Remarks by Adair Dyer on Access (Visitation) for the North American Symposium on International Child Abduction in Washington, D.C., to be offered the afternoon of 30 September 1993 I Applications for Visitation 1 Although the original Canadian proposal to the Hague Conference on Private International Law in January 1976 had envisaged the preparation of a treaty on "legal kidnapping", throughout the negotiation process problems of visitation or access had been discussed along with those of interference with a custodian's rights. Incidentally, for purposes of this discussion, I will use the terms "access" and "visitation" interchangeably, access being the term normally used in Britain, while visitation is used in the United States. In drafting the Convention, we preferred the British term "access", partly for reasons of tradition, since British terminology had normally been used in the prior Hague Conventions, partly because the term access implies something rather broader than visitation and I felt that that was desirable. In other words, access may include: telephone access, mail access, fax access, and perhaps in the future, video conference access. 2 This emphasis was not surprising, the original research which I had done following the adoption of the Canadian proposal had indicated a close connection between visitation and access problems, and the various phenomena of legal kidnapping, one of which was indeed retention of a child at the end of a visitation period abroad. The questionnaire issued to the governments of the Member States of the Hague Conference in August 1978 contained 5 (out of 26) questions under the heading "Visitation and access" (in Actes et Documents, Tome III. Enlevement d'enfants, page 11) as follows: "19 Does your law provide for the parent who does not have custody to have access to the child? (footnote omitted) 20 If the answer to Question 19 has been in the affirmative, can the child be removed for a certain period of time to a country other than that where he habitually resides for purposes of effectuating such access? If so, please describe any preliminary conditions which are set for the exercise of such access or visitation. (footnote omitted) 20 Does your law provide that the child has a right of regular access to a parent who does not have custody? 22 Do you find that the exercise of access or visitation contributes to child abductions? If so, please explain. (footnote omitted) 23 Do you find that the denial of access or visitation contributes to child abduction? If so, please explain." (footnote omitted) In retrospect Question 21 of the above would appear to show a certain prescience, since the inquiry which it poses resulted in a new principle which was later distilled in the second paragraph of Article 10 of the United Nations Convention on the Rights of the Child: the principle that the child has the right to maintain contact with a parent, even when that parent resides in a different State. 3 I will not burden you down with the full history of the negotiation on these questions. Suffice it to say that the desire "to secure protection for rights of access" was declared in the Preamble to the Convention, and that the "objects" of the Convention, stated in Article 1, include the following: "b To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." 4 Article 1(b) would suggest that "rights of access" are treated in the Convention on the same level as are "rights of custody". However, a comparison of Articles 3 and 12 with Article 21 will show that that is not the case. Article 3, which frames the "family tort" of wrongful removal or retention of a child, refers only to breaches of rights of custody. During the negotiations at the Conference's Fourteenth Session in 1980, the Canadian delegation proposed that this Article be changed so as to treat breaches of rights of access on equal plane with breaches of custody rights. After some discussion that proposal was rejected FN 01 and the direct treatment of rights of access was relegated to Article 21. Nonetheless, during the discussion it was pointed out that the partial definition of "rights of custody" set out in Article 5 a of the Convention, would cover certain traditional situations where one parent has been entrusted with the custody of the child, but has been instructed by the court not to remove the child's residence from the jurisdiction without the consent of the other parent, while the other parent residing in the same jurisdiction has been awarded only visitation rights, plus the right to be consulted and to give or withhold consent to the removal of the child's residence from the jurisdiction. FN 02 This interpretation reflected already during the negotiations the idea which some commentators have found it difficult to accept, which is that the "rights of custody" referred to in the Convention may, under this definition, be broader than those rights which are considered to be custody rights under the law of any particular country. 5 Thus far there has been little case law on applications for visitation or access. The reason is simple. The vast majority of cases do involve a breach of custody rights, since the custody rights in question cover not only those which are derived from a court order, but also joint custody rights arising by operation of law. In most countries, parents who are married to each other, or were so married at the time the child was born, retain joint custody rights over the child until a court has acted to change this situation. Thus the Convention covers the myriad of cases where one parent grabs the children and runs to another country before any divorce or separation proceeding has been initiated. 6 Moreover, the interpretation I have mentioned above, confirmed by the Courts in a number of cases, to the effect that the right of a parent who has visitation rights to be consulted and to give or withhold consent before the child's residence is removed from the jurisdiction is a "right of custody" under the Convention, has meant that the remedy of immediate return is also available to such a parent, under the condition that such parent was "actually exercising" such right at the time of removal or retention or would have so exercised it but for the removal or retention. This condition of "actual exercise" is set forth in Article 3(b) and again as an affirmative defense, the absence of which is to be established by the abductor under Article 13(a). 7 How does one exercise the right to give or withhold consent to the child's removal if one has not been consulted, if in fact the child's primary custodian and caretaker has simply removed the child from the jurisdiction in violation of a court order or a provision of the law of the place where the child's habitual residence is situated? This question did not give any real difficulty to the Court of Appeal of Aix-en-Provence in 1989 FM 03 since it ruled simply that the mother who had had such rights did everything she could to exercise them in the sense that, as soon as she learned that the children had been removed from the jurisdiction, she complained and submitted a Hague Convention request for their return. Needless to say, there should also have been regular exercise of the visitation rights before the children's removal. Moreover, if the parent having such rights learns that the children are about to be removed, that parent should vigorously protest. It is not necessarily the case however, that that parent should have to initiate legal proceedings to stop the removal, if the primary custodian and caretaker has been reminded of the provision in the Court Order and the need for that parent to go to court in order to obtain permission for removal of the child from the jurisdiction. 8 The case law on this latter point is particularly muddy. This is the point of how the primary caretaker can obtain a court's permission to depart, if the other parent refuses to give consent. I was present in Australia recently when an English Barrister, Mr Nicholas Mostyn, gave a very interesting talk comparing the English, Australian, Canadian and New York practice in this respect FN 04. In the French Courts, in the context of removals which were in violation of a Court Order and were followed by Hague Convention applications for return, the abductors in two cases have invoked the provisions of Article 2 of the Fourth Protocol to the European Convention on the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to enter and leave countries freely. The Court of Appeal of Aix-en-Provence, in the decision that I mentioned above, pointed out that this was a personal right of the parent which did not extend to give that parent the right to carry the child with him or her to whatever destination that parent wished to reach. 9 Coming back to the main stream of my line of thought, I note that the second paragraph of Article 3 reads as follows: "The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State." The "rights of custody" which arise in connection with visitation rights, when they are accompanied by a right to be consulted and to give or withhold consent before removal of the child from the jurisdiction, have been held to arise so far in three different ways: (1) From the provisions of a Court Order, when that Order specifically prohibits removal of the child from the jurisdiction by the primary custodian/caretaker without the other parent's consent (this type of provision in a Court Order has been fairly common in England and Wales); (2) by operation of law, where the law provides that the primary custodian/caretaker cannot remove the child from the jurisdiction without the consent of the other parent (this is the situation in Australia, where it is common for the mother to be appointed "custodian" and for the father to be appointed "guardian", which implies that he must give consent or the consent must be obtained from a court before the child may be removed from Australia); (3) by a sort of combination of a court order and the operation of law (in one case FN 05 it was shown that under the case law of the State of New York, a prohibition to remove the child from the State without consent was implied in a Court Order which granted regular visitation rights to the other parent who was residing in New York State). 10 I have mentioned before that the case law on applications for access rights is rather sparse. One court dealing with this problem at an early stage FN 06 found that because of the relative softness of Article 21, as compared with Article 3, applications for enforcement of visitation rights granted under a foreign order did not fall under the Convention. Article 21 only provides directly for applications "for organizing or securing the effective exercise of rights of access" to be presented to the Central Authorities of the Contracting States "in the same way as an application for the return of a child." However, the third paragraph of Article 21 only provides that the Central Authorities "may" initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. 11 A more recent Court of Appeal case in England has clarified at least the scope of the Convention, since Article 4 also falls in the Chapter dealing with its scope. The first sentence of Article 4 reads as follows: "The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights." The earlier Court decision FN 07 had found that the "access rights" breached under this provision had to arise under the law of the State of the child's habitual residence. Thus, if the child's habitual residence had been legally changed, the Convention did not cover an application to enforce access rights which had arisen under the law of the child's prior habitual residence. The Court of Appeal corrected this view in a case where a child had been brought legally from Canada to England, after a consent order had been entered in Canada permitting removal but providing for subsequent visitation in Canada. When the custodian refused to comply with the order for visitation in Canada, the action was brought in the United Kingdom. The Court of Appeal FN O8 found that the child was habitually resident in a Contracting State, immediately before the breach of access rights, since England was a Contracting State, even though the access rights in question had arisen under the law of Canada. Thus the child came under the Convention. However, the Court of Appeal held that the Central Authority for England and Wales had fully carried out its obligations under Article 21 of the Convention by assisting the applicant in obtaining counsel under legal aid and bringing the case to court. The English Court was not bound by the terms of the Canadian access order, but could decide upon and fashion access in a way which it thought to be appropriate giving due weight to the reasons behind the Canadian Court's order. 12 The absence of "recognition and enforcement" language in Article 21 generally supports the idea, in my opinion, that the Convention does not mandate enforcement of the foreign access order in its strict terms. In fact, even in case of child abduction, the Convention does not speak in terms of recognition and enforcement, but rather mandates an immediate return of the child, with the decision on the merits as to custody to be taken after the return. (See in this connection, Articles 16 and 19 of the Convention.) Even so, I believe that the English Courts have gone too far in suggesting that the application based on breach of access rights arising under a Foreign Court Order somehow is not a Convention proceeding. The reference to "access rights" in Article 4 would be rather empty if an application to enforce access rights did not fall under the Convention and the English Courts themselves admitted that it is appropriate for the Court to take into account the reasoning behind the foreign access order. The last sentence of Article 21, second paragraph, even though it contains the verb "may" and thus gives the Central Authorities discretion as to whether they initiate or assist in the institutional proceedings with a view to organizing or protecting access rights, would seem to suggest that such a proceeding, when instituted, falls under the Convention. This idea is confirmed in the fourth paragraph of Article 26, which in relevant part states: "Upon . . . issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person . . . who prevented the exercise or rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child." In my opinion, this paragraph gives a clear implication that the proceedings which have been brought, based on a breach of access rights arising under a Court Order or under the general law of the former habitual residence of the child, are proceedings which fall under the Convention. 13 I might add an additional point from the practice, which suggests the same. Those cases in which, for example, the mother, being the primary caretaker and perhaps even custodian under a Court Order, has wrongfully removed the child in terms of Article 3, frequently involve some negotiations in view of an amicable settlement. One of the duties of the Central Authorities under Article 7(c) of the Convention is "to secure the voluntary return of the child or to bring about an amicable resolution of the issues". There are cases where, in view of the practicalities, the parent left behind who was not a primary caretaker, even though he or she is entitled to insist upon return of the child under the Convention, may find it in the best interest of the child and his or her own best interest to negotiate an appropriate amicable settlement, under which the child will remain in the country to which the child has been wrongfully removed or in which the child has been wrongfully retained, but will visit regularly with that parent. The dangers of negotiation in view of such a settlement which were raised in two French cases, decided in the Court of Appeal of Paris, have now been largely resolved by the reversal by the Cour de Cassation in one of those cases, which found that acquiescence must be clear and unequivocal. FN 09 14 The jurisdiction of the courts under the Convention to enter orders for access, as opposed to an order for the return of the child, tends to be confirmed by the practice. In certain German Court cases where a settlement has been agreed upon, within the framework of an application for return of the child, the settlement has been confirmed and entered by the Court in an order under which the child has remained in Germany, but specific provisions for access abroad have been included. In one of these cases, the mother who had allegedly wrongfully removed the child agreed to pay the cost of an annual airline ticket, so that the father and the child would have access to each other. Thus it may be concluded that it is permissible for the applicant who seeks return of the child to negotiate not only the physical and temporal terms of visitation, but also the financial conditions of visitation, with a view to allowing the child to remain where he or she is after the wrongful removal. Looking at Articles 4, 7(c), 21 and 26 (fourth paragraph), it seems to me quite reasonable to say that the Courts have the authority to enter such agreed orders under the Hague Convention. 15 The English practice seems to confirm this. The Court of Appeal in the recent case of In Re: G noted that there had been a number of access decisions made in the High Court by consent. FN 10Moreover in C. v. C. FN11 the Court was faced with a case where the mother had wrongfully removed the children from New York State in the United States to England, but the father, having presented his application for return of the children to New York, had decided to reduce his claim to a claim for access. In that case, Mrs Justice Bracewell said the following: "Mr Swift has invited me to invoke the wardship jurisdiction in order to determine future access to father. I agree that I do have that jurisdiction, if I find it appropriate to exercise it, in the light of article 16 and the fact that the children are not now to be returned. However, having considered all the circumstances, I can find no advantage in invoking wardship in the present case. I am satisfied that I have the necessary jurisdiction under the 1985 Act to make appropriate orders. Wardship places custody with the court, which does not appear necessary or appropriate in this case, and delay might well be caused in that the current legal aid certificates which were granted under the Convention procedure would not cover wardship and assessment of means would be required as in all non-Convention cases. Delay might be occasioned and I can see no advantage to the children. Mr Swift has argued that I do not have the jurisdiction to modify or order or withhold access either in this jurisdiction or the State of New York under article 21. With all respect to his very eloquent argument, I do not agree. There is no decided authority on the point except for the obiter dicta of Waterhouse J in B v B [1988] 2 FLR, plus those examples of orders produced by the Lord Chancellor's Department, which have been made by consent in various cases. The fact that the orders for access were made by consent and not contested does not of course alter the principle that the court can only act within its lawful jurisdiction. I am satisfied that article 7(f) enables this court to make arrangements for organising or securing the effective exercise of rights of access. Article 5(b) defines "rights of access" as including the right to take the child for a limited period of time to a place other than the child's habitual residence. On the facts of this case, as conceded by both parties, the children's habitual residence is now England and I find that the scope of the Convention does not limit the territorial jurisdiction of this court to make appropriate arrangements for access. If this court did not have such a power, then this father would have prejudiced himself by conceding that the children can remain within the jurisdiction. He would be prevented from seeking access here under the Convention and would be forced to apply in New York State where he would have the difficulty of enforcing any order in respect of the children living in England. The original order for access is no longer relevant now that the children are to remain in this jurisdiction. It would in my view not only be unjust but would be a misinterpretation of the Convention to hold that it restricts the ability of a father whose children had been wrongfully removed to seek access by accepting the realities of the children's new environment. I am satisfied that this is a proper case in which to deal with access issues and that in principle there is no bar to ordering access within or without the jurisdiction. I am also satisfied that the welfare of the minors is the first and paramount consideration when determining questions of access and that nothing in the Convention displaces that principle." 16 It is also of interest to note that Mrs Justice Bracewell contemplated the possibility that, after access in the United Kingdom, she might find it appropriate to order access in the United States of America, with or without the mother accompanying the children for a holiday, and subject to satisfactory financial arrangements. She pointed out that: "In this respect mother must be prepared to contribute according to her capacity, if overseas access is appropriate. It would be wholly wrong in my view for mother to refuse to pay any part on principle, when she is responsible for the children being wrongfully brought here in the first place." 17 Under these circumstances, I can summarize the present situation on access or visitation under the Convention as follows: a The interpretation in practice of the Convention's provisions on access is not yet so far developed as is the case law on the breach of custody rights. Cases on access are now beginning to be posed and thus the precise operation of the Convention's provisions on access will be further explored in the near future. b This process is being accelerated, in terms of negotiation, by the increasing facility with which the Courts reach the conclusion that a primary caretaker who abducts in violation of joint custody rights must return the child. In these cases, under a settlement agreement or as directly ordered by a Court, the parent who has wrongfully removed the child abroad may be called upon to contribute to the increased costs of visitation resulting from the child's removal from his or her former habitual residence. c Wrongful removal of the child would seem to provide ample basis for entry of an access order under an agreed settlement including provisions for the child's custodian to participate in the costs of visitation. d If the custodian changes the child's place of habitual residence legally, but then breaches custody rights which were attributed to an other person at the place of the child's former habitual residence, the application for enforcement of such rights, it seems to me, falls under the Convention. However, the Court in the new habitual residence is not bound to "enforce" the foreign access order in its strict terms but is free to fashion under itS own law, but with due regard to the reasoning behind the foreign Court Order, appropriate new provisions for access. There is some doubt about the availability of legal aid under the Convention FN12 in the case of such an application, but I believe that Article 26 of the Convention provides an ample basis for claiming such legal aid as is available under the Convention, when the claim is based on a breach of foreign access rights. Since the foreign access rights envisaged visitation in the foreign country where they were ordered, such rights have been breached when the custodian refuses to release the child for visitation in such a foreign country. e The situation is somewhat more fluid when there has not been a breach of foreign access rights, which would bring the child under the Convention through the provisions of Article 4, but rather there is a brand new application to obtain access rights, brought before the Courts of the child's new habitual residence. It seems to me, that in principle such an application can be brought to the Central Authorities under the provisions of Article 21 of the Convention and that the provisions of Articles 7(f) and the first three paragraphs of Article 26 would apply to any court proceedings instituted in order to organize or secure rights of access. On the other hand, it seems to me that Article 4 and the fourth paragraph of Article 26 do not apply unless there has been a breach of rights of access, either rights granted under a foreign Court Order or rights previously granted by Court Order or by law in the country of the child's current habitual residence. The conclusions I have set out in this paragraph are extremely tentative, because I do not know of any Court which has as yet been called upon to undertake such an analysis. Some of my personal suggestions above may seem to contradict language of the Court of Appeals, Justices In Re G FN 13 to the effect that the Convention's coverage is exhausted when the Central Authority has arranged to bring an access case to court. I consider this language to be obiter dictum, since this conclusion was not necessary for the precise decision in the case, with which I agree. That decision was that the trial court, having taken due regard of the foreign access order, did not enforce it according to its terms under the Hague Convention. The fact that the Hague Convention does not require recognition and enforcement of the foreign court order does not seem to me to mean that the Convention somehow ceases to apply, since the fourth paragraph of Article 26 must have some meaning. The English Court of Appeal In Re G. FN 14 , made a major step forward in the application of the Hague Convention to access cases by rejecting the earlier view of one of the High Court judges and holding that Article 4 brings the child under the Convention, even when the access rights breached derived from a court order in the child's former habitual residence. I believe that it went too far in suggesting, obiter dictum, that the Convention somehow ceases to apply as soon as the case reaches a court. Even though domestic law on access then comes into play (in England the Children's Act 1989), the Court admits that the foreign court order still has a persuasive role to play. Since the relevant provisions of the Convention have been scheduled to the 1985 Act, why should not the proceeding still be subject, for example, to the fourth paragraph of Article 26? The obligations of the Central Authority (described on the attached policy sheet FN15 ) may have been exhausted, but the courts still have jurisdiction under Article 26, fourth paragraph. Rights of access will continue to be a major theme of the Hague Convention's application and the principle of the child's right to maintain contact with the parent who resides in a different country, set out in the second paragraph of Article 10 of the United Nations Convention on the Rights of the Child, would seem to guarantee that this issue will retain prominence. It is to be hoped that, as the Courts in different countries work out their obligations and the obligations of the Central Authorities in respect of access rights, this principle, seen from the point of view of the child, will be kept in mind. Indeed, some Central Authorities, as in Austria, themselves go directly to court to enforce access rights. ================================================================ LORD CHANCELLOR'S DEPARTMENT CHILD ABDUCTION UNIT 81 Chancery Lane London WC2A 1DD Telephone Direct Lines 071-911-7045/70457 General Enquires 071-911-7127 FAX 071-911-7248 Document Exchange DX 0012 Chancery Lane ---------------------------------------------------------------- Duties of the Central Authority for England & Wales under Article 21 of the Hague Convention on the Civil Aspects of International Child Abduction. CHILD ABDUCTION AND CUSTODY ACT 1985 In the case of In re G (a Minor) (Convention on the Civil Aspects of International Child Abduction: Access) (Court of Appeal: 09 Dec 1992) reported in The Times on 26 Jan 1993, the Court of Appeal considered the duties of the Central Authority for England and Wales on receiving an application in respect of rights of access under Article 21 of the Hague Convention. The Court of Appeal took the view that Article 21 conferred no jurisdiction to determine matters relating to access, or to recognise and enforce foreign access orders. It provides, however, for executive co-operation in the enforcement of such recognition as national law allows. Accordingly, the duty of this Central Authority is to make appropriate arrangements for the applicant by providing solicitors to act on his behalf in applying for legal aid and instituting proceedings the High Court under section 8 of the Children Act 1989. If, during the course of proceedings under Article 12 of the Convention, the applicant decides to seek access instead of the return of the child, but no agreement can be reached and the provisions of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children are not available, a separate application under section 8 of the Children Act 1989 will have to be made. Central Authority for England & Wales 05 Mar 1993 -------------------- 1. Actes et document, l4th Session, 1980, Tome III: "Child Abduction", p. 262 (Working Document No 5) and pp. 266-267 (Discussion and Vote). See also Michel Hetu, Explanatory Report, Convention on the Civil Aspects of International Child Abduction (mimeographed bilingual French/English edition, Hull, Quebec, 7 April 1981), pp. 7-8 of the English version. 2. Id. 3. Revue critique de droit international prive, 1990, p. 529. 4. Seeking leave to remove children permanently abroad from England and Wales", 10 pages typescript, submitted at the First World Congress on Family Law and Children's Rights, Sydney, Australia, 4-9 July 1993. 5. C. v. C. (Child Abduction), High Court (Family Division) 21 August 1991, [1992] 1 FLR 163 (Bracewell J). 6. B. v. B. (Fam. Div.), 23 October 1987, [1988] 1 WLR 526 (Waterhouse J); [1988] All ER 652; [1988] Family Law 206. 7. Id. 8. In Re: G. (a Minor) (Enforcement of Access Abroad), [1993] 2 WLR 824. 9. Cass. lre civ. 16 juillet 1992 (ref. 2139): Horlander c. Dame Horlander et autre - Pourvoi No 91.18.117X; Gazette du Palais, dimanche ler au mardi 3 novembre 1992, p. 24. 10. Footnote 8, above: [1993] WLR at 830 11. Footnote 5, above. 12. In England and Wales, at present, legal aid in an access case must be applied for in a proceeding under the Children's Act 1989. See the statement "Duties of the Central Authority for England & Wales under Article 21 of the Hague Convention on the Civil Aspects of International Child Abduction", of which a copy is attached hereto. 13. See Footnote 8, above 14. See Footnote 8, above. 15. See Footnote 12, above