Posts
by Jeremy D. Morley
The Hague Convention has a role to play in
international child relocation cases and in cases concerning international
child visitation and travel. That role will on occasion be of great
significance. It also has some significance in international relocation (“move
away”) cases, but that role is frequently afforded entirely inappropriate significance.
In international relocation cases, an
important issue is whether or not the foreign country to which the child may be
relocated will effectively enforce the orders of the U.S. court concerning
access for the non-custodial, non-relocating parent.
Parents sometimes cite as a relevant factor
on
this issue that the country in question is -- or
is not -- a party to the Hague Convention. However,
the key issue is far narrower than that. The Convention is triggered as an
abduction case when there has been a wrongful removal or retention within the
meaning of Article 3 of the Convention. If a court in the United States permits
a parent to relocate with a child to another country, the act of that parent in
taking the child to the foreign country and retaining the child there is
obviously not a wrongful act.
The issue in relocation cases should be
whether or not the Convention, as it is actually applied in the foreign
country, will enforce a left-behind parent's right of access. It must be
recognized that in most cases the mere fact that a foreign country is a Hague
Convention treaty partner provides no assurance whatsoever that access orders
issued by a court in the United States will be recognized and enforced after
the relocation has taken place.
Courts in the United States must appreciate
that, once a child has been lawfully relocated overseas, their extraterritorial
jurisdiction will generally be quite limited. Indeed, no other country has
adopted the Uniform Child Custody Jurisdiction & Enforcement Act or any law
similar to it. The American concept of exclusive jurisdiction continuing in the
(American) court that issues an initial custody order, even if the child lives
overseas, as long as one parent continues to live in the original state, is completely
alien to almost all foreign courts.
In
most countries, once a child has been relocated to such a country and is
habitually resident there, the local courts will conclude that they have
exclusive jurisdiction to issue a child custody order or to modify a prior
foreign custody order.
It
must also be stressed that the definition of “habitual residence” in force in
most countries is quite different than the meaning given by most American
courts. For example, in the European Union, habitual residence is treated as a
question of fact, taking into account all of the relevant circumstances, and
“corresponds to the place which reflects some degree of integration by the
child in a social and family environment.” Mercredi v Chaffe, (Case C-497/10 PPU) [2012] Fam
22. Under that test, a change of habitual residence is likely to occur promptly
after a child is relocated lawfully to another country, particularly when the
child is in school there.
Conditioning
international child relocation on the applicant first obtaining an order from a
court in the country to which the relocating parent proposes to move that mirrors
the terms of the U.S. court’s order and that acknowledges that the U.S. court has
continuing exclusive jurisdiction concerning all matters as to the child's
custody and visitation, is entirely unworkable, because once a relocated child
is habitually resident in the foreign country the courts in that country will
invariably have the right and the duty under the laws and the public policy of
that country to assume modification jurisdiction without regard to the demands
and presumptions of an American court.
Of
course, such an order of a court in the United States would be binding under
the laws of the issuing state, and most likely of sister states in this
country, even if the foreign court has issued a contradictory order. The U.S.
orders would bind the relocating parent who has taken the child overseas and
might put that parent in jeopardy, but it would be inconsequential in the
foreign country and most likely in other foreign countries also.
Thus,
reliance on Article 21 of the Hague Convention to ensure compliance with the
visitation provisions of an order permitting international relocation may well
be misplaced. Once a foreign court has assumed custody jurisdiction it will
make such decisions as it deems fit about custody and access, and Article 21
will not restrain that process in the slightest.
It
should be noted that the U.S. approach will be modified to accord with the
worldwide standard if, as and when the United States accedes to the 1996 Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Cooperation in Respect of Parental Responsibility
and Measures for the Protection of Children (the “1996 Convention”). The
basic principle of the UCCJEA — that the court that issues an initial custody
order retains the exclusive right to modify the order so long as that state
remains the residence of a parent, the child, or a person acting as a parent —
is not mirrored in the 1996 Convention. Instead the Convention provides that
modification jurisdiction changes with changes to the child’s habitual
residence. These terms codify the practice of many countries around the world. The 1996 Convention provides that a
country’s courts have custody jurisdiction whenever the child is habitually
resident there (Article 5), subject to certain limitations for refugee
or internationally displaced children with no habitual country of residence
(Article 6), and cases of wrongful removal or retention of a child (Article 7).
Another country’s authorities cannot intervene to protect a child without the
express agreement of, or at the express request of, the courts of country where
the child is habitually resident (Articles 8 and 9).
In
2013 the Uniform Law Commissioners promulgated a revised UCCJEA, to accommodate
the 1996 Convention. The new
UCCJEA contains a new Article 4 that is intended to govern cases between states
of the United States and foreign countries. In such cases jurisdiction to issue
— and to modify — a custody order (to be referred to as a “measure of
protection”) will be based on the child’s habitual residence, which may shift
over time.
