==========================[10,503]============================== APPENDIX C -- LEGAL ANALYSIS OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (prepared by State Department) Cite as: 51 Fed. Reg. 10,503 (1986) Introduction The Hague Convention on the Civil Aspects of International Child Abduction consists of six chapters containing forty-five articles, While not formally incorporated into the Convention, a model form was prepared when the Convention was adopted by the Hague Conference on Private International Law and was recommended for use in making application for the return of wrongfully removed or retained children. A copy of that form is annexed to this Legal Analysis. (The form to be used for the return of children from the United States may seek additional information.) Table of Contents To facilitate understanding of the Convention by the Senate and the use and interpretation of the Convention by parents, judges, lawyers and public and private agency personnel, the articles are analyzed and discussed in the following categories: I Children Protected by the Convention [10,504] (Preamble, Article 1) [10,504] A Age (Articles 4, 36, 18, 29, 34, 13) [10,504] B Residence (Article 4) [10,504] C Timing/cases covered (Article 35) [10,504] D Effect of custody order concerning the child [10,504] 1 Existing custody orders (Articles 17, 3) [10,504] 2 Pre-decree removals or retentions (Article 3) [10,505] II Conduct Actionable Under the Convention [10,505] A International "Child abduction" not criminal: Hague Convention distinguished from extradition treaties (Article 12). [10,505] B "Wrongful removal or retention" (Articles 1. 3, 5(a)) [10,505] 1 Holders of rights protected by the Convention (i.e., with respect to whom the removal or retention is wrongful). [10,505] (a) "Person, institution or other body" (Article 3(a), (b)) [10,505] (b) "Jointly or alone" (Article 3(a), (b)) [10,506] 2 Defined [10,506] (a) Breach of "custody rights" (Articles 3(a), 5(a)) [10,506] (b) "Custody rights" determined by law of child's habitual residence [Articles 3(a), 31, 32, 33) [10,506]] (c) Sources of "Custody rights" (Article 3, last paragraph) [10,506] i. Operation of law (Articles 3, 15) [10,506] ii. Judicial or administrative decision (Article 3) [10,506]. iii. Agreement having legal effect (Article 3) [10,507] (d) "Actually exercised" (Articles 3(b), 5, 8(c), 13) [10,507] III Judicial Proceedings for Return of the Child [10,507] A Right to seek return (Articles 29,12, 34, 8) [10,507] B Legal advice and costs (Articles 25, 26, 42) [10,508] C Pleading requirements (Articles 8, 24) [10,508] D Admissibility of evidence (Articles 30, 23) [10,508] E Judicial promptitude/status report (Article 11) [10,508] F Judicial notice (Article 14) [10,508] G Court determination of "wrongfulness" (Articles 15, 3, 11, 12, 14) [10,508] H Constraints upon courts in requested states in making substantive custody decisions (Article 16) [10,509] I Duty to return not absolute [10,509] 1 Temporal qualifications [10,509] (a) Article 4 [10,509] (b) Article 35 [10,509] (c) Article 12 [10,509] 2 Article 13 limitations on return obligation [10,509] (a) Legislative history (Articles 13, 20) [10,509] (b) Non-exercise of custody rights (Articles 13(a), 3(b)) [10,510] (c) Grave risk of harm/intolerable situation (Article 13(b)) [10,510] (d) Child's preference (Article 13) [10,510] (e) Role of social studies [10,510] 3 Article 20 [10,510] 4 Custody order no defense to return (Article 17) [10,511] J Return of the child (Article 12) [10,511] 1 Return order not on custody merits (Article 19) [10,511] 2 Costs, fees and expenses shifted to abductor (Article 26) [10,511] IV Central Authority [10,511] (Articles 1.10, 21) A Establishment of Central Authority (Article 6) [10,511] B Duties (Article 7) [10,511] C Other Tasks (Articles 8, 9, 10, 11, 15, 21, 26, 27, 28) [10,512]. 1 Processing applications (Articles 8, 9, 27, 28) [10,512] 2 Assistance in connection with judicial proceedings [10,513] (a) Request for status report (Article 11) [10,513] (b) Social studies/background reports (Article 13) [10,513] (c) Determination of "wrongfulness" (Article 15) [10,513] (d) Costs (Article 26), reservation (Articles 42,22) [10,513] V Access Rights-Article 21 [10,513] A Remedies for breach (Articles 21, 12) [10,513] B Defined (Article 5(b)) [10,513] C Procedure for obtaining relief (Articles 21, 8, 7) [10,513] D Alternative remedies (Articles 18, 29, 34) [10,514] VI Miscellaneous and Final Clauses [10,514] A Article 36 [10,514] B Articles 37 and 38 [10,514] C Articles 42, 43 and 44 [10,514] D Articles 39 and 40 [10,514] E Article 41 [10,514] F Article 45 [10,515] Annexes [10,515] -Recommended Return Application Form [10,515] -Bibliography [10,515] ==========================[10,503]============================== Guide to Terminology Used in the Legal Analysis "Abduction" as used in the Convention title is not intended in a criminal sense. That term is shorthand for the phrase "wrongful removal or retention" which appears throughout the text, beginning with the preambular language and Article 1. Generally speaking, "wrongful removal" refers to the taking of a child from the person who was actually exercising custody of the child. "Wrongful retention" refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period. "Wrongful retention" is not intended by this Convention to cover refusal by the custodial parent to permit visitation by the other parent. Such obstruction of visitation may be redressed in accordance with Article 21. The term "abductor" as used in this analysis refers to the person alleged to have wrongfully removed or retained a child. This person is also referred to as the "alleged wrongdoer" or the "respondent." The term "person" as used in this analysis includes the person, institution or other body who (or which) actually exercised custody prior to the abduction and is seeking the child's return. The "person" seeking the child's return is also referred to as "applicant" and "petitioner." The terms "court" and "judicial authority" are used throughout the analysis to mean both judicial and administrative bodies empowered to make decisions on petitions made pursuant to this Convention. "Judicial decree" and "court order" likewise include decisions made by courts or administrative bodies. "Country of origin" and "requesting country" refer to the child's country ("State") of habitual residence prior to the wrongful removal or retention. "Country addressed" refers to the country ("State") where the child is located or the country to which the child is believed to have been taken. It is in that country that a judicial or administrative proceeding for return would be brought. "Access rights" correspond to "visitation rights." References to the "reporter" are to Elisa Perez-Vera, the official Hague Conference reporter for the Convention. Her explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it. It is referred to herein as the "Perez-Vera Report." The Perez-Vera Report appears in Actes et ==========================[10,504]============================== documents de la Quatorzieme Session (1980), Volume III, Child Abduction, edited by the Permanent Bureau of the Hague Conference on Private International Law, The Hague, Netherlands. (The volume may be ordered from the Netherlands Government Printing and Publishing Office, l Christoffel Plantijnstraat, Postbox 20014, 2500 EA The Hague, Netherlands.) I. Children Protected by the Convention A fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons bent on obtaining their physical and/or legal custody. Children who are wrongfully moved from country to country are deprived of the stable relationships which the Convention is designed promptly to restore. Contracting States are obliged by Article 2 to take all appropriate measures to implement the objectives of the Convention as set forth in Article 1: (1) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States, While these objectives are universal in their appeal, the Convention does not cover all children who might be victims of wrongful takings or retentions. A threshold inquiry, therefore, is whether the child who has been abducted or retained is subject to the Convention's provisions. Only if the child falls within the scope of the Convention will the administrative and judicial mechanisms of the Convention apply. I. Children Protected by the Convention A. Age The Convention applies only to children under the age of sixteen (16). Even if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen. Article 4. Absent action by governments to expand coverage of the Convention to children aged sixteen and above pursuant to Article 36, the Convention itself is unavailable as the legal vehicle for securing return of a child sixteen or older. However, it does not bar return of such child by other means. Articles 18, 29 and 34 make clear that the Convention is a nonexclusive remedy in cases of international child abduction. Article 18 provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under other laws, procedures or comity, irrespective of the child's age. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely by invoking any applicable laws or procedures to secure the child's return. Likewise, Article 34 provides that the Convention shall not restrict the application of any law in the State addressed for purposes of obtaining the child's return or for organizing visitation rights. Assuming such laws are not restricted to children under sixteen, a child sixteen or over may be returned pursuant to their provisions. Notwithstanding the general application of the Convention to children under sixteen, it should be noted that the wishes of mature children regarding their return are not ignored by the Convention. Article 13 permits, but does not require, the judicial authority to refuse to order the child returned if 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." The role of the child's preference in return proceedings is discussed further at III.I(2)(d), infra. I. Children Protected by the Convention B. Residence In order for the Convention to apply the child must have been "habitually resident in a Contracting State immediately before any breach of custody or access rights." Article 4. In practical terms, the Convention may be invoked only where the child was habitually resident in a Contracting State and taken to or retained in another Contracting State. Accordingly, child abduction and retention cases are actionable under the Convention if they are international in nature (as opposed to interstate), and provided the Convention has entered into force for both countries involved. See discussion of Article 38, VI.B, infra. To illustrate, take the case of a child abducted to California from his home in New York. The Convention could not be invoked to secure the return of such child. This is true even if one of the child's parents is an American citizen and the other a foreign national. The Uniform Child Custody jurisdiction Act (UCCJA) and/or the Parental Kidnapping Prevention Act (PKPA), domestic state and federal law, respectively, would govern the return of the child in question. If the same child were removed from New York to Canada, application under the Convention could be made to secure the child's return provided the Convention had entered into force both for the United States and the Canadian province to which the child was taken. An alternative remedy might also lie under other Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada could seek to secure the child's return by petitioning for enforcement of a Canadian custody order pursuant to the UCCJA, or by invoking the Convention, or both. I. Children Protected by the Convention C. Timing/Cases Covered Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 1. Existing Custody Orders Children who otherwise fall within the scope of the Convention are not automatically removed from its protections by virtue of a judicial decision awarding custody to the alleged wrongdoer. This is true whether the decision as to custody was made, or is entitled to recognition, in the State to which the child has been taken. Under Article 17 that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. This provision is intended to ensure, inter alia, that the Convention takes precedence over decrees made in favor of abductors before the court had notice of the wrongful removal or retention. Thus, under Article 17 the person who wrongfully removes or retains the child in a Contracting State cannot insulate the child from the Convention's return provisions merely by obtaining a custody order in the country of new residence, or by seeking there to enforce another country's order. Nor may the alleged wrongdoer rely upon a stale decree awarding him or her custody, the provisions of which have been ==========================[10,505]============================== derogated from subsequently by agreement or acquiescence of the parties, to prevent the child's return under the Convention. Article 3. It should be noted that Article 17 does permit a court to take into account the reasons underlying an existing custody decree when it applies the Convention. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 2. Pre-Decree Removals or Retentions (Article 3) Children who are wrongfully removed or retained prior to the entry of a custody order are protected by the Convention. There need not be a custody order in effect in order to invoke the Convention's return provisions. Accordingly, under the Convention a child will be ordered returned to the person with whom he or she was habitually resident in predecree abduction cases as well as in cases involving violations of existing custody orders. Application of the Convention to predecree cases comes to grips with the reality that many children are abducted or retained long before custody actions have been initiated. In this manner a child is not prejudiced by the legal inaction of his or her physical custodian, who may not have anticipated the abduction, and the abductor is denied any legal advantage since the child is subject to the return provisions of the Convention. The Convention's treatment of predecree abduction cases is distinguishable from the Council of Europe's Convention on Recognition and Enforcement of Decisions Relating to the Custody of Children, adopted in Strasbourg, France in November 1979 ("Strasbourg Convention"), and from domestic law in the United States, specifically the UCCJA and the PKPA, all of which provide for enforcement of custody decrees. Although the UCCJA and PKPA permit enforcement of a decree obtained by a parent in the home state after the child has been removed from that state, in the absence of such decree the enforcement provisions of those laws are inoperative. In contrast to the restoration of the legal status quo ante brought about by application of the UCCJA, the PKPA, and the Strasbourg Convention, the Hague Convention seeks restoration of the factual status quo ante and is not contingent on the existence of a custody decree. The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child's best interests. Pre-decree abductions are discussed in greater detail in the section dealing with actionable conduct, See II.B(2)(c)(i). II. Conduct Actionable Under the Convention A. "International Child Abduction" not Criminal: Hague Convention Distinguished From Extradition Treaties Despite the use of the term "abduction" in its title, the Hague Convention is not an extradition treaty. The conduct made actionable by the Convention-the wrongful removal or retention of children-is wrongful not in a criminal sense but in a civil sense. The Hague Convention establishes civil procedures to secure the return of so-called "abducted" children. Article 12. In this manner the Hague Convention seeks to satisfy the overriding concern of the aggrieved parent. The Convention is not concerned with the question of whether the person found to have wrongfully removed or retained the child returns to the child's country of habitual residence once the child has been returned pursuant to the Convention. This is in contrast to the criminal extradition process which is designed to secure the return of the fugitive wrong-doer. Indeed, when the fugitive-parent is extradited for trial or to serve a criminal sentence, there is no guarantee that the abducted child will also be returned. While it is uncertain whether criminal extradition treaties will be routinely invoked in international custody cases between countries for which the Hague Convention is in force, nothing in the Convention bars their application or use, II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention The Convention's first stated objective is to secure the prompt return of children who are wrongfully removed from or retained in any Contracting State. Article 1(a). (The second stated objective, i.e., to ensure that rights of custody and of access under the law of one Contracting State are effectively exercised in other Contracting States (Article 1(b)), is discussed under the heading "Access Rights," V., infra.) The removal or retention must be wrongful within the meaning of Article 3, as further clarified by Article 5(a), in order to trigger the return procedures established by the Convention. Article 3 provides that the removal or retention of a child is to be considered wrongful where: (a) it is in breach of custody rights attributed to a person, an institution or another body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. This Article is a cornerstone of the Convention. It is analyzed by examining two questions: 1. Who holds rights protected by the Convention (or, with respect to whom is the removal or retention deemed to be wrongful?); and 2. What are the factual and legal elements of a wrongful removal or retention? II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 1. Holders of Rights Protected by the Convention (a) "Person, institution or other body". While the child is the ultimate beneficiary of the Convention's judicial and administrative machinery, the child's role under the Convention is passive. In contrast, it is up to the Person, institution or other body" (hereinafter referred to simply as "the person") who "actually exercised" custody of the child prior to the abduction, or who would have exercised custody but for the abduction, to invoke the Convention to secure the child's return. Article 3 (a), (b). It is this person who holds the rights protected by the Convention and who has the right to seek relief pursuant to its terms. Since the vast majority of abduction cases arises in the context of divorce or separation, the person envisioned by Article 3(a) most often will be the child's parent. The typical scenario would involve one parent taking a child from one Contracting State to another Contracting State over objections of the parent with whom the child had been living. However, there may be situations in which a person other than a biological parent has actually been exercising custody of the child and is therefore eligible to seek the child's return pursuant to the Convention. An example would be a grandparent who has had physical custody of a child following the death of the parent with whom the child had been residing. If the child is subsequently removed from the custody of the grandparent by the surviving parent, the aggrieved grandparent could invoke the Convention to secure the child's return. In another situation, the child may be in the care of foster parents. If custody rights exercised by the foster parents are breached, for instance, by abduction of the child by its biological parent, the foster parents ==========================[10,506]============================== could invoke the Convention to secure the child's return. In the two foregoing examples (not intended to be exhaustive) a family relationship existed between the victim-child and the person who had the right to seek the child's return. However, institutions such as public or private child care agencies also may have custody rights the breach of which would be remediable under the Convention. If a natural parent relinquishes parental rights to a child and the child is subsequently placed in the care of an adoption agency, that agency may invoke the Convention to recover the child if the child is abducted by its parent(s). II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 1. Holders of Rights Protected by the Convention (b) "Jointly or alone". Article 3 (a) and (b) recognize that custody rights may be held either jointly or alone. Two persons, typically mother and father, can exercise joint custody, either by court order following a custody adjudication, or by operation of law prior to the entry of a decree. The Convention does not distinguish between these two situations, as the commentary of the Convention reporter indicates: Now, from the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention's true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties. Perez-Vera Report, paragraph 71 at 447-448. Article 3(a) ensures the application of the Convention to pre-decree abductions, since it protects the rights of a parent who was exercising custody of the child jointly with the abductor at the time of the abduction, before the issuance of a custody decree. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined The obligation to return an abducted child to the person entitled to custody arises only if the removal or the retention is wrongful within the meaning of the Convention. To be considered wrongful, certain factual and legal elements must be present. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined (a) Breach of "custody rights". The removal or retention must be in breach of "custody rights," defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Accordingly, a parent who sends his or her child to live with a caretaker has not relinquished custody rights but rather has exercised them within the meaning of the Convention. Likewise, a parent hospitalized for a protracted period who places the child with grandparents or other relatives for the duration of the illness has effectively exercised custody. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined (b) "Custody rights" determined by law of child's habitual residence. In addition to including the right to determine the child's residence (Article 5(a)), the term "custody rights" covers a collection of rights which take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Article 3(a). Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. If a country has more than one territorial unit, the habitual residence refers to the particular territorial unit in which the child was resident, and the applicable laws are those in effect in that territorial unit. Article 31. In the United States, the law in force in the state in which a child was habitually resident (as possibly pre-empted by federal legislation enacted in connection with U.S. ratification of the Convention) would be applicable for the determination as to whether a removal or retention is wrongful. Articles 32 and 33 also control, respectively, how and whether the Convention applies in States with more than one legal system. Perez-Vera Report, paragraphs 141 and 142 at 470. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongfinto the Convention, a model form was prepared when the Convention was adopted by the Hague Conference on Private International Law and was recommended for use in making application for the return of wrongfully removed or retained children. A copy of that form is annexed to this Legal Analysis. (The form to be used for the return of children from the United States may seek additional information.) Table of Contents To facilitate understanding of the Convention by the Senate and the use and interpretation of the Convention by parents, judges, lawyers and public and private agency personnel, the articles are analyzed and discussed in the following categories: I Children Protected by the Convention [10,504] (Preamble, Article 1) [10,504] A Age (Articles 4, 36, 18, 29, 34, 13) [10,504] B Residence (Article 4) [10,504] C Timing/cases covered (Article 35) [10,504] D Effect of custody order concerning the child [10,504] 1 Existing custody orders (Articles 17, 3) [10,504] 2 Pre-decree removals or retentions (Article 3) [10,505] II Conduct Actionable Under the Convention [10,505] A International "Child abduction" not criminal: Hague Convention distinguished from extradition treaties (Article 12). [10,505] B "Wrongful removal or retention" (Articles 1. 3, 5(a)) [10,505] 1 Holders of rights protected by the Convention (i.e., with respect to whom the removal or retention is wrongful). [10,505] (a) "Person, institution or other body" (Article 3(a), (b)) [10,505] (b) "Jointly or alone" (Article 3(a), (b)) [10,506] 2 Defined [10,506] (a) Breach of "custody rights" (Articles 3(a), 5(a)) [10,506] (b) "Custody rights" determined by law of child's habitual residence [Articles 3(a), 31, 32, 33) [10,506]] (c) Sources of "Custody rights" (Article 3, last paragraph) [10,506] i. Operation of law (Articles 3, 15) [10,506] ii. Judicial or administrative decision (Article 3) [10,506]. iii. Agreement having legal effect (Article 3) [10,507] (d) "Actually exercised" (Articles 3(b), 5, 8(c), 13) [10,507] III Judicial Proceedings for Return of the Child [10,507] A Right to seek return (Articles 29,12, 34, 8) [10,507] B Legal advice and costs (Articles 25, 26, 42) [10,508] C Pleading requirements (Articles 8, 24) [10,508] D Admissibility of evidence (Articles 30, 23) [10,508] E Judicial promptitude/status report (Article 11) [10,508] F Judicial notice (Article 14) [10,508] G Court determination of "wrongfulness" (Articles 15, 3, 11, 12, 14) [10,508] H Constraints upon courts in requested states in making substantive custody decisions (Article 16) [10,509] I Duty to return not absolute [10,509] 1 Temporal qualifications [10,509] (a) Article 4 [10,509] (b) Article 35 [10,509] (c) Article 12 [10,509] 2 Article 13 limitations on return obligation [10,509] (a) Legislative history (Articles 13, 20) [10,509] (b) Non-exercise of custody rights (Articles 13(a), 3(b)) [10,510] (c) Grave risk of harm/intolerable situation (Article 13(b)) [10,510] (d) Child's preference (Article 13) [10,510] (e) Role of social studies [10,510] 3 Article 20 [10,510] 4 Custody order no defense to return (Article 17) [10,511] J Return of the child (Article 12) [10,511] 1 Return order not on custody merits (Article 19) [10,511] 2 Costs, fees and expenses shifted to abductor (Article 26) [10,511] IV Central Authority [10,511] (Articles 1.10, 21) A Establishment of Central Authority (Article 6) [10,511] B Duties (Article 7) [10,511] C Other Tasks (Articles 8, 9, 10, 11, 15, 21, 26, 27, 28) [10,512]. 1 Processing applications (Articles 8, 9, 27, 28) [10,512] 2 Assistance in connection with judicial proceedings [10,513] (a) Request for status report (Article 11) [10,513] (b) Social studies/background reports (Article 13) [10,513] (c) Determination of "wrongfulness" (Article 15) [10,513] (d) Costs (Article 26), reservation (Articles 42,22) [10,513] V Access Rights-Article 21 [10,513] A Remedies for breach (Articles 21, 12) [10,513] B Defined (Article 5(b)) [10,513] C Procedure for obtaining relief (Articles 21, 8, 7) [10,513] D Alternative remedies (Articles 18, 29, 34) [10,514] VI Miscellaneous and Final Clauses [10,514] A Article 36 [10,514] B Articles 37 and 38 [10,514] C Articles 42, 43 and 44 [10,514] D Articles 39 and 40 [10,514] E Article 41 [10,514] F Article 45 [10,515] Annexes [10,515] -Recommended Return Application Form [10,515] -Bibliography [10,515] ==========================[10,503]============================== Guide to Terminology Used in the Legal Analysis "Abduction" as used in the Convention title is not intended in a criminal sense. That term is shorthand for the phrase "wrongful removal or retention" which appears throughout the text, beginning with the preambular language and Article 1. Generally speaking, "wrongful removal" refers to the taking of a child from the person who was actually exercising custody of the child. "Wrongful retention" refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period. "Wrongful retention" is not intended by this Convention to cover refusal by the custodial parent to permit visitation by the other parent. Such obstruction of visitation may be redressed in accordance with Article 21. The term "abductor" as used in this analysis refers to the person alleged to have wrongfully removed or retained a child. This person is also referred to as the "alleged wrongdoer" or the "respondent." The term "person" as used in this analysis includes the person, institution or other body who (or which) actually exercised custody prior to the abduction and is seeking the child's return. The "person" seeking the child's return is also referred to as "applicant" and "petitioner." The terms "court" and "judicial authority" are used throughout the analysis to mean both judicial and administrative bodies empowered to make decisions on petitions made pursuant to this Convention. "Judicial decree" and "court order" likewise include decisions made by courts or administrative bodies. "Country of origin" and "requesting country" refer to the child's country ("State") of habitual residence prior to the wrongful removal or retention. "Country addressed" refers to the country ("State") where the child is located or the country to which the child is believed to have been taken. It is in that country that a judicial or administrative proceeding for return would be brought. "Access rights" correspond to "visitation rights." References to the "reporter" are to Elisa Perez-Vera, the official Hague Conference reporter for the Convention. Her explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it. It is referred to herein as the "Perez-Vera Report." The Perez-Vera Report appears in Actes et ==========================[10,504]============================== documents de la Quatorzieme Session (1980), Volume III, Child Abduction, edited by the Permanent Bureau of the Hague Conference on Private International Law, The Hague, Netherlands. (The volume may be ordered from the Netherlands Government Printing and Publishing Office, l Christoffel Plantijnstraat, Postbox 20014, 2500 EA The Hague, Netherlands.) I. Children Protected by the Convention A fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons bent on obtaining their physical and/or legal custody. Children who are wrongfully moved from country to country are deprived of the stable relationships which the Convention is designed promptly to restore. Contracting States are obliged by Article 2 to take all appropriate measures to implement the objectives of the Convention as set forth in Article 1: (1) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States, While these objectives are universal in their appeal, the Convention does not cover all children who might be victims of wrongful takings or retentions. A threshold inquiry, therefore, is whether the child who has been abducted or retained is subject to the Convention's provisions. Only if the child falls within the scope of the Convention will the administrative and judicial mechanisms of the Convention apply. I. Children Protected by the Convention A. Age The Convention applies only to children under the age of sixteen (16). Even if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen. Article 4. Absent action by governments to expand coverage of the Convention to children aged sixteen and above pursuant to Article 36, the Convention itself is unavailable as the legal vehicle for securing return of a child sixteen or older. However, it does not bar return of such child by other means. Articles 18, 29 and 34 make clear that the Convention is a nonexclusive remedy in cases of international child abduction. Article 18 provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under other laws, procedures or comity, irrespective of the child's age. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely by invoking any applicable laws or procedures to secure the child's return. Likewise, Article 34 provides that the Convention shall not restrict the application of any law in the State addressed for purposes of obtaining the child's return or for organizing visitation rights. Assuming such laws are not restricted to children under sixteen, a child sixteen or over may be returned pursuant to their provisions. Notwithstanding the general application of the Convention to children under sixteen, it should be noted that the wishes of mature children regarding their return are not ignored by the Convention. Article 13 permits, but does not require, the judicial authority to refuse to order the child returned if 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." The role of the child's preference in return proceedings is discussed further at III.I(2)(d), infra. I. Children Protected by the Convention B. Residence In order for the Convention to apply the child must have been "habitually resident in a Contracting State immediately before any breach of custody or access rights." Article 4. In practical terms, the Convention may be invoked only where the child was habitually resident in a Contracting State and taken to or retained in another Contracting State. Accordingly, child abduction and retention cases are actionable under the Convention if they are international in nature (as opposed to interstate), and provided the Convention has entered into force for both countries involved. See discussion of Article 38, VI.B, infra. To illustrate, take the case of a child abducted to California from his home in New York. The Convention could not be invoked to secure the return of such child. This is true even if one of the child's parents is an American citizen and the other a foreign national. The Uniform Child Custody jurisdiction Act (UCCJA) and/or the Parental Kidnapping Prevention Act (PKPA), domestic state and federal law, respectively, would govern the return of the child in question. If the same child were removed from New York to Canada, application under the Convention could be made to secure the child's return provided the Convention had entered into force both for the United States and the Canadian province to which the child was taken. An alternative remedy might also lie under other Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada could seek to secure the child's return by petitioning for enforcement of a Canadian custody order pursuant to the UCCJA, or by invoking the Convention, or both. I. Children Protected by the Convention C. Timing/Cases Covered Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 1. Existing Custody Orders Children who otherwise fall within the scope of the Convention are not automatically removed from its protections by virtue of a judicial decision awarding custody to the alleged wrongdoer. This is true whether the decision as to custody was made, or is entitled to recognition, in the State to which the child has been taken. Under Article 17 that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. This provision is intended to ensure, inter alia, that the Convention takes precedence over decrees made in favor of abductors before the court had notice of the wrongful removal or retention. Thus, under Article 17 the person who wrongfully removes or retains the child in a Contracting State cannot insulate the child from the Convention's return provisions merely by obtaining a custody order in the country of new residence, or by seeking there to enforce another country's order. Nor may the alleged wrongdoer rely upon a stale decree awarding him or her custody, the provisions of which have been ==========================[10,505]============================== derogated from subsequently by agreement or acquiescence of the parties, to prevent the child's return under the Convention. Article 3. It should be noted that Article 17 does permit a court to take into account the reasons underlying an existing custody decree when it applies the Convention. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 2. Pre-Decree Removals or Retentions (Article 3) Children who are wrongfully removed or retained prior to the entry of a custody order are protected by the Convention. There need not be a custody order in effect in order to invoke the Convention's return provisions. Accordingly, under the Convention a child will be ordered returned to the person with whom he or she was habitually resident in predecree abduction cases as well as in cases involving violations of existing custody orders. Application of the Convention to predecree cases comes to grips with the reality that many children are abducted or retained long before custody actions have been initiated. In this manner a child is not prejudiced by the legal inaction of his or her physical custodian, who may not have anticipated the abduction, and the abductor is denied any legal advantage since the child is subject to the return provisions of the Convention. The Convention's treatment of predecree abduction cases is distinguishable from the Council of Europe's Convention on Recognition and Enforcement of Decisions Relating to the Custody of Children, adopted in Strasbourg, France in November 1979 ("Strasbourg Convention"), and from domestic law in the United States, specifically the UCCJA and the PKPA, all of which provide for enforcement of custody decrees. Although the UCCJA and PKPA permit enforcement of a decree obtained by a parent in the home state after the child has been removed from that state, in the absence of such decree the enforcement provisions of those laws are inoperative. In contrast to the restoration of the legal status quo ante brought about by application of the UCCJA, the PKPA, and the Strasbourg Convention, the Hague Convention seeks restoration of the factual status quo ante and is not contingent on the existence of a custody decree. The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child's best interests. Pre-decree abductions are discussed in greater detail in the section dealing with actionable conduct, See II.B(2)(c)(i). II. Conduct Actionable Under the Convention A. "International Child Abduction" not Criminal: Hague Convention Distinguished From Extradition Treaties Despite the use of the term "abduction" in its title, the Hague Convention is not an extradition treaty. The conduct made actionable by the Convention-the wrongful removal or retention of children-is wrongful not in a criminal sense but in a civil sense. The Hague Convention establishes civil procedures to secure the return of so-called "abducted" children. Article 12. In this manner the Hague Convention seeks to satisfy the overriding concern of the aggrieved parent. The Convention is not concerned with the question of whether the person found to have wrongfully removed or retained the child returns to the child's country of habitual residence once the child has been returned pursuant to the Convention. This is in contrast to the criminal extradition process which is designed to secure the return of the fugitive wrong-doer. Indeed, when the fugitive-parent is extradited for trial or to serve a criminal sentence, there is no guarantee that the abducted child will also be returned. While it is uncertain whether criminal extradition treaties will be routinely invoked in international custody cases between countries for which the Hague Convention is in force, nothing in the Convention bars their application or use, II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention The Convention's first stated objective is to secure the prompt return of children who are wrongfully removed from or retained in any Contracting State. Article 1(a). (The second stated objective, i.e., to ensure that rights of custody and of access under the law of one Contracting State are effectively exercised in other Contracting States (Article 1(b)), is discussed under the heading "Access Rights," V., infra.) The removal or retention must be wrongful within the meaning of Article 3, as further clarified by Article 5(a), in order to trigger the return procedures established by the Convention. Article 3 provides that the removal or retention of a child is to be considered wrongful where: (a) it is in breach of custody rights attributed to a person, an institution or another body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. This Article is a cornerstone of the Convention. It is analyzed by examining two questions: 1. Who holds rights protected by the Convention (or, with respect to whom is the removal or retention deemed to be wrongful?); and 2. What are the factual and legal elements of a wrongful removal or retention? II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 1. Holders of Rights Protected by the Convention (a) "Person, institution or other body". While the child is the ultimate beneficiary of the Convention's judicial and administrative machinery, the child's role under the Convention is passive. In contrast, it is up to the Person, institution or other body" (hereinafter referred to simply as "the person") who "actually exercised" custody of the child prior to the abduction, or who would have exercised custody but for the abduction, to invoke the Convention to secure the child's return. Article 3 (a), (b). It is this person who holds the rights protected by the Convention and who has the right to seek relief pursuant to its terms. Since the vast majority of abduction cases arises in the context of divorce or separation, the person envisioned by Article 3(a) most often will be the child's parent. The typical scenario would involve one parent taking a child from one Contracting State to another Contracting State over objections of the parent with whom the child had been living. However, there may be situations in which a person other than a biological parent has actually been exercising custody of the child and is therefore eligible to seek the child's return pursuant to the Convention. An example would be a grandparent who has had physical custody of a child following the death of the parent with whom the child had been residing. If the child is subsequently removed from the custody of the grandparent by the surviving parent, the aggrieved grandparent could invoke the Convention to secure the child's return. In another situation, the child may be in the care of foster parents. If custody rights exercised by the foster parents are breached, for instance, by abduction of the child by its biological parent, the foster parents ==========================[10,506]============================== could invoke the Convention to secure the child's return. In the two foregoing examples (not intended to be exhaustive) a family relationship existed between the victim-child and the person who had the right to seek the child's return. However, institutions such as public or private child care agencies also may have custody rights the breach of which would be remediable under the Convention. If a natural parent relinquishes parental rights to a child and the child is subsequently placed in the care of an adoption agency, that agency may invoke the Convention to recover the child if the child is abducted by its parent(s). II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 1. Holders of Rights Protected by the Convention (b) "Jointly or alone". Article 3 (a) and (b) recognize that custody rights may be held either jointly or alone. Two persons, typically mother and father, can exercise joint custody, either by court order following a custody adjudication, or by operation of law prior to the entry of a decree. The Convention does not distinguish between these two situations, as the commentary of the Convention reporter indicates: Now, from the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention's true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties. Perez-Vera Report, paragraph 71 at 447-448. Article 3(a) ensures the application of the Convention to pre-decree abductions, since it protects the rights of a parent who was exercising custody of the child jointly with the abductor at the time of the abduction, before the issuance of a custody decree. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined The obligation to return an abducted child to the person entitled to custody arises only if the removal or the retention is wrongful within the meaning of the Convention. To be considered wrongful, certain factual and legal elements must be present. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined (a) Breach of "custody rights". The removal or retention must be in breach of "custody rights," defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Accordingly, a parent who sends his or her child to live with a caretaker has not relinquished custody rights but rather has exercised them within the meaning of the Convention. Likewise, a parent hospitalized for a protracted period who places the child with grandparents or other relatives for the duration of the illness has effectively exercised custody. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined (b) "Custody rights" determined by law of child's habitual residence. In addition to including the right to determine the child's residence (Article 5(a)), the term "custody rights" covers a collection of rights which take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Article 3(a). Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. If a country has more than one territorial unit, the habitual residence refers to the particular territorial unit in which the child was resident, and the applicable laws are those in effect in that territorial unit. Article 31. In the United States, the law in force in the state in which a child was habitually resident (as possibly pre-empted by federal legislation enacted in connection with U.S. ratification of the Convention) would be applicable for the determination as to whether a removal or retention is wrongful. Articles 32 and 33 also control, respectively, how and whether the Convention applies in States with more than one legal system. Perez-Vera Report, paragraphs 141 and 142 at 470. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongfinto the Convention, a model form was prepared when the Convention was adopted by the Hague Conference on Private International Law and was recommended for use in making application for the return of wrongfully removed or retained children. A copy of that form is annexed to this Legal Analysis. (The form to be used for the return of children from the United States may seek additional information.) Table of Contents To facilitate understanding of the Convention by the Senate and the use and interpretation of the Convention by parents, judges, lawyers and public and private agency personnel, the articles are analyzed and discussed in the following categories: I Children Protected by the Convention [10,504] (Preamble, Article 1) [10,504] A Age (Articles 4, 36, 18, 29, 34, 13) [10,504] B Residence (Article 4) [10,504] C Timing/cases covered (Article 35) [10,504] D Effect of custody order concerning the child [10,504] 1 Existing custody orders (Articles 17, 3) [10,504] 2 Pre-decree removals or retentions (Article 3) [10,505] II Conduct Actionable Under the Convention [10,505] A International "Child abduction" not criminal: Hague Convention distinguished from extradition treaties (Article 12). [10,505] B "Wrongful removal or retention" (Articles 1. 3, 5(a)) [10,505] 1 Holders of rights protected by the Convention (i.e., with respect to whom the removal or retention is wrongful). [10,505] (a) "Person, institution or other body" (Article 3(a), (b)) [10,505] (b) "Jointly or alone" (Article 3(a), (b)) [10,506] 2 Defined [10,506] (a) Breach of "custody rights" (Articles 3(a), 5(a)) [10,506] (b) "Custody rights" determined by law of child's habitual residence [Articles 3(a), 31, 32, 33) [10,506]] (c) Sources of "Custody rights" (Article 3, last paragraph) [10,506] i. Operation of law (Articles 3, 15) [10,506] ii. Judicial or administrative decision (Article 3) [10,506]. iii. Agreement having legal effect (Article 3) [10,507] (d) "Actually exercised" (Articles 3(b), 5, 8(c), 13) [10,507] III Judicial Proceedings for Return of the Child [10,507] A Right to seek return (Articles 29,12, 34, 8) [10,507] B Legal advice and costs (Articles 25, 26, 42) [10,508] C Pleading requirements (Articles 8, 24) [10,508] D Admissibility of evidence (Articles 30, 23) [10,508] E Judicial promptitude/status report (Article 11) [10,508] F Judicial notice (Article 14) [10,508] G Court determination of "wrongfulness" (Articles 15, 3, 11, 12, 14) [10,508] H Constraints upon courts in requested states in making substantive custody decisions (Article 16) [10,509] I Duty to return not absolute [10,509] 1 Temporal qualifications [10,509] (a) Article 4 [10,509] (b) Article 35 [10,509] (c) Article 12 [10,509] 2 Article 13 limitations on return obligation [10,509] (a) Legislative history (Articles 13, 20) [10,509] (b) Non-exercise of custody rights (Articles 13(a), 3(b)) [10,510] (c) Grave risk of harm/intolerable situation (Article 13(b)) [10,510] (d) Child's preference (Article 13) [10,510] (e) Role of social studies [10,510] 3 Article 20 [10,510] 4 Custody order no defense to return (Article 17) [10,511] J Return of the child (Article 12) [10,511] 1 Return order not on custody merits (Article 19) [10,511] 2 Costs, fees and expenses shifted to abductor (Article 26) [10,511] IV Central Authority [10,511] (Articles 1.10, 21) A Establishment of Central Authority (Article 6) [10,511] B Duties (Article 7) [10,511] C Other Tasks (Articles 8, 9, 10, 11, 15, 21, 26, 27, 28) [10,512]. 1 Processing applications (Articles 8, 9, 27, 28) [10,512] 2 Assistance in connection with judicial proceedings [10,513] (a) Request for status report (Article 11) [10,513] (b) Social studies/background reports (Article 13) [10,513] (c) Determination of "wrongfulness" (Article 15) [10,513] (d) Costs (Article 26), reservation (Articles 42,22) [10,513] V Access Rights-Article 21 [10,513] A Remedies for breach (Articles 21, 12) [10,513] B Defined (Article 5(b)) [10,513] C Procedure for obtaining relief (Articles 21, 8, 7) [10,513] D Alternative remedies (Articles 18, 29, 34) [10,514] VI Miscellaneous and Final Clauses [10,514] A Article 36 [10,514] B Articles 37 and 38 [10,514] C Articles 42, 43 and 44 [10,514] D Articles 39 and 40 [10,514] E Article 41 [10,514] F Article 45 [10,515] Annexes [10,515] -Recommended Return Application Form [10,515] -Bibliography [10,515] ==========================[10,503]============================== Guide to Terminology Used in the Legal Analysis "Abduction" as used in the Convention title is not intended in a criminal sense. That term is shorthand for the phrase "wrongful removal or retention" which appears throughout the text, beginning with the preambular language and Article 1. Generally speaking, "wrongful removal" refers to the taking of a child from the person who was actually exercising custody of the child. "Wrongful retention" refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period. "Wrongful retention" is not intended by this Convention to cover refusal by the custodial parent to permit visitation by the other parent. Such obstruction of visitation may be redressed in accordance with Article 21. The term "abductor" as used in this analysis refers to the person alleged to have wrongfully removed or retained a child. This person is also referred to as the "alleged wrongdoer" or the "respondent." The term "person" as used in this analysis includes the person, institution or other body who (or which) actually exercised custody prior to the abduction and is seeking the child's return. The "person" seeking the child's return is also referred to as "applicant" and "petitioner." The terms "court" and "judicial authority" are used throughout the analysis to mean both judicial and administrative bodies empowered to make decisions on petitions made pursuant to this Convention. "Judicial decree" and "court order" likewise include decisions made by courts or administrative bodies. "Country of origin" and "requesting country" refer to the child's country ("State") of habitual residence prior to the wrongful removal or retention. "Country addressed" refers to the country ("State") where the child is located or the country to which the child is believed to have been taken. It is in that country that a judicial or administrative proceeding for return would be brought. "Access rights" correspond to "visitation rights." References to the "reporter" are to Elisa Perez-Vera, the official Hague Conference reporter for the Convention. Her explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it. It is referred to herein as the "Perez-Vera Report." The Perez-Vera Report appears in Actes et ==========================[10,504]============================== documents de la Quatorzieme Session (1980), Volume III, Child Abduction, edited by the Permanent Bureau of the Hague Conference on Private International Law, The Hague, Netherlands. (The volume may be ordered from the Netherlands Government Printing and Publishing Office, l Christoffel Plantijnstraat, Postbox 20014, 2500 EA The Hague, Netherlands.) I. Children Protected by the Convention A fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons bent on obtaining their physical and/or legal custody. Children who are wrongfully moved from country to country are deprived of the stable relationships which the Convention is designed promptly to restore. Contracting States are obliged by Article 2 to take all appropriate measures to implement the objectives of the Convention as set forth in Article 1: (1) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States, While these objectives are universal in their appeal, the Convention does not cover all children who might be victims of wrongful takings or retentions. A threshold inquiry, therefore, is whether the child who has been abducted or retained is subject to the Convention's provisions. Only if the child falls within the scope of the Convention will the administrative and judicial mechanisms of the Convention apply. I. Children Protected by the Convention A. Age The Convention applies only to children under the age of sixteen (16). Even if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen. Article 4. Absent action by governments to expand coverage of the Convention to children aged sixteen and above pursuant to Article 36, the Convention itself is unavailable as the legal vehicle for securing return of a child sixteen or older. However, it does not bar return of such child by other means. Articles 18, 29 and 34 make clear that the Convention is a nonexclusive remedy in cases of international child abduction. Article 18 provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under other laws, procedures or comity, irrespective of the child's age. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely by invoking any applicable laws or procedures to secure the child's return. Likewise, Article 34 provides that the Convention shall not restrict the application of any law in the State addressed for purposes of obtaining the child's return or for organizing visitation rights. Assuming such laws are not restricted to children under sixteen, a child sixteen or over may be returned pursuant to their provisions. Notwithstanding the general application of the Convention to children under sixteen, it should be noted that the wishes of mature children regarding their return are not ignored by the Convention. Article 13 permits, but does not require, the judicial authority to refuse to order the child returned if 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." The role of the child's preference in return proceedings is discussed further at III.I(2)(d), infra. I. Children Protected by the Convention B. Residence In order for the Convention to apply the child must have been "habitually resident in a Contracting State immediately before any breach of custody or access rights." Article 4. In practical terms, the Convention may be invoked only where the child was habitually resident in a Contracting State and taken to or retained in another Contracting State. Accordingly, child abduction and retention cases are actionable under the Convention if they are international in nature (as opposed to interstate), and provided the Convention has entered into force for both countries involved. See discussion of Article 38, VI.B, infra. To illustrate, take the case of a child abducted to California from his home in New York. The Convention could not be invoked to secure the return of such child. This is true even if one of the child's parents is an American citizen and the other a foreign national. The Uniform Child Custody jurisdiction Act (UCCJA) and/or the Parental Kidnapping Prevention Act (PKPA), domestic state and federal law, respectively, would govern the return of the child in question. If the same child were removed from New York to Canada, application under the Convention could be made to secure the child's return provided the Convention had entered into force both for the United States and the Canadian province to which the child was taken. An alternative remedy might also lie under other Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada could seek to secure the child's return by petitioning for enforcement of a Canadian custody order pursuant to the UCCJA, or by invoking the Convention, or both. I. Children Protected by the Convention C. Timing/Cases Covered Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 1. Existing Custody Orders Children who otherwise fall within the scope of the Convention are not automatically removed from its protections by virtue of a judicial decision awarding custody to the alleged wrongdoer. This is true whether the decision as to custody was made, or is entitled to recognition, in the State to which the child has been taken. Under Article 17 that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. This provision is intended to ensure, inter alia, that the Convention takes precedence over decrees made in favor of abductors before the court had notice of the wrongful removal or retention. Thus, under Article 17 the person who wrongfully removes or retains the child in a Contracting State cannot insulate the child from the Convention's return provisions merely by obtaining a custody order in the country of new residence, or by seeking there to enforce another country's order. Nor may the alleged wrongdoer rely upon a stale decree awarding him or her custody, the provisions of which have been ==========================[10,505]============================== derogated from subsequently by agreement or acquiescence of the parties, to prevent the child's return under the Convention. Article 3. It should be noted that Article 17 does permit a court to take into account the reasons underlying an existing custody decree when it applies the Convention. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 2. Pre-Decree Removals or Retentions (Article 3) Children who are wrongfully removed or retained prior to the entry of a custody order are protected by the Convention. There need not be a custody order in effect in order to invoke the Convention's return provisions. Accordingly, under the Convention a child will be ordered returned to the person with whom he or she was habitually resident in predecree abduction cases as well as in cases involving violations of existing custody orders. Application of the Convention to predecree cases comes to grips with the reality that many children are abducted or retained long before custody actions have been initiated. In this manner a child is not prejudiced by the legal inaction of his or her physical custodian, who may not have anticipated the abduction, and the abductor is denied any legal advantage since the child is subject to the return provisions of the Convention. The Convention's treatment of predecree abduction cases is distinguishable from the Council of Europe's Convention on Recognition and Enforcement of Decisions Relating to the Custody of Children, adopted in Strasbourg, France in November 1979 ("Strasbourg Convention"), and from domestic law in the United States, specifically the UCCJA and the PKPA, all of which provide for enforcement of custody decrees. Although the UCCJA and PKPA permit enforcement of a decree obtained by a parent in the home state after the child has been removed from that state, in the absence of such decree the enforcement provisions of those laws are inoperative. In contrast to the restoration of the legal status quo ante brought about by application of the UCCJA, the PKPA, and the Strasbourg Convention, the Hague Convention seeks restoration of the factual status quo ante and is not contingent on the existence of a custody decree. The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child's best interests. Pre-decree abductions are discussed in greater detail in the section dealing with actionable conduct, See II.B(2)(c)(i). II. Conduct Actionable Under the Convention A. "International Child Abduction" not Criminal: Hague Convention Distinguished From Extradition Treaties Despite the use of the term "abduction" in its title, the Hague Convention is not an extradition treaty. The conduct made actionable by the Convention-the wrongful removal or retention of children-is wrongful not in a criminal sense but in a civil sense. The Hague Convention establishes civil procedures to secure the return of so-called "abducted" children. Article 12. In this manner the Hague Convention seeks to satisfy the overriding concern of the aggrieved parent. The Convention is not concerned with the question of whether the person found to have wrongfully removed or retained the child returns to the child's country of habitual residence once the child has been returned pursuant to the Convention. This is in contrast to the criminal extradition process which is designed to secure the return of the fugitive wrong-doer. Indeed, when the fugitive-parent is extradited for trial or to serve a criminal sentence, there is no guarantee that the abducted child will also be returned. While it is uncertain whether criminal extradition treaties will be routinely invoked in international custody cases between countries for which the Hague Convention is in force, nothing in the Convention bars their application or use, II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention The Convention's first stated objective is to secure the prompt return of children who are wrongfully removed from or retained in any Contracting State. Article 1(a). (The second stated objective, i.e., to ensure that rights of custody and of access under the law of one Contracting State are effectively exercised in other Contracting States (Article 1(b)), is discussed under the heading "Access Rights," V., infra.) The removal or retention must be wrongful within the meaning of Article 3, as further clarified by Article 5(a), in order to trigger the return procedures established by the Convention. Article 3 provides that the removal or retention of a child is to be considered wrongful where: (a) it is in breach of custody rights attributed to a person, an institution or another body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. This Article is a cornerstone of the Convention. It is analyzed by examining two questions: 1. Who holds rights protected by the Convention (or, with respect to whom is the removal or retention deemed to be wrongful?); and 2. What are the factual and legal elements of a wrongful removal or retention? II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 1. Holders of Rights Protected by the Convention (a) "Person, institution or other body". While the child is the ultimate beneficiary of the Convention's judicial and administrative machinery, the child's role under the Convention is passive. In contrast, it is up to the Person, institution or other body" (hereinafter referred to simply as "the person") who "actually exercised" custody of the child prior to the abduction, or who would have exercised custody but for the abduction, to invoke the Convention to secure the child's return. Article 3 (a), (b). It is this person who holds the rights protected by the Convention and who has the right to seek relief pursuant to its terms. Since the vast majority of abduction cases arises in the context of divorce or separation, the person envisioned by Article 3(a) most often will be the child's parent. The typical scenario would involve one parent taking a child from one Contracting State to another Contracting State over objections of the parent with whom the child had been living. However, there may be situations in which a person other than a biological parent has actually been exercising custody of the child and is therefore eligible to seek the child's return pursuant to the Convention. An example would be a grandparent who has had physical custody of a child following the death of the parent with whom the child had been residing. If the child is subsequently removed from the custody of the grandparent by the surviving parent, the aggrieved grandparent could invoke the Convention to secure the child's return. In another situation, the child may be in the care of foster parents. If custody rights exercised by the foster parents are breached, for instance, by abduction of the child by its biological parent, the foster parents ==========================[10,506]============================== could invoke the Convention to secure the child's return. In the two foregoing examples (not intended to be exhaustive) a family relationship existed between the victim-child and the person who had the right to seek the child's return. However, institutions such as public or private child care agencies also may have custody rights the breach of which would be remediable under the Convention. If a natural parent relinquishes parental rights to a child and the child is subsequently placed in the care of an adoption agency, that agency may invoke the Convention to recover the child if the child is abducted by its parent(s). II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 1. Holders of Rights Protected by the Convention (b) "Jointly or alone". Article 3 (a) and (b) recognize that custody rights may be held either jointly or alone. Two persons, typically mother and father, can exercise joint custody, either by court order following a custody adjudication, or by operation of law prior to the entry of a decree. The Convention does not distinguish between these two situations, as the commentary of the Convention reporter indicates: Now, from the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention's true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties. Perez-Vera Report, paragraph 71 at 447-448. Article 3(a) ensures the application of the Convention to pre-decree abductions, since it protects the rights of a parent who was exercising custody of the child jointly with the abductor at the time of the abduction, before the issuance of a custody decree. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined The obligation to return an abducted child to the person entitled to custody arises only if the removal or the retention is wrongful within the meaning of the Convention. To be considered wrongful, certain factual and legal elements must be present. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined (a) Breach of "custody rights". The removal or retention must be in breach of "custody rights," defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Accordingly, a parent who sends his or her child to live with a caretaker has not relinquished custody rights but rather has exercised them within the meaning of the Convention. Likewise, a parent hospitalized for a protracted period who places the child with grandparents or other relatives for the duration of the illness has effectively exercised custody. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongful Removal or Retention" Defined (b) "Custody rights" determined by law of child's habitual residence. In addition to including the right to determine the child's residence (Article 5(a)), the term "custody rights" covers a collection of rights which take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Article 3(a). Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. If a country has more than one territorial unit, the habitual residence refers to the particular territorial unit in which the child was resident, and the applicable laws are those in effect in that territorial unit. Article 31. In the United States, the law in force in the state in which a child was habitually resident (as possibly pre-empted by federal legislation enacted in connection with U.S. ratification of the Convention) would be applicable for the determination as to whether a removal or retention is wrongful. Articles 32 and 33 also control, respectively, how and whether the Convention applies in States with more than one legal system. Perez-Vera Report, paragraphs 141 and 142 at 470. II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention 2. "Wrongfinto the Convention, a model form was prepared when the Convention was adopted by the Hague Conference on Private International Law and was recommended for use in making application for the return of wrongfully removed or retained children. A copy of that form is annexed to this Legal Analysis. (The form to be used for the return of children from the United States may seek additional information.) Table of Contents To facilitate understanding of the Convention by the Senate and the use and interpretation of the Convention by parents, judges, lawyers and public and private agency personnel, the articles are analyzed and discussed in the following categories: I Children Protected by the Convention [10,504] (Preamble, Article 1) [10,504] A Age (Articles 4, 36, 18, 29, 34, 13) [10,504] B Residence (Article 4) [10,504] C Timing/cases covered (Article 35) [10,504] D Effect of custody order concerning the child [10,504] 1 Existing custody orders (Articles 17, 3) [10,504] 2 Pre-decree removals or retentions (Article 3) [10,505] II Conduct Actionable Under the Convention [10,505] A International "Child abduction" not criminal: Hague Convention distinguished from extradition treaties (Article 12). [10,505] B "Wrongful removal or retention" (Articles 1. 3, 5(a)) [10,505] 1 Holders of rights protected by the Convention (i.e., with respect to whom the removal or retention is wrongful). [10,505] (a) "Person, institution or other body" (Article 3(a), (b)) [10,505] (b) "Jointly or alone" (Article 3(a), (b)) [10,506] 2 Defined [10,506] (a) Breach of "custody rights" (Articles 3(a), 5(a)) [10,506] (b) "Custody rights" determined by law of child's habitual residence [Articles 3(a), 31, 32, 33) [10,506]] (c) Sources of "Custody rights" (Article 3, last paragraph) [10,506] i. Operation of law (Articles 3, 15) [10,506] ii. Judicial or administrative decision (Article 3) [10,506]. iii. Agreement having legal effect (Article 3) [10,507] (d) "Actually exercised" (Articles 3(b), 5, 8(c), 13) [10,507] III Judicial Proceedings for Return of the Child [10,507] A Right to seek return (Articles 29,12, 34, 8) [10,507] B Legal advice and costs (Articles 25, 26, 42) [10,508] C Pleading requirements (Articles 8, 24) [10,508] D Admissibility of evidence (Articles 30, 23) [10,508] E Judicial promptitude/status report (Article 11) [10,508] F Judicial notice (Article 14) [10,508] G Court determination of "wrongfulness" (Articles 15, 3, 11, 12, 14) [10,508] H Constraints upon courts in requested states in making substantive custody decisions (Article 16) [10,509] I Duty to return not absolute [10,509] 1 Temporal qualifications [10,509] (a) Article 4 [10,509] (b) Article 35 [10,509] (c) Article 12 [10,509] 2 Article 13 limitations on return obligation [10,509] (a) Legislative history (Articles 13, 20) [10,509] (b) Non-exercise of custody rights (Articles 13(a), 3(b)) [10,510] (c) Grave risk of harm/intolerable situation (Article 13(b)) [10,510] (d) Child's preference (Article 13) [10,510] (e) Role of social studies [10,510] 3 Article 20 [10,510] 4 Custody order no defense to return (Article 17) [10,511] J Return of the child (Article 12) [10,511] 1 Return order not on custody merits (Article 19) [10,511] 2 Costs, fees and expenses shifted to abductor (Article 26) [10,511] IV Central Authority [10,511] (Articles 1.10, 21) A Establishment of Central Authority (Article 6) [10,511] B Duties (Article 7) [10,511] C Other Tasks (Articles 8, 9, 10, 11, 15, 21, 26, 27, 28) [10,512]. 1 Processing applications (Articles 8, 9, 27, 28) [10,512] 2 Assistance in connection with judicial proceedings [10,513] (a) Request for status report (Article 11) [10,513] (b) Social studies/background reports (Article 13) [10,513] (c) Determination of "wrongfulness" (Article 15) [10,513] (d) Costs (Article 26), reservation (Articles 42,22) [10,513] V Access Rights-Article 21 [10,513] A Remedies for breach (Articles 21, 12) [10,513] B Defined (Article 5(b)) [10,513] C Procedure for obtaining relief (Articles 21, 8, 7) [10,513] D Alternative remedies (Articles 18, 29, 34) [10,514] VI Miscellaneous and Final Clauses [10,514] A Article 36 [10,514] B Articles 37 and 38 [10,514] C Articles 42, 43 and 44 [10,514] D Articles 39 and 40 [10,514] E Article 41 [10,514] F Article 45 [10,515] Annexes [10,515] -Recommended Return Application Form [10,515] -Bibliography [10,515] ==========================[10,503]============================== Guide to Terminology Used in the Legal Analysis "Abduction" as used in the Convention title is not intended in a criminal sense. That term is shorthand for the phrase "wrongful removal or retention" which appears throughout the text, beginning with the preambular language and Article 1. Generally speaking, "wrongful removal" refers to the taking of a child from the person who was actually exercising custody of the child. "Wrongful retention" refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period. "Wrongful retention" is not intended by this Convention to cover refusal by the custodial parent to permit visitation by the other parent. Such obstruction of visitation may be redressed in accordance with Article 21. The term "abductor" as used in this analysis refers to the person alleged to have wrongfully removed or retained a child. This person is also referred to as the "alleged wrongdoer" or the "respondent." The term "person" as used in this analysis includes the person, institution or other body who (or which) actually exercised custody prior to the abduction and is seeking the child's return. The "person" seeking the child's return is also referred to as "applicant" and "petitioner." The terms "court" and "judicial authority" are used throughout the analysis to mean both judicial and administrative bodies empowered to make decisions on petitions made pursuant to this Convention. "Judicial decree" and "court order" likewise include decisions made by courts or administrative bodies. "Country of origin" and "requesting country" refer to the child's country ("State") of habitual residence prior to the wrongful removal or retention. "Country addressed" refers to the country ("State") where the child is located or the country to which the child is believed to have been taken. It is in that country that a judicial or administrative proceeding for return would be brought. "Access rights" correspond to "visitation rights." References to the "reporter" are to Elisa Perez-Vera, the official Hague Conference reporter for the Convention. Her explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it. It is referred to herein as the "Perez-Vera Report." The Perez-Vera Report appears in Actes et ==========================[10,504]============================== documents de la Quatorzieme Session (1980), Volume III, Child Abduction, edited by the Permanent Bureau of the Hague Conference on Private International Law, The Hague, Netherlands. (The volume may be ordered from the Netherlands Government Printing and Publishing Office, l Christoffel Plantijnstraat, Postbox 20014, 2500 EA The Hague, Netherlands.) I. Children Protected by the Convention A fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons bent on obtaining their physical and/or legal custody. Children who are wrongfully moved from country to country are deprived of the stable relationships which the Convention is designed promptly to restore. Contracting States are obliged by Article 2 to take all appropriate measures to implement the objectives of the Convention as set forth in Article 1: (1) To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States, While these objectives are universal in their appeal, the Convention does not cover all children who might be victims of wrongful takings or retentions. A threshold inquiry, therefore, is whether the child who has been abducted or retained is subject to the Convention's provisions. Only if the child falls within the scope of the Convention will the administrative and judicial mechanisms of the Convention apply. I. Children Protected by the Convention A. Age The Convention applies only to children under the age of sixteen (16). Even if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen. Article 4. Absent action by governments to expand coverage of the Convention to children aged sixteen and above pursuant to Article 36, the Convention itself is unavailable as the legal vehicle for securing return of a child sixteen or older. However, it does not bar return of such child by other means. Articles 18, 29 and 34 make clear that the Convention is a nonexclusive remedy in cases of international child abduction. Article 18 provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under other laws, procedures or comity, irrespective of the child's age. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely by invoking any applicable laws or procedures to secure the child's return. Likewise, Article 34 provides that the Convention shall not restrict the application of any law in the State addressed for purposes of obtaining the child's return or for organizing visitation rights. Assuming such laws are not restricted to children under sixteen, a child sixteen or over may be returned pursuant to their provisions. Notwithstanding the general application of the Convention to children under sixteen, it should be noted that the wishes of mature children regarding their return are not ignored by the Convention. Article 13 permits, but does not require, the judicial authority to refuse to order the child returned if 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." The role of the child's preference in return proceedings is discussed further at III.I(2)(d), infra. I. Children Protected by the Convention B. Residence In order for the Convention to apply the child must have been "habitually resident in a Contracting State immediately before any breach of custody or access rights." Article 4. In practical terms, the Convention may be invoked only where the child was habitually resident in a Contracting State and taken to or retained in another Contracting State. Accordingly, child abduction and retention cases are actionable under the Convention if they are international in nature (as opposed to interstate), and provided the Convention has entered into force for both countries involved. See discussion of Article 38, VI.B, infra. To illustrate, take the case of a child abducted to California from his home in New York. The Convention could not be invoked to secure the return of such child. This is true even if one of the child's parents is an American citizen and the other a foreign national. The Uniform Child Custody jurisdiction Act (UCCJA) and/or the Parental Kidnapping Prevention Act (PKPA), domestic state and federal law, respectively, would govern the return of the child in question. If the same child were removed from New York to Canada, application under the Convention could be made to secure the child's return provided the Convention had entered into force both for the United States and the Canadian province to which the child was taken. An alternative remedy might also lie under other Canadian law. If the child had been removed from Canada and taken to the United States, the aggrieved custodial parent in Canada could seek to secure the child's return by petitioning for enforcement of a Canadian custody order pursuant to the UCCJA, or by invoking the Convention, or both. I. Children Protected by the Convention C. Timing/Cases Covered Article 35 states that the Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Following a strict interpretation of that Article, the Convention will not apply to a child who is wrongfully shifted from one Contracting State to another if the wrongful removal or retention occurred before the Convention's entry into force in those States. However, under a liberal interpretation Article 35 could be construed to cover wrongful removal or retention cases which began before the Convention took effect but which continued and were ongoing after its entry into force. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 1. Existing Custody Orders Children who otherwise fall within the scope of the Convention are not automatically removed from its protections by virtue of a judicial decision awarding custody to the alleged wrongdoer. This is true whether the decision as to custody was made, or is entitled to recognition, in the State to which the child has been taken. Under Article 17 that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. This provision is intended to ensure, inter alia, that the Convention takes precedence over decrees made in favor of abductors before the court had notice of the wrongful removal or retention. Thus, under Article 17 the person who wrongfully removes or retains the child in a Contracting State cannot insulate the child from the Convention's return provisions merely by obtaining a custody order in the country of new residence, or by seeking there to enforce another country's order. Nor may the alleged wrongdoer rely upon a stale decree awarding him or her custody, the provisions of which have been ==========================[10,505]============================== derogated from subsequently by agreement or acquiescence of the parties, to prevent the child's return under the Convention. Article 3. It should be noted that Article 17 does permit a court to take into account the reasons underlying an existing custody decree when it applies the Convention. I. Children Protected by the Convention D. Effect of Custody Order Concerning the Child 2. Pre-Decree Removals or Retentions (Article 3) Children who are wrongfully removed or retained prior to the entry of a custody order are protected by the Convention. There need not be a custody order in effect in order to invoke the Convention's return provisions. Accordingly, under the Convention a child will be ordered returned to the person with whom he or she was habitually resident in predecree abduction cases as well as in cases involving violations of existing custody orders. Application of the Convention to predecree cases comes to grips with the reality that many children are abducted or retained long before custody actions have been initiated. In this manner a child is not prejudiced by the legal inaction of his or her physical custodian, who may not have anticipated the abduction, and the abductor is denied any legal advantage since the child is subject to the return provisions of the Convention. The Convention's treatment of predecree abduction cases is distinguishable from the Council of Europe's Convention on Recognition and Enforcement of Decisions Relating to the Custody of Children, adopted in Strasbourg, France in November 1979 ("Strasbourg Convention"), and from domestic law in the United States, specifically the UCCJA and the PKPA, all of which provide for enforcement of custody decrees. Although the UCCJA and PKPA permit enforcement of a decree obtained by a parent in the home state after the child has been removed from that state, in the absence of such decree the enforcement provisions of those laws are inoperative. In contrast to the restoration of the legal status quo ante brought about by application of the UCCJA, the PKPA, and the Strasbourg Convention, the Hague Convention seeks restoration of the factual status quo ante and is not contingent on the existence of a custody decree. The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child's best interests. Pre-decree abductions are discussed in greater detail in the section dealing with actionable conduct, See II.B(2)(c)(i). II. Conduct Actionable Under the Convention A. "International Child Abduction" not Criminal: Hague Convention Distinguished From Extradition Treaties Despite the use of the term "abduction" in its title, the Hague Convention is not an extradition treaty. The conduct made actionable by the Convention-the wrongful removal or retention of children-is wrongful not in a criminal sense but in a civil sense. The Hague Convention establishes civil procedures to secure the return of so-called "abducted" children. Article 12. In this manner the Hague Convention seeks to satisfy the overriding concern of the aggrieved parent. The Convention is not concerned with the question of whether the person found to have wrongfully removed or retained the child returns to the child's country of habitual residence once the child has been returned pursuant to the Convention. This is in contrast to the criminal extradition process which is designed to secure the return of the fugitive wrong-doer. Indeed, when the fugitive-parent is extradited for trial or to serve a criminal sentence, there is no guarantee that the abducted child will also be returned. While it is uncertain whether criminal extradition treaties will be routinely invoked in international custody cases between countries for which the Hague Convention is in force, nothing in the Convention bars their application or use, II. Conduct Actionable Under the Convention B. Wrongful Removal or Retention The Convention's first stated objective is to secure the prompt return of children who are wrongfully removed from or retained in any Contracting State. Article 1(a). (The second stated objective, i.e., to ensure that rights of custody and of access under the law of one Contracting State are effectively exercised in other Contracting States (Article 1(b)), is discussed under the heading "Access Rights," V., infra.) The removal or retention must be wrongful within the meaning of Article 3, as further clarified by Article 5(a), in order to trigger the return procedures established by the Convention. Article 3 provides that the removal or retention of a child i