The Hague Convention on Child Abduction:



The Hague Convention on Child Abduction:

how about the best interests of the child?

Th.M. de Boer(

1. Introduction

If you really want to get depressed I suggest you go on the internet and find some websites on child abduction. I am not referring to the various sites that might be of interest to lawyers, those where one can find the text of court decisions or technical information about the Hague Convention on Child Abduction.[1] The sites I mean are those sponsored by agencies supporting the parents of missing children on the one hand, and organizations defending the position of child abductors on the other. Depending on their perspective, a child abductor is portrayed either as a reckless criminal, a child molester or a prostitute, or as a devoted parent, practically a saint, desperately seeking refuge from a bunch of bureaucrats whose only intention it is to separate the child from the only person it can trust and with whom it feels safe, and to send it back to some barbarous foreign country.

Naturally, such information is grossly exaggerated, on both sides. The fact that an abducting parent has a piercing and a tattoo does not prove that he or she is unfit to raise a child. The fact that the other parent is Italian and owns a café does not prove that he is a mafioso or an alcoholic, nor does it indicate that he is not devoted to his child. The most one could conclude from reading these case histories – and the comments by sympathetic outsiders – is that the child is used as a weapon in a relentless battle for revenge between two people whose affectionate relationship has irretrievably broken down. Even though both parties will vow that they are only motivated by the best interests of the child, righteous anger, wounded pride and an acute sense of loss may lead to a compulsion to hurt the former partner where it hurts most: being severed from his or her offspring.

The questions I should like to address in this article do not focus on the plight of the child abductor, nor on the distress of the left-behind parent. Instead, I should like to make a few remarks on the concept of ‘the best interests of the child’ in light of the application of the Hague Child Abduction Convention by the Dutch courts. I have written case notes on all child abduction decisions rendered by the Dutch Supreme Court[2], except one in which the appeal in cassation was filed too late.[3] All in all, the Hoge Raad has ruled on ten child abduction cases. In all of them, the child had been taken abroad by the mother. Most of those cases focused on the interpretation of Article 3 and Article 13(a) of the Convention on the one hand, and Article 13(b) on the other. In other words: the two issues on which the Hoge Raad has ruled several times either concerned the question of whether the father had allowed the mother to take the child to the Netherlands, or to stay there indefinitely, or the mother’s claim that the child would be exposed to physical or psychological harm or that it would be placed in an intolerable situation if the court would order its return.

2. The objectives of the Hague Convention

I must confess that, at first, I had little sympathy for those who clamored that children who had been brought to the Netherlands should not be sent back, and that they should be given a safe haven here, away from the barbarous lands and good-for-nothing fathers from which they had been taken by their desperate mothers. Influenced by Dutch newspapers like De Telegraaf even members of parliament joined in the chorus of those who maintained that the Hague Convention was definitely not in the best interest of the child, and that it better be suspended or denounced.[4] I did not agree with them then, and I do not agree with them now. In the meantime, however, there have been some decisions that made me wonder whether the principal objective of the Convention can be reconciled with our concern for the best interests of the child. I cannot escape the impression that in some cases a strict application of the Convention – as required by its main objective – will prove to be quite harmful to the child’s welfare.

Let us start, then, by examining the Convention’s raison d’être. Why was there a need for it, and what purpose was it meant to achieve? Answers to these questions can be found in the Preliminary Report by Adair Dyer, included in the Actes et Documents of the 14th Session of the Hague Conference.[5] He mentions various factors contributing to a rapid increase in child abduction in the 1960’s and 1970’s. One of those factors is the rising number of international marriages, that is: a marriage between spouses of different nationalities.[6] Due to cultural differences, a relatively large proportion of such marriages ends in a breakdown of the marital relationship. It is interesting to note that in Dyer’s scenario a major cause of child abduction would be the abductor’s frustration over the attribution of custody and access rights.[7] In other words: your marriage has ended in divorce, your ex has been granted full custody, and you either have no access rights at all, or they are being frustrated by your former spouse. So you take the children and run, hoping that the courts of another country will entrust the children to you. If they do, there will be conflicting custody decrees, neither of which can be enforced in the other country.

In Dyer’s model, there is a strong suggestion that the frustrated parent is the child’s father, the mother being the parent who has been granted custody rights. As we know now, there is another scenario, in which there is no question of divorce yet, or, at any rate, parental authority is still exercised by both parents. A typical situation is the one in which one spouse has joined the other in the latter’s home country. After a period of marital bliss, their relationship breaks down. In many cases, foreign spouses will neither have the financial resources nor the social network to leave the matrimonial home and to start a new life in the same city or state. So, they will start planning to go back to their country of origin, where they may expect a warm welcome from relatives and friends, a place to stay and possibly a job. However, they could not very well give up their children, so there is no alternative but taking them along. In this model, the abducting parent is likely to be the mother. Statistical data confirm that this is – at least nowadays – a more realistic scenario than the one described by Dyer.[8]

Either way, the Hague Convention was meant to deprive the actions of the abducting parent from any practical or juridical consequences.[9] In other words, child abduction should not lead to a shift of jurisdiction nor to a change of the applicable law with regard to parental authority. The primary objective of the Convention, therefore, is to restore the status quo ante: the child has to be sent back to the country from which it was abducted, and it is for the courts of that country to decide which parent should become the primary caretaker.[10] The second objective, mentioned in Article 1(b), is to ensure that rights of custody and access under the law of one Contracting State are effectively respected in another. According to the Explanatory Report, there is a direct link between the two objectives, in that parents considering child abduction in the hope to win custody rights in another country might be prevented from doing so if they know not only that the child will promptly be returned, but also that existing custody rights will be respected, and can only be changed by the courts of the child’s original residence.[11]

3. The notion of ‘the interests of the child’ under the Convention

With regard to the best interests of the child, the Convention’s Preamble opens with the proclamation that ‘the interests of children are of paramount importance in matters relating to their custody’. There is no further reference to this concept in the text, but the Explanatory Report takes the position that both the Convention as a whole and several of its provisions are expressions of a heart-felt concern for the child’s best interests. It is thought that those interests should not be measured against the cultural or social standards of any national community, as this is likely to lead to ‘subjective value judgments’.[12] Instead, the Convention is based on an objective, or international standard as adopted by all Contracting States: it is definitely not in the child’s interest to be removed from its habitual environment. Conversely, it is generally in the child’s best interest if it is promptly sent back to where it came from. Yet, there may be other objective reasons justifying an exception to this rule. Thus the grounds on which the return of the child may be refused – such as the risk of physical or psychological harm, or the child’s own objections – are said to be ‘concrete illustrations’ of the principle that the interests of the child should come first.[13] Another example is the provision on access rights, Article 21, as the development of the child’s personality is supposed to be best served by relations with both parents, so access rights are considered as the ‘natural counterpart’ of custody rights and should be protected.[14]

From this summary of the Convention’s objectives and its abstracted notion of the child’s best interests, it follows that a court ruling on a petition for the return of an abducted child should refrain, first of all, from addressing the question of whether the child would actually be better off with the father or the mother, with the abductor or with the left-behind parent. By doing so, it would assume the task of a court deciding on custody matters, and as we have seen, a right of custody as established under the law of the country from which the child was abducted should be respected. This is certainly true in cases in which a custody order has already been made abroad, but even if there is no such decision, it should be left to the authorities of the child’s original residence to decide what is best for the child. The only room for consideration of the best interests of the child can be found in the exceptions of Articles 12, 13 and 20, expressing those interests in a rather abstract way, which does not – or should not – allow for ‘subjective value judgments’ based on national notions of a child’s welfare. Thus, properly understood, the Convention hardly leaves room for weighing the pros and cons of returning the child or letting it stay with the abducting parent. In this perspective, the decisions by the Hoge Raad, harsh as they may seem, can hardly be faulted.

4. The validity of the Convention’s points of departure in practice

That does not mean, however, that there is nothing wrong with the Convention and the way it is applied. In my view, the Convention is based on at least two premises that have proved to be less true than its drafters originally assumed. The first premise is the notion that the return of an abducted child to its country of origin is normally in the child’s best interest. The second one is the idea that the authorities in that country are best placed to determine what is best for the child: whether it should be raised by its father or its mother, whether the other parent should or should not have access rights, et cetera. In theory, these premises may be sound but their validity is flawed by actual circumstances the drafters of the Convention may not have foreseen. Let me explain this in more detail.

4.1. A prompt return is in the best interest of an abducted child

First, the Convention’s point of departure. Children should be protected from the harmful effects of their wrongful removal from their habitual environment, so the Convention is meant, primarily, to ensure their prompt return.[15] I do not want to complicate the issue by recalling situations in which the left-behind parent requesting the return of the child no longer resides in the environment from which the child was abducted. In such cases, the argument that the interests of the child are best served by sending it back to the place from which it was wrongfully removed is no longer valid, as that argument is based on the idea that the child suffers most from the sudden upsetting of its stability, not only by losing contact with one of its parents but also by having to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives, to quote again from the Dyer report.[16] So let us assume that the left-behind parent still lives in the same place, and that the child will be returned to its former habitual environment: to the school it used to go to, to its siblings, other family members, teachers and playmates, from whom the child derived its stability. Let us also assume that the child did have real ties with that environment, and let us ignore the situation in which a young child never had a chance to settle in one place.[17] If the family was continually on the move, living in various countries for short periods of time, restoring the stability of the child’s environment is hardly a compelling argument for its prompt return. Instead, let us take a relatively ‘normal’ situation: the removal of a child from its habitual environment, where it had its roots, and where the left-behind parent still lives.

I am quite willing to accept the view that it is best for the child if it is promptly returned to that stable environment, and that the status quo ante is restored as soon as possible. However, the more time elapses between the moment the child was abducted and the date of its return, the less compelling this argument becomes. Apart from the fact that the stability of the child’s environment is upset anyhow if its parents decide to separate – that is true in both domestic and international cases, with or without the trauma of abduction – I find it rather difficult to believe that the harmful effects of an abduction can still be undone if the child is not promptly returned and is allowed to get settled into its new environment. This is also acknowledged in the Convention itself, and in the Explanatory Report: time is of the essence.[18] That is why Article 11 prescribes that the authorities shall act ‘expeditiously’ in proceedings for the return of children, and that a decision should be reached, generally, within six weeks.[19] Furthermore, if a period of more than one year has elapsed between the abduction and the start of the judicial proceedings, the child will not be sent back if it is demonstrated that it is now settled in its new environment.[20] In other words: chances are that the child will have adapted to its new environment after if has stayed there for a year or longer, and in that case, its interests would not be served by sending it back to the country from which it was abducted. If this is true – and I am quite willing to believe it is – I do not see why this reasoning only applies to situations in which legal proceedings were started more than one year after the abduction took place. What is the difference between this situation and those in which the proceedings themselves take more than a year, even if they were started within a year after the abduction? In both cases, the child must have adapted to its new living conditions, and in both cases it could be said that, after a year, it has probably settled into its new environment.

To illustrate this point, I have done some arithmetic. Using the cases decided by the Hoge Raad[21], I have calculated how much time elapsed between the date of abduction and the final decision. I found that, on average, proceedings were commenced within four months after the abduction. In first instance, the courts needed two months to decide on a petition for the return of the child. Another nine weeks elapsed between the decision in first instance and the decision of the courts of appeal. Thus, on average, a return order is given by the Dutch courts within slightly over eight months after the abduction, including appeal. The proceedings themselves take approximately four months. This period is greatly expanded when the case is submitted for review by the Hoge Raad. On average, the cassation proceedings take thirty three weeks (in one case more than a year[22], in another only four months[23]), which brings the total average to one year and four months from the date of abduction, or one year for the proceedings themselves. This does not mean that, by then, the case is over. First of all, if the mother is ordered to return the child – it will be remembered that the abducting parent in all cases decided by the Hoge Raad was the mother – she might try to fight enforcement of the order. This could mean that enforcement proceedings are started, followed by an appeal and possibly review in cassation. Secondly, in those cases in which the Hoge Raad reversed the appellate decision, the case was remanded to another court of appeal for further decision, which implies further delays. An illustrative example is the case of the child abducted from Italy.[24] In first instance and on appeal, the father’s petition for his daughter’s return was rejected. On January 20, 2006, seventeen months after the child had been brought to the Netherlands, the Hoge Raad reversed the appellate decision and remanded. Nine months later, on September 20, 2006, the Court of Appeal of The Hague decided it wanted to hear the child itself, even if it was then barely six years old.[25] On the day the Court ordered the return of the child[26] – January 17, 2007 – she had been living in the Netherlands for two and a half years. She was four years old when her mother removed her from Italy, and nearly seven when she was sent back there.[27] I can hardly believe that the interests of this child have been served in any way by returning it to Italy, and by upsetting again the stability she probably found in the meantime.

4.2. The courts of the child’s original residence are best placed to deal with custody issues

Before discussing the possible remedies to this problem, let me first address the second premise underlying the Convention, the one holding that the interests of an individual child can best be assessed by the authorities of the country of its original habitual environment. In other words: any decision about custody and access rights should be left to those authorities. The assumption is that such decisions, if they were rendered before the abduction, must be respected, and if such a decision is yet to be made, it should be left to the local authorities to do so. Again, this seems a reasonable point of departure, at least in theory. The main reason why jurisdiction in custody cases is primarily conferred upon the courts of the country in which the child has its habitual residence[28], is the fact that those courts are in the best position to assess the child’s domestic situation. They can consult with local child protection agencies, and they can give the child itself an opportunity to be heard if it is sufficiently mature to express its own opinion. If it is expected that – with the help of the Convention – an abducted child will be back in its former environment within a few months, there is no reason to shift jurisdiction on custody matters to the courts of the country where the child will stay only temporarily. That explains the Dutch slogan summing up the essence of the Child Abduction Convention: ‘eerst terug, dan praten’, no talk before the child is back. The assumption is that a return order will restore the status quo ante, that is: the child is brought back to its former environment, the caretaker will resume his or her parental duties, and, once everybody has recovered from the shock, the local authorities will decide whether the now restored situation will be allowed to continue, or that the daily care of the child should be transferred to the other parent.

In practice, however, things work out a little differently. As we have seen, most child abductions are carried out by the mother. In most cases, the mother is also the primary caretaker, especially when the children are very young. In most cases, both parents exercise joint custody rights, either by operation of law, or by a judicial or administrative decision. That is why the assumption that the left-behind parent is the sole custodian of the child, or at least the day-to-day caretaker is often incorrect. Furthermore, the assumption that the mother will be able to return with the child and to participate in court proceedings over custody and access rights has proven to be unrealistic. In reality, a mother who has fled the family’s home country will have a hard time to get back in, either because she runs the risk of criminal prosecution, or because she no longer has a valid residence permit, or, more practically, because she no longer has a home, a job, or the financial resources to resume her former life. Furthermore, in several of the cases decided by the Hoge Raad, it turned out that the authorities of the country from which the child had been abducted did not wait for the return of the child but awarded custody to the father while the child and the mother were still abroad. It is hard to escape the impression that such decisions are not inspired by the best interests of the child but by the idea that the alien mother should be punished for her defiant behavior. In other words: the shift of custody rights is a form of retaliation in behalf of a citizen of the forum state. All in all, it will be clear that the Convention’s objective of restoring the status quo ante is greatly frustrated both by legal and practical obstacles preventing the mother from returning with the child and by premature decisions on the child’s welfare. Such practical aspects also throw some doubt on the Hoge Raad’s restrictive interpretation of Article 13(b), providing for an escape if an order to return the child would place it in an intolerable situation.

Another (rather repugnant) example may serve to illustrate this point. One of the recent Hoge Raad decisions dealt with a child abduction from Hawaii.[29] A Hawaii court had temporarily lifted an order for the child to stay in Hawaii, to allow mother and child to visit her family in Amsterdam between June 13 and July 5, 2005. The order also included a sanction: if the mother would fail to bring the child back to Hawaii after July 5, custody rights would be granted exclusively to the father. When the child did not return on that date the father started proceedings in the Netherlands under the Convention. While the court of first instance had ordered the return of the child, the Amsterdam Court of Appeal reversed, on the ground that upon her return to the United States the mother might be arrested for child abduction, which would imply a prolonged separation from her child. Incidentally, this was the case in which the Amsterdam police tried to arrest the mother when she was leaving the court building, after the father had reported her for child abduction. The Court of Appeal was not amused, and it made it clear that its finding for the mother was partly based on the father’s self-serving behavior. Anyhow, the decision was quashed by the Hoge Raad, since the mother had not been able to prove that she would not be allowed entry into the United States. The Central Authority had suggested that she was eligible for a so-called Significant Public Benefit Parole, a document that allows entry to all aliens without a visa if their presence would be in the American public interest. Appearing in American court proceedings is thought to further that interest. In other words, if the mother would only have applied for that document, she would have been allowed to return to Hawaii to plead her case.

What the Hoge Raad ignored was the fact that on July 7, 2005, two days after the mother had been due back in the United States, the Hawaii court, as it had threatened to do, granted custody to the father. Therefore, the proposition that the mother could return to Hawaii with the help of a special kind of visa and that she could plead her case there before a Hawaiian court is obviously moot. First, it is quite unlikely that the Hawaiian court would decide in favor of the mother after it had just awarded custody to the father, and, second, the mother would not be allowed to stay in Hawaii indefinitely. A Significant Public Benefit Parole would only allow her to conduct her business in court; after that she has to leave the country immediately. Either way, it is most likely that mother and child will be separated until the child reaches majority.[30] In my view, the best interests of the child have been sacrificed in this case to indignation over child abduction and contempt of court in Hawaii, and in the Netherlands by a rigid application of the ‘eerst terug dan praten’ maxim by the Hoge Raad.

5. Some suggestions for improvement

I have been thinking about various way to mitigate the unwanted effects of the Hague Convention, particularly where the objective of returning the child as swiftly as possible cannot be achieved, or where the child abductor is not given a fair chance to be heard in custody proceedings and the custody decree is a means of retaliation rather than a decision in the best interest of the child. So, in conclusion, let me make a few suggestions. I am afraid that any suggestion calling for a revision of one or more of the Convention’s provisions is fruitless. One such suggestion was made by the Swiss delegation to the Special Commission on General Affairs and Policy of the Hague Conference[31], and I have been told that the proposal to relax Article 13(b) even a little did not stand a chance.[32] All in all, it is hard to escape the impression that the Special Commission has a rather self-satisfied view of the way the Convention operates. I do not think any solution can be expected from those quarters. Nor should we build our hopes on the willingness of other Contracting States to change their immigration laws, or to restrain their courts in issuing premature custody decrees, or to allow both sides to be heard without judicial bias against the abductor. This pessimistic view should not keep us from thinking about improvements we could make ourselves.

As far as the second problem is concerned – retaliatory custody decisions by the court in country A before the child’s return has been ordered by a court in country B – there is not much we could do about it in the Netherlands except adopting a procedural rule calling for a stay of custody proceedings with regard to children abducted from the Netherlands until they have actually been returned. If I would not be hampered by a sense of reality, I would also be in favor of a rule that would transfer jurisdiction in custody matters to the courts of the country where an abducted child has remained for over a year, especially if it is clear that there is no chance that the courts of the child’s country of origin will grant the abducting parent access rights, let alone custody, or if those access rights cannot be exercised in actual practice. That, however, would not only call for a revision of the Convention but also of the Brussels II-bis Regulation, and I do not think that is in any way feasible.

The other problem – unacceptable delays between the abduction and the final order for the child’s return – can only be solved on a national level by limiting the possibilities for appeal or review by the Hoge Raad, plus the procedural possibilities for opposing enforcement. It would already make a huge difference if child abduction proceedings would be dealt with in only two instances rather than three. If only an ordinary appeal would lie, the proceedings would generally take no longer than four months, and there would be no cause for remand following a reversal by the Hoge Raad. On average, the return of the child could be ordered within a total of eight months following the date of the abduction. As far as enforcement is concerned, I cannot think of any reason why a suspension would serve the interests of the child, after a Dutch court has ordered its return. That is why I do not think the abducting parent should be allowed to attempt to stay the enforcement by kort geding or any other procedural means normally available.

I am aware that my suggestions, if adopted, would make it more difficult for the abducting parent to resist or delay the return of a child for whom he or she was trying to find a safe haven in the Netherlands. I am also aware that such measures might put the Netherlands at a disadvantage vis-à-vis other Contracting States unwilling to adopt similar provisions to expedite proceedings and to prevent retaliatory custody orders. On the other hand, I think we should not be guided by the plight of the abducting parent, even if she is Dutch, nor by any kind of quid pro quo reasoning. Whether we like it or not, we are bound by the Hague Convention. If the Convention cannot be changed, we must try to find ways to improve its operation, even on a national level, in the best interests of the child. To me, that is the one and only consideration.

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( Professor of Private International Law and Comparative Law, University of Amsterdam; member of the Netherlands Standing Committee on Private International Law. This article is based on a lecture I gave at the annual spring meeting of the Netherlands International Law Association on June 5, 2007. My co-speaker was William Duncan, deputy Secretary-General of the Hague Conference on Private International Law and an intenationally renowned authority on the operation of the Convention on Child Abduction.

[1]. Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Recueil des Conventions/Collection of Conventions (1951-2003), edited by the Permanent Bureau of the Hague Conference on Private International Law, p. 262-281. The text of the Convention and a wealth of useful information on its implementation can be found on the website of the Hague Conference: . The Hague Conference has also launched a website featuring a database on child abduction cases: , which, at any rate as far as Dutch case law is concerned, is not quite up-to-date, unfortunately.

[2]. HR 14 April 2000, NJ 2001 450 (U.S.A.); HR 14 April 2000, NJ 2001, 452 (Denmark); HR 14 July 2000, NJ 2001 451 (U.S.A.); HR 18 October 2002, NJ 2003, 345 (Canada); HR 18 March 2005, NJ 2005, 563 (Israel); HR 20 January 2006, NJ 2006, 545 (Italy); HR 20 October 2006, NJ 2007, 383 (Hawaii); HR 20 October 2006, NJ 2007, 384 (Germany); HR 1 December 2006, NJ 2007, 385 (Australia).

[3]. HR 31 March 2006, NJ 2006, 232 (France).

[4]. Aanhangsel Handelingen Tweede Kamer 1998-1999, no. 1566; ibid., 1999-2000, nos. 111 and 952; ibid., 2000-2001, no. 40.

[5]. Adair Dyer, Report on international child abduction by one parent (‘legal kidnapping’), Actes et Documents de la Quatorzième session, Tome III, p. 12-51.

[6]. Ibid., p. 19.

[7]. Ibid., p. 20: ‘In the case of a broken marriage or relationship, where custody has been settled on one of the former partners, exclusion of the non-custodial parent from access to the child may build frustration, and ultimately despair.’ See also: Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction, Oxford, 1999, p. 9: ‘Indeed, it has been recognised by Adair Dyer, former Deputy Secretary General of the Hague Conference, that in the 1970’s when the Convention was being prepared the paradigm case was that of the father who became so frustrated with being denied access to his child or children after the court had granted sole custody to the mother, that he stole the child, went abroad, and then underground.’

[8]. On , the website of the Hague Conference, under Hague Convention on Child Abduction, one can find statistical data in: A statistical analysis of applications made in 2003 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part I (eds. Nigel Lowe et al.), Preliminary document no. 3. In 2003, only 29 % of the abductors were fathers, 68 % mothers (at p. 21), figures that have been stable, apparently, since 1999. It was also found that in 84 % of the abduction cases the abductor was also the child’s primary caretaker.

[9]. Explanatory Report by Elisa Pérez Vera, Actes et Documents (supra note 5) no. 16 at p. 429.

[10]. Ibid.

[11]. Explanatory Report, no. 17 at p. 430: ‘... whilst the prompt return of the child answers to the desire to re-establish a situation unilaterally and forcibly altered by the abductor, effective respect for rights of custody and of access belongs on the preventive level, in so far as it must lead to the disappearance of one of the most frequent causes of child abduction.’ See also: infra, note 13.

[12]. Explanatory Report, no. 22 at p. 431. See also: Beaumont & McEleavy, supra note 7, p. 29: ‘It is the interest of children collectively that the Convention seeks to further by returning wrongfully removed and retained children to their home environment. Once there, a substantive hearing can be held to investigate the merits of the actual case.’

[13]. Explanatory Report, no. 25 at p. 432: ‘It is thus legitimate to assert that the two objects of the Convention – the one preventive, the other designed to secure the immediate reintegration of the child into its habitual environment – both correspond to a specific idea of what constitutes “the best interest of the child”.’

[14] . Explanatory report, no. 26 at p. 432.

[15]. Cf. the Preamble: ‘Desiring to protect children internationally from the harmful effects of their wrongful

removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence as well as to secure protection for rights of access’.

[16]. Actes et Documents, supra note 5, p. 21.

[17]. This was obviously the case in HR 20 January 2006, NJ 2006, 545. Before the mother removed her four-year old child from Italy to the Netherlands, the family had lived in four different countries at more than twenty different addresses. During those four years, the child had been staying with the mother and her family in the Netherlands for prolonged periods of times. That is why the mother argued that the child did not have its habitual residence in Italy, implying that she could not have wrongfully removed her daughter from that country.

[18]. Explanatory Report, no. 36 at p. 435: ‘Now, where the removal of a child is concerned, the time factor is of decisive importance. In fact, the psychological problems which a child may suffer as a result of its removal could reappear if a decision on its return were to be taken only after some delay.’

[19]. See also: Art. 11(2). If the judicial and administrative authorities of the Contracting States have not reached a decision within six weeks from the date of the commencement of the proceedings, they may be asked (either by the applicant or the Central Authority of the requesting State) to state the reasons for the delay. Art. 11(3) Brussels II-bis Regulation also requires expeditious proceedings and allows a maximum of six weeks ‘except where exceptional circumstances make this impossible’.

[20]. Art. 12(2).

[21]. Supra, notes 2 and 3. I had to leave out HR 14 April 2000, NJ 2001, 452 (Denmark), as the real issue in this case was not child abduction (the mother had taken the child to Denmark, so it would have been up to a Danish court to decide whether or not the child should be returned to the Netherlands) but the extent of the custody rights of the Dutch child protection agency in whose care the child had been placed.

[22]. HR 14 April 2000, NJ 2001, 450 (U.S.A.).

[23]. HR 20 October 2006, NJ 2007, 383 (Hawaii).

[24]. HR 20 January 2006, NJ 2006, 545.

[25]. Court of Appeal The Hague 20 September 2006, LJN AZ4487.

[26]. Court of Appeal The Hague 17 January 2007, LJN AZ7099.

[27]. Following the Court of Appeal’s decision, the child was sent back to Italy to live with her father. An appeal in cassation from this decision is now pending. Although I hardly expect that the Hoge Raad will reverse, it would be interesting to know what would happen if it did do so. Most probably, the case would be remanded again. If another court of appeal would then decide that the mother had not wrongfully removed the child from Italy, could it be realistically expected that the Italian authorities would send the child back to the Netherlands? Even if they would be prepared to do so, they still have the last word on the custody issue: Article 11(8) Brussels II-bis Regulation. In all likelihood, they would (again) grant exclusive custody rights to the father, a decision which is directely enforceable in the Netherlands: Art. 42 Brussels II-bis.

[28]. Cf. Art. 8 Brussels II-bis Regulation; Art. 1 Hague Convention on the Protection of Minors 1961; Art. 5(1) Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (not yet in force in the EU).

[29]. HR 20 October 2006, NJ 2007, 383.

[30]. On remand, the Court of Appeal ordered the return of the child to Hawaii: Court of Appeal The Hague 7 February 2007, LJN AZ7987. I am told that the mother, again, has lodged an appeal in cassation. Since the father seems to have moved – temporarily I assume – to the Netherlands, the decision by the Court of Appeal has not yet been enforced; the child has remained in the Netherlands since June 13, 2005 – illegally as per July 5 – which is well over two years at the time I am concluding this article (September 2007). The Hoge Raad’s (second) ruling is expected some time this fall.

[31]. See: Hague Conference Special Commission on General Affairs and Policy of the Conference (3-5 April 2006), Working Doc. no. 1E, Proposal of the Delegation of Switzerland. One of the Swiss proposals required a revision of Art. 13(1)(b) along the following lines: ‘The refusal to return the abducted child should be invoked in the event that the return of the child places the child in an intolerable situation. This is particularly so if being placed with the requesting parent or a third party is manifestly not in the interests of the child and if the parent who has abducted the child cannot return with the child or this cannot be reasonably expected of him/her’ (my italics, dB). The proposals were discussed by the Special Commission during its meeting in November 2006: see Preliminary Doc. no. 19, p. 59 ff.

[32]. The final report of the meeting of the Special Commission on the operation of the Child Abduction Convention (Preliminary Doc. no. 19, at p. 60) is not very illuminating. It appears that some experts ‘expressed concern’, others ‘expressed support’ for the Swiss proposal, while some noted ‘that it was important to be positive and innovative in the area’. The proposal was said to be embodied in an Appendix entitled ‘Additional considerations relevant to the safe return of the child’. Whatever that may have meant – the recommendations in the Appendix are utterly bland and noncommittal – it is clear that a revision of Art. 13 is not under consideration.

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