International mechanisms toward improving cooperation in the settlement of cross-border family disputes, including Canada’s actions to encourage universal adherence to and compliance with the Hague abductions convention, and to strengthen cooperation with non-Hague state parties with the purpose of upholding children’s best interests
Madam Chair and distinguished members of the Committee, I am honored to appear before you today to discuss the challenges of cross-border family disputes involving the Hague Convention on the Civil Aspects of International Child Abduction as well as those involving non-Hague states.
The International Centre for Missing & Exploited Children (“ICMEC”) is a not-for-profit corporation, which is leading a global movement to protect children from exploitation and abduction. We have
- Trained law enforcement in 121 countries;
- Reviewed laws in 200 countries and worked with parliaments in 100 countries to enact new law on child pornography.
- Reviewed laws in 200 countries, developed model law on child sexual exploitation, and worked with parliaments and international bodies to change national legislation and international conventions.
- Created a research institute, the Koons Family Institute on International Law & Policy, to examine child abduction and sexual exploitation and launch policy initiatives with world leaders.
- Built a 22-nation Global Missing Children’s Network, which includes Canada;
- Entered into formal partnerships with Interpol, the Organization of American States, the Hague Conference on Private International Law, and others.
- Hosted international conferences, including a 2010 conference of judges from 15 countries including Canada at the US Department of State to examine cross-border transportation of children, resulting in the “The Washington Declaration.”
- Managed private sector financial industry and technology industry coalitions to address child sexual exploitation.
- Launched a Global Health Coalition of pharmaceutical companies and health care institutions to attack the problem of child sexual abuse and exploitation not just from a legal and law enforcement perspective but as a public health crisis.
- And there is much more.
We admire and are deeply grateful for Canada’s extraordinary leadership in these areas. ICMEC entered into a formal Memorandum of Understanding with the Royal Canadian Mounted Police (RCMP) National Child Exploitation Coordination Centre. We also work closely with the RCMP’s National Centre for Missing Persons and Unidentified Remains; the Canadian Police Centre for Missing and Exploited Children; the International Bureau for Children’s Rights; many Canadian NGOs; and others.
We created ICMEC in 1998 in large measure because of growing concerns about international parental child abduction and the operation of the Hague Convention on the Civil Aspects of International Child Abduction. In 1998 I co-chaired the International Forum on Parental Child Abduction, which brought together a global working group of experts in Hague Convention practice.
The attendees of that forum identified a series of problems including a lack of systematic data on the operation of the Hague Convention; wide variations in outcomes among Hague Convention countries; undue delay in reaching resolutions; difficulty in locating children who are the subject of a Hague Application; lack of adequate support for victim families; varying competence and experience of attorneys and judges handling abduction cases within individual States; lack of uniformity in the interpretation of the Hague Convention particularly with the “exceptions” under Article 13; improper use of narrowly-defined exceptions to return; lack of enforceability of some return and access orders; and much more. Even with all of the progress that we have made, it is striking how the challenges we face today are much the same as they were 16 years ago.
In 2000 we held the Second International Forum on Parental Child Abduction. We concluded that the treaty itself should not be modified, and that its original intent was more important than ever before, but that we must do far more to support and assist signatories, helping to ensure that the true intent of the Convention is realized. The attendees adopted a resolution urging the Hague Permanent Bureau to produce and promote Practice Guides to assist in the implementation and operation of the Convention.
ICMEC proposed that the practice guides address the operation of Central Authorities, enforcement of orders, access and prevention. The good practices identified in the guides would not be legally binding upon signatory countries, but would serve as guidance to countries in order to help ensure the most effective process possible.
ICMEC formally proposed that this process be adopted at the Fourth Special Commission meeting at The Hague in March 2001 and implemented for all signatory countries. At that Special Commission meeting ICMEC successfully advocated for member states to support its proposal to create Guides to Good Practice to help implement the Convention. The proposal was adopted and ICMEC committed to assist in this effort.
In April 2003 at the Peace Palace at The Hague, ICMEC and the Hague Permanent Bureau entered into a formal Memorandum of Understanding to work together on these issues. Since then ICMEC and the Hague Permanent Bureau have collaborated on the creation of Guides to Good Practice to help existing and new Contracting States organize their judicial and administrative systems to effectively implement the Convention. And ICMEC has assisted the Hague Permanent Bureau in many other ways, including funding research on outcomes among member countries.
In October 2004 at The Hague ICMEC hosted a forum on International Child Abduction and the 1980 Hague Convention. We convened experts from across Europe and the United States. Out of this meeting came a number of questions and recommendations for ICMEC to explore in preparation for the 5th Special Commission meeting.
Among those questions was: Are Good Practice Guides alone enough to guarantee change?” We concluded they were not and agreed to explore methods for monitoring the implementation of Good Practice in all Contracting States.
We discussed the need to improve trans-frontier access/contact between parents and children, and identified a series of challenges including the operation in some states of procedures which are both insensitive to the special features and needs of
international cases and are the cause of unnecessary delays and expense; an inadequate level of international co-operation at both administrative and judicial levels; and
the absence of firm legal provisions to enforce access.
We discussed the importance of providing support and assistance to newly contracting states. There was caution among existing member states about accepting treaty relationships with newly acceding states they believed ill prepared to fulfill their obligations. This trend gave rise to the question—“Are we doing enough to ensure the acceptance of newly acceding states?”
To help advance this engagement with non-Hague states, I participated in the Hague Conference’s Malta process, in which judges from Islamic countries and other non-Hague states came together in Malta to meet with judges and experts from other parts of the world to explore the challenges associated with international child abduction and seek solutions.
Our most recent joint conference with the Hague Permanent Bureau was the International Judicial Conference on Cross-Border Family Relocation, held at the US State Department in March 2010. More than fifty judges and experts from fourteen countries, including Canada, gathered to develop a framework for handling these cases.
At the conclusion of the three-day meeting, the judges and other attendees adopted and issued the “Washington Declaration on International Family Relocation” which is a framework outlining the issues that should be considered by all judges to standardize how these types of cases are handled. The Declaration is already being used and cited in case law worldwide.
ICMEC is also active in promoting the ratification of the Hague Convention in non-signatory states. We are pleased that the total number of Hague signatories has climbed to 91 with its adoption by South Korea and Kazakhstan in 2013 and by Japan in 2014.
In my quarter century of work with leaders of the Hague Conference, I have learned over and over again that a country’s ratification of the Convention does not guarantee implementation. Our efforts to produce good practice guides and undertake research to monitor the extent of compliance demonstrate that there are Hague signatories which still do not meet the letter and spirit of the Convention.
So, what are the challenges for the future?
Is the Hague Convention working?
In 2011 ICMEC funded a global statistical survey on the operation of the Hague Convention. The research was conducted by our ICMEC board member and world-renowned expert on the Hague Convention, Professor Nigel Lowe of the Cardiff School of Law in the United Kingdom. Professor Lowe examined data from 60 of the then-81 Hague member countries, using 2008 data.
The conclusions were troubling:
There was a significant increase in the number of Hague applications, a 44% increase in 2008 as compared to 2003. Those numbers continue to increase.
There were fewer returns of children: The overall return rate was 46%, down from 51% in 2003, and just 27% were judicially ordered. In 2008 61% of court decisions resulted in a return compared with 66% in 2003 and 74% in 1999.
The Hague process is taking longer: The standard is 42 days or 6 weeks. Yet, the average time it took to for a court to order the return of a child was four times that, 166 days in 2008, compared to 125 days in 2003 and 107 days in 1999.
The key element is speed. The longer it takes, the lower the likelihood of successful resolution. In fact there is an incentive to create delays, making it more likely that a court will find that the child is now settled and that it is not in his or her best interests to be returned to their country of habitual residence.
As part of the analysis Professor Lowe attempted to calculate outcomes by member countries. A challenge in doing this kind of analysis is that there are multiple outcomes possible in each case. Applications can be rejected. There can be voluntary returns. There can be judicial returns by consent. There can be judicial returns without consent. There can be judicial refusals. There can be access agreed or ordered. At any given time there are cases still pending. Some applications are withdrawn.
Just examining cases in which there was judicial refusal to return a child to the country of habitual residence, while acknowledging there can be legitimate reasons for not returning a child per the exceptions provided under the Convention, the following represents a kind of indicator as to how prevalent non-return is among Hague signatory states. I have chosen a few selected countries to illustrate the range of outcomes and to demonstrate the complexity of trying to measure compliance:
Canada – 49 applications; 4 refusals
Australia – 75 applications; 16 refusals
Austria – 28 applications; 12 refusals
Bulgaria – 21 applications; 8 refusals
Colombia – 31 applications; 5 refusals
France – 75 applications; 12 refusals
Germany – 115 applications; 21 refusals
Ireland – 48 applications; 1 refusal
Israel – 24 applications; 3 refusals
Italy – 46 applications; 11 refusals
Mexico – 168 applications; 34 refusals
The Netherlands – 40 applications; 9 refusals
New Zealand – 37 applications; 3 refusals
Panama – 9 applications; 5 refusals
Poland – 67 applications; 26 refusals
Romania – 51 applications; 9 refusals
South Africa – 17 applications; 4 refusals
Spain – 64 applications; 15 refusals
Switzerland – 26 applications; 1 refusal
Turkey – 63 applications; 11 refusals
Ukraine – 30 applications; 5 refusals
UK/England and Wales – 199 applications; 15 refusals
USA – 283 applications; 20 refusals
Many cases are resolved through voluntary consent of the parties, and there are some cases in which judicial refusal is the correct response. Nonetheless, since the primary purpose of the Hague Convention is to ensure that custody is handled in a court of the country of habitual residence and to ensure the speedy return of the child to that court, a possible indicator of concern is if there is a high percentage of these cases that result in judicial refusals to return the child. Clearly, Canada’s record is outstanding.
Another important variable is time. Professor Lowe’s analysis (of 2008 cases) of the 60 countries examined, Canada’s mean time for getting a case to court was 54 days, placing Canada among the top 20 countries. By contrast the United States was the fifth worst in terms of the number of days it takes to get a case to court. The mean time in the US was 207 days (nearly seven months – remembering that the standard for complete resolution of these cases is six weeks/42 days). The US trailed only South Africa (270 days); Ukraine (250 days); Brazil (225 days); and the Czech Republic (221 days). And the 207 days in the US can be contrasted with 14 days in the UK, 14 days in Norway, 15 days in Poland, 24 days in Portugal, 35 days in Australia, 54 days in Canada, 66 days in Ireland and 72 days in Germany.
The number of days in a Canadian court once the cases are received is a moderate 69 days, contrasted with 48 days in a British court; 89 days in a German court, and 106 days in a US court.
Time is the key variable in making the Hague Convention work and getting more internationally abducted children home.
While Professor Lowe’s analysis is timely and important, it is just a snapshot at a particular point in time. We lack the kind of independent, on-going, systematic international data collection and monitoring that is necessary. In the United States the State Department conducts its own Hague compliance review which it submits to Congress. This review identifies countries in various stages of non-compliance or concern regarding US cases. In its most recent compliance review in 2013 the State Department found Costa Rica and Guatemala not compliant; identified “patterns of non-compliance” in The Bahamas, Brazil and Panama; and listed “enforcement concerns” in Argentina, Australia, France, Mexico, The Netherlands and Romania.
How can we improve cooperation with non-Hague countries?
While comprehensive data are hard to collect, historically and at least anecdotally it is clear that return rates are far lower in non-Hague countries. Thus, I would argue that it is far better to have an established process in place and a clear legal and administrative framework for addressing these cases. When there are issues of non-compliance, it is also far easier to address them with countries that have taken the legal step of ratifying the Convention and by so doing have made a policy statement of their intent to comply with the provisions and expectations of the Convention.
Many non-Hague countries have deeply held and long maintained traditions that result in a more rigid concept of best interests of the child. The challenges can be enormous. That is why we are encouraged by the movement toward bi-lateral agreements between Hague and non-Hague states. Some of the better known examples of bilateral agreements are Canada/Lebanon, Canada/Egypt, US/Egypt, UK/Pakistan, France/Algeria, etc.
While we have not had a positive history with certain non-Islamic countries like Japan, I am particularly skeptical about the likelihood of ratification of the Convention by countries in the Islamic world. We are encouraged by Morocco’s ratification of the Convention in 2010; Turkey’s ratification a decade earlier; and hope that others will follow. Morocco also ratified the 1996 Hague Child Protection Convention, and offers a possible model for building bridges between the Islamic world and Western law.
Yet, there are fundamental challenges. Courts in the Islamic world do not approach child custody or family law issues from the same perspective as Western courts. There are different approaches on equality between men and women, and there are differences regarding non-discrimination. Religious and cultural issues are uppermost. Thus, it is difficult to imagine that many of these countries will ever be willing to join in an international treaty whose primary purpose is to ensure that the court which makes the final determination on a child’s custody is the court in the country of the child’s habitual residence, in many cases a country whose law is not based on the Sharia and the Islamic tradition.
Thus, while recognizing that bilateral agreements are far from panaceas, I believe they have value, particularly with regard to ensuring access for left-behind parents. At a minimum they establish a framework for communication between two countries and a process for expediting legal reviews. Islamic courts are very reluctant to order access rights for a non-Islamic mother. Thus, the primary successes appear to be based on encouraging and negotiating voluntary solutions. Where those are not achievable, the value of the bilateral process drops dramatically.
A central feature of many of the existing bilateral agreements is the establishment of consultative committees composed of representatives of each country with a goal of facilitating settlements of complex cases and ensuring communication and cooperation. A good example of this approach is the France/Egypt agreement, now more than thirty years old. Under the agreement they search for and locate the child; provide information on the physical and emotional status of the child; encourage voluntary return; and work to ensure access for the left-behind parent. However, few of these agreements specifically address the question of appropriate jurisdiction to resolve the child custody dispute.
Canada is a leader in the use of “bilateral consular agreements,” along with Australia, France and others. The premise of these agreements is that it is in the best interests of the child to have regular contact with both parents; ensure the right of access for the left-behind parent; and create advisory commissions to promote amicable solutions to the disputes. Reportedly, there have been numerous successes through these agreements, particularly between Canada and Egypt.
Perhaps the bilateral agreement most often cited as the model is the UK/Pakistan agreement adopted in 2003. At the 2010 Malta meeting Pakistani Supreme Court Justice Tassaduq Hussein Jillani cited 150 cases successfully resolved through this process. The principles of the UK/Pakistan agreement mirror the Hague Convention in emphasizing that in normal circumstances the welfare of the child is best determined by the courts in his country of habitual residence; that if a child is removed from that country, the judge of the country to which the child has been taken shall not ordinarily exercise jurisdiction; and most importantly, both the UK and Pakistan designate one judge from each country to act as liaison judge, overviewing and monitoring the cases.
Reciprocity: How do we address the growing tendency of courts in return cases to undertake in-depth welfare inquiries before a return is contemplated?
The purpose of the Hague Convention is to achieve the speedy, summary return of abducted children to their countries of habitual residence where the courts in those countries make the determination as to proper custody. Yet, there are a growing number of courts that are undertaking in-depth examinations of the entire family situation surrounding the child and considering a wide range of factors before ordering the child’s return. Their rationale is that they have an obligation to consider seriously allegations regarding “grave risks to the child” and make rulings regarding the full circumstances of the case.
Thus, in some instances courts in countries to which the abducted child has been taken are effectively retrying the issue of custody in direct contravention of the underlying purpose of the Hague Convention.
This was an issue in recent cases before the European Court of Human Rights. For example, in the 2010 ECHR decision in Neulinger & Shuruk v. Switzerland, the court held that “basic norms of human rights require (a) that courts in every case under the Hague Convention…must consider the best interests of both the child and the child’s family and (b) that a child should not be returned to its habitual residence, even if that is required by the Hague Convention, if it is not in its best interests to do so.”
A second case considered by the ECHR was X v. Latvia in which the court initially held that “the Latvian courts’ approach in granting the return order lacked in-depth examination of the entire family situation and of a whole series of factors…” However, ultimately the ECHR permitted the return of the child to Australia per the provisions of the Hague Convention.
Obviously, a trend in which courts readjudicate what is in the best interests of the child potentially strikes at the heart of the Hague Convention. It is a concern of which policy makers globally should be aware. ICMEC is consulting with policy makers in many countries. It is our view that the Hague Child Abduction Convention, now 34 years old, represents far and away the best framework for resolving these complex, difficult cases, and that we need to preserve it as the primary instrument for handling these cases.
The use of the exceptions allowed under the Hague Convention appears to be increasing, as judges find new reasons not to return children to their countries of origin. Of particular interest is the domestic violence exception. There are indications that more and more abducting parents are alleging domestic violence by the custodial parent. While this is an important factor and requires thorough investigation and consideration, it is clear that for some abducting parents, this appears to have become a strategy, whether there is a factual basis or not.
Finally, perhaps there is no challenge under the Hague Convention that is greater than that of simply providing access to the other parent. In the Conclusions and Recommendations of the June 2011 meeting, the Hague Special Commission noted that access applications were markedly slower to reach a conclusion than return applications, taking an average of 338 days as compared to 188 days for return. That is simply not acceptable.
What More Can Be Done?
We need to reaffirm the Hague Convention and work toward uniform, consistent global application and reciprocity, including pressing for more countries to become signatories.
We need to increase the speed with which Hague Convention cases are addressed and resolved, reducing undue delays.
We need to address the lack of enforceability of some return and access orders.
We need better data to assess the operation of the Convention and to evaluate the performance of individual countries.
We need to investigate the impact and implications of key court decisions which risk undermining the core premise of the Hague Convention.
We need to address the lack of uniformity in the interpretation of the “exceptions” under Article 13.
We need to conduct more in-depth investigations into the impact of domestic violence on international parental child abduction.
We need to evaluate how the Convention is working in states like Morocco and Turkey, and then replicate the positive aspects of those experiences in other Islamic countries.
We need to improve judicial training and strengthen Central Authorities.
We need to provide greater support for victim families.