International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2011 Issue

Private International Law Discourse


The Hague Convention on the Civil Aspects of International Child Abduction

Carolyn A. DubayBy: Carolyn A. Dubay, Associate Editor, International Judicial Monitor

Along with a host of other private international law treaties, the United States is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which Congress implemented in 1988 through the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq.  The Convention was adopted to address the problem of international child abductions that occur during the course of domestic relations proceedings and establishes the procedural and administrative framework for handling these cases.  In furtherance of this goal, the Convention also requires each country party to designate a Central Authority to assist parents in filing applications for return of or for access to their children.  The Department of State is the U.S. Central Authority for the Convention, with the day-to-day administration handled through the Office of Children’s Issues within the Bureau of Consular Affairs.

Article I of the Convention establishes its twin aims.  First, the Convention seeks to ensure generally “that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”  Second, and more specifically, the Convention establishes an international procedural framework for “the prompt return of children wrongfully removed to or retained in any Contracting State.”  To achieve these goals, however, the Convention distinguishes the remedies available to persons who enjoy “rights of custody” with respect to the child in question, and those who possess “rights of access.”  Under the Convention, only a person with rights of custody may seek return of the child.  In this regard, the Convention in Article 3 defines a “wrongful” removal of a child to a foreign country as one conducted in breach of “rights of custody” granted under the applicable law of the country of habitual residence of the child.  The remedies for breach of rights of access are established in Article 21, which vaguely provides, among other things, that the Central Authority must take steps to remove “all obstacles to the exercise of such rights.”

As in many other private international law contexts, while the Convention establishes a procedural framework to address a common problem in transnational private disputes, the substantive rights of the parties are generally to be determined by applicable domestic law.  As such, Article 3 of the Convention provides that whether a person has a right of custody depends on the law of the child’s habitual place of residence prior to the abduction.  Such rights of custody may arise by operation of law, or during custody proceedings as a judicial decree, or through a legally binding custody arrangement.  Even though rights of custody arise under domestic law, Article 5(a) of the Convention nevertheless defines “rights of custody” to broadly include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."   Rights of access, on the other hand, are defined in Article 5(b) to include "the right to take a child for a limited period of time to a place other than the child's habitual residence."  To accord with American parlance, ICARA defines access rights as “visitation rights.”  

Whether a specific grant of parental rights under domestic law is a custodial right or a mere right of access under the Convention may be a difficult issue.  To expedite the process of determining whether custody rights have been granted under the law of the state of habitual residence of the child, Article 14 allows judges to take judicial notice of laws or judicial decisions relating to custody without the need to resort to formal authentication procedures.  Under Article 15, judges may also request applicants to seek a form of certification of the question of whether the removal was in violation of custody rights from government authorities in the country of habitual residence of the child.  Without resorting to these procedures, and to avoid undue delay in these time-sensitive proceedings, courts are free to interpret not only the language of the Convention to determine whether a specific legal right is a right of custody, but to determine the scope and meaning of the applicable foreign law. 

The difficulties associated with this interpretative task are highlighted in the Supreme Court’s recent decision in Abbott v. Abbott, 130 S. Ct. 1983 (2010).  Abbott involved a custody dispute occurring in Chile, whereby the Chilean courts granted the mother physical custody and control of the child, while awarding the father visitation rights.  Under Chilean law, Mr. Abbott also enjoyed a ne exeat right to consent before the child could be removed from Chile.  Notwithstanding this right, Mrs. Abbott brought the child to Texas without permission from Mr. Abbott or the Chilean family court.  Mr. Abbott then filed suit in federal district court in Texas seeking an order requiring his son's return to Chile under the provisions of the Convention relating to wrongful removal.  Both the district court and the Fifth Circuit denied Mr. Abbott relief, finding that the ne exeat right was not a custody right within the meaning of the Convention.  Because the decisions of other circuit courts were divided on this issue, the Supreme Court granted certiorari.

In deciding whether Mr. Abbot’s’ ne exeat right amounted to a “right of custody” under the Convention, the Court considered the traditional sources for treaty interpretation.  This included the text, history and purposes of the Convention, decisions of foreign courts interpreting the Convention in analogous contexts, and secondary scholarly sources examining the Convention.  The Court also accorded deference to the views of the State Department, which supported a finding of a right of custody by virtue of the ne exeat rights.  After considering these sources, the majority concluded (in an opinion written by Justice Kennedy) that Mr. Abbott's ne exeat right was a right of custody under the Convention.  Justice Stevens, joined by Justice Thomas and Justice Breyer, wrote the dissenting opinion, which disagreed with the interpretation or weight to give each of the relevant interpretative tools. 

First, looking to the text, the majority and dissent disagreed on whether the definition of rights of custody as provided in Article 5 of the Convention was broad enough to cover the ne exeat rights of a parent who is granted only visitation rights in the domestic custody proceedings.   In particular, the majority found that because the “rights of custody” as defined in the Convention included the ability to determine a child’s place of residence, the ne exeat right to prevent the removal and relocation of a child to reside in another country necessarily amounted to a right of custody.  The dissent, on the other hand, found that the right to determine a child’s place of residence was more restrictive, and included the right to determine where the child's home will be.  This was a right, according to Justice Stevens, that Mr. Abbott did not enjoy simply by virtue of the ne exeat right. 

Second, the majority and dissent also looked to Chilean law to determine the effect of the ne exeat right.  In one of the more interesting aspects of the opinion, the disagreement between the majority and dissent on the meaning of Chilean law underscores the difficulties courts face in determining foreign law, especially when the foreign law is also in a foreign language.  For example, the majority relied on not only a translation of the text, but also on an opinion letter of a Chilean administrator.  The dissent relied on a translation provided by the Law Library of Congress, but dismissed the local opinion letter, finding that cultural and personal differences may affect the opinions of local officials. 

Third, the history and purposes of the Convention were central to the arguments of both the majority and dissent.  According to Justice Kennedy, the history and drafting of the Convention supported the view that the term “rights of custody” was intended to be broadly construed to allow the consideration of the greatest number of cases.  The dissent agreed generally that the language of the Convention was intended to be interpreted broadly, it could not be so broadly construed as to eviscerate the distinction the Convention draws between rights of custody and rights of access and the attendant remedies provided for violations of the latter.  As to the general purposes of the Convention, the majority argued that to interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes.   The dissent argued, however, that the Convention was only aimed at solving the problem of children being abducted by noncustodial parents, which is why the drafters provided different remedies for non-custodial parents whose visitation rights are thwarted when the custodian parent removes the child from the country of habitual residence.  As Justice Stevens wrote, even if a removal may be wrongful under Chilean law granting ne exeat rights, the Convention narrowly defines wrongful removal to include only cases where custodial rights have been violated. 

Fourth, as to the decisions of foreign courts and the views of scholars and practitioners in the field, Justice Stevens aptly pointed out that the Canadian Supreme Court had not agreed that ne exeat rights are rights of custody, and that the French courts were divided on the issue.  Under these circumstances, he argued, consensus could hardly be determined.  Even so, Justice Kennedy’s majority opinion was supported by the Hague Conference on Private International Law, which indicated in its Guide to Good Practice under the Convention that the emerging consensus is that ne exeat rights are rights of custody.

Finally, as to the weight to be accorded the position of the State Department, the dissent gave it no weight because its position had not been firmly established on this issue and the State Department offered no special expertise or insights into the drafting of the Convention.   Interestingly, and despite the position taken by the State Department in the Abbott case, the State Department has also issued an analysis of the Convention, available at 51 Fed. Reg. 10,494, to facilitate interpretation of the Convention.   According to this guidance from the State Department, "wrongful removal" refers to the taking of a child from the person who was actually exercising custody of the child and "wrongful retention" refers to the act of keeping the child without the consent of the person who was actually exercising custody.  "Wrongful retention," according to this guidance, is not intended by the Convention to cover obstruction by the custodial parent of visitation rights in the other parent, which is redressed in accordance with Article 21.

The disagreements highlighted in the Abbott decision are indicative of the difficult problems associated with interpreting private international law treaties.  Because of the blend of domestic and international law, as well the inherent ambiguity in much treaty language that emanates from the compromises that must occur in the negotiating process, consensus in a single Supreme Court opinion may be difficult to come by, much less consensus among all Contracting parties.

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with assistance from the American Society of International Law.

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