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English Family Court rules that Hague Child Abduction Convention and U.K.'s implementing statute authorize it to order interim arrangements, including possible electronic tagging, to ensure that Irish mother and child she abducted from California remain within English Court's jurisdiction pending further proceedings.

F(ather) and M(other) married in California in 1994 and soon became the parents of C(hild). F who was an American citizen and M, who was Irish, maintained their family home in California until December 1998. In that month, M kept C in Ireland after the end of an agreed holiday there. F filed proceedings against M in the Dublin courts under the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, eff. U.S., July 1988]. They resulted in a July 1999 consent order for C's return to California.

M, however, failed to appear at a hearing before the California courts later that month and took no further part in the legal proceedings. Shortly after her arrival in the United States, M re- abducted C, this time to England, where they took assumed names to avoid detection. The California court made an interim custody order in the father's favor in October 1999.

Four years later M and C were found. Pursuant to a police protection order, the government removed C (who is now nine) from M's custody and placed C in foster care. Proceedings were instituted in the U. K. Family Court under the Child Abduction and Custody Act of 1985 (CACA). F asked the Court to direct that M and C remain within the Court's jurisdiction throughout the proceedings.

The Court then addresses the issue of whether a legal foundation exists to permit some sort of arrangements for the interim care of a child in Hague Convention cases. Section 5 of the CACA regarding interim powers provides that: "Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application." [2]

The Court next perceived a potential clash between the power to give such directions under CACA Section 5 and certain provisions of the Children Act of 1989 (CA). The Court first examines the treaty obligations that Parliament undertook in ratifying the Hague Convention. "The Preamble ... recites that its States signatory desire 'to establish procedures to ensure [the] prompt return to the State of their habitual residence' of children wrongfully removed or retained elsewhere."

Articles 1 and 2 read in these terms: "Article 1. The objects of the present Convention are - (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2. Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available."

The Hague Convention requires that each Contracting Party shall set up a government agency that specializes in its enforcement. These "Central Authorities" "are the building-blocks with which the Convention cements together the internationally protective wall of its member states, now totaling 74 in number. Their function is 'to discharge the duties which are imposed by the Convention upon such authorities': see Article 6. Article 7 requires (so far as is relevant for present purposes) that: 'Central Authorities shall co- operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures - ... (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures." [9-10]

From its analysis of Convention obligations, the Family Court concludes that section 5 of the CACA reflects the aim of Convention Article 7(b) in that "[t]he powers are to be used in the interim pending the determination of the application, and the purpose of the power to give interim directions is to secure the welfare of the child concerned or to prevent changes in the circumstances relevant to the determination of the application." [14]

Interpreting the broad language of section 5 as allowing a Local Authority (LA) to assist the Court in making interim arrangements for a child, the Court declares. "The scope of section 5, against this background, and in the light of its language, is very broad indeed. Unless therefore there are legitimate and well- founded restraints on its exercise which arise from the consideration of its interrelationship with other statutes and other sources of law, I see no reason in principle why it should not extend to an invitation (such as is in issue in this case) to a Local Authority to assist the court in making arrangements for the child in the interim, including arranging for people with whom, and for a place where, the child may live."[15]

The Court also addresses the role of CACA section 9, noting that it does not trespass on section 5 powers. "The purpose of section 9 is thus directly related to the treaty obligations under Article 16, and fits neatly and necessarily with the philosophy of the Convention, that merits disputes should be decided in the court of the country of the child's habitual residence [i.e. California] upon the child's return there if and when an Article 12 order for return is made." [17]

To aid in its understanding of how Convention obligations and aims can be incorporated into domestic laws and procedures, the Family Court examines the laws of several common law jurisdictions. While finding that laws in Ireland, New Zealand, and Hong Kong are similar to those in England, the Court notes distinct and important characteristics of pertinent U.S. laws. "In America (as I gather from a 1997 publication entitled 'International Child Abduction: Guide to Handling Hague Convention Cases in US Courts' written by The Hon. James Garbolino, who is the Hague Liaison Judge for the United States) 'provisional remedies' are dealt with on a federal basis by a provision of the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601."

[It provides]: "Subject to a reservation prohibiting an order for the removal of a child from the person having physical control of the child unless the applicable requirements of State law are satisfied, the court has power to 'take or cause to be taken measures under Federal State [sic] law, as appropriate, to protect the well-being of the child involved or to prevent the further removal or concealment before the final disposition of the petition.'"

" ... Judge Garbolino furthermore makes the point that the Article 7(b) requirement for Central Authorities 'to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures' is interpreted as allowing the Central Authority 'to call upon the individual State child welfare authorities to provide whatever protection is deemed necessary.' The placement of children in a foster home is cited as one protective measure to which recourse has been had." [21]

After additional research into the laws of Australia and Germany, the Family Court concludes that section 5 of the CACA does fulfill the obligations of the Hague Convention. "In short, the primary submission of Mr. Nicholls [the Court Advocate] was that where domestic legislation is passed to give effect to an international convention, there is a presumption that Parliament intended to fulfil [sic] its international obligations; and that section 5 of CACA did precisely that in terms of the duties which arise pursuant to Article 7(b)." [25]

The Court next addresses the limits of section 5 and whether other legislation conflicts with it. "In essence, [a section 5 direction] cannot be an order in wardship or under the inherent jurisdiction, nor under either the private or the public law provisions of CA. And it cannot create a care or interim care status for the child, nor an order for care and control, residence, a specific issue or prohibited steps order or any other form of injunction designed to prevent the removal of the child (CA, section 9(5))." [36]

"My conclusion is therefore unhesitatingly that section 5 of CACA does enable the court to give directions concerning the manner in which a child's welfare and whereabouts are to be managed if circumstances require removal from the abducting parent or are otherwise such as to require temporary arrangements to be put in place. CACA (both in regard to Hague and to European [Human Rights] Convention applications) establishes a self-contained code, specific and specifically tailored to the sui generis nature of such applications in our domestic law."[39] Finally, in view of M's suggestion to this effect, this Court in principle can direct the use of "electronic tagging" to make sure that M and C would remain within the court's jurisdiction.

Citation: Re S (a child) (abduction: interim directions), [2003] E.W.H.C. 3065 (FAM.), [2003], All E.R. (D) 238 (Dec. 12).
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Publication:International Law Update
Date:Jan 1, 2004
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