisions of the second paragraph of Article 11 have occasionally been used by the Central Authorities informally, with apparent effect on the courts. The process of speeding up legal proceedings is still uneven among the many countries, but continuing efforts are being made to reduce the length of proceedings and therefore meet the Convention's objectives of rapid return of children. Here, I must say that the procedures of the courts in the United Kingdom have been exemplary as to their speed and their effectiveness. In France a court recently utilized the expedited procedure de refere for the first time in ordering the return of a child to the United States. FN36 2.6. No breakthrough in the Islamic countries I come, at the end of the list of failures of the Hague Convention, to that deficiency which is a particular point of focus in this colloquium: the fact that none of the countries which have Islamic law has as yet joined the Hague Convention. It should be remembered that out of the twenty-nine countries which were members of the Hague Conference on private international law in 1980 when this Convention was drawn up, only two had Muslim-majority populations: Egypt and Turkey. Turkey has had a secularized legal system since the time of Ataturk, though of course the influence of cultural tradition must continue to have significant effect. Egypt has also undergone significant influence of the Western legal systems. Neither of these countries has as yet joined the Hague Convention, although Turkey is currently showing some signs of interest in that direction. In the absence of accession by Islamic countries, particularly those in North Africa, some European countries have negotiated bilateral accords or arrangements, this being particularly the case between France and Belgium respectively, and some of the countries of North Africa. The general impression I have of these treaties is that they are ineffective because they are not rigorous enough i.e. they allow refusal to return a child on grounds of public policy or equivalent grounds such as "violation of the general principles of family law of the requested State". In my view such a provision will kill the effectiveness of any accord, even between Western countries. To my mind a more hopeful development than the bilateral accords is the spread of the CRC to a substantial number of Muslim-majority countries, including several in North Africa. Article 11 of the CRC refers implicitly, but still clearly and unequivocally to the Hague Convention on the civil aspects of international child abduction, encouraging States parties to the CRC to ratify or accede to the Hague Convention. This accession is open under Article 38 of the Convention and, even though the effectiveness of such accessions in practice is subject to acceptance by the other Contracting States, the Permanent Bureau has encouraged countries to break the inertia and make such acceptances; the current table of parties to the Convention, showing among others the accessions and acceptances thereof, seems clearly to indicate the effectiveness of this process. One aspect of this problem is on the side of theological argument: How can the provisions of the CRC which provide for the child to have access to both parents and which call for a fight against child abduction be squared with traditional Islamic assignment to the father of decisional power over the child's place of residence? This problem goes beyond the author's competence. The other problem is more practical. As one Tunisian professor pointed out to me, the traffic is essentially one way: fathers removing their children from Western countries to Muslim-majority countries. Therefore the return traffic would tend to be one way, putting the pressure on courts in the Muslim-majority countries to return children to the West, when there would exist effectively, no quid pro quo. Thus a sort of stand-off is reached where, if the father succeeds in getting a child to an Islamic country, the child will not be returned, and the only means of pressure which exists is to put the father in jail if he has to return to the Western country in question in order to earn a living. The danger that the father will remove the child to his country of origin causes the courts and the maternal custodians to refuse or to restrict the father's access to the child, thus feeding the father's frustration, especially if he feels a religious duty to introduce the child to his religion and culture of origin. Might the institution of joint custody (in the sense of the Convention and not in that of any particular national law) be used to test out the possibility for cooperation between Western and Islamic countries in the interests of children? Could young, energetic Central Authorities in Western and Islamic countries create a form of cooperation which would realize the aspiration of the Convention to give each child free mobility within the network of countries which are parties to the Convention? Rather than religious warfare, with children as the prize going to the winner, we need for children of mixed marriages to have free access to both of the rich cultures of their parents. This is an ambitious program, but it does reflect at present a failure of the Hague Convention, the fact that it has not bridged the cultural gap between Western and Islamic countries in order to allow children free circulation among such countries. 3. Prospects Predicting the future is always hazardous, but after assessing the successes and failures of the Hague Convention on the Civil Aspects of International Child Abduction, it seems to me that I should undertake as well to assess its prospects. 3.1. Continuing expansion in developed areas 3.1.1. Europe It can be predicted with reasonable certainty that the gaps in the current European map of the network will be filled in and that countries such as Italy, Finland, Belgium, Liechtenstein and Malta will join the network. Also there is recent interest shown on the part of Turkey, which may join the Convention. The Baltic countries and the other former parts of the Soviet Union, as well as Albania and Bulgaria, are still an unknown quantity, but a number of these countries have participated in the work on intercountry adoption of children at The Hague and may develop interest in the Child Abduction Convention. 3.1.2. Latin America Colombia which is not a member of the Hague Conference has expressed strong interest in the Child Abduction Convention. Uruguay and Venezuela which are members, might follow suit. 3.1.3. Asia The gap between Turkey and Israel at one end, and Australia/New Zealand off the map at the other end, is very large. For the moment, the most promising prospect seems to be the Philippines, which has expressed strong interest. Other countries in the Southeast Asian region have participated in the work on intercountry adoption of children and may develop an interest if a bridgehead is established in the region. China and Japan remain aloof for the moment, but both are members of the Hague Conference and could develop an interest. 3.1.4. Africa The bridgehead in Africa with Burkina Faso could interest some of the African States, particularly in the West-African region. Senegal, for example, has participated in the work on intercountry adoption of children. 3.2. Improved communications We can look forward to improvement of communications among the Central Authorities. The Permanent Bureau of the Hague Conference has applied much effort and expense to this facet of the Convention's promotion and considers it to be a very important aspect. The spread of the telefax machine has cut down on the technological advantage of the abductors who make use of modern means of transport such as intercontinental aircraft, but can not outrun the transmission of documents by telefax. 3.3. Better collection of case law Up until now the Permanent Bureau has collected case law on an ad hoc basis through informal correspondents in different countries and through the good offices of the Central Authorities. The meeting of the Special Commission in January 1993 resulted in the preparation of a standard form for reporting case law. The use of this form should facilitate collection of important case law and identification of its salient features. In the meantime, in some countries, notably Germany, the very important process of preparing commentaries on the Convention is in an advanced stage. The literature on the Convention is growing rapidly and this should contribute to better understanding of the issues which can arise in Convention cases. 3.4. The influence of the CRC It can be hoped that the spread of the CRC and the monitoring of that Convention's performance by the Committee on the Rights of the Child will help overcome resistance to the Hague Convention, particularly in Asia and Africa where only bridgeheads, or even outposts, of the Convention's network exist. A part of the problem is the difference in the relationship between civil law and religious law in western countries and in the countries of Islamic culture. As Professor Reiner Schulze has pointed out in a recent article, in the Journal of Legal History, FN37 the differentiation between secular law and ecclesiastical law in European legal culture creates a gap as compared with Islamic cultures where law and religion are not so sharply separated. There may also be a gap as between Western culture and the other traditional Asian cultures, in that law is not so clearly differentiated from ethics as well as religion in the latter cultures. However, it may be that the identification between law and religion is not so all encompassing in some Muslim-majority countries such as Indonesia and Malaysia, or those of Africa south of the Sahara. FN38 The CRC contains both legal principles and ethical exhortations in connection with the nurturing of children - the future of the world. Its worldwide spread helps to bridge the gap between the legal and ethical principles of very different cultures. Since it incorporates and expresses on a broader plane the basic principles of the Hague Convention on the Civil Aspects of International Child Abduction, it is to be hoped that the ideas of the Child Abduction Convention will become more widely accepted throughout the world. These ideas are not intended to violate any religion or cultural or ethical system, but rather to serve the interests of children and their families. The spread of intemational transport throughout the world and the reduction of barriers to immigration and tourism mean that increasingly marriages and relationships cross nationalities and cultures. The children of these marriages and relationships should also become free citizens of the world, with mobility and the right to have access to the different cultures of their respective parents. FN39 This is the thrust of the Hague Convention on the Civil Aspects of Intemational Child Abduction which does not seek to cut off the child from access to any culture, but rather to guarantee access to all the cultures of the child's heritage. -------------------- 1. This article is based on a paper delivered at the Prograrnme on International Rights of the Child, Queen Mary and Westfield College, London. 2. This Convention entered into force on 2 September 1990 and at 9 March 1993 had received 131 ratifications. 3. See Dyer, A. (1991) Childhood's Rights in Private International Law, Australian Journal of Family Law 5: 103, 119. 4. Actes et documents de la Quatorzieme session de la Conference de La Haye de droit internarional prive', 1980 ("Actes et documents"), Tome I, p. I-28. 5. An up-to-date status table may be obtained on request from the Hague Conference' s Permanent Bureau, Scheveningseweg 6, 2517 KT The Hague, Netherlands, telefax no. 31-70-360 4867. 6. In the United States, for example, "clear and convincing evidence" is required. See "International Child Abduction Remedies Act", Act April 29, 1988, P.L. 100-300, 102 Stat. 437; 42 USCS, Sec. 11603 (e). 7. Id., 42 USCS, Sec. 11608 8. Gesetz zur AusfUhrung von SorgerechtsUbereinkommen und Zur Anderung des Gesetzes Uber die Angelegenheiten der freiwilligen Gerichtsbarkeit sowie anderer Gesetze, Vom 5, April 1990, Artikel 1, Abs. 8, Bundesgesetzblatt Z 5702A, 12. April 1990, Teil 1, 1990/Nr 18, bl. 702-703. 9. Ibid 10. Id., Artikel 1, Abs. 12, bl. 703. 11. Child Abduction and Custody Act 1985 (United Kingdom), Section 25. 12. See "Overall Conclusions of the Special Commission" (1990) International Legal Materials 29: 220. 13. Otherwise known as the European Convention on Recognition and Enforcement of Decisions concerning custody of Children 1980. 14. See Dyer, Report on international child abduction by one parent ("legal kidnapping"), in Actes et documents, op. cit., Tome III, pp. 13-14. 15. Inter-American Convention on the International Return of Minors, signed at Montevideo 15 July 1989. 16. Note 14, supra, issued in August 1978. 17. Van Bueren, The Best Interests of Child - International Cooperation on Child Abduction, 1993 18. See Actes et documents, op. cit., Tome III, discussion at pp. 337-339 resulting in adoption of compromise proposal, Working Document No. 62 (p. 332) which became Article 20. 19. This follows the wishes of the Convention's Reporter, Professor Elisa Perez-Vera, as expressed in the Explanatory Report, para. 118, Actes et documents, op. cit., Tome III, pp. 462. 20. See Summary of findings on a questionnaire studied by International Social Service, in Actes et documents, op. cit., Tome III, p. 136. 21. See Book Review (1981) Family Law Quarterly 25: 253, 257. 22. See Levy and Chambers (1981) Family Advocate The Folly of Joint Custody, 4, 3: 6. 23. See Actes et documents op. cit., Tome II, pp. 266-267 (esp. remarks of Messrs. van Boeschoten and Eekelaar). 24. Overall Conclusions of the Special Commission, op. cit. note 11 supra, at 222-223. 25. (1990) Revue critique de droit international prive 79: 529 (with note by Y. Lequette). 26. See G.L. Greif and R.L. Hegar (1993) When Parents Kidnap (New York, The Free Press) at 249-250. 27. Tribunal de Grande Instance de Toulouse (2e Ch.), 20 mars 1987, Gazette du Palais, 9-10 octobre 1987, p. 17-20 (note Monin-Hersant et Sturlese). 28. See supra note 9. 29. But see the fourth paragraph of Article 26 of the Convention. 30. The official report of tnis meeting is to be issued early in the summer of 1993. 31. See B. Brunet, Autorite parentale: Conflits de garde consecutifs a un enlevement international d'enfants, in: B. Goldman (ed.), Jurisclasseur de droit international, Fascicule 549, esp. Paras. 12, 25-36 and 68-73. 32. Spanish text in (1991) Actos y documentos cuarta conferencia especializada interamericana sobre derecho internaccional privado (OAS, Washington, D.C.) 1: 579; English text (1990) I.L.M. 29: 63. 33. Id., Article 25. 34. In re G (a Minor), 9 December 1992, reported in The Times, 26 January 1993, p. 36. 35. In re T (minors), 17 March 1993, reported in The Times, 23 March 1993, p 39. 36. Tribunal de Grande Instance de Paris (Aff. Mat. Section D, Cab. 10, 8 February 1993, R.G. 93/20871 (unreported). 37. Schulze, R. (1992) European Legal History: a New Field of Research in Germany, Journal of Legal llistory 13: 270. 38. See Abdullahi Ahmed An-Na'im, author of Toward an Islamic Reformation. Civil liberties, human rights, and international law (The American University in Cairo Press, 1992), as interviewed in NRC Handelsblad, 10 April 1993, Zaterdags Bijvoegsel, p. 1. 39. See Dyer, A. (1991) Protecting the right to multicultural education, Revista Espariola de Pedagogia, Ailo XLIX, num. 190, septiembre-diciembre 1991, at pp. 414-415.