By Jeremy Morley
This article appears in the International Bar Association's September 2010 newsletter
International child abduction cases are often in the news in the US. In one case, it took five years and the intervention of President Obama and Secretary of State Clinton to secure the return of a child abducted to Brazil. In another case, after a mother abducted her children to Japan, the children’s American father was arrested and imprisoned in Japan when trying to bring them home. Both cases created an outcry in the US. US commentators and the US State Department have repeatedly demanded that other countries live up to their obligations under the Hague Convention on the Civil Aspects of International Child Abduction, or that they sign the treaty if they are not yet parties. The US Congress has instructed the US Secretary of State to issue annual reports evaluating the compliance by other countries of their obligations under the Hague Abduction Convention. Valuable efforts are underway that seek to expand such US Government review of foreign conduct. All of this raises the question of the extent to which the United States is itself in reasonable compliance with the terms of the treaty. While it is appropriate and necessary for the United States to review, criticise and sometimes condemn the conduct of other countries concerning international child abduction, the US needs to ensure that its own performance is at least on a par with what it demand from others. Nothing undercuts the US efforts to secure international compliance with the best international standards than our own failure to do so. There are substantial concerns regarding the following issues: the length of time for The Hague cases to be concluded in the United States; the enormous number of courts that have jurisdiction in The Hague cases in the US; and the lack of any legal aid scheme in the US.
The quick resolution of return applications is absolutely essential to the operation of the Convention. The preamble to the Convention states that: ‘The States signatory to the present Convention … Desiring … to establish procedures to ensure their prompt return to the State of their habitual residence …’ Article 1 of the Convention states that: ‘The objects of the present Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State.’ Article 2 of the Convention requires Contracting States to ‘use the most expeditious procedures available’ to implement the objects of the Convention. Article 11 of the Convention states that: ‘The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.’ The Hague Conference Guide to Good Practice under the Convention, Part II – Implementing Measures (www.hcch.net/upload/ abdguide2_e.pdf) repeatedly demands that states act expeditiously in such cases. In particular, the Guide insists that:
• ‘Expeditiousness is essential at all stages of the Convention process including appeals’;
• ‘Expeditious procedures should be viewed as procedures which are both fast and efficient’;
• ‘Almost all aspects of implementation (eg, the investment of adequate resources and powers in Central Authorities, the allocation of jurisdiction among courts/administrative authorities, the procedures to be followed both at first instance and on appeal, and the ready availability of appropriate advice, assistance
and representation) may have a bearing on the speed with which applications are processed’.
The US practice
The US practice does not meet the requirements of the treaty. The Hague cases can take years to complete in the United States. There is no oversight of the judicial compliance with the obligation to resolve cases promptly. The courts have not developed any significant body of law that implements the obligation of prompt resolution. The State Department’s annual Compliance Reports are filled with complaints about the delays in the courts of other countries. Such complaints are totally appropriate. But who is evaluating the frankly embarrassing performance of US courts? Abbott v Abbott, a case now on appeal to the US Supreme Court, illustrates the problem. The child, then aged nine or ten years old, was allegedly abducted from Chile to the US in August 2005. The Hague case was commenced in a US District Court in Texas in May 2006. The district court rendered its decision in July 2007, a delay of 14 months. The Fifth Circuit rendered its decision in September 2008, a delay of another 14 months. The Supreme Court granted certiorari in June 2009, a delay of another nine months. When the Supreme Court will finally render a decision, and whether that decision will end the litigation, is anyone’s guess. The child is now 14 and has lived in the United States for well over four years. He is now presumably mature but may well not have been at the time the case commenced. If he objects to returning to Chile, and if he is allowed to now advise the court, his wishes may well prevail. In any event, if the
litigation is dragged out for another year or so he will turn 16 and the case at that point must automatically end.
What needs to happen
We should examine and learn from the experiences of countries which have established a good track record in this area. Most practitioners would agree that the courts in England have achieved a remarkable degree of success in handling The Hague cases expeditiously, sensibly and with substantial justice. In England, the courts have repeatedly insisted that they are bound to render decisions in The Hague cases expeditiously and to complete all proceedings wherever possible within six weeks. See, for example, F (A Child)  EWCA Civ 416 (19 March 2009). Appeal courts have criticised delays in The Hague cases. See, for example, Re D (a child),  UKHL 51, ‘The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their “home”, but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed. That object is negated in a case such as this where the application is not determined by the requested state until the child has been
here for more than three years.’ Appeals in England must also be lodged within 14 days of the first instance decision. Resolution of appeals is now expedited through a fast-tracking appellate procedure. Convention appeals can be scheduled for final determination within a week of the appeal being lodged, particularly when an immediate return order has been issued. The target of six weeks is for resolution of the case in its entirety, including all appeals. Similar practices should be adopted in the United States.
Efficient, knowledgeable courts
The Guide to Good Practice
The Hague Conference Guide to Good Practice strongly encourages treaty partners to provide for the concentration of Hague return cases in a limited number of courts. The Guide correctly states that the principal advantages of such a concentration of jurisdiction would be:
• An accumulation of experience among the judges concerned; and, as a result, the development of mutual confidence between judges and authorities in different legal systems;
• The creation of a high level of interdisciplinary understanding of Convention objectives, in particular the distinction from custody proceedings;
• Mitigation against delay; and
• Greater consistency of practice by judges and lawyers.
An exception is provided for domestic systems that do not allow for concentrated jurisdiction, in which case the (weak) suggestion is that it is particularly important that judicial training or briefing be available for judges concerned in The Hague proceedings.
The US practice
In the US there is no concentration of The Hague cases in a limited number of courts. To the contrary, the US has several thousand separate jurisdictions, any of which may handle The Hague cases. Since there is concurrent state and federal jurisdiction for The Hague cases in the US, each county or county equivalent (of which there are reported to be 3,140) and each of the 94 federal districts, has The Hague jurisdictions. The completely different backgrounds of family court judges and federal judges means that the choice of one system or the other might have a major impact on the outcome of the case. Most judges in the US who might be called upon to handle The Hague cases have never done so previously. It is more usual than not for a judge in The Hague case to report that, ‘This is my first Hague case’ and then to ask the lawyers to provide special support for that reason. The ‘official’ response to this issue will doubtless be that: it is constitutionally impossible to change this system; and the US solves the problem by educating the judiciary. However, it is submitted that that is entirely unsatisfactory. The Constitution does not mandate concurrent jurisdiction in The Hague cases, nor does it prevent specific judges in a state or federal district from being assigned The Hague cases specifically. As for training, while some training programmes are supplied, there is a very clear training gap.
What needs to happen
The State Department’s annual compliance reports are replete with complaints about the poor organisation of foreign courts and the lack of training of foreign judges who try The Hague cases. It seems inappropriate to criticise other countries on these issues when our own system is in many ways so poor. The entire system as to the courts that handle The Hague cases should be reviewed and reformed so that a select group of specially trained and experienced judges handle these cases. This is precisely the system that the State Department has successfully encouraged other countries to adopt.
In the negotiations leading to the adoption of the Convention, the US demanded that it be permitted to exclude itself from the provision in Article 26 that countries must provide legal aid to parents who apply for the return of their abducted children. The US and several other countries have made such a reservation. While the US is legally authorised to do so, its actions in this regard do not set a good example for others to follow. At an international forum on the Convention, the Australian Central Authority’s representative stated that: ‘Central Authorities are well aware that the level of assistance in obtaining legal representation, and the quality of that representation, is extremely variable in Hague cases. At one end of the spectrum is the USA where the only assistance available is through pro bono lawyers who register with NCMEC to do this work for no fee or reduced fees. At the other end of the spectrum is England and Wales where all applicants are automatically provided with experienced legal representation at no cost. It is probably fair to say that the English system of legal representation is admired by other Convention countries and sets the benchmark to which others aspire’ (See Note 1). Instead of doing the least that it can get away with, the US should surely be at the forefront of efforts to help left-behind parents secure the return of their internationally-abducted children. American parents whose children are abducted to England receive free representation by top-notch English lawyers, courtesy of the British taxpayer. But English parents receive no reciprocity when their children are abducted to the United States, which is unfair.
While there is great merit to the State Department’s review of the compliance of other countries with the Hague Convention, it would serve US citizens well in this regard if the United States would put its own house in proper order as to its own compliance with the terms and the spirit of the Convention.
1 See www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD73