The Hague Convention has a role to play in international child relocation cases and in cases concerning international child visitation and travel. That role will on occasion be of great significance. It also has some significance in international relocation (“move away”) cases, but that role is frequently afforded entirely inappropriate significance.

In international relocation cases, an important issue is whether or not the foreign country to which the child may be relocated will effectively enforce the orders of the U.S. court concerning access for the non-custodial, non-relocating parent.

Parents sometimes cite as a relevant factor on this issue that the country in question is -- or is not -- a party to the Hague Convention. However, the key issue is far narrower than that. The Convention is triggered as an abduction case when there has been a wrongful removal or retention within the meaning of Article 3 of the Convention. If a court in the United States permits a parent to relocate with a child to another country, the act of that parent in taking the child to the foreign country and retaining the child there is obviously not a wrongful act.

The issue in relocation cases should be whether or not the Convention, as it is actually applied in the foreign country, will enforce a left-behind parent's right of access. It must be recognized that in most cases the mere fact that a foreign country is a Hague Convention treaty partner provides no assurance whatsoever that access orders issued by a court in the United States will be recognized and enforced after the relocation has taken place.  

Courts in the United States must appreciate that, once a child has been lawfully relocated overseas, their extraterritorial jurisdiction will generally be quite limited. Indeed, no other country has adopted the Uniform Child Custody Jurisdiction &a Enforcement Act or any law similar to it. The American concept of exclusive jurisdiction continuing in the (American) court that issues an initial custody order, even if the child lives overseas, as long as one parent continues to live in the original state, is completely alien to almost all foreign courts.

In most countries, once a child has been relocated to such a country and is habitually resident there, the local courts will conclude that they have exclusive jurisdiction to issue a child custody order or to modify a prior foreign custody order.

It must also be stressed that the definition of “habitual residence” in force in most countries is quite different than the meaning given by most American courts. For example, in the European Union, habitual residence is treated as a question of fact, taking into account all of the relevant circumstances, and “corresponds to the place which reflects some degree of integration by the child in a social and family environment.” Mercredi v Chaffe, (Case C-497/10 PPU) [2012] Fam 22. Under that test, a change of habitual residence is likely to occur promptly after a child is relocated lawfully to another country, particularly when the child is in school there.

Conditioning international child relocation on the applicant first obtaining an order from a court in the country to which the relocating parent proposes to move that mirrors the terms of the U.S. court's order and that acknowledges that the U.S. court has continuing exclusive jurisdiction concerning all matters as to the child's custody and visitation, is entirely unworkable, because once a relocated child is habitually resident in the foreign country the courts in that country will invariably have the right and the duty under the laws and the public policy of that country to assume modification jurisdiction without regard to the demands and presumptions of an American court.

Of course, such an order of a court in the United States would be binding under the laws of the issuing state, and most likely of sister states in this country, even if the foreign court has issued a contradictory order. The U.S. orders would bind the relocating parent who has taken the child overseas and might put that parent in jeopardy, but it would be inconsequential in the foreign country and most likely in other foreign countries also.

Thus, reliance on Article 21 of the Hague Convention to ensure compliance with the visitation provisions of an order permitting international relocation may well be misplaced. Once a foreign court has assumed custody jurisdiction it will make such decisions as it deems fit about custody and access, and Article 21 will not restrain that process in the slightest. 

It should be noted that the U.S. approach will be modified to accord with the worldwide standard if, as and when the United States accedes to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the “1996 Convention”). The basic principle of the UCCJEA — that the court that issues an initial custody order retains the exclusive right to modify the order so long as that state remains the residence of a parent, the child, or a person acting as a parent — is not mirrored in the 1996 Convention. Instead the Convention provides that modification jurisdiction changes with changes to the child's habitual residence. These terms codify the practice of many countries around the world. The 1996 Convention provides that a country's courts have custody jurisdiction whenever the child is habitually resident there (Article 5), subject to certain limitations for refugee or internationally displaced children with no habitual country of residence (Article 6), and cases of wrongful removal or retention of a child (Article 7). Another country's authorities cannot intervene to protect a child without the express agreement of, or at the express request of, the courts of country where the child is habitually resident (Articles 8 and 9).

In 2013 the Uniform Law Commissioners promulgated a revised UCCJEA, to accommodate the 1996 Convention. The new UCCJEA contains a new Article 4 that is intended to govern cases between states of the United States and foreign countries. In such cases jurisdiction to issue — and to modify — a custody order (to be referred to as a “measure of protection”) will be based on the child's habitual residence, which may shift over time.