In signing on to the Convention, Russia joins the likes of Canada, the United States, Australia, New Zealand, and most European states. There are still a large number of states which are not signatories to the Convention however, with notable examples including China, India, Japan, and South Korea. As the number of Contracting States to the Convention expands, the degree of legal certainty which it provides concurrently increases. The Hague Convention is an instrument of private international law which is designed to harmonize jurisdictional conflicts; the greater the number of Contracting States, the deeper legal harmonization becomes in this particular area of law.

Still, there is some scepticism as to whether Russian courts will comply with the spirit of the Convention.[1]  The Convention requires the return of children who have been unlawfully removed from the state in which they habitually reside, regardless of the nationality of the child or either parent. The judiciary in Russia has a less than perfect record when it comes to independence and impartiality, and one recent report suggests that judges are often the recipient of bribes and other external influences affecting their judgment.[2] If a parent who abducts a child to Russia is able to exert political or economic influence over the judge, the Convention’s purposes will become frustrated. The U.S. State Department has voiced concern that a number of Contracting States, including Brazil, Mexico and Chile, do not routinely comply with the provisions of the Convention, indicating that Russia’s mere accession to the Convention does not necessarily entail automatic compliance on the part of the judiciary.[3]

Nonetheless, Russia’s accession to the Hague Convention should be seen as a positive development. With a number of international treaties or model laws, implementation is not always suitable for all states given potential conflicts with domestic policy objectives. A state’s desire to protect a local industry may require it to refrain from joining a particular treaty arrangement (e.g. Canada blocking the addition of chrysotile asbestos to the Rotterdam Convention). However, the only policy objective which a state would be promoting by not signing on to the Hague Convention is the protection of its citizens who unlawfully remove their children from the country in which they reside. Despite the uncertainty of whether the Hague Convention will be properly applied by its judiciary, Russia’s accession should be viewed with cautious optimism.

[1] See e.g. Russian Law Online, http://www.russianlawonline.com/content/children-abduction-no-more.

[2] International Commission of Jurists, “The State of the Judiciary in Russia; Report of the ICJ Research Mission on Judicial Reform to the Russian Federation” (20-24 June 2010) online: http://icj.org/dwn/database/Mission_Report_FINAL_ENG.pdf.

[3] US, Department of State, Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction (Washington DC: United States Department of State, 2009) online: http://travel.state.gov/pdf/2009HagueAbductionConventionComplianceReport.pdf.

In short, the Convention requires a court to return a child to the child’s previous habitual residence when someone–almost always a parent–abducts the child across borders.

While the Hague Abduction Convention most often provides a valuable and useful remedy, spousal abuse victims face particular difficulties when they leave a country with their child to avoid further abuse.

The Convention provides an exception to return under Article 13(b) when returning the child to the previous habitual residence will cause a grave risk of harm or an otherwise intolerable situation for the child.

While at first glance this would appear to provide safety for mothers who cross borders with their children to flee spousal abuse, this has not proved true in international case law.  Instead, courts have construed this exception so narrowly that in many cases courts have sent these children–and in effect their mothers as well– back to the previous habitual residence where the abuser lives to determine custody arrangements.

This practice can be observed in case law from around the world.  In applying the Convention, courts frequently render decisions which make spousal abuse victims’ lives more difficult and highlight the de facto system of private international legal precedent that has emerged between signatory courts.

Courts around the world have gradually developed this hurdle for spousal abuse victims with the best of intentions.  After all, a treaty whose purpose is to prevent parents from resorting self help and forum-shopping can hardly be effective if exceptions swallow the rule that courts in the place of habitual residence are best positioned to protect the best interests of the child.

With that principle in mind, in 1994 the Supreme Court of Canada handed down a seminal decision on the issue of exceptions to return.

In Thomson v. Thomson, the Supreme Court of Canada narrowly interpreted the grave risk exception.  It stated that “[t]he physical or psychological harm contemplated by [the Hague Abduction Convention] is harm to a degree that also amounts to an intolerable situation.”  Though seemingly innocuous, this language combined “grave risk” and “intolerable situation” as one sole exception under Article 13(b).  As a result, any grave risk must directly relate to the child’s physical or psychological well being.  This closed the window on a broader interpretation that would classify spousal abuse as an intolerable situation.  This opinion subsequently persuaded courts in the Hague Abduction Convention’s sister signatory courts.

For example, Thomson heavily influenced U.S. jurisprudence on this issue.  In the most-cited U.S. case Friedrich v. Friedrich, the Third Circuit Court of Appeals–in dicta–believed:

that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute — e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

Some courts have elevated this standard, actually requiring a victim of spousal abuse to show that the courts in the previous habitual residence are unable or unwilling to protect the child upon return.  Other courts will order undertakings to protect the child’s interest upon return–orders that may have little or no enforceability after the return.

These practices, though widespread, ignore the Hague Abduction Convention’s plain text.  The Convention only requires a showing of grave risk of harm or an intolerable situation.  However, after thirty years of application, the standard for the 13(b) exception has taken on a life of its own.  In short, foreign precedent wields influence.

I will make two points here.  The first point pertains to this specific spousal abuse issue–courts should take a tougher stance against spousal abuse when the abducting parent demonstrates spousal abuse has occurred in a Hague Abduction Convention case.  Within the de facto system of international precedent, courts should ignore inefficient standards and create new precedent to better address future case.

Point in case: Judge Posner’s opinion for the Seventh Circuit Court of Appeals decision in Van De Sande v. Van De Sande.  In that case, Posner–as he is apt to do–wrote a compelling opinion that provides a better lens for examining the 13(b) exception in child abuse cases.  While undertakings upon return “can in some, maybe many, cases properly accommodate the interest in the child’s welfare,” the court took a firm stance against spousal abuse, noting that “in cases of child abuse the balance may shift against return plus conditions.”  Thus, the court created a standard under which “the safety of children is paramount.”  The court found there to be

sufficient evidence of a grave risk of harm to her children, and the adequacy of conditions that would protect the children if they were returned to their father’s country [was] sufficiently in doubt, to necessitate an evidentiary hearing in order to explore these issues fully.

In turn, the Seventh Circuit remanded the case to have an evidentiary hearing to best protect the child.  This kind of hearing could routinely ensure children’s safety, offering additional scrutiny in spousal abuse cases and shifting the burden to the abuser to show that undertakings would in fact protect the child.

Another coherent analytical framework for 13(b) exceptions would accept outright that proven incidents of previous spousal abuse, in and of themselves, pose a grave risk or intolerable situation to the child.  This is another acceptable way to support exceptions to return under the Hague Abduction Convention that would protect victims of spousal abuse.

My second point here pertains to the drafting of private international law treaties: treaty drafters should use more precise language.  While most signatories will rely on the civil law tradition’s legislative broad drafting techniques, this poses dangers when common law courts develop standards that drift from the drafter’s intent, snowballing into inefficient practices.

In the Hague Abduction Convention, the drafters would have been wiser to set out detailed uniform standards for addressing child abuse.  The Convention could have required evidentiary hearings or even allowed the petitioned courts to examine the child’s best interests once an abducting parent proves previous spousal abuse.

Unfortunately, the Convention was ill-prepared to deal with many of the cases to which it applies.  The drafters predicted that most abductions would occur by non-custodial fathers seeking friendlier venues for custody disputes.  In practice, most abductors have been mothers.  Some mothers have  courageously “abducted” their children in order to protect them in the face of abuse.

After thirty years, it is perhaps time to fully reconsider the spousal abuse issue.  Perhaps a protocol or new treaty could solve this problem.  Until then, courts must act to protect children in these dangerous situations.

Ne exeat provisions exist in statutes or court orders and forbid one parent from removing a child from a country without the other parent or a court’s consent.  These provisions protect children and parents by ensuring the other parent will be able to exercise custody and access rights.  These provisions also preserve a court’s jurisdiction to decide and modify legal issues like custody, child support, and protective orders.

If a parent violates a ne exeat provision and removes a child from one country without the other parent or a court’s consent, the courts in another country may immediately return the child to the previous country based on the Hague Convention on the Civil Aspects on International Child Abduction.  Many courts have interpreted ne exeat provisions as providing rights of custody–even when the ne exeat provision applies for an otherwise non-custodial parent.  Because the Hague Abduction Convention provides returns for parents with rights of custody, courts that interpret ne exeat provisions as rights of custody will return children based solely on ne exeat provisions, as the U.S. Supreme Court posited in Abbott.

While scholars, advocates, and the Hague Conference on Private International Law advocated for this position, few have recognized its burdens on single mothers.

Single mothers bear unique burdens related to ne exeat provisions.  The vast majority of single parents are women.  As a group, women earn less than men.  This means that women have more responsibility in child-rearing and less income to do so.

In some countries, ne exeat provisions will trap these single mothers.  This is because ne exeat provisions often exist under national laws, providing a default travel restriction for all parents, regardless of child custody arrangements.  Even though a mother may be the sole guardian of the child, the non-custodial father will retain a ne exeat power to limit the mother’s ability to take the child out of country.   Despite her enormous responsibility as a parent and provider, a single mother who wishes to leave the country must seek permission from the father or the courts.

Such permission-seeking is at best inconvenient and at worst dangerous.  While some fathers will cooperatively give permission for the mother to leave the country with the child, many other fathers will not.  In those instances, many overburdened single mothers will have to take legal action.

The legal community knows what this means–hiring a lawyer and going to court.  That is, single mothers will have to spend time and money.  Of course in countries where women face tough conditions, this inconvenience will require time, money, and institutional awareness that single mothers might not have.

Seeking permission might also prove dangerous.  Consider a mother who has left an abusive partner and secured full custody over their child.  Now, she will have to approach the father or a court to leave the country, perhaps to pursue a job, education, family support, or a new relationship.  When she confronts her former abuser however, she might encounter a violent response from the abusive father if he perceives that the mother is trying to further take away his power.

True, the Hague Convention provides an exception for returns when a return poses a grave risk of physical or psychological harm to the child.  But courts construe this exception narrowly, focusing solely on the risk to the child – not the risk to the mother.

Courts essentially will examine whether child protective services in the country of habitual residence could protect the child. As most nations offer some form of child protection, this exception rarely applies.  As a result, forcing custodial mothers to seek permission to leave a country with their child will leave many single mothers trapped.  With these institutional hurdles, the interpretation of a ne exeat order as rights of custody burdens single mothers.

Moreover, interpreting ne exeat provisions as rights of custody is problematic jurisprudentially.  While many courts have (questionably) judicially defined ne exeat provisions as “rights related to the care of the person of the child” under the Hague Abduction Convention, any bon père de famille knows that a sole custodial mother provides her child’s care.

With these cases in hand though, future litigants may further expand the definition to other inchoate rights that parents have.  In a recent Irish Supreme Court case, the court referred a question to the Court of Justice of the European Union for a preliminary ruling on whether a father’s un-exercised right to apply for paternity was an inchoate right of custody under the EU law Brussels IIbis that mirrors the Hague Abduction Convention.  As ever, litigants will creatively try to further expand such tenuous legal interpretations.   Otherwise stated,  we stand at the edge of a slippery slope.

For now, I offer a few suggestions.  First, in countries like Canada where the issue has not been directly decided, advocates and judges should consider ne exeat provisions’ effects on single mothers.

Second, courts should be wary of further expanding other inchoate rights as rights of custody under the Hague Abduction Convention.

Finally, legislatures and courts in all Hague Abduction Convention countries should carefully consider whether to provide default ne exeat provisions in national laws and whether to include ne exeat orders in custody agreements.

While ne exeat provisions now burden mothers in many legal systems, advocates and courts must carefully consider the practical effects of expanding rights of custody.

But before heading Stateside, I will mention some private international law instruments on this topic.

The Hague Conference on Private International Law has completed the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Maintenance. However, with only two signatories (the U.S. and Burkina Faso) and no ratification, this convention has not entered into force.

Nor do previous instruments offer much help. The predecessor 1973 Hague Conventions on the topic garnered relatively meager support. Some reciprocal agreements exist between the U.S. or U.S. states and other countries, but careful analysis reveals little uniformity among these agreements.

Thus, private international law agreements do not—yet—provide much clear help on this subject.

So in the U.S., domestic courts play the leading role, and the first issue in the domestic courts will be recognition. For those readers yearning for the “good old” private international law days, we now turn to the familiar subjects of comity and jurisdiction-specific law.

Based on comity, U.S. courts may recognize foreign maintenance orders. Comity—very generally—is a largely judicial doctrine whereby foreign court orders were obtained through proceedings in a foreign state that do not offend a strong public policy of the recognizing state. Courts have relatively broad discretion considering comity. Though comity permits recognition in most cases, some uncertainty remains on this path to recognition.

Statutory provisions provide another path to recognition. For example, North Carolina has enacted the North Carolina Foreign Money Judgment Recognition Act in concert with the , which affords a plaintiff a statutory recognition procedure.

A more common statutory framework for recognition is the Uniform Interstate Family Support Act. All states have adopted a version of UIFSA, and foreign court orders from recognized States—“foreign reciprocating countries”—enjoy streamlined recognition under UIFSA.

The Secretary of State of the U.S. can denote foreign reciprocating countries at the national level. Alternatively, some state Attorneys General will acknowledge other foreign reciprocating countries at the state level. So, if a country is recognized as such, then recognition is quite straightforward. Otherwise, an obligee must rely on comity for recognition.

After determining that the order is recognizable, the U.S. domestic court must then ascertain whether personal jurisdiction existed over the defendant in the foreign court.

For some courts, this determination begins by examining jurisdiction under the laws of the foreign country. This will not however suffice—the foreign court must also have had personal jurisdiction under U.S. standards by showing statutory and constitutional authority.

Personal jurisdiction is relatively broad under UIFSA’s “long-arm” jurisdictional provisions at section 201. This statutory authority is necessary—but not sufficient—to find personal jurisdiction.

Rather, the obligee must also show that the previous court had constitutional authority to exercise personal jurisdiction.

In the vaguest terms, the U.S. Constitution requires a party to have purposeful minimum contacts in the forum whereby the exercise of personal jurisdiction comports with the notions of fair play and substantial justice. For a more thorough definition of this concept, please spend three weeks shivering through a 1L Civil Procedure course.

Once the obligee establishes that jurisdiction existed in the foreign court, then—assuming that the domestic court has jurisdiction over the obligor—, the court will most likely enforce the order. Additionally, the obligee can in theory obtain legal advice and assistance on these matters at no cost.

Of course in reality, the procedural and substantive legal subtleties in each jurisdiction will require competent and experienced legal counsel for these types of actions. Further—as you can probably tell—, this overgeneralization of the enforcement procedure obscures the potential technical difficulties (e.g., conflicting orders, modifications, two-state proceedings) that parties and attorneys face.

For that reason, the recent Hague Convention on this subject offers a welcome tool that could streamline this area of international family law.

Considering the substantial sums that obligees can recover, the obligor’s moral duty to support children, and the overall best interests of children, countries should sign and ratify this Convention. Moreover, with increasing international mobility, the need for coherent legal mechanisms will only increase. Currently though, these pressing needs face a patchwork of confusing paths to recognition and enforcement.

Rather than leaving parties and their counsel to muddle through this minefield, States should subscribe to a uniform and autonomous framework for enforcing matrimonial judgments. Alas however, the initial lack of international support on the recent Hague Convention may for some time spell continued confusion on this complex and pressing legal problem.

a.  Habitual Residence in the ECJ

The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far.  The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency.  Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday.  While still in Finland in October 2005, they applied for public housing.

In November, a local welfare agency removed the children to a childcare unit.  The mother unsuccessfully challenged this action in a Finnish court.  On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland.  The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child.  Distinguishing between presence and habitual residence, the AG turned to other private international law treaties because of their importance in interpreting and providing uniform interpretation on this issue.

Following the ECJ’s decision in Rinau,  the AG looked to the Hague Abduction Convention’ guiding principles.  Thus, the AG considered habitual residence “by reference to all the relevant circumstances…distinguished from the legalistic concept of domicile.”

In embracing that definition, the AG parted from the Commission’s suggested definition.   The Commission, relying on the Borras Report, specified factors including intention, relevant facts, and actual residence.  Ultimately, the AG rejected intent, standing alone, as a determinant of habitual residence.

The AG posited that intent may have been important in determining habitual residence for simple divorce cases, which BIIR addressed.  However, intent is less important in BIIbis parental responsibility cases—when determining a child’s habitual residence, children often lack intent and parents’ intentions conflict.  Thus, the AG rejected the habitual residence definition in divorce law and, for that matter, social law because of those laws’ differing aims.

In applying a fact-based test based test, the AG paid particular attention to the “duration and regularity of residence” and the “child’s familial and social integration.”

First dealing with duration and regularity of residence, the AG rejected any strict time limit.  In the case, the durational relevance related to the children’s ages and their familial and social circumstances.  While habitual residence tolerates interruptions, children lose a previous habitual residence when “a return to the original place of residence is not foreseeable.”

Further, the AG noted that habitual residence can shift quickly, as evidenced by the three-month period of continuing jurisdiction in BIIbis Article 8.  Parents’ common intentions can play a role in assessing the regularity of the residence—but only when manifested towards the child’s integration—e.g., by enrolling the child in school, leasing or purchasing property, or changing an address.  This was how the AG defined the duration and regularity of the residence.

Second, the AG examined factors surrounding a child’s familial and social integration.  These factors can vary with the child’s age, but contact with relatives, “school, friends, leisure activities and, above all, command of language are important.”  Considering these factors, courts must determine whether a habitual residence exists.

The ECJ decision largely adopted the AG’s opinion regarding the need for uniform and autonomous interpretations, the unique definition of habitual residence in parental responsibility cases, and the factors to consider in determining habitual residence.  Instead of focusing on intent or the “centre of interests,” the court held that:

the concept of ‘habitual residence’ under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.

Thus, the ECJ named roughly eight factors to consider when determining habitual residence: (1) duration, (2) regularity, (3) conditions, (4) reasons for the child’s presence, (5) school attendance, (6) linguistic knowledge, (7) family relationships, and (8) social relationships.  With those factors in mind, the ECJ returned the case to the national court.

Unfortunately, the ECJ did not exactly express the habitual residence determination by enumerating those clear factors.  Instead, a looser focus on “all the circumstances specific to each individual case” dilutes the possibility for uniform interpretation among Member States’ courts.  Soon, two examples in UK appellate courts would show habitual residence’s slipperiness.

b.    Habitual residence acquired after less than two interrupted months in England

In S(A Child), a court acknowledged—but did not effectively apply—the ECJ’s habitual residence determining factors.   In that case, a Belgian father argued that his child was not habitually resident in England.  He and the Australian mother had a daughter in December 2005 in Australia, who spent most of her life in a small Belgian village with her parents, near her grandmother.  In February 2007, the father signed a three-year lease in that Belgian village.

In March 2007, the father took a three-month job in Belfast.  A month later, the mother and child followed, staying in an apartment that his employer provided there.  In May 2007, the mother and child returned to Belgium.  The father took a two-year job in London, where, for six weeks, he stayed with a friend during the week and travelled to Belgium on the weekends.

Then, the father’s friend in England secured a projected three to nine-month job in Canada.  So, the friend offered his England home for the family’s use.  In August 2007, the family moved in but left most of their possessions in Belgium.  Then, the daughter spent two weeks with her grandmother in Belgium in September.  Unfortunately, the friend’s job in Canada fell through, and the family had to give up their English digs by the end of September.

At this time, the marriage fell apart.  The parents had differing plans for their daughter: the mother pictured her life in Australia; the father took the child to Belgium on September 28.

On appeal, the appellate judge repeatedly emphasized the indeterminate time—three to nine months—that the family planned to spend at the borrowed home in England, despite the primary home in Belgium.  The judge opined that the “constancy of that primary home [did] not prevent the acquisition of habitual residence in the work country if the other elements within the defined principles of acquisition [were] satisfied.”  The court reviewed “the facts as the [trial] judge found them,” and “whether it was open to her to conclude that those facts were sufficient to satisfy the tests set out in the authorities.”  The appellate judge then upheld the decision that, in six interrupted weeks, the young child had acquired habitual residence in England.

In reaching that conclusion, the appellate judge accepted the father’s “very substantial” legal connection with England because of his employment, tax contributions, and work permits.  The appellate judge accepted the lower court’s emphasis on the parties’ intention to remain in England for three to nine months.

The appellate court’s reasoning was troubling in light of C-523/07, because those connections and intent had little to do with the child’s actual integration in England.  The appellate court relied heavily on the trial court’s balancing, but the trial decision came down before the ECJ clarified the autonomous habitual residence test.  Considering the eight factors above, the child’s habitual residence had not likely shifted to England.

The duration was quite short—certainly less than two months.  The regularity was also lacking as the child had spent two weeks with her grandmother in Belgium during her time in England. The conditions of the residence were undeniably temporary.  The reason for the child’s presence was simply to share a rent-free home with both parents.

Further, no indication of school attendance or linguistic knowledge arose in the courts’ opinions—factors explicitly required when following the ECJ analysis.  Finally, the child’s family and social relationships were seemingly limited in England.  Her father and mother were living in England temporarily and her grandmother—who she spent a quarter of her “residence” in England with—was in Belgium.  Therefore, this case’s reasoning strays from a narrow construction of the ECJ test.
b.    Habitual residence not acquired after one year in Wales

In another 2009 case, P-J (Children), a Spanish father sought a return when his Welsh wife removed their children from Spain to Wales.   Initially the mother had taken the children from Spain to Wales to live with their grandparents and go to school in Wales for a year, with the father’s consent.  After that year, the mother and children returned to Spain and enrolled in school.  About two months later, the mother left with the children without the father’s consent.

At issue in the appellate court was the children’s habitual residence.  The mother argued the first move established Wales as the children’s habitual residence.  Lord Justice Ward agreed that “acquiring habitual [residence] … permits a stay of comparatively short time [whereas] domicile … requires an intention to remain [] indefinitely.”

However, Lord Justice Ward recalled that “[h]abitual residence of young children of married parents all living together as a family is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.”  Without setting a fixed period, habitual residence “depends ‘more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind.’”

Applying this definition, the court decided that the children’s habitual residence was Spain.  Lord Justice Ward concluded that their:

ordered way of life was Spanish. Their education had been undertaken there and with the mother’s collaboration it was arranged that it should continue in Spain upon their return. Their schooling in Wales was for a temporary period and for the limited purpose of improving their English. Their home was in Spain, not with their grandparents in Wales. The visit to Wales was a convenient respite to meet the dual objectives of increasing their language skills and refurbishing the Spanish home. The mother actively participated in the planning of the work even whilst she was in Wales. The essential dental work was carried out in Spain…. [The f]amily life was centred on Spain, which is simply another way of saying Spain was the regular order of their life.

The court thus concluded—based on UK case law—that the habitual residence was Spain.

However, that conclusion does not comport to the ECJ factors in C-523/07.  By ignoring whether the children re-established their Spanish habitual residence, the appellate court too quickly dismissed the potential habitual residence in Wales.

After all, their presence in Wales was for a substantial duration and regularity—an entire year.  They stayed at their grandparents’ home with the father’s consent.  Their purpose was to acquire English language skills and attend school—two explicit factors that contribute to integration. The children developed relationships with their grandparents and social relationships with their classmates.  Thus, under a narrow reading of C-523/07, the children acquired habitual residence in Wales.

These two UK cases demonstrate the problems that arise from clinging to the fact-based habitual residence test.  Even with an ECJ decision on this matter, parents still face great uncertainty in parental responsibility cases before EU Member States’ national courts.

One of the most “private” areas of private international law is international family law (which is, oddly enough, my focus area—see, e.g., my blog).  Just this month, the United States Supreme Court heard a case involving a major private international family law convention, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The Convention’s name tends to confuse some lay readers—it only deals with jurisdiction in cross-border custody disputes, not the more sinister cases that the words “child abduction” connote.  The Convention primarily preserves jurisdiction in child custody disputes by providing an immediate return if a parent wrongfully removes a child from its country of habitual residence.

The father in the case before the U.S. Supreme Court, Abbott v. Abbott, contended that the mother wrongfully removed their child from Chile.  The cases focuses on the ne exeat issue under the Convention.

Courts use ne exeat orders to preserve jurisdiction in custody disputes by forbidding a custodial parent from taking a child outside of a court’s jurisdiction without the express consent of the other parent or the court.  However, ne exeat orders have an uncertain status under the Hague Convention.

Article 3 of the Hague Convention defines a wrongful removal as a removal “in breach of rights of custody attributed to a person.”  Article 5 further defines rights of custody as “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.”  Under these provisions, to get a return, a petitioner must show that he had rights of custody.  The question is whether a ne exeat order, standing alone, creates rights of custody under the Convention.

This issue lacks international consensus.  For example, the Supreme Court of Canada has mentioned the issue twice (in Thomson v. Thomson and W.(V.) v. S.(D.)) and, in dicta, concluded that a ne exeat order does not confer custody rights.  The House of Lords in England (in C. v. C) and the Supreme Court of Israel (in Foxman v. Foxman) have decided it the other way.  Australia’s high court has one decision that meekly followed the English precedent.  France has decided it both ways, the European Court of Human Rights has dodged the issue, and the Austrians sided with the Canadian Supreme Court’s dicta.

In the U.S., a split in the Circuits led to the Supreme Court’s grant of certiorari.

The ne exeat issue is important for three major reasons: general treaty interpretation, the weight afforded to foreign court decisions, and its practical impacts on individuals.

First, the case brings into focus the issue of multilateral treaty interpretation.  Of course, the Vienna Convention on the Law of Treaties (VCLT) codified the customary international law of treaty interpretation.  However, this case pokes at the gaping holes in that codification. How should the Court interpret the Hague Convention’s relatively concrete definition?  How should courts find the ordinary meaning of the “terms of the treaty in their context and in the light of its object and purpose” (VCLT, art. 31)?  Do they look only at the text and travaux preparatoires?  Should the court consider the Department of Justice’s present interpretation, or should it rely only on the interpretations provided at the time of signing?  And does the “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” include foreign domestic court decisions?

Second, the weight afforded to foreign domestic courts decisions comes front and center in this case.  The Hague Convention relies on autonomous definitions of its terms to ensure proper jurisdiction for cross-border custody cases.  This is to protect the left-behind parents from having the merits of their cases played out in removing parents’ foreign courts of choice.  However, to achieve a uniform definition of “rights of custody,” courts that have struggled with the ne exeat issue have invariably looked to the domestic case law of sister signatories to define the term.

This practice potentially creates some real problems in multilateral treaty negotiations.  Initially, signatories may be even more skeptical if subsequent judicial action can modify the terms on which they originally agree.  Further, this may incentivize a “rush to the courthouse” between signatories because, after all, once domestic courts rule on an issue, then their rulings can affect international jurisprudence.

Despite the potential blur in separation of powers, the normally conservative Justice Scalia, who has previously lambasted fellow Justices for relying on international law (see, e.g., Roper v. Simmons; but cf. Chan v. Korean Airlines where Justice Scalia cites French court decisions in treaty language interpretation), was the first Justice to bring up foreign case law in oral argument.  He seemed to posit that if:

the purpose of a treaty is to have everybody doing the same thing, and—and I think, we—if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in—in other countries that are signatories to the treaty

Further, if the U.S. Supreme Court weighs in with the international “majority” (whose existence is questionable), this may only strengthen the international “precedence” to play “follow-the-leader” in an area of case law that has broad impacts on individuals.

Finally, the ne exeat issue’s resolution will likely have real effects on real people.  In many countries’ domestic legislation, an automatic ne exeat clause exists in all custody statutes.  Thus, for many parents with sole custody, the non-custodial parent may effectively have the power to keep an ex-spouse in country with the threat of an immediate return.

Moreover, how far would this “right” extend?  For example, would laws requiring both parents’ consent for a child’s passport count as a right of custody?  Does a custody agreement, which limits a custodial parent from residing with a particular individual, “determine residence”?  If the custodial spouse is a domestic abuse victim, does she have to risk her life by obtaining her abuser’s consent before she moves to a new country to pursue her life goals?

As ever, we are for now only guided by these questions.  Soon enough, the courts in the United States will have the answer to the narrow ne exeat question, yet others regarding the Hague Convention will remain unanswered.

Thus, the subject of my next Legal Frontiers entry will be why countries should adopt the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, and Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.