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Is the Jurisdiction of England and Wales Correctly Applying the 1980 Hague Convention on the Civil Aspects of International Child Abduction?
Published online by Cambridge University Press: 17 January 2008
Extract
The jurisdiction of England and Wales is vastly experienced in application of the Hague Convention on the Civil Aspects of International Child Abduction1 (the Convention). The UK2 was the fifth3 Contracting State to the Convention, which now boasts 70 State Parties,4 and England and Wales consistently handles a significant proportion of annual Convention applications. In terms of applications, which were processed by Central Authorities, England and Wales was the second busiest Convention jurisdiction in 1999.5 The USA handled 466 applications, England and Wales 329, and Germany 210. Indeed the Central Authority for England and Wales handled more applications than any other, the USA having split incoming and outgoing applications between two separate bodies.6
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References
1 Convention on the Civil Aspects of International Child Abduction. Concluded 25 Oct 1980.
2 The UK ratified the Convention on 1 Aug 1986 when the Child Abduction and Custody Act 1985 came into force.
3 Canada, France, Portugal, and Switzerland had ratified previously.
4 See Hague Convention web site <http://www.hcch.net/e/status/abdshte.html> (Information accurate as of 1 Jan 2002).
5 Figures taken from Preliminary Document No 3 A Statistical Analysis of Applications made in 1999 under the Hague Convention of 25 Oct 1980 on the Civil Aspects of International Child Abduction, drawn up by Professor Nigel Lowe, Sarah Armstrong, and Anest Mathias. Available at <http://www.hcch.net/e/conventions/reports28e.html> (hereafter ‘Preliminary Document No 3’). In addition to this document, the authors prepared individual country reports that have been circulated to the countries concerned but have not yet been made publicly available. Further information in this article is drawn from these reports. All figures given relate to an amended document following further research.
6 The Central Authority for the USA is the State Department Office of Children's Issues, which dealt with 212 outgoing applications in 1999. Under a Memorandum of Understanding, the National Center for Missing and Exploited Children (NCMEC) handle all incoming applications, which totalled 254 in 1999.
7 Beaumont, P and McEleavy, P, The Hague Convention on International Child Abduction (Oxford: Oxford University Press, 1999), at 261.Google Scholar
8 Lowe, N and Douglas, G, Bromley's Family Law, 9th edn (London: Butterworths, 1998), at 510.Google Scholar
9 See Art 7 (c) and Art 10.
10 Child Abduction and Custody Act 1985 s 3 (1) (a).
11 Wall J in Re S (Child Abduction: Delay) [1998] 1 FLR 651 at 660.
12 Prior to 2001, there were fifteen firms all based in the London area.
13 See Child Abduction and Custody Act 1985 s 4 (a).
15 Solicitors apply for a Legal Representation Certificate from the Community Legal Service section of the Legal Services Commission. See Community Legal Service (Financial) Regulations 2000 SI 2000/516, at Reg 3 (1) (f) and Legal Services Commission's Funding Code (Part C s 20.24, 3C-280(l)).
16 Additional research to Preliminary Document No 3.
17 Family Proceedings Rules 1991, SI 1991/1247, at Reg 6.10.
18 Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 at 488.
19 Additional research to Preliminary Document No 3.
20 These figures include cases that were appealed. At the time of data collection there were three cases that were still pending and if these cases result in court decisions the figures will inevitably rise slightly.
21 See Preliminary Document No 3.
22 See comment at n 20.
23 Additional research to Preliminary Document No 3.
24 See Preliminary Document No 3.
25 Additional research to Preliminary Document No 3.
26 Emphasis added.
27 Explanatory Report by Elisa Perez-Vera translated by the Permanent Bureau (hereafter ‘Explanatory Report’).
28 Ibid, at para 90 (emphasis added).
29 Ibid, at para 92.
30 Ibid.
31 Ibid at para 103.
32 In a recent Australian case, a father appealed against a judicial decision to return on the grounds that the Central Authority had not sought an amicable resolution as required by statute and the Convention. (The Australian implementing Regulations make the requirement to seek voluntary resolution mandatory at Regulation 13(4)). The appeal was refused, the father having threatened to kill the mother making voluntary negotiation inappropriate. In the light of this case the obligation to seek voluntary return will become discretionary in the Regulations. See MHP v Director General Department of Community Services 2000 at <http://www.familycourt.gov.au>.
33 Report of the Third Special Commission meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction (17–21 Mar 1997) at para 43.
34 Additional research to Preliminary Document No. 3.
35 Ibid.
36 Solicitors in Scotland may prepare a petition ready to be filed in court without delay if voluntary resolution cannot be obtained in the case.
37 The obligation in the Australian Regulations is to become discretionary, see n 32 above, to take account of cases where seeking voluntary resolution may not be appropriate.
38 See Family Law (Child Abduction Convention) Regulations 1986 at Regulation 13(4).
39 Explanatory Report at para 92 (emphasis added).
39a Emphasis added.
40 Additional research to Preliminary Document No 3.
41 Lowe, N and Perry, A, International Child Abduction: Tthe English Experience 1 ICLQ (1999) 127.CrossRefGoogle Scholar
42 Explanatory Report at para 103.
43 Conclusions and Recommendations of the Fourth Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 Oct 1980 on the Civil Aspects of International Child Abduction (22 –28 Mar 2001).
44 Ibid at 1.10.
45 Working Document No 8. Document submitted by International Social Service. Presented at the Fourth Special Commission Mar 2001.
46 Re H and Others (Minor) (Abduction: Acquiescence) [1998] AC 72 at 88.
47 Bailey-Harris, (1997) 113 LQR 529 at 532.Google Scholar
48 Interestingly, however, the UK did not include the preamble in its implementing legislation, the Child Abduction and Custody Act 1985.
49 See Working Document No 1 proposed by the Australian delegation. See also Information Document from Reunite International Child Abduction Centre. Both presented at the Fourth Special Commission March 2001.
50 Reunite—International Child Abduction Centre. The Leading UK charity specialising in parental child abduction.
51 See Information Document from Reunite International Child Abduction Centre. Presented at the Fourth Special Commission March 2001 (hereafter ‘Reunite Document’).
52 Henry Setright, Mediation and the Hague Convention: The Reunite/Nuffield Foundation Proposal Presented at the NCMEC Washington Conference, 1–2 Nov 2000.
53 Ibid.
54 See Reunite Document.
55 See A Hutchinson and D Carter, Child Abduction Mediation Pilot Project [2001] IFL 151
56 See Reunite Document.
57 Working Document No 9 Revised. Proposal by the delegation of the United Kingdom on Voluntary Settlement. Presented at the Fourth Special Commission March 2001 and highlighting the Scottish system.
58 Beaumont and McEleavy, at 246.
59 See comments of Singer J in Re M and J (abduction) (international judicial collaboration) [1999] 3FCR721 at 732.
60 See Preamble to the Convention.