BRIEFING ON THE HAGUE INTERNATIONAL CHILD ABDUCTION CONVENTION AND RELATED FEDERAL LEGISLATION January 6-7, 1989 Department of State and American Bar Association Headquarters Washington, D.C. Report by Gloria F. DeHart The Hague Convention on the Civil Aspects of International Child Abduction entered into force for the United States on July 1, 1988, after enactment the International Child Abduction Remedies Act (P.L. 100-300). Since July 1, the U.S. Central Authority in the Bureau of Consular Affairs of the State Department has received requests for the return of children from the United States pursuant to the Convention and has transmitted to other countries a number of requests for the return of children to the United States. Some of these requests have already resulted in the return of children. State and local authorities, courts and attorneys in the United States confronted with such requests are in need of accurate and complete background information on the Hague Convention and the related federal legislation, on the responsibilities of the U.S. Central Authority, and on applicable procedures and legal considerations for invoking the Convention to obtain the return of a child or to resist such a request. In order to meet this need, a committee 1 of the Family Law Section of the American Bar Association arranged a briefing on January 6-7, 1989, with the cooperation of the United States Department of State. The briefing was designed to provide in-depth information to the invited group of family lawyers, state officials an organization representatives about the purpose and operation of the Convention, the Act and related procedures. An agenda, a copy of which is attached as Appendix A, was used as a guideline for the discussions, which included both presentations by the faculty and comments and questions from the participants. The agenda could not be completed its entirety in the time scheduled for the meeting, in part because of the spirited and productive participation of those attending the meeting. The material not covered and the ideas developing from the discussion may provide the basis for further briefings. A list of faculty and of those attending is attached as Appendix B. A number of other persons and organization representatives were invited, but were unable to come. 2 An effort was made to include those attorneys and organizations expressing interest in the convention or which might be expected to have some future involvement in its operation. The briefing was free of charge and participants were provided, free of charge, with a State Department pamphlet entitled "International Parental Child Abduction". They will also be provided with a copy of a handbook of basic materials to be published by the Family Law Section and including a number of model pleadings for filing return requests in either federal or state courts or for seeking the suspension of custody proceedings while a return request pursuant to the Hague Convention is pending, as well as other guidance for practicing family lawyers. 3 It is expected that participating attorneys will make themselves available to other counsel who may seek their advice in dealing with clients wishing to commence, or involved as respondents in, proceedings under the Convention and Act. A list of these attorneys will be available through the U.S. Central Authority. These attorneys are also assumed to be interested in accepting cases arising under the Convention and Act. Opening Remarks The briefing was moderated on both days by Peter Pfund, Assistant Legal Advisor for private international law in the State Department. He began the Friday session with a brief introduction which explained in some detail the purpose of the meetings as outlined above, and discussed the material which had been provided for the participants. He commented that the United States was a single country with 56 jurisdictions. The abduction convention is a national obligation and thus a uniform application would be best, particularly working on an international basis where only one set of rules and procedures should be necessary. He noted that the U.S. Central Authority form for utilizing the assistance of the Central Authority was more expansive than the one provided with the Convention. He also welcomed Adair Dyer from the permanent staff of the Hague Conference on Private International Law in the Hague, Netherlands. Introduction Larry Stotter described the background and history of American Bar Association interest and involvement in the development of the Convention. In summary, the briefing was arranged because of the importance of supporting the convention; simply ratifying it and passing legislation is not sufficient make it work effectively. In the background of the development of the convention is the frustration of those dealing with custody matters in view of court decisions which left the states free to relitigate custody matters. The development of the Uniform Child Custody Jurisdiction Act in the United States also resulted from this frustration with the active participation of the late Birgitte Bodenheimer, Professor of Law at the University of California at Davis Law School. The UCCJA is now in effect in all 50 states. The United States Congress passed federal legislation, at the urging of interested people and organizations, including the ABA in a positive role. Professor Bodenheimer was a delegate to the Hague Conference and returned to report comments about the success and sophistication in family law of U.S. participants. The first preliminary document by Adair Dyer had a strong influence in promoting the need for the convention. As a result, we now have a unique series of laws which should bring an end to the use of self-help in custody cases. Background of the Convention and the Hague Conference Adair Dyer began his remarks by commenting on the American Bar Association's support for the convention and its assistance in promoting the convent in the United States. Written remarks by Mr. Dyer were distributed to the briefing group, and are attached as Appendix C. In addition to the written material, he made additional remarks summarized below. The Hague Conference now includes 36 countries including the Peoples Republic of China. There is an automatic conference at the end of each four-year cycle, and the goal has been to produce three different conventions for each cycle. This has slowed down. The child abduction problem was raised in 1976 by the Canadian delegate, and at that time was termed "legal kidnapping." As a preliminary to the development of the convention, a questionnaire was prepared to be filled out by the countries. The International Legal Services also did a questionnaire. The United States assisted in the preparatory work. At that time, (October 1976) the Council of Europe was looking at a proposal by the Swiss delegation to bypass traditional procedures for enforcement of custody decisions because speed was required for custody cases. The convention developed by the Council (known as the Strasbourg convention) is in force in a number of European countries. It is a combination of traditional enforcement of decisions and restoration of custody. The relationship of Strasbourg and Hague conventions is unclear, but the Hague is probably more used in practice. The United States is not eligible to join the Strasbourg, but it may be applicable where a child is taken from one Strasbourg country to another. The Hague conference approached the problem by using the concept "habitual residence" -- an independent notion not defined by the conference -- to avoid the problem of "domicile" as defined and interpreted. The key to the convention is that custody rights being exercised in the country of habitual residence were violated Many if not most cases are non-order cases which are not within the Strasbourg. If Hague convention did not cover these cases, even more precipitous removals would be encouraged. The convention terminology moved from "legal kidnapping" to "wrongful removal or retention." The conference is bi-lingual in French and English. The French thought "legal kidnapping" was an oxymoron, and was not logical. The convention (in French and English) is not a translation -- each drafting committee worked on the language. The effort to be similar in language is the reason for some of the convention's terminology which is slightly different from that commonly used in the United States. At the time, as well, "legal kidnapping" and child abduction were not clear as definite concepts; parents were "forum-shopping." Thus, the convention defined practical consideration, not legal definitions. The convention has enormous impact. During Mr. Dyer's remarks, there was a discussion of the use and meaning of "habitual residence" in the convention. There is no definition of habitual residence in the convention. It is a term which has been long used in various Hague conventions and there is some case law in connection with other conventions which is not very useful. Case law in the context of the 1961 convention on the protection of children said that the habitual residence could be changed by an abduction. However Article 34 of the abduction convention states that it takes priority over the 1961 convention (which gives priority to nationality) and thus definitely overturns this interpretation. Considering whether the abduction convention's one-year period for mandatory return was relevant to this question, Mr. Dyer said that the countries intended to eliminate the legal concept of domicile (i.e., "intent") and substitute a factually based concept -- the place that is the center of the child's life. Wrongful removal does not change the child's habitual residence; the loophole in the 1961 convention has been closed. Mr. Hergen commented the definition must be made by many countries. Domestically, it would follow in principle the UCCJA "home state" concept. With Professor Bodenheimer participating in the development, the conference looked at the United States model. The application of habitual residence to the military and to foreign based diplomats was discussed. Does such foreign service establish a habitual residence for the child? State Department comments indicated that custody problems were resolved either before the foreign service officer left, or resolved "in-house", possibly by sending the officer back to the United States; the abduction convention may be inapplicable foreign service officers. Other comments indicated that the military was different, and was more protective of its members. 4 It is, of course, theoretically possible to use the convention. Ms. DeHart expressed the view that foreign service of any kind established a habitual residence for purposes of the convention. Mr. Dyer commented that the concept was directed toward the center of the child's life to prevent disruptions. The largest number of reported cases were from England and Australia, common law jurisdictions. 5 Because uniformity in the application of the concept is desirable, attention should be paid to the foreign cases, not just the "domestic gloss." Only one of the cases so far has concerned habitual residence; in all other cases, it was clear. Mr. Dyer concluded his remarks with a few words about the recent death of Louis Chatin, the French delegate to the meetings on the convention and who had long-time involvement with these problems. It was he who promoted visitation as a part of the convention, referring to it as the necessary corollary to abduction. Mr. Dyer noted that the briefing took place within one week of the 25th anniversary of United States participation in the Hague Conference. There had been non-partisan participation in the work of the conference during this period. In addition to the abduction convention, the United States had ratified the conventions on evidence, legalization of documents, and service of process. The conference through the permanent bureau was working on the facilitation of communication between Central Authorities; rapid action was necessary to make the convention work. They were also collecting cases arising under the convention. Summary of the Convention Patricia Hoff summarized the provisions of the convention, during which other separately listed agenda items were at least partially covered as part of the discussions. 1. The child must be within the convention, and the removal must wrongful. a. The convention does not apply once a child reaches 16. b. The child must be habitually resident in a contracting state and taken to a contracting state. c. An order is not necessary. d. It has prospective application. A U.K. case recently held that the convention is prospective only. Mr. Pfund stated that the United States will handle administratively as if the convention were retroactive 2. Actionable conduct. a. The conduct must be wrongful. (Arts.3, 5.) Art. 3: In breach of custody rights (law of the habitual residence) and custody was being exercised. Art. 5: The residence is determined by the parent with custody. 3. Remedies. a. Judicial, administrative, any other (convention is not exclusive). b. Judicial -- direct application to court in asylum state. (1) Less than one year -- must be returned; (2) More than one year -- returned unless child settled new environment. 4. Exceptions. (Articles 3, 20.) Art.13: -Not exercising custody rights or consented; -Grave risk of exposure to "intolerable harm (the intent was for a narrowly drawn exception. It is comparable to the UCCJA emergency jurisdiction). -Mature child objects to return (weight is given this objection). Art.20: Return may be refused if return violates fundamental principles relating to human rights. Considerable discussion took place concerning the application of the exceptions. A question was raised whether a court could refuse to return a child to a Moslem country. Mr. Pfund pointed out that in the United States there must be a legal bar; it would be very difficult to refuse the return. Mr. Hergen suggested that human right reports now existing might be used as a basis. Mr. Stotter stated that it was the fear of the delegates that countries with totally different attitudes would be involved, and Ms. Hoff made the observation that concern was not limited to Middle East countries, for instance, the IRA in Ireland might correspond to grave risk in UCCJA. Mr. Jackson commented that the section should not be used politically to disagree with different structures, but Mr. Crouch believed that Article 20 would be politicized because lawyers are advocates. For example, Ireland (Eire) has been held to violate fundamental human rights because it provides no support for women. It is generally agreed that if western countries wanted the return of western children, the middle eastern children would have to be returned as well. It would be a bad exchange, Ms. DeHart pointed out, to protect a child who had been habitually resident in a foreign country at the sacrifice of a child who had been habitually resident in the U.S. Mr. Dyer informed the group that there was no indication from the Islamic countries that they are interested in joining the abduction convention. Israel would also have considerable problems in following the convention unless internal changes could be made, but may be more interested. There is a reference in the preamble of the convention to the best interests of children, and the presumption that abduction is not in the best interest of the child. If the court could not even consider the best interest of the child, the convention would not be served by returning the child. It is important to remember that unless the country was a member of the conference in 1980, it must be accepted by each contracting party individually. Present contracting parties are Australia, Austria, Canada, France, Hungary, Luxembourg, Portugal, Spain, Switzerland, United Kingdom, and United States. Norway has ratified (effective April 1, 1989), and other Scandinavian countries are considering it as are the Netherlands, West Germany, Italy, Poland, and Czechoslovakia. South American countries expressing an interest are Argentina, Uruguay, Venezuela, and Mexico. 5. Notice. (Article 16.) If the convention is involved, custody litigation must be stayed pending resolution of its applicability. Although the Central Authority in the Canadian province of Ontario will send an Article 16 notice to every court in the province, the U.S. Central Authority send such a notice only if it is known that a proceeding is pending because there are simply too many courts. Thus, in the United States, the location must be known before an action may be filed or the notice sent, while Ontario sends notice even where location is unknown. A notice from the Central Authority will have more impact on the court then one from a private party or attorney. Theoretically, there seemed to be no reason why a state supreme court could not give notice to courts in its own state. It was noted that in an Illinois case, the court clerk could do nothing. As a practical matter, dissemination to all the courts is not going to happen. States would not fund a central registry. Notification would be unlikely but possible in the federal system. The U.S. Central Authority presently writes to the presiding judge. (This worked in a case in Texas.) The Authority is trying to apprise the judge with appearing in the case because it has no authority to represent the U.S. 6. Article 11. Right to ask court for a statement of reasons why a decision has not been reached within six weeks. 7. Administrative remedy. (Article 7.) The Central Authority in each country is established by Article 7. A country may have more than one (Canada and Australia, for example have one in each state). 8. Access rights. (Article 2l.) (8) "Access" includes telephone, mail, etc. as well as visitation Thus, even if visitation is denied, mail or telephone may be permitted. (b) Remedies do not include a "right of return", but are termed "organize or secure" the right of access. Mr. Dyer commented that no case has turned on the meaning of "organize." The word in the English text was a translation of the French. As to meaning, both texts are equally authentic. Courts cannot litigate the merits of custody rights under the convention the question is, can they order visitation? Given the existence of the convention, the parent with custody should be more willing to permit visitation. The legal analysis which accompanied the convention in the Senate discusses preventive measures; the UCCJA may provide a more meaningful remedy if there is an existing order. Questions exist about when the right of access should be litigated, and which court would have jurisdiction. Should the court establish new rights of access under the convention or clarify old ones. All the remedies of the convention are available to return the child after visitation/access. The Central Authority must remove all obstacles from exercise of rights; this may create a problem where criminal penalties are used for enforcement purposes. Peter Pfund raised the question of whether criminal remedies should be considered and pursued. The issuance of a criminal warrant could show that the taking was unlawful, and a UFAP warrant gets the FBI and Interpol involved. After the child is found and returned, the parent may wish to drop charges. This would not be possible in some states, and prosecution must be assured in obtaining a UFAP warrant. It was pointed out that using the threat of criminal prosecution in a civil proceeding is unethical. The use of the parent locator service may not be as effective as the criminal network. It is difficult to extradite a foreign parent on child-stealing charges. However, local authorities are accustomed to filings in the criminal system and look such filings in order to become involved. The report of the Hague conference proceedings indicates that criminal remedies were a discussion issue in the initial report -- criminal remedies were not favored on an international basis. The convention remedy should be tried first, but is not always an option because the number of contracting states is still limited. The use of criminal remedies may be self-defeating The options should be explained to the client. 9. Costs under the convention. The services of the Central Authority are free of charge. The United States made a reservation in ratifying the convention, and does not bear the costs of counsel and legal proceedings (except as otherwise might be covered under legal aid systems). The convention specifies that courts may order the payment of costs, but the U.S. legislation provides that the court must order payment of costs. Unless other countries have made the reservation, they are bound to pay legal costs because the convention is not reciprocal. In the U.K., legal assistance is provided. In France, it is reciprocal (France has made the reservation, but is applying it reciprocally). 10. The convention is not exclusive; the UCCJA may also be used. 11. A decision under the convention is not a decision on the merits the custody crime. Summary of the International Child Abduction Remedies Act (ICARA). (42 U.S.C. 11601-11610) Peter Pfund discussed ICARA and its background. The State Department was of the view that the convention could be put in force without further legislation. The study group did not reach a consensus on the matter. The Advisory Group recommended in 1983 that federal legislation be passed to fit the convention into the United States legal system. Legislation was drafted, submitted for comment and an agreement reached. After the legislation was introduced, the Department of Justice changed its view, and unsuccessfully opposed concurrent jurisdiction. The legislation passed, was signed on April 30, 1988, the U.S. accession was "deposited" immediately by prior arrangement, and the convention came into effect on July 1, 1988. The legislation tried to build in a way to have cases handled expeditiously. Section 2(a) of the bill (findings) refers to the prompt return of the child, as did the convention preamble and other articles. Section 2(a) (declarations) states the need for uniform interpretation of the Act. Thus, pleadings utilizing the convention should cute ICARA as well as the convention, and foreign decisions should be utilized for purposes of interpretation. This section also specifies that the convention and ICARA do not grant power to litigate the merits of custody claims. 1. Section 4 establishes that federal and state courts have concurrent jurisdiction, provides that an action is commenced by the filing of a petition in court with jurisdiction at the location of the child, and establishes the burden proof. A petition must establish by a preponderance of the evidence that the removal was wrongful or that the petitioner has access rights. The respondent must establish by clear and evidence that the exceptions in Articles 13b or 20 apply, 6 and by a preponderance that other exceptions in Articles 12 or 13 apply. This section also defines terms. 2. Section 5 provides for the protection of the child by use of any available measures under federal or state law. It is anticipated that state and federal authorities will discuss the possible arrangement. 3. Section 6 provides that authentication is not required in order for documents to be admissible in the proceedings. The purpose of this section is to eliminate the necessity for "chain" authentication with seals and certifying signatures. If there is a question about the documents after they are admissible, the court may further adjudicate their authenticity. This parallels articles 23 and 30 of the convention. Article 8 of the convention provides that the application may be accompanied by "authenticated" copies, but this does not mean the "chain" authentication or legalization which are eliminated as a requirement by article 23. In brief, let everything in, then argue about it. 4. Article 7 provides for the designation of a federal agency as the Central Authority with the functions designated by the convention and the Act. The State Department (Office of Citizens' Consular Services) is the designated agency by Executive Order 12648 dated August 11, 1988. 5. Section 8 covers costs and fees: (a) No fee may be charged by federal or state agencies for administrative purposes; (b) petitioners may be required to pay court, counsel and trial costs; and courts ordering the return must assess costs against the respondent unless clearly inappropriate. It was noted that Australia has a fund for the repatriation of the child. In the U.S., loans may be obtained for the return of U.S. nationals from foreign countries. 6. Section 9 provides access to information needed by the Central Authority. 7. Section 10 provides for the designation of an interagency coordination group, including private citizens to monitor and possibly advise on the operation of the convention, and authority for reimbursement. This is no standing group. 8. Section 11 adds authority to utilize the parent locator service in HHS. Role of the Central Authority Carmen DiPlacido, Director of the Office of Citizens Consular Service: described the child custody unit: Ms. Nereida Vasquez handles cases that are not convention related, and Ms. Consuelo Pachon is the convention Central Authority ((202) 647- 3666). Cases involve children taken both from and to the U.S. Ms. Pachon talked about the role of the United States Central Authority. Before the convention came into force in the United States, the state governors were requested to name a contact person for dealing with convention cases. A diversified group was named such as state police and missing persons clearing houses. Each state is different in the assistance that is given to the Central Authority in location, insuring that the child is not moved, and insuring the care of the child including possible removal from the home. The assistance of both law enforcement and social service is necessary. The greatest problem is how to provide legal assistance; the first question is whether legal aid is available in the state. It will take time to work out the procedures; other Central Authorities have been working for a longer time. The Central Authority needs assistance in "talking" to judges, other than writing the letter pointing out the Article 16 requirement. The Central Authority cannot give legal advice or testify. The Central Authority is keeping its role limited, more as a coordinator, and needs lawyers to take cases, not necessarily pro bono. 7 A problem has been lack of understanding by attorneys of how the convention works. The United States Central Authority would like information on how the convention working in practice. For a child overseas, the Central Authority prefers that the application be funneled through the Central Authority. The Central Authority does not decide anything, but checks the application for completeness (for example, getting a translation of the order), and forwards it. Once forwarded, it becomes a case in the foreign jurisdiction. If the case is assigned to an attorney in that jurisdiction, the attorney may contact the parent directly. The foreign Central Authority may send updates; otherwise, the U.S. Central Authority is out of the case. So far, 30 applications have been sent to the Central Authority, and four children returned. Many applications have been for location. Discussion followed Ms. Pachon's presentation. It was pointed out that one of the requirements of the Central Authority role is to secure the voluntary return of the child. Ms Pachon replied that the Central Authority does not do this; it is up to the state to which the case is referred. In one California case, the district attorney's "threats" resulted in a voluntary return. The Central Authority checks on the case periodically. The Overseas Case Reporting System (OSCAR) is an automated system for follow-up. The contact with the states is through a specific person designated by the Governor. If this contact person cannot provide the service, the Central Authority will ask for another contact person. This person is contacted only on behalf of children taken to the United States. In Florida, a case on file (criminal) is required before any action can be taken. The problem is what happens if the child is found; subsequent contact with private attorney may be too late if the parent leaves with the child. Ms. Pachon described a Maryland case where there was a danger of the parent running. The locate was done carefully, and a court order was obtained once the child was located. In Florida, however, the problem is getting someone to get the court order. Information could be put in the NCIC system by a missing child report; a criminal case is not necessary. Judge Reader commented that dealing with other states was similar to dealing with other countries, with complex systems. He suggested that we need a massive education process for judges involved in custody; and pointed out that, in Ohio at least, Legal Aid does not represent people in custody cases unless there is a constitutional issue involved, the court cannot appoint counsel except in criminal cases and cannot call for pro bono representation. To help prevent the many cases involving abduction by the parent with visitation: flag the passport; put a specific provision in the divorce decree; show custody information on a passport application to the court original jurisdiction. Mr. DiPlacido encouraged suggestions regarding passport regulations. Mr. Stotter commented that there are hundreds of good ideas; solutions were just starting to be developed. The ABA is putting on programs, part of the process of education. Peter Pfund has suggested the creation of a list of experienced attorneys in various jurisdictions; when a child is located, access to an attorney would be immediate. At the moment, the people were not in place yet; we must get attorneys on the list. Thousands of agreements were being taken throughout the United States by attorneys of varying competence and knowledge of the UCCJA, PKPA and the Hague Abduction Convention. Role of the State in Applying the Convention Gloria DeHart gave a brief summary of the system already developed California to deal with parental abduction cases generally and which could now be applied to convention cases as well. California has by statute given authority to the county district attorneys to use both civil and criminal procedures to locate and return an abducted child or to enforce visitation. It is a crime in California to take or retain a child in violation of another's custody rights whether or not a court order for custody has been issued. In addition, statutory provisions authorize the district attorney to use any civil remedy to bring the child before the court with custody jurisdiction. The use of habeas corpus procedures or a warrant in lieu of a writ is widely used bring the abducting parent before the court or to take the child into protective custody if it is likely the parent will flee with the child before the court can adjudicate the question of who properly has custody and order the child's return. This procedure is readily adaptable to convention cases. California is apparently the only state which has give public agencies such complete authority to act. It was suggested that similar system considered by other states to solve some of the problems of getting immediate legal assistance and court actions. California District Attorneys cannot, however, litigate custody issue on its merits. It was noted that the International Social Service Organization has lists of attorneys. The group discussed the recognition of foreign orders and possible privacy act problems in releasing locate information. Most states have adopted the provisions of the UCCJA which extends its provisions, including recognition, to foreign orders as well as to those of other states. The PKPA does not apply because its full faith and credit provision applies only to the orders of a sister state. The United States Central Authority will not release locate information to a parent, but forwards the information to the foreign Central Authority which may release the information to the parent. 8 Carmen DiPlacido informed the group that a newsletter was being considered by the State Department, and asked for suggestions for implementing such a project. Handbook of Materials on the Hague Abduction Convention Gloria DeHart described the contents and purpose of the handbook which would be published by the Family Law Section of the American Bar Association in the spring of 1989. The purpose of the handbook is to gather in one publication of the basic materials a practitioner or judge would need to utilize the convention. will contain the text of the convention and the State Department's analysis (prepared by Patricia Hoff) which was submitted to the Senate with the convention in the ratification process; the International Child Abduction Remedies Act (ICARA) and State Department analysis of its provisions; the regulations issued by the Central Authority; a list of the Central Authorities of other contracting states; a set of modal forms for use in court proceedings; and descriptive materials on the history and use the convention. Included with this basic material will be the complete text of the State Department publication on international child abduction. Discussion of Practical Problems The State Department emphasized that cases should be sent through the Central Authority, and that any court decisions should be sent to the Central Authority. Information on cases should also be sent to Adair Dyer in the Hague; the Permanent Bureau is maintaining a data bank. The A.B.A. Committee will develop and maintain a list of attorneys, any names should be forwarded to the committee and to Consuelo Pachon in the Central Authority which needs attorneys state by state. A lively discussion took place on the need for live testimony from the aggrieved parent. Ms. Pachon said the judges like to see the parent, and the Central Authority encourages the parent to appear. The briefing participants generally agree that testimony from the victim parent should not be necessary or encouraged. Mr. Dyer discussed a case in the United Kingdom where the application from Australia been made in an affidavit. The abducting parent claimed a right to offer testimony his Article 13 claim that return should not be ordered. The court refused, stating that the requesting parent had no right and that the issue would be decided on affidavits. The court of appeal agreed. The participants agreed that, at the very least, a decision must first be made whether the facts as alleged stated grounds for finding the convention did not require return. If they did not, the decision was a legal one. Only if the facts alleged would be a ground on which return could be refused would there be a factual issue be decided, whether by affidavit or live testimony. On this factual issue, the burden of proof would be as stated in the legislation. In any case, a decision on the merits should be avoided; the case should be returned for litigation of the custody issue in child's habitual residence. Use of the federal rather than state courts may make it easier to avoid the merits of the custody issue and argue only the legal issue of return of the child. The process to be used in returning the child should be established in advance to satisfy the court's concern and to counter any tendency to require the aggrieved parent to appear. Some courts have given custody to the aggrieved parent, if present, while the issue was being decided. The committee members urged that th legal decision must be made first. The State Department form has an item on how the child is to be returned. The federal legislature makes the awarding of costs mandatory when the child is ordered returned. (The abductor has the funds to run with the child; funds for return should be equally available.) Passport control may be useful, particularly where both countries are convention signatories. The Central Authority is required to cooperate. The U.S. Central Authority will consider what may be done. Adair Dyer pointed out that international travel was involved; as a practical matter the abducting parent retains control, and returns to the jurisdiction for litigation. In some cases there is a serious issue about who should have custody; the parent does not want his or her rights cut off by the abduction. The problem may be complicated by status as an illegal alien or the age of child. Foreign Decisions Adair Dyer prepared and distributed a list of the reported decided cases by State. See Appendix C, Fact II), and discussed some of them. 1. A Scottish court considered and refused a defense to application ( the convention where it was alleged that permitting the Canadian child's Italian speaking grandparent to care for the child was harmful. The child was ordered returned to Canada. 2. An Australian court applied the principles of the convention (in anticipation of its adoption) in a case involving Germany, on a non-reciprocal basis (Germany is not yet a signatory). A West German mother living in Australia went back to Germany for a visit, then wrote back that she had filed for divorce. The husband claimed she promised to bring the children back. The Australian Court treated it as a joint custody case at the place of habitual residence, therefore, the mother had violated the right of custody. 3. In one reported case from France, the child was returned to England while the case was pending. The decision was affirmed. 4. A case in the U.K. held that the convention was not retroactive -- the taking not the continuing retention was the critical act. A second case involved visitation (access rights). A Canadian court order granted visitation rights after the child was taken and before the convention went into effect. The Ontario father sought enforcement under the convention. The U.K. court said that the convention was not retroactive, but granted relief anyway. 9 The convention appears to be working best in countries with "common law" and the same language (i.e., Australia, U.K. and Canada). Both Australia and Canada have multiple Central Authorities. Australian family law is unified with a federal family court. Canadian family law is primarily provincial with some federal law. Australia prefers everything sent through the federal Central Authority in Canberra; Canada, the contact is with the provincial Central Authority, if known. The greatest number of cases is in the U.K. Scotland has a separate court system. On the whole the convention has worked very well. Australia is very pleased; return is very quick and Article 13 defenses are brushed aside, perhaps reflecting a confidence that the child's best interests will be adequately considered in its habitual residence. In countries also party to the Strasbourg Convention, there is an interplay between the two conventions. The Strasbourg involves recognition and enforcement orders; the Hague is more specialized -- applying to abduction. The Strasbourg has broader defenses. In practice, most countries with both use the Hague. There is English legislation trying to deal with cases where there is an order in the U.K. The Hague automatically suspends the U.K. order -- the order is not grounds for refusing return under Article 17. 10 A touchy area under the convention is custody and access in joint custody cases. The convention applies to joint custody. The discussion in the convention of what custody is (Article 5) is not exhaustive. A problem may exist where the parent with visitation has some control over the place of residence: Are there custody rights? Rights may be negative -- the child cannot be removed without permission of parent or court. The question may be resolved by specifying this in the court order. A U.K. court has held that removal in violation of such a provision in an Australian order would be a violation of custody rights. Model Forms Bill Hilton identified and described the model forms developed by him with the assistance of Patricia Hoff and Gloria DeHart. The forms cover all (or most aspects of court proceedings under the convention and include an Article 16 notice, petition invoking the convention, a response by the "abducting" parent, a request for the status of the case where decision has been delayed, and a series of forms invoking the writ of habeas corpus and obtaining a warrant in lieu of a writ to obtain temporary custody of the child pending hearing on the child's return under the convention. The use of habeas corpus proceedings, which should have a counterpart in each state whether specified by statute or not, provides a quick way to get the case into court and to obtain custody of a child who may be in danger of being removed again before a hearing can be held. The description of this procedure satisfied a concern expressed earlier by Judge Reader -- how a court gets custody of a child under state law. State laws on dependency and abandonment might not apply and would be more complicated to invoke. Mr. Hilton also distributed to the participants a computer disk contain the forms, the convention, the analysis and the federal legislation. It was again pointed out that the education of the courts about the convention was a primary and urgent need. A system of identifying state statutes (i.e., habeas corpus) and making the list available would be very helpful to practitioners. This would solve the problem under section 5(a) of ICARA which specifies the use state remedies. The request for reasons for delay could be made by either the parent or the Central Authority which could adapt the form or send a letter. Information and requests should be given to the judge's law clerk. For lawyers handling the cases, the advice was given to do it right away or don't take the case. Prompt action is essential to effective use of the convention. Dave Jackson from BNA volunteered to (1) produce a monograph digesting the cases; (2) attempt to compile a list of what state procedures are available and (3) send information to the committee (through Gloria DeHart). Mr. Burnam stated he would attempt to determine what state court administrators could do to disseminate the Article 16 notice, and informed the group that the State Department was now considering other civil conventions. Peter Pfund summed up the progress which had been made at the meeting. He stressed the importance of providing information on interested lawyers and cases which have been decided. Such information should be provided to Ms. Pachon, Mr. Pfund, and Ms. DeHart. All participants were requested to provide others with information and to publish information on the convention. The meeting has been useful, and a follow-up meeting will be considered. ------------------------Foot Notes------------------------------ 1. Committee members are: Gloria F. DeHart and Lawrence H. Stotter, Cochairs; William M. Hilton, Patricia A. Hoff, and Phillip Schwartz. 2. Included among the invited organizations were the International Social Service, American Branch, the National Center for State Courts, the National Center on Women and Family Law, the Academy of Matrimonial Lawyers, the National College of Juvenile and Family Law, the Legal Services Corporation and the Administrative Office of the United States Courts. 3. Publication is expected in early spring of 1989. 4. Reporter's comment: The Department of Defense has recently issued a directive (No. 5525.9, December 27, 1988) establishing policy and procedures for compliance with court orders for overseas personnel. The directive establishes a policy to cooperate in enforcing court orders including attempts to resolve the problem wit the member and may result in the return of the member to the United States or the withdrawal of sponsorship or removal of the employee. 5. Part II of Mr. Dyer's remarks (Appendix C) is a listing of the known cases dealing with the convention. 6. Article 13b refers to grave risk of physical or psychological harm; Article 20 refers to the protection of human rights and fundamental freedoms. 7. The federal statute, as discussed earlier, requires the award of costs and fee the child is ordered returned. 8. Reporter's comment: Under 42 U.S.C. section 663, the Parent Locator Service established for child support cases (42 U.S.C. 553) may be utilized for child custody and child abduction purposes. While section 553 lists a parent as a person authorized to request information, section 663 does not. However, section 663 (c) provides for disclosure under the same conditions as section 553. Ultimate release to the parent the foreign Central Authority would appear to be consistent with these provisions. 9. Reporter's comment: The question of retroactivity of the convention where abduction and retention are involved can logically be argued and decided either way There seems to be little to support the view that access rights should also be subject a similar retroactivity analysis. 10. Reporter's comment: Article 17 permits the courts of the requesting state take account of the reasons for the decision; it bars only the decision as the "sole fact" providing a ground for refusing application of the convention. This provision awaits interpretation.