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Published online by Cambridge University Press: 11 November 2010
In a 6–3 opinion the United States Supreme Court held, in its first case involving the 1980 Hague Convention on the Civil Aspects of International Child Abduction2, that a ne exeat3 order confers a right of custody for a left behind parent, entitling that parent to maintain an action under the Convention. The decision reverses a 5th Circuit opinion4 which followed the rationale of CrollvCroll.5Croll held that a parent with visitation rights, coupled with a ne exeat clause, possessed only part of the ‘bundle of rights’6 which comprise ‘rights of custody’, and that such limited rights were insufficient to compel a return remedy under the 1980 Convention. The Supreme Court's decision settles a conflict among the federal circuits on this issue.7 Following the Croll rationale were Fawcett v. McRoberts,8 and Gonzales v Gutierrez.9 The 11th Circuit, however, in Furnes v. Reeves,10 held that a ne exeat provision in a Norwegian custody agreement conferred a right which would satisfy the Convention's definition of ‘custody rights’.
2 Senate Treaty Doc. 11, 99th Cong., 1st Sess. 9 (1980) reprinted in 19 ILM 1501 (1981).
3 As in this case, a ne exeat order typically restrains a parent, or both parents from removing a child from the jurisdiction of the court, or from moving a child across an international frontier without the permission of the other parent, or a court. The right is not absolute, and if permission to remove the child is unreasonably withheld, or a court determines that good cause for continued restraint no longer exists, the ne exeat order may be vacated by a court of competent jurisdiction.
4 Abbott v Abbott, 542 F.3d 1081 (5th Cir. 2008).
5 229 F.3d 133 (2nd Cir 2000).
6 Croll v Croll, supra, 229 F.3d 133, 139.
7 Pursuant to the legislation implementing the 1980 Convention in the United States, Congress provided for concurrent jurisdiction in both state and federal courts to hear return cases under the 1980 Convention. International Child Abduction Remedies Act (ICARA), 42 USC 11603. As opposed to the conflict between federal circuit courts, state courts which considered the issue appear to have accepted Croll's reasoning regarding the lack of efficacy of a ne exeat order. There have been no state court cases since Croll was decided which have held that a ne exeat right coupled with rights of visitation was the equivalent of ‘custody rights’ under the Convention. The only cases even discussing the impact of Croll and its progeny on this issue arose in New York and in California. See Ish-Shalom v. Wittman, 797 NY S.2d 111, N.Y.A.D. 2 Dept., 2005; Welsh v Lewis 740 NY S.2d 3355, NYAD 2 Dept., 2002; Nadarajan M v Sandra W., 2002 WL 31586632 (2nd Dist. California 2002—unreported decision). See also White v White, 71 AD 3d 473, 898 NY S.2d 8, (2010), noting that an award of joint custody, combined with ne exeat clause was sufficient for a left behind parent to maintain a petition for return of the child under the Convention. Id. at 475. Prior to Croll, however, two state court cases held that ne exeat orders did create enforceable rights of custody under the Convention. Janakakis-Kostun v Janakakis, 6 S.W.3d 843, 849 (Kentucky), and David S v Zamira S, 151 Misc.2d 630, 574 N.Y.S.2d 429 (1991).
8 326 F.3d 491 (4th Cir 2003).
9 311 F.3d 942, (9th Cir. 2002).
10 362 F.3d 702 (11th Cir 2004).
11 Minors Law 16, 618, art. 49 (Chile).
12 Kennedy, J, joined by Roberts, CJ, Scalia, Ginsburg, Alito and Sotomayor, JJ.
13 Slip opinion, 11.
14 The dissent would interpret the phrase ‘place of residence’ to mean the physical locale within the state in which the child's home would be located. Slip opinion, dissent p 12.
15 Citing Sumitomo Shoji America, Inc, v Avagliano, 457 US 176, 184–185, n 10 (1982).
16 Slip opinion, 12.
17 Citing El Al Israel Airlines, Ltd v Tsui Yuan Tseng, 525 US 155, 176 (1999) (quoting Air France v Saks, 470 US 392, 404 (1985).
18 Explanatory Report by Eliza Pérez-Vera, 3 Actes et Documents de la Quatorzième session, pp 425–473 (1982).
19 Slip opinion p 17.
20 See Silberman, J, Linda, ‘Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence’ (2005) 38 UC Davis L Rev 1049Google Scholar.
21 Slip opinion p 8.
22 Actes et Documents de la Quatorzième session (1980)—Child Abduction.
23 Conférence de La Haye de droit international privé, Enlèvement d'enfants, E Pérez-Vera, Explanatory Report, 3, Actes et Documents de la Quatorzième Session (1982).
24 Slip opinion, p 15.
25 Pérez-Vera Report pp 427–428.
26 Slip opinion, p 16.
27 Slip Opinion, p 14.
28 The Convention ‘entered into force’ with the Ratification of three nations. Portugal's ratification brought the treaty into force with the previous ratifications of Canada and France. See Status Table, at http://hcch.evision.nl/index_en.php?act=conventions.status&cid=24
29 For example, the treaty entered into force with the United Kingdom on August 1, 1988, the United States on July 1, 1988, Germany December 1, 1990, Italy May 1, 1995, South Africa October 1, 1997, and most recently Morocco on June 1, 2010.
31 ICARA ( n 7).
32 ibid 42 USC 11601 (b)(3)(B).
33 Slip Opinion p 12.
34 Sister state decisions have been made easily accessible by the Hague Permanent Bureau's maintenance of INCADAT, a case database system which is searchable. See: http://www.incadat.com
35 C v C, [1989] 1 WLR 654, 658 (CA); Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, 628, 633, 645.
36 CA 5271/92 Foxman v Foxman [1992] §§3(D), 4 (K Chagall transl).
37 Oberster Gerichtshof [OGH] [Supreme Court] Feb. 5, 1992, 2 Ob 596.91 (Austria).
38 Sonderup v Tondelli, 2001(1) SA 1171, 1183 (Constitutional Ct. of South Africa 2000).
39 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court of Germany] July 18, 1997 2 BvR 1126/97 ¶15.
40 In the Marriage of Resina [1991] FamCA 33 (Austl., May 22, 1991), ¶¶ 18–27.
41 AJ v F J, [2005] CSIH 36, 2005 SC 428, 435–436.
42 [1994] 3 SCR 551, 589, 590, 119 D.LR. (4th) 253, 281.
43 In Thomson, LaForest, J, noted, regarding the court as holder of rights of custody when a ne exeat order issued pending a full custody determination that: ‘It seems to me that the court itself had a right of custody at this time in the sense that it had the right to determine the child's place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence. I am fully in agreement with this statement. It seems to me that when a court has before it the issue of who shall be accorded custody a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence. It has long been established that a court may be a body or institution capable of caring for the person of a child.’ 34 IM 1159, 1172–1174.
44 Slip Opinion, Dissent, p 3.
45 Para 14, 429.
46 See, eg Whallon v Lynn, 230 F.3d 4540 (1st Cir 2000) [held that unmarried father had custody rights under the doctrine of ‘patria potestas’ in Mexico]; In re Application of Adan, 437 F.3d 381, (3rd Cir 2006) [case remanded to determine scope of unmarried father's rights in Argentina]; In re Application of Adams ex rel. Naik v Naik, 363 F.Supp.2d 1025 (2005) [finding no custody rights of unmarried father in England]; In re Parentage of C.A.M.A. 103 Wash. App. 1032, (2000), [unmarried father in Germany did not have custody absent a subsequent marriage or joint custody declaration)].
47 The 1980 Convention has become the centre-piece of the Hague Children's Conventions (1993 Adoption Convention; 1996 Convention on the Protection of Children; 2007 Convention on the Recovery of Maintenance). Beginning with the first Judicial Seminar in 1998, in DeRuwenberg, Netherlands, Sponsored by the Hague Conference, through the 2010 International Judicial Conference on Cross-Border Family Relocation in Washington DC, co-sponsored by the Permanent Bureau, the International Centre for Missing and Exploited Children, with the support of the US State Department, the 1980 Convention has been highly successful in attracting the participation of judges, legal scholars, practitioners and government leaders to improve the operation of the Convention. (See note 49, infra.) Since 1999, 16 volumes of the Judges' Newsletter have been published, focusing on the operation, interpretation and improvement of Convention processes.
48 Slip opinion, dissent, p 14.
49 This was the subject of a recent conference co-sponsored by the Hague Conference on Private International Law, the International Center for Missing and Exploited Children and the U.S. State Department. See ‘International Judicial Conference on Cross-Border Family Relocation’, Declarations, 23–25 March 2010, at http://www.hcch.net/index_en.php?act=evenys.details&year=2010&varevent=188&zoek=ICMEC
50 Automatic ne exeat orders are not uncommon in the United States. See California Family Code §204050 and Connecticut Practice Book §25-5(a)(5)50 both of which automatically restrain parents at the commencement of the proceedings from removing the child or children from the state without the written consent of the other party or by order of the court.
51 See Thomson v Thomson (n 43) [1994] 3 SCR 551, 589–590 (Canada).
52 Stevens, J, joined by Thomas and Breyer, JJ.
53 Slip Opinion, dissent, p 15 n 9.
54 Slip opinion p. 10.
55 ‘This Court should be most reluctant to adopt an interpretation that gives an abducting parent an advantage by coming here [to the United States] to avoid a return remedy that is granted, for instance, in the United Kingdom, Israel, Germany, and South Africa.’ Slip Opinion, p 17.
56 ‘In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.’ See Baxter v Baxter, 423 F.3d 363 (3rd Cir 2005) and Mozes v Mozes, 239 F.3d 1067, 1085 (9th Cir.2001); See also Federal Rules of Civil Procedure Rule 44, ‘A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law.’
57 Eg Shalit v Coppe, 182 F.3d 1124 (9th Cir 1999) ‘Thus, an attorney's declaration as to the application of another country's law is generally acceptable in Hague Convention cases. Although the standards for proof of foreign law are relaxed under the Convention, the district court is not precluded from considering the source of the information, i.e., the petitioner's own attorney.’ ibid 1129, n 7.
58 526 F.3d 1340 (11th Cir. 2008).
59 221 F.3d 204 (1st Cir. 2000).
60 This issue is subject to a split of authority among the federal circuit courts. See Baran and Walsh, supra, versus the holdings in Friedrich v Friedrich, 78 F.3d 1060, 1069 (6th Cir 1996); followed by In re Application of Adan, 437 F.3d 381, 395 (3rd Cir 2006); and Blondin v Dubois (Blondin I) 189 F.3d 240 (2nd Cir. 1999)
For this reason, it is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child's repatriation. In the exercise of comity that is at the heart of the Convention . . . , we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it.
* * * *
‘Under the circumstances presented, we think it appropriate to remand this matter to the District Court for further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course by a French court with proper jurisdiction. 189 F.3d 240, 248–249.