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II. THE UNITED STATES SUPREME COURT SETTLES THE NE EXEAT CONTROVERSY IN AMERICA: ABBOTT v ABBOTT1

Published online by Cambridge University Press:  11 November 2010

James D Garbolino
Rights & Permissions [Opens in a new window]

Extract

In a 6–3 opinion the United States Supreme Court held, in its first case involving the 1980 Hague Convention on the Civil Aspects of International Child Abduction2, that a ne exeat3 order confers a right of custody for a left behind parent, entitling that parent to maintain an action under the Convention. The decision reverses a 5th Circuit opinion4 which followed the rationale of CrollvCroll.5Croll held that a parent with visitation rights, coupled with a ne exeat clause, possessed only part of the ‘bundle of rights’6 which comprise ‘rights of custody’, and that such limited rights were insufficient to compel a return remedy under the 1980 Convention. The Supreme Court's decision settles a conflict among the federal circuits on this issue.7 Following the Croll rationale were Fawcett v. McRoberts,8 and Gonzales v Gutierrez.9 The 11th Circuit, however, in Furnes v. Reeves,10 held that a ne exeat provision in a Norwegian custody agreement conferred a right which would satisfy the Convention's definition of ‘custody rights’.

Information

Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 59 , Issue 4 , October 2010 , pp. 1158 - 1167
Copyright
Copyright © 2010 British Institute of International and Comparative Law

A. Introduction

In a 6–3 opinion the United States Supreme Court held, in its first case involving the 1980 Hague Convention on the Civil Aspects of International Child AbductionFootnote 2, that a ne exeat Footnote 3 order confers a right of custody for a left behind parent, entitling that parent to maintain an action under the Convention. The decision reverses a 5th Circuit opinionFootnote 4 which followed the rationale of Croll v Croll.Footnote 5Croll held that a parent with visitation rights, coupled with a ne exeat clause, possessed only part of the ‘bundle of rights’Footnote 6 which comprise ‘rights of custody’, and that such limited rights were insufficient to compel a return remedy under the 1980 Convention. The Supreme Court's decision settles a conflict among the federal circuits on this issue.Footnote 7 Following the Croll rationale were Fawcett v. McRoberts,Footnote 8 and Gonzales v Gutierrez. Footnote 9 The 11th Circuit, however, in Furnes v. Reeves,Footnote 10 held that a ne exeat provision in a Norwegian custody agreement conferred a right which would satisfy the Convention's definition of ‘custody rights’.

The facts in Abbott are uncomplicated. Timothy Abbott was a British citizen. He and Jacquelyn, an American citizen, married in 1992. The couple lived in Hawaii, where their child A.J.A. was born in 1995. Thereafter the family moved to Chile, where custody proceedings commenced. Pursuant to an order of the court of Chile, mother was granted the daily care and control of A.J.A, and father was granted ‘direct and regular’ visitation, including every other weekend, and the entire month of February. Pursuant to Chilean statutory law, once a parent is granted visitation rights, that parent's permission is required before the child may be removed from the country.Footnote 11 An additional ne exeat was ordered at mother's request when she became concerned that the child's father might remove the child. This order contained no consent provision. In 2005, while domestic proceedings were still pending before the Chilean courts, mother took the child to Texas in violation of the order of the Chilean court and the Minors Law 16,618. She then commenced divorce proceedings in a Texas state court, requesting full custody, including the right to determine their child's residence. Father appeared in the Texas divorce litigation and requested permission of the court to take the child back to Chile. The Texas court declined to allow father to do so, but granted him liberal rights of visitation provided he remained in Texas. In May of 2006, father filed a Hague Convention proceeding in the United States District Court for the Western District of Texas. The District Court declined relief on the basis that father did not possess rights of custody under the Convention. On appeal to the 5th Circuit, the District Court's decision was affirmed.

B. Bases for the Decision

Writing for the majority,Footnote 12 Justice Kennedy advised that the Court's inquiry was shaped by four sources: (1) the text of the Convention itself; (2) the purposes of the Convention; (3) the views of the executive branch, in this case the State Department which Congress had designated as the ‘Central Authority’ under the Convention; and (4) decisions of other signatory nations which have addressed the issue. Each will be addressed below.

1. Text of the Convention

Article 5 of the Convention defines rights of custody as follows:

‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.

The court addressed both clauses of article 5. In addressing the first clause, relating to having the ‘care of the person of the child’, the court found that the right to determine the child's country of residence also gave the holder of a ne exeat clause, ‘rights relating to the care of the person of the child’. The Court focused on the importance of the choice of a child's residence and noted that:

Few decisions are as significant as the language the child speaks, the identity he finds, or the culture and traditions she will come to absorb. These factors, so essential to self-definition, are linked in an inextricable way to the child's country of residence. (slip opinion, pp 7–8)

In addition, the court specifically held that the ne exeat provision in Chilean law conferred a joint right to determine the child's country of residence—‘This is a right of custody under the Convention.’Footnote 13 Once Mr Abbott was given rights of visitation, his authorization was required before the child could be removed from the country, subject to court review when the authorization, a) could not be granted, or b) was denied without good reason. Thus, neither parent could unilaterally establish the child's place of residence. For this reason, the Court found that a joint right to determine a child's residence was ‘best classified’ as a joint right of custody, especially in light of the purposes of the Convention, which is to prevent wrongful removal.Footnote 14

2. Executive interpretation of treaties

The opinion noted that the interpretation of the State Department's Office of Children's Issues, which has long understood that a ne exeat clause conferred ‘rights of custody’ within the meaning of article 5 was entitled to ‘great weight.’Footnote 15

There is no reason to doubt that this well-established canon of deference is appropriate here. The Executive is well informed concerning the diplomatic consequences resulting from this Court's interpretation of ‘rights of custody,’ including the likely reaction of other contracting states and the impact on the State Department's ability to reclaim children abducted from this country.Footnote 16

3. Reliance upon precedent from other contracting States

The court recognized that opinions of other nations signatory to the 1980 Convention concerning interpretations of the treaty were entitled to ‘considerable weight’.Footnote 17 The court noted that the concept that a ne exeat clause conferred enforceable rights of custody, found broad acceptance in international case law, citing decisions from the English High Court of Justice, the House of Lords, Israel, Austria, South Africa, and Germany.

The Court also observed that the Pérez-Vera ReportFootnote 18 supported the conclusion that ne exeat rights were contemplated by the Convention as conferring ‘rights of custody’, by virtue of the intention of the framers that the term be interpreted in a manner which was as expansive as possible.

4. Purposes of the Convention

The court found that denying the remedy of return in cases where a ne exeat clause protected the custody rights of the left-behind parent, would allow the taking parent to undermine the purposes of the Convention by attempting to seek a friendlier forum in which to litigate custody issues. The Court underscored the significance of this principle by citing to the dissenting opinion of the then Judge Sotomayor in the second circuit case of Croll v Croll:

The Convention should not be interpreted to permit a parent to select which country will adjudicate these questions by bringing the child to a different country, in violation of a ne exeat right. Denying a return remedy for the violation of such rights would ‘legitimize the very action—removal of the child—that the home country, through its custody order [or other provision of law], sought to prevent’ and would allow ‘parents to undermine the very purpose of the Convention.’ Croll, 229 F. 3d, at 147 (Sotomayor, J, dissenting).Footnote 19

C. Comment

1. Uniformity of Interpretation

A theme running through several portions of the court's opinion reinforces the notion that the Convention should be interpreted in such a manner as to provide consistency among sister states who are signatory to the treaty—a global jurisprudence.Footnote 20 This is especially true now that 82 countries are party to this convention. This expansion of the 1980 Convention community has resulted in a mélange of legal systems based upon common-law, civil-law, and various combinations of both. With the recent accession of Morocco, one can add Islamic (Sharia) law to the mixture.

Undue reliance on terms and concepts with reference to domestic law, legal concepts, and value-laden presumptions which reflect local practice, frustrates uniform interpretation. Recognizing this pitfall, the Court began its analysis of the meaning of the term ‘rights of custody’ by focusing upon the text of the Convention as a method of promoting uniformity of interpretation among the States Parties. The Court observed that interpreting the Convention on a

uniform text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition.Footnote 21

The court also looked to the history of the adoption of the Convention as an aid to interpretation by consulting both the travaux préparatoires,Footnote 22 and the Pérez-Vera Report.Footnote 23 One curious aspect of the majority's interpretation of ne exeat rights related to its characterization of the Explanatory Report. While the report is widely considered as an official aid to interpretation of the Convention, the majority opinion raised the question whether the latter should be given any greater weight than ‘a scholarly commentary.’Footnote 24 The Court seemingly raised the issue due to a self-effacing comment made by Eliza Pérez-Vera that the Report had not been approved by the Hague Conference on Private International law, and despite her best efforts at objectivity, it was possible that ‘certain passages reflect a viewpoint which is in part subjective.’Footnote 25 Notwithstanding this query, the majority considered the substance of the Report as it related to defining ‘rights of custody’, concluding with the statement that: ‘Indeed, the Report is fully consistent with the conclusion that ne exeat rights are just one of the many “ways in which custody of children can be exercised.” ’Footnote 26

The majority recognized that there was ‘an emerging international consensus’ among scholars that ne exeat rights were custody rights.Footnote 27 Two points should be made in connection with this statement. First, the 1980 Convention is a relatively new instrument. Although it entered into force on December 1, 1983,Footnote 28 the process of ratification and accession has been gradual.Footnote 29 When a Hague Convention return case is first heard by a judge in a country where practice under the treaty is in its infancy, there are no official aids to interpretation save and except for the text of the Convention itself, the Pérez-Vera Report, and any interplay with domestic law. As such, the decisions of a given nation's courts relating to the Convention are necessarily in a process of evolution. Secondly, as signatory nations continue to frame the course of interpretation of terms such as ‘custody rights’, judicial trends gain exposure through the media, judicial conferences, and most importantly, the Hague Permanent Bureau's case law database, INCADAT.Footnote 30 Scholars, commentators and courts are constantly contributing to an evolution of interpretative law which will hopefully promote the concept of a global jurisprudence.

Finally the Court gave a considered review of case law from sister states which considered the question of whether a ne exeat clause was sufficient to confer enforceable rights of custody under the Convention. With regard to this treaty, the Court advised that the implementing legislation in the United StatesFootnote 31 specifically acknowledged the need for ‘uniform international interpretation of the Convention.’Footnote 32 Consequently the principle of looking to sister state precedent applied with ‘special force’.Footnote 33 The Court's review of numerous sister-state decisions further reinforced its commitment to consistent international interpretation of critical terms of a treaty.Footnote 34 The court relied on supportive precedent from England,Footnote 35 Israel,Footnote 36 Austria,Footnote 37 South Africa,Footnote 38 Germany,Footnote 39 Australia,Footnote 40 and Scotland.Footnote 41 The court also acknowledged the existence of views of the Canadian Supreme Court in Thomson v Thomson Footnote 42 which dealt with the efficacy of a temporary ne exeat order.Footnote 43

The dissent argued that the primary concern of the drafters of the 1980 Convention was to ‘remedy abuses by noncustodial parents who attempt to circumvent adverse custody decrees (eg, those granting sole custodial rights to the other parent) by seeking a more favorable judgment in a second nation's family court system.’Footnote 44 In support of this statement, the dissent cited the Pérez-Vera Report.Footnote 45 While the Explanatory Report does mention the strategy of removal of a child to what may be perceived as a more ‘favorable’ jurisdiction, that paragraph says nothing about this issue being the drafters' primary concern. In this regard the dissent apparently misapprehended the scope of the Convention's practical application. In many cases, both the abducting and the left behind parent have custody rights—conferred by operation of law. In fact where parties are married, this is the default situation when an abduction takes place prior to the issuance of any custody orders. The situation may be different, depending upon whether the country of habitual residence acknowledges paternal rights of an unmarried father.Footnote 46

Th0e guidance provided to litigants, counsel and judges by Abbott is particularly welcomed in the context of the Convention because no other international instrument has been touched by so many judges in such a large number and diverse types of legal systems. Efforts to improve the operation of the Convention have involved the participation of members of the judiciary from all over the world, assembled through the leadership of the Hague Permanent Bureau, the European Union, the International Center for Missing and Exploited Children, and the Central Authorities of many of its member nations.Footnote 47 In no small measure the exchange of information through judicial outreach relating to the implementation and interpretation of the 1980 Convention has led to a broader understanding among signatory nations of the need to establish common ground upon which decisions may be based. Effective cross-border judicial communication promotes understanding of mutual areas of concern, and maintains the operational integrity of the Convention when dealing with new and evolving issues.

2. Giving context to ne exeat clauses

Neither the majority opinion nor the dissent touch upon one of the primary reasons for imposing a ne exeat condition in a custody decree in the first place—that is to allow the parent who does not have primary physical custody to petition the court for a modification of custody in light of the intention of the custodial parent to relocate with the child across an international border.

The dissent in Abbott argues that the ne exeat right in this is merely ancillary to Mr. Abbotts' rights of access and protects him from the custodial parent peremptorily removing the child. Further, that the right has nothing to do with custody rights.Footnote 48 The validity of this assertion is not well supported in practice. Very few nations would argue that a custodial parent's proposed relocation with the child across an international border would not constitute a change of circumstances, thus requiring, or at least allowing a re-evaluation of the custody plan.Footnote 49 Without a ne exeat order in place, parents whose custody plan includes only rights of visitation, would be faced with a de facto forfeiture of their right to maintain a meaningful relationship with their children when the primary custodial parent peremptorily moved with the children. When visitation rights are coupled with a ne exeat clause, the parent who does not have day-to-day care and control of the child is nevertheless protected from losing all meaningful contact with the child, and maintains the right to apply to a court for an expansion of those rights, or a change of custody should circumstances warrant that change. Viewed in this context, the ne exeat clause becomes far more important than a naked right to veto an international relocation.Footnote 50

The dynamics of a custody case provide significant reason for giving force to a ne exeat order, which protects the jurisdiction of a court prior to making a final custody determination.Footnote 51 Custody litigation is a linear process, and the facts which are known by the court at the beginning of the time continuum are usually eclipsed by a greater degree and quality of facts known by the time the matter comes to trial. Temporary custody orders are typically based upon skeletal information which is provided by the parties through their written submissions to the court. These submissions are frequently hastily compiled, and lack objective verification. Applications for temporary custody may contain allegations of child abuse, domestic violence, and substance abuse. When these allegations are made, courts will invariably look to temporary custody orders which are designed to ensure the interim physical and psychological safety of the children. Temporary orders may be highly restrictive of a parent's access to the children. Upon investigation and presentation of further evidence, initial allegations of parental misconduct may prove to be unfounded, or the seriousness of the conduct deemed to be significantly overstated. As a consequence, temporary orders are usually no more than a ‘rough cut’ to provide stability for the children until the court is provided with sufficient facts to make a more reasoned decision.

Despite their limited duration, temporary custody orders have their own kinetic energy, and tend to set the stage for how the parents will deal with a more permanent order, either by contested trial or hearing, or through mediation, negotiation, or guided settlement efforts. It is precisely because temporary or interim custody orders are subject to substantial modification when a fuller and more reliable exploration of the facts becomes available, that a parent who is initially restricted to visitation or access must be entitled to the opportunity to gain custody rights.

3. Ne exeat—a substantive right vs a veto power

The majority looked to Chilean law to determine the extent and scope of the ne exeat provision. Based upon Chile's interpretation of their own law, the majority went on to apply the Convention's provisions regarding custody rights. The dissentFootnote 52 dismissed the majority's reliance upon a Chilean official's description of the effect of Chilean law in this area as ‘a piece of advocacy’.Footnote 53 The dissent primarily focussed upon characterizing the ne exeat clause as no more than a veto power, lacking any right to determine the day-to-day issues concerning the care and control of the child. As such, the dissent equated a ne exeat provision to nothing more than an international ‘travel restriction’.

The majority specifically deferred ruling on the question whether a ne exeat order which did not contain a parental consent provision would be sufficient to form the basis for finding a ‘right of custody’ under the Convention. One might query whether where a court simply rules that ‘neither parent is to remove the child from state X, or Country Y’, if such an order would form the basis for a finding of parental rights of custody if the order were breached? The Court did not answer this question. In dictum, however, the Court weighed in on the issue whether temporary custody orders, which commonly restrain parties from the removal of a child from the state or country pending a final custody determination, may have efficacy of their own: ‘Even a ne exeat order issued to protect a court's jurisdiction pending issuance of further decrees is consistent with allowing a parent to object to the child's removal from the country.’ Footnote 54

The Court's practical reluctance to swim upstream against the weight of authority classifying ne exeat rights as custody rights, underscored a separate policy issue of a ‘rights of custody’ interpretation consistent with other sister states.Footnote 55 One obvious reason for such a position is to avoid having abducting parents consider the United States as legal sanctuary, where they could settle, flout the law of the child's habitual residence, and at the same time remain insulated against international law which, as applied in other countries, would compel the return of the child.

5. Proof of foreign law

Although the substance of the ne exeat clause under Chilean law was a point of focus in this case, neither the majority nor the dissent mentioned article 14 of the Convention which provides simplified methods of recognizing law of a foreign state.Footnote 56 This raises the question whether in a particular case, an expert on foreign law might be consulted to avoid the possibility that a court might not give sufficient weight to proof of foreign law if the source of that proof is subject to some question.Footnote 57

6. The remand to the District Court

When the Court reversed the 5th Circuit's interpretation of the ne exeat right, it remanded the case to the trial court commenting that return of the child was required, unless the trial court found that one of the defences to return applied. The court then specifically alluded to article 13(1)(b) defence being potentially available, but reserved the application of defences to the district court. Interestingly, the two cases cited in reference to a potential article 13(1)(b) defence were Baran v Beaty,Footnote 58 and Walsh v Walsh,Footnote 59 both of which involved refusals by US courts to return children based upon substantial histories of domestic violence and abuse. A second issue, common to both cases was whether, upon finding the existence of a 13(1)(b) defence, a court was bound to look to the possibility of undertakings or other measures which would ameliorate the defence. In both cases, the courts determined that on the facts before them, the trial courts were not required to indulge in such an inquiry.Footnote 60

Opinions of the United States Supreme Court are subject to a great deal of scrutiny from scholars, educators, commentators and practitioners. Doubtless that some will find the citation of these two particular cases to have some significance as to the Court's inclinations regarding the subjects dealt with in Baran and Walsh.

In the final analysis, The Supreme Court's decision in Abbott brings clarity to a frequently-litigated issue. It is hoped that the high court's review of the issues surrounding ne exeat clauses will focus the attention of sister states courts toward a more uniform and consistent treatment and interpretation of the 1980 Convention's terms.

References

2 Senate Treaty Doc. 11, 99th Cong., 1st Sess. 9 (1980) reprinted in 19 ILM 1501 (1981).

3 As in this case, a ne exeat order typically restrains a parent, or both parents from removing a child from the jurisdiction of the court, or from moving a child across an international frontier without the permission of the other parent, or a court. The right is not absolute, and if permission to remove the child is unreasonably withheld, or a court determines that good cause for continued restraint no longer exists, the ne exeat order may be vacated by a court of competent jurisdiction.

4 Abbott v Abbott, 542 F.3d 1081 (5th Cir. 2008).

5 229 F.3d 133 (2nd Cir 2000).

6 Croll v Croll, supra, 229 F.3d 133, 139.

7 Pursuant to the legislation implementing the 1980 Convention in the United States, Congress provided for concurrent jurisdiction in both state and federal courts to hear return cases under the 1980 Convention. International Child Abduction Remedies Act (ICARA), 42 USC 11603. As opposed to the conflict between federal circuit courts, state courts which considered the issue appear to have accepted Croll's reasoning regarding the lack of efficacy of a ne exeat order. There have been no state court cases since Croll was decided which have held that a ne exeat right coupled with rights of visitation was the equivalent of ‘custody rights’ under the Convention. The only cases even discussing the impact of Croll and its progeny on this issue arose in New York and in California. See Ish-Shalom v. Wittman, 797 NY S.2d 111, N.Y.A.D. 2 Dept., 2005; Welsh v Lewis 740 NY S.2d 3355, NYAD 2 Dept., 2002; Nadarajan M v Sandra W., 2002 WL 31586632 (2nd Dist. California 2002—unreported decision). See also White v White, 71 AD 3d 473, 898 NY S.2d 8, (2010), noting that an award of joint custody, combined with ne exeat clause was sufficient for a left behind parent to maintain a petition for return of the child under the Convention. Id. at 475. Prior to Croll, however, two state court cases held that ne exeat orders did create enforceable rights of custody under the Convention. Janakakis-Kostun v Janakakis, 6 S.W.3d 843, 849 (Kentucky), and David S v Zamira S, 151 Misc.2d 630, 574 N.Y.S.2d 429 (1991).

8 326 F.3d 491 (4th Cir 2003).

9 311 F.3d 942, (9th Cir. 2002).

10 362 F.3d 702 (11th Cir 2004).

11 Minors Law 16, 618, art. 49 (Chile).

12 Kennedy, J, joined by Roberts, CJ, Scalia, Ginsburg, Alito and Sotomayor, JJ.

13 Slip opinion, 11.

14 The dissent would interpret the phrase ‘place of residence’ to mean the physical locale within the state in which the child's home would be located. Slip opinion, dissent p 12.

15 Citing Sumitomo Shoji America, Inc, v Avagliano, 457 US 176, 184–185, n 10 (1982).

16 Slip opinion, 12.

17 Citing El Al Israel Airlines, Ltd v Tsui Yuan Tseng, 525 US 155, 176 (1999) (quoting Air France v Saks, 470 US 392, 404 (1985).

18 Explanatory Report by Eliza Pérez-Vera, 3 Actes et Documents de la Quatorzième session, pp 425–473 (1982).

19 Slip opinion p 17.

20 See Silberman, J, Linda, ‘Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence’ (2005) 38 UC Davis L Rev 1049Google Scholar.

21 Slip opinion p 8.

22 Actes et Documents de la Quatorzième session (1980)—Child Abduction.

23 Conférence de La Haye de droit international privé, Enlèvement d'enfants, E Pérez-Vera, Explanatory Report, 3, Actes et Documents de la Quatorzième Session (1982).

24 Slip opinion, p 15.

25 Pérez-Vera Report pp 427–428.

26 Slip opinion, p 16.

27 Slip Opinion, p 14.

28 The Convention ‘entered into force’ with the Ratification of three nations. Portugal's ratification brought the treaty into force with the previous ratifications of Canada and France. See Status Table, at http://hcch.evision.nl/index_en.php?act=conventions.status&cid=24

29 For example, the treaty entered into force with the United Kingdom on August 1, 1988, the United States on July 1, 1988, Germany December 1, 1990, Italy May 1, 1995, South Africa October 1, 1997, and most recently Morocco on June 1, 2010.

30 http://www.incadat.com

31 ICARA ( n 7).

32 ibid 42 USC 11601 (b)(3)(B).

33 Slip Opinion p 12.

34 Sister state decisions have been made easily accessible by the Hague Permanent Bureau's maintenance of INCADAT, a case database system which is searchable. See: http://www.incadat.com

35 C v C, [1989] 1 WLR 654, 658 (CA); Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, 628, 633, 645.

36 CA 5271/92 Foxman v Foxman [1992] §§3(D), 4 (K Chagall transl).

37 Oberster Gerichtshof [OGH] [Supreme Court] Feb. 5, 1992, 2 Ob 596.91 (Austria).

38 Sonderup v Tondelli, 2001(1) SA 1171, 1183 (Constitutional Ct. of South Africa 2000).

39 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court of Germany] July 18, 1997 2 BvR 1126/97 ¶15.

40 In the Marriage of Resina [1991] FamCA 33 (Austl., May 22, 1991), ¶¶ 18–27.

41 AJ v F J, [2005] CSIH 36, 2005 SC 428, 435–436.

42 [1994] 3 SCR 551, 589, 590, 119 D.LR. (4th) 253, 281.

43 In Thomson, LaForest, J, noted, regarding the court as holder of rights of custody when a ne exeat order issued pending a full custody determination that: ‘It seems to me that the court itself had a right of custody at this time in the sense that it had the right to determine the child's place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence. I am fully in agreement with this statement. It seems to me that when a court has before it the issue of who shall be accorded custody a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence. It has long been established that a court may be a body or institution capable of caring for the person of a child.’ 34 IM 1159, 1172–1174.

44 Slip Opinion, Dissent, p 3.

45 Para 14, 429.

46 See, eg Whallon v Lynn, 230 F.3d 4540 (1st Cir 2000) [held that unmarried father had custody rights under the doctrine of ‘patria potestas’ in Mexico]; In re Application of Adan, 437 F.3d 381, (3rd Cir 2006) [case remanded to determine scope of unmarried father's rights in Argentina]; In re Application of Adams ex rel. Naik v Naik, 363 F.Supp.2d 1025 (2005) [finding no custody rights of unmarried father in England]; In re Parentage of C.A.M.A. 103 Wash. App. 1032, (2000), [unmarried father in Germany did not have custody absent a subsequent marriage or joint custody declaration)].

47 The 1980 Convention has become the centre-piece of the Hague Children's Conventions (1993 Adoption Convention; 1996 Convention on the Protection of Children; 2007 Convention on the Recovery of Maintenance). Beginning with the first Judicial Seminar in 1998, in DeRuwenberg, Netherlands, Sponsored by the Hague Conference, through the 2010 International Judicial Conference on Cross-Border Family Relocation in Washington DC, co-sponsored by the Permanent Bureau, the International Centre for Missing and Exploited Children, with the support of the US State Department, the 1980 Convention has been highly successful in attracting the participation of judges, legal scholars, practitioners and government leaders to improve the operation of the Convention. (See note 49, infra.) Since 1999, 16 volumes of the Judges' Newsletter have been published, focusing on the operation, interpretation and improvement of Convention processes.

48 Slip opinion, dissent, p 14.

49 This was the subject of a recent conference co-sponsored by the Hague Conference on Private International Law, the International Center for Missing and Exploited Children and the U.S. State Department. See ‘International Judicial Conference on Cross-Border Family Relocation’, Declarations, 23–25 March 2010, at http://www.hcch.net/index_en.php?act=evenys.details&year=2010&varevent=188&zoek=ICMEC

50 Automatic ne exeat orders are not uncommon in the United States. See California Family Code §204050 and Connecticut Practice Book §25-5(a)(5)50 both of which automatically restrain parents at the commencement of the proceedings from removing the child or children from the state without the written consent of the other party or by order of the court.

51 See Thomson v Thomson (n 43) [1994] 3 SCR 551, 589–590 (Canada).

52 Stevens, J, joined by Thomas and Breyer, JJ.

53 Slip Opinion, dissent, p 15 n 9.

54 Slip opinion p. 10.

55 ‘This Court should be most reluctant to adopt an interpretation that gives an abducting parent an advantage by coming here [to the United States] to avoid a return remedy that is granted, for instance, in the United Kingdom, Israel, Germany, and South Africa.’ Slip Opinion, p 17.

56 ‘In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.’ See Baxter v Baxter, 423 F.3d 363 (3rd Cir 2005) and Mozes v Mozes, 239 F.3d 1067, 1085 (9th Cir.2001); See also Federal Rules of Civil Procedure Rule 44, ‘A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law.’

57 Eg Shalit v Coppe, 182 F.3d 1124 (9th Cir 1999) ‘Thus, an attorney's declaration as to the application of another country's law is generally acceptable in Hague Convention cases. Although the standards for proof of foreign law are relaxed under the Convention, the district court is not precluded from considering the source of the information, i.e., the petitioner's own attorney.’ ibid 1129, n 7.

58 526 F.3d 1340 (11th Cir. 2008).

59 221 F.3d 204 (1st Cir. 2000).

60 This issue is subject to a split of authority among the federal circuit courts. See Baran and Walsh, supra, versus the holdings in Friedrich v Friedrich, 78 F.3d 1060, 1069 (6th Cir 1996); followed by In re Application of Adan, 437 F.3d 381, 395 (3rd Cir 2006); and Blondin v Dubois (Blondin I) 189 F.3d 240 (2nd Cir. 1999)

For this reason, it is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child's repatriation. In the exercise of comity that is at the heart of the Convention . . . , we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it.

* * * *

‘Under the circumstances presented, we think it appropriate to remand this matter to the District Court for further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course by a French court with proper jurisdiction. 189 F.3d 240, 248–249.