With 19 Contracting Parties and 28 signatories so far, and more on the way, this multilateral treaty will likely play a major role in future cross-border parental responsibility cases.  This post examines the Convention’s purpose and functioning and, in particular, the habitual residence’s role in determining jurisdiction.

The Explanatory Report by Paul Lagarde provides detailed information about the Convention.  The Hague Conference on Private International Law’s 17^th Session set up a Special Commission to draft a treaty for the protection of children to update its 1961 predecessor and conform to the 1993 Convention on the Rights of the Child.  Completed during the 18^th Session in 1996, the Convention addresses a broader scope of parental responsibility issues than the 1980 Hague Abduction Convention.

Parental responsibility determinations begin with jurisdiction.  The Convention broadly defines parental responsibility as “parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child” (see Art. 1, ¶ 2).

The key jurisdictional factor in these parental responsibility matters is habitual residence (see Art. 5). This is true except in relatively rare cases where no habitual residence exists (see Art. 6), a new habitual residence exists due to a wrongful removal (see Art. 7), a court declares forum non conveniens (see Arts. 8 & 9), or jurisdiction on divorce proceedings exists under strict conditions (see Art. 10).  Additionally, any protective orders in other States require cooperation with authorities in the child’s habitual residence (Arts. 11 & 12).

Some drafters proposed defining habitual residence in the Convention.  The Conference declined to do so based on its prior practices and potential interpretation problems for other Hague Conventions.  Nonetheless, the negotiations indicated that temporary absences from a Contracting State cannot modify the habitual residence determination (see Lagarde Report at ¶ 40).

Thus, courts must determine habitual residence based on the facts in each case.  Though habitual residence is a determining jurisdictional factor in many areas of private international law, it necessarily has unique and sometimes complicated application in matters related to children.

Courts cannot always tie a child’s habitual residence to parents’ habitual residence—most obviously, when the parents have different residences.  Intent also plays a smaller role, because children often have no intent regarding their residence; they merely follow their parents.  Other issues pop up with periodic residences, peripatetic lives, shuttle custody arrangements, or newborns.  In rare cases, a child may have no habitual residence (in those Article 6 cases, the child’s presence determines jurisdiction).  Thus, courts must examine all the facts in the case to determine the child’s habitual residence.

Once a child acquires a new residence, the courts in the former habitual residence—even those seised of an action—lose jurisdiction, except in wrongful removal cases (see Art. 5(2)).  Though U.S. delegates suggested exclusive jurisdiction for two years after a court made an order (like Section 201(b) of the Uniform Child Custody Jurisdiction and Enforcement Act), the Conference rejected such a measure due to perceived practical problems.  Instead, the drafters decided that a court’s physical proximity in the new habitual residence was in the best interests of the child (more like continuing jurisdiction in Article 9 of EC Regulation 2201/2003).  The drafters declined to set a period for acquiring habitual residence, except in wrongful removal cases.

Wrongful removals fall under Article 7.  The policy behind habitual residence in these cases creates some tension.  On one hand, establishing jurisdiction in the previous habitual residence would deter wrongful removals.  Thus, the Convention recognized that though a child could acquire a new habitual residence, the courts in the previous habitual residence would maintain jurisdiction.

On the other hand, however,  a court’s proximity in the new habitual residence may better serve the best interests of the child. Thus, a court in the new habitual residence can exercise jurisdiction—if certain conditions exist.  These conditions essentially mirror those in Article 12 of the Hague Child Abduction Convention, establishing jurisdiction if all custody holders acquiesce in the removal or if:

“the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.”

The trick in this clause is that the wrongfully removing parent must show the child’s settlement in the new environment.

Three more options for jurisdiction.  First, a court or competent authority can essentially declare forum non conveniens under Articles 8 or 9.    Second, under Article 12, a court with jurisdiction over a divorce proceeding can adjudicate parental responsibility if a custodial parent resides in that jurisdiction, both parents agree to jurisdiction, and it is in the best interests of the child.  Finally, under Articles 11 – 13, courts outside of the child’s habitual residence may make provisional measures in urgent cases.

As per Article 50, this Convention works hand-in-hand with the 1980 Hague Abduction Convention to affect a child’s return in the event of a wrongful removal.  Further, the EU has made use of the Convention’s Article 52 in adopting EC Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, which will serve as the subject in my next post.

In sum, the Convention broadens the scope for jurisdiction in cases involving parental responsibility.  Perhaps more importantly, the Convention simplifies conflict of laws differences among countries and facilitates recognition and enforcement of parental responsibility decisions.  Thus, this Convention leads the way in the trend toward harmonization in jurisdiction, applicable law, recognition, and enforcement in private international family law.

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.