Freeman: Rights of Custody and Access Under the Hague Child Abduction Conv RIGHTS OF CUSTODY AND ACCESS UNDER THE HAGUE CHILD ABDUCTION CONVENTION-"A QUESTIONABLE RESULT?" MARILYN FREEMAN* In 1980, members of the Fourteenth Session of the Hague Conference created the Hague Convention on the Civil Aspects of International Child Abduction.' The Convention's prime concern was to ensure the prompt re- turn of children, wrongfully removed or retained in breach of rights of cus- tody,2 so that decisions about their future may be taken in the jurisdiction that is assumed the best placed to do so. However, in their eager pursuit to fulfill that goal, the interpreters of the Convention may have sacrificed defi- nitional precision. It is therefore possible that correctness of approach has, at times, been sacrificed to the flexibility required to ensure the abducted child's return. The outcome has been a haze of inconsistent judicial results. The Convention distinguishes between rights of custody and rights of access.3 Removal or retention of a child is considered wrongful where it is in Barrister and Senior Family Law Lecturer at London Guildhall University; Research Associate and PhD candidate on the Programme on the International Rights of the Child, Queen Mary and Westfield College, University of London; Member of the Legal Working Group of the All-Party Parliamentary Committee on Child Abduction; Member of the Family Law Working Group of the Society for Advanced Legal Studies; Member of the International Child Abduction Steering Committee of the International Centre for Missing and Exploited Children. 1. See Hague Convention on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 98, reprinted in 19 I.L.M. 1501 (1980) [hereinafter Convention]. Adopted by the Fourteenth Session of the Hague Conference on Private International Law. The United States enacted legislation implementing the Hague Abduction Convention in the International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437 (codified as amended at 42 U.S.C. §§ 11601-11610 (1988)). 2. See Convention, supran ote 1, art. 1. 3. See id. art. 5. Article 5 states: For the purposes of this Convention- (a) '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; (b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. Id. Published by CWSL Scholarly Commons, 2000 1 40C aliforniaC AWLeIsFtOerRnN InIAte WrnEatSioTnEaRlN L aIwN TJoEuRrNnAaTl, IVOoNl.A 3L1 , LNAoW. 1 J[O20U0R0N],A ALrt . 4[Vol. 31 breach of rights of custody, and a court can only issue a return order when those rights are breached.' It follows that a breach of a right of access will not prompt a return order. Indeed, there is clear evidence that the Hague Convention intentionally dealt with rights of access separately,- thereby in- dicating that the return-order remedy would not apply to a mere right of ac- cess breach. Commentator Elisa Perez-Vera explains this distinction in the Convention's Explanatory Report:6 Although the problems which can arise from a breach of access rights, es- pecially when the child is taken abroad by its custodian, were raised dur- ing the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removals or reten- tions which it sought to prevent. Perez-Vera further explained that "a questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holder of one type of right by those who held the other."' 4. See id. art. 3 & 12. Article 3 states: The removal or the retention of a child is to be considered wrongful where- (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Id. art. 3. Article 12 states: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or adminis- trative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the au- thority concerned shall order the return of the child forthwith., The judicial or ad- ministrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Id. art. 12. 5. See id. art. 21. 6. See Elisa Perez-Vera, Explanatory Report in Acts and Documents of the Fourteenth Session of the Hague Conference on Private International Law 14 (1982) [hereinafter Perez- Vera Report] available at Hague Conference on Private International Law, Explanatory Re- port on Convention #28 (last visited Oct. 20, 2000) <http://www.hcch.net/e/conventions/expl28e.html>. The Perez-Vera Report is the official leg- islative history of the Hague Convention of the Civil Aspects of International Child Abduc- tion. See id. at 427. 7. Id. at 444-45. 8. Id. https://scholarlycommons.law.cwsl.edu/cwilj/vol31/iss1/4 2 Freeman: Rights of Custody and Access Under the Hague Child Abduction Conv 2000] CUSTODY & ACCESS UNDER THE HAGUE CHILD ABDUCTION CONVENTION 41 Thus, the Convention drafters were unwilling to extend the return remedy, namely a court-issued return order, to such a right of access breach. The right of custody, however, that triggers the return remedy is amor- phous in character, and rather less certain a concept than suggested by Perez- Vera. When faced with a request for a return order, a court where a child currently resides must decide whether the laws of the State of the child's ha- bitual residence provide a right that equates to a right of custody under the Convention for the parent who is left behind.' Although, under Article 15 of the Convention, a declaration may be sought from the court of the state of the child's habitual residence that a child's removal or retention was wrong- ful within the meaning of Article 3 of the Convention, or in other words that it was in breach of rights of custody, this declaration will not bind the re- quested court. Thus, there is an inherent fluidity in the concept, and much will depend on the subjective interpretation of the court concerned. This fluidity has caused significant disparity in the ways that different jurisdictions treat rights of access in Hague Convention proceedings. This can be clearly seen in cases where the court of habitual residence has placed a removal restriction, usually in the form of a non-removal clause, on the custodial parent. The restrictive order ensures that the non-custodial parent's rights of access are continually enjoyed as envisaged. Mixed results have oc- curred where the custodial parent has, notwithstanding the restriction, re- moved the child to another country. The English Court of Appeal case C. v. C., is an example of circumstances in which the Convention's return mecha- nism was triggered when a custodial parent removed a child from Australia in breach of a removal restriction." In C. v. C., a non-custodial father had the ability to give or withhold his consent to the removal of the child from Aus- tralia; the court recognized this ability as a right of custody for the purposes of Articles 3 and 5" of the Convention as it was a right to determine the child's place of residence.2 9. See C. v. C. (Minor: abduction: rights of custody abroad), I W.L.R. 654 (Q.B. 1989). In C. v. C., Lord Donaldson stated: We are necessarily concerned with Australian law because we are bidden by art 3 [of the Convention] to decide whether the removal of the child was in breach of 'rights of custody' attributed to the father either jointly or alone under that law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the convention definition of 'rights of custody'. Equally it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition. Id. at 667F. See also infra note 12 and accompanying discussion. 10. See id. See also Linda Silberman, Hague Convention on International Child Abduc- tion: A Brief Overview and Case Law Analysis, 28 FAM. L.Q. 9 (1994). Silberman states "[flor example, when there are restrictions on the movement of the custodial parent or con- cepts of joint custody or guardianship, the Convention appears to offer protection." Id. at 17. 11. See Convention, supra note 1, arts. 3 & 5. 12. See C. v. C. The presiding Judge Lord Donaldson, referring to the right to determine a child's place of residence, stated: Published by CWSL Scholarly Commons, 2000 3 California Western International Law Journal, Vol. 31, No. 1 [2000], Art. 4 42 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 31 The view pronounced by the Australian court in C. v. C. appears to con- flict with the view of some scholars; particularly, commentator A. E. Anton who states his view of the aim of the Convention: It is less clear, but the definition of "rights of custody" in Article 5 at least suggests, that the breach of a right simply to give or to withhold consent to changes in a child's place of residence is not to be construed as a breach of a right of custody in the sense of Article 3. A suggestion that the definition of 'abduction' should be widened to cover this case was not pursued. ..T.his provision reflects the awareness of delegates that a parent who technically has a right to the custody of the child may have acquiesced in the assumption of control over the child by another person or may even have thrust the child upon him. It was thought to be inappropriate, there- fore, to allow the former to benefit from the Convention. However, the view in C. v. C. is apparently supported by the commenta- tor John Eekelaar who states, "[h]ence, if the right to day to day care is vested in A and the right to determine the child's place of residence in A and B, both A and B have rights of custody under the Convention."'4 Decisions on non-removal clauses, which label factual rights of access as rights of custody, rely on the wording of the Convention and the defini- tion of rights of custody contained therein." However, there is an alternative and persuasive argument that non-removal clauses are simply judicial tools to ensure access and, as such, do not in reality give rise to the right to deter- mine the child's place of residence. Thus, this line argues that a non-removal clause does not create rights of custody within the meaning of the Conven- tion, and, therefore, there should be no remedy of a return order. Although some scholars disagree,'6 many courts have adopted this alternative line of reasoning in their decisions.7 This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right, in so far as the child is to reside in Australia, the right being that of the mother but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. Id. at 663G/H. 13. A. E. Anton, The Hague Convention on InternationalC hild Abduction, 30 INT'L & COMP. L.Q. 537, 546 (1981). 14. The Hague Convention on the Civil Aspects of International Child Abduction: Ex- planatory Documentation prepared for Commonwealth Jurisdictions, para 2:1 (Feb. 1981) (on file with Commonwealth Secretariat, Marlborough House, London) [hereinafter Hague Con- vention Explanatory Documentation]. 15. See Convention, supra note I, art 5 ("rights of custody' shall include ... the right to determine the child's place of residence."). 16. See Martha Bailey, "Rights of Custody" Under the Hague Convention, 11 BYU J. PUB. L. 33, 51-53 (1997). Bailey disagrees and argues that disputes as to whether a custodial parent should be able to relocate with the child despite an order, agreement or law prohibiting the move are custody disputes and, as such, are properly adjudicated in the country in which the child habitually resides. The author of this article argues that this is more a case of custody in form than in content-the custody decision having already been determined and what re- https://scholarlycommons.law.cwsl.edu/cwilj/vol31/iss1/4 4 Freeman: Rights of Custody and Access Under the Hague Child Abduction Conv 2000] CUSTODY & ACCESS UNDER THE HAGUE CHILD ABDUCTION CONVENTION 43 mains is, therefore, a matter of access. Bailey further states that failure to return children to the State of habitual residence for the relocation issue to be decided will result in parents, from jurisdictions which do not readily agree to relocation, engaging in forum shopping. In practice, the relocation question will usually be decided on the best interests principle. More- over, the cases will not, in most instances, involve genuine custody disputes and will usually result in permission being granted to leave the jurisdiction. Forum shopping occurs because of the lack of uniformity, not because of the refusal to return for relocation proceedings. Bailey also asks why the parent, with shared legal custody or parental responsibility, who does not live with his or her child should be treated differently from the parent with access rights and a non-removal clause. They should not be treated differently. In both cases it is a question of the actual exercise of the right. If the former is actually exercising only a right of access, he should be treated in the same manner as the latter. Support for this view can be found in the writings of John Eekelaar, who states: Where the right in question is only the right to determine the child's place of resi- dence, it may be more difficult to understand what is meant by this right being 'ac- tually exercised.' However, it is probable that in practice this will not be difficult to establish: a person's conduct may easily show that he or she has retained the ex- pectation to be consulted about the child's place of abode. John Eekelaar, International Child Abduction By Parents, 32 U. TORONTO. L.J. 281, 310 (1982). The question then is, what right is being actually exercised? For more discussion see infra note 27 and accompanying text. 17. See Silberman, supra note 10, at 18. There, Silberman discusses the French case, Ministere Public v. Mine Y, where a mother removed her child from England to France in contravention of a court order, however, she had not "wrongfully removed" her child for the purposes of the Convention. The court determined that the father's rights of access, not his rights of custody, had been breached. See Recueil Dalloz Sirey, June 18, 1992, 315-16 (re- ported in Ministere Public v. Mine Y, Trib. gr. inst. de Perigueux (Mar. 17, 1992)). The alter- native rational was reflected in the Canadian Supreme Court case Thomson v. Thomson, where the court held that a non-removal clause in an interim Scottish custody order created rights of custody in the Scottish court because it was intended to preserve the court's jurisdic- tion to make a final custody determination. See Thomson v. Thomson [19951 119 D.L.R. 4th 253 (Can.). See also Canada: Supreme Court Decision in Thom[]son v. Thom[]son (Hague Convention in the Civil Aspects of International Child Abduction), 34 I.L.M. 1159, 1174 (1995). The Canadian Supreme Court determined that by virtue of an interim custody order with a non-removal clause "the Scottish court became "an institution or any other body... under the law of the State in which the child was habitually resident immediately before the removal or retention" having custody rights within the meaning of Article 3." Id. (quoting the Hague Convention, supra note 1, art. 3). However, the Canadian Supreme Court stated that this would not apply to a permanent non-removal clause in a custody order that is intended to preserve rights of access by the non-custodial parent because such rights are not given the same level of protection as custody by the Convention. See id. at 1174-75. In a concurring opinion, Justice Claire L'Heureux-Dube stressed that such a non-removal clause does not re- sult in a wrongful removal in circumstances where the custodial parent moves with the child to a new jurisdiction. See id. at 1180. In D.S. v. V.W., the Canadian Supreme Court followed Thomson, reversing the decision of the Court of Appeal. See D.S. v. V.W. [1996] 134 D.L.R. 4th 481, 503 (Can.). There, the father had been granted child custody and the mother pos- sessed only access rights supported by an implied restriction on removal. See id. at 485. The father moved with the child from Michigan to Quebec without consulting or notifying the mother. See id. Although the father was ordered to return to the United States on another point, the Canadian Supreme Court was certain that the mother did not possess a right of cus- tody; therefore, the father's removal of the child was not wrongful under the Convention. See id. at 505. The court stated that even an explicit non-removal clause would not give the non- custodial parent a right of custody and that the Act suggests a "large and liberal" interpreta- tion of the custody concept: Published by CWSL Scholarly Commons, 2000 5 California Western International Law Journal, Vol. 31, No. 1 [2000], Art. 4 44 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 31 Arguably, of even greater concern than the non-removal clause cases are those in which the child has been returned simply by virtue of a bare right of access, 8 which does not even purport to carry with it a right to determine the child's place of residence. In these cases, courts issue return orders after dis- torting the facts to accommodate a perceived duty to return the child. This would suggest that there has been an equalization of the intentionally sepa- rights of custody within the meaning of the Act cannot be interpreted in a way that systematically prevents the custodial parent from exercising all the attributes of custody, in particular that of choosing the child's place of residence, but, on the contrary, must be interpreted in a way that protects their exercise. Id. at 499. The Canadian Supreme Court added that the Court of Appeal, although describing its interpretation of the concept of custody as "large," had actually adopted a very narrow in- terpretation when it found that, although the mother had only access rights, she had rights of custody when the child was removed. See id. at 499-501. The Canadian Supreme Court stated: By confusing, for all practical purposes, the concepts of custody rights and access rights, this interpretation amounts to saying that any removal of a child without the consent of the parent having access rights could set in motion the mandatory return procedure provided for in the Act and thus indirectly afford the same protection to access rights as is afforded to custody rights. Id. at 503. Therefore, the right of the custodial parent is to be construed in a "large and lib- eral" manner. The court reasoned that a narrow reading of the concept of custody would con- tradict the very object of the Act, namely to protect rights of custody and the exercise of the attributes thereof, including the choice of the child's place of residence. See discussion infra note 25. 18. See Gross v. Boda, [1995] 1 N.Z.L.R. 569. In Gross, the mother had sole care and custody of the child and the father had reasonable rights of access under the law of Arizona, including contact every other weekend, alternating holidays and summer vacation. See id. The New Zealand Court of Appeal held that the husband's visitation rights were rights of intermit- tent possession and care for the child for the indefinite future. See id. The court also found that the custodial parent's right to determine the child's residence is subject to the existing visitation order of the non-custodial parent so that the parents jointly had the right to deter- mine where the child was to live because the father's right of access had to be observed. See id. at 573. Compare the holding of Gross with the English case, S. v. H. (Abduction: Access Rights), [1997] 1 F.L.R. 971, described infra note 40. See also Dellabarca v. Christie, [1998] CA 55/57 (unreported New Zealand Court of Appeal case on file with the author). In Della- barca, the New Zealand Court of Appeal disapproved of the requirement that the claimant must have the right to determine the child's place of residence in order to have a right of cus- tody. See id. at 7-11. The court stated that "claimants may succeed if they show that they have any [original emphasis] qualifying right relating to the care of the person of the child, one of which rights may [original emphasis] be the right to determine the place of residence." Id. at 6. The right to determine the place of residence is just one of the qualifying rights. See id. In cases such as this, where the father had relatively insubstantial access-he was to have "regu- lar access to the child, plus one week in January 1996, with the access arrangements to be re- viewed" every six months, the Court of Appeal concluded that a removal would be in breach of the father's rights of custody as, along with regular access, he would have "corresponding responsibilities of care" that rose to the level of rights "involving the direct care of the per- son." Id. at 11. In this particular case, the child contact agreement between the parties did ex- tend such rights to the father, however the court determined that the agreement lacked legal effect. See id. at 11-12. Nevertheless, the established principle remains-relatively insubstan- tial access may give rise to a right of custody. https://scholarlycommons.law.cwsl.edu/cwilj/vol31/iss1/4 6 Freeman: Rights of Custody and Access Under the Hague Child Abduction Conv 2000] CUSTODY & ACCESS UNDER THE HAGUE CHILD ABDUCTION CONVENTION 45 rate rights of custody and access under the Convention,'9 at least in the eyes of some courts. There is no doubt that the drafters of the Convention intended that the holders of rights of custody and access would be entitled to different reme- dies when those rights are breached. However, this intentional distinction has become blurred. Has the "questionable result" envisaged by Perez-Vera" become a very real concern, wherein the Convention is applied inconsis- tently on an uneven playing field where the results can differ depending upon the jurisdiction in which proceedings take place? Some blame for this situation may lie with the provisions of the Con- vention that deal with the issue of access.2' These provisions have been regu- larly and severely criticized for the lack of "teeth" contained therein.2 In England and Wales, Article 21 of the Convention has been interpreted as merely requiring the Central Authority to obtain lawyers to present an appli- cation for access before the local courts; where, only domestic legislation re- lated to the best-interests principle is employed.23 Priscilla Steward notes, "[w]ith regard to access rights, the Hague Abduction Convention at best grants the judicial authority so much discretion that it can either do some- thing to help non-custodial parents enforce their access rights or it can do nothing at all."24 19. The convention defines rights of access and rights of custody separately. See Con- vention, supra note 1, art. 5. 20. Perez-Vera Report, supra note 6, at 444. 21. See Convention, supra note 1, arts. 5 & 21. 22. See Nigel Lowe, Problems Relating to Access Disputes Under the Hague Convention on InternationalC hild Abduction, 8 INT'L J.L. & FAM. 374 (1994). Where Lowe summarizes the current English position on Article 21 of the Convention: 3. Article 21 imposes no duties upon judicial authorities and unlike Article 12 cre- ates no rights in private law which a parent can directly enforce in respect of a child. Instead 4. Article 21 imposes executive duties upon Central Authorities, inter alia, 'to promote peaceful enjoyment of access rights' and 'to take steps to remove, as far as possible, all obstacles to the exercise of such rights' and a discretion to 'initiate or assist in the institution of proceedings with a view to organising or protecting these rights' which is satisfied by making appropriate arrangements for the appli- cant by providing solicitors to act on his behalf. Id. at 380. Moreover, it was stated at the Hague Conference Second Special Commission on the Civil Aspects of International Child Abduction that "whilst article 21 recognises rights of access, it has no firm legal provisions to enforce such rights." Permanent Bureau of the Hague Convention on Private International Law, Report of the Second Special Commission Meeting to Review the Operationo f the Hague Convention on the Civil Aspects of International Child Abduction, Jan. 18-21, 1993, reprinted in 33 I.L.M. 225, 244 (1994). 23. See Re G (A Minor) (Enforcement of Access Abroad), [1993] 1 F.L.R. 669 (C.A.). See also Re T and Others (Minors) (Hague Convention: Access), [1993] 2 F.L.R. 617. Re T establishes that an application for a S8 Children Act 1989 contact order would not attract the special automatic legal aid entitlement which applies to Hague Convention applications under the Civil Legal Aid (General) Regulations 1989 (S1 1989/339) reg. 14(9). See also infra note 49 and accompanying discussion. 24. Priscilla Steward, Note, Access Rights: A Necessary Corollary to Custody Rights Published by CWSL Scholarly Commons, 2000 7 California Western International Law Journal, Vol. 31, No. 1 [2000], Art. 4 46 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 31 It is perhaps little wonder that, in light of the above and apparent injus- tices suffered by the parent whose right of access has been breached, some courts have striven to find solutions which, indeed, may be questionable, thereby straining the meaning of the term "right of custody" to include what are, in reality, rights of access." This, in turn, has created a situation of un- certainty, opening the door to unmeritorious requests for return which could be successfully dealt with by more robust provisions on access.26 Another difficult area concerns what is in name a right of custody, but is, in its actual exercise, a right of access. For example, the Central Author- ity for England and Wales issued a Practice Note regarding the rights of cus- tody for unmarried fathers. The practice note stated that if an unmarried fa- ther in England and Wales has parental responsibility9 then "he clearly has rights of custody within the meaning of the Convention."30 Furthermore, the Practice Note stated that under such circumstances: unless the child is removed for less than one month by a person having a residence order, the removal or retention of the child away from the Under the Hague Convention on the Civil Aspects of International Child Abduction, 21 FORDHAM INT'L L.J. 308, 351 (1998). 25. Other courts, however, have clearly held that rights of access, even connected to re- strictions on removal, do not amount to rights of custody. See D.S. v. V.W. [1996] 134 D.L.R. 4th 481 (Can.). See also Canada: Supreme Court Decision in Thompson v. Thompson (Hague Convention in the Civil Aspects of International Child Abduction), supra note 17, at 1174. This is a demonstrable example of the uneven playing field referred to in the Perez-Vera Re- port. See Perez-Vera Report, supra note 6. 26. See Steward, supra note 24, at 312. Priscilla Steward argues "that the aspect of the Hague Abduction Convention addressing access rights is ineffective because it has forced some courts to misconstrue provisions of the Hague Abduction Convention in order to carry out the Convention's intent." Id. 27. See supra discussion accompanying note 16. 28. See Practice Note, The Central Authority for England and Wales Child Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of InternationalC hild Abduc- tion Applications for Return Orders by Unmarried Fathers, October 14, 1997, [1998] 1 F.L.R. 491, [1998] 1 F.C.R. 253 [hereinafter Abduction PracticeN ote]. 29. See The Children Act of 1989 (Eng.) (last visited Oct. 20, 2000) <http://www. doh.gov.uk/busguide/childhtm/anna.htm>. The Act partially defines parental responsibility as "all the rights, powers, authority and duties of parents in relation to a child and his property." Id. at § 1.3. This, of course, begs the question as to the precise nature of all those rights, du- ties, powers, etc. The authors of Bromley's Family Law suggest that this includes the right to have contact with the child. See BROMLEY'S FAMILY LAW 350 (Nigel Lowe & Gillian Douglas eds., 1998). However, this would, of course, be subject to a contrary order of the court so that a father, who has parental responsibility for his child, may not even be entitled to have contact with that child if the court has made an order to this effect. 30. Abduction PracticeN ote, supra note 28. For support see Re W (a minor) (unmarried father), Re B (a minor) (unmarried father), [1998] 2 F.L.R. 146. Where Justice Hale stated that because S1 Child Abduction Act of 1984 (domestic criminal legislation on child abduc- tion), in England, contains a right of veto for a parent with parental responsibility to the re- moval of the child from his country of habitual residence, this equates to a right of custody under the Convention (in terms of Article 5 thereof-the right to determine the child's place of residence) notwithstanding that there is no right to the care of the person of the child. See https://scholarlycommons.law.cwsl.edu/cwilj/vol31/iss1/4 8 Freeman: Rights of Custody and Access Under the Hague Child Abduction Conv 2000] CUSTODY & ACCESS UNDER THE HAGUE CHILD ABDUCTION CONVENTION 47 United Kingdom without the father's consent or the leave of the court is wrongful within the meaning of [Article] 3 of the [C]onvention, because it breaches the father's rights of custody.3' Under this interpretation of the Convention, a father, with parental re- sponsibilities but without a right to direct contact with his child, could secure the return of his child who has been removed out of the United Kingdom by the primary caregiver mother without the father's consent, the removal being wrongful as it breached his right of custody.32 This very broad interpretation of rights of custody must, as some commentators argue, be tempered by a full investigation into the actual exercise of those rights33 to avoid the ques- tionable results discussed above and envisaged in the Perez-Vera report. This expansion of the rights of custody may be a response to a greater awareness of the right to family life enshrined within Article 8 of the Euro- pean Convention on Human Rights and Fundamental Freedoms.' Rights of custody have been expanded in England to recognize the position of those who have significant day-to-day involvement in a child's life, including the unmarried fathers who lack a declared right of custody. It is indeed common that such a father may have failed to appreciate the significance of formaliz- ing the parent-child relationship. English courts have been prepared to hold that such people are not to be denied the possibility of redress under the Hague Convention simply because they do not possess the formally recog- nized right of custody; indeed, rights which have not yet been formally ex- pressed, termed "inchoate rights,"3 may very well amount to rights of cus- 31. Abduction Practice Note, supra note 28. See also The Children Act of 1989, § 13, Private Law Orders (last visited Oct. 20, 2000) <http://www.doh.gov.uk/busguide childhtm/anna.htm>. The removal does not breach the father's rights of custody if a person removes the child for less than one month where there is a residence order in force. See id. § 13(2). 32. Whether this would occur would depend on the existence of other relevant factors set out in the Convention. Even if the circumstances of this example were held to be insufficient to satisfy the test of "actually exercising" in relation to the right of custody under Article 3 of the Convention, the father with parental responsibility and contact, who only saw his child sporadically and had no other involvement in the child's life, would, no doubt, find it easier to fulfill the criteria. See Convention, supra note 1, art. 3. 33. See Anne-Marie Hutchinson, Chair Reunite: National Council for Abducted Children 3 (July 1997) (unpublished paper presented at the International Society of Family Law Con- ference in Durban, on file with the author). 34. See European Convention for the Protection of Human Rights and Fundamental Freedoms, signed Nov. 4, 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (1950-52), art. 8 (en- tered into force Sept. 3, 1953). 35. Re B (A Minor) (Abduction), [1994] 2 F.L.R. 249, 261. A useful exploration of the term can be found in the Re B judgment by Justice Waite, who stated: is it to be confined to what lawyers would instantly recognise as established rights-that is those which are propounded by law or conferred by court order: or is it capable of being applied in a Convention context to describe the inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child con- Published by CWSL Scholarly Commons, 2000 9 48 CalifornCiaA WLIeFsOteRrNnI IAn tWernEaStTioEnRaNl LIaNwT EJRouNrAnTaIlO, VNoAl.L 3 1L, ANWo. 1J O[2U0R0N0A], LA rt. 4[Vol. 31 tody.36 This has been reflected in the judgment of Justice Hale in Re W and Re B37 in which the court held, inter alia, that the removal of a child from his or her father may be wrongful under the Hague Convention if, for example, the father lacks formal parental rights, but has been the designated primary caregiver by the child's mother.38 Thus, the lack of formal parental or custo- dial rights may not be determinative of the outcome when the Convention is applied. It could therefore be suggested that this development is another example of the fluidity of the concept of rights of custody. And, indeed, fluidity is not always a bad thing. Some argue that it has allowed for the inclusion of those for whom, in the interests of the child, redress under the Hague Convention should be afforded. Based upon that viewpoint, one may argue that, by anal- ogy, the broadened concept should be similarly extended to encompass rights of access. However, this argument is fundamentally flawed because the creators of the Hague Convention intended to provide the remedy of a return order only for breaches of rights of custody. Indeed, the Convention did not intend to deal with rights of access in this way.39 There are inherent dangers in extending rights of custody to include rights of access' because it may result in children being returned from pri- cerned? Id. at 261. 36. See id. (distinguishing Re J (A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562). See also Re 0 (Child Abduction: Custody Rights) [1997] 2 F.L.R. 702. In Re 0, grand- parents were held to have rights of custody in their grandchild for whom they had assumed care when the mother had left. See id. 37. See Re W (a minor) (unmarried father), Re B (a minor) (unmarried father), [1998] 2 F.L.R. 146. 38. See id. This case concerned two unmarried fathers who sought declarations under Article 15 of the Hague Convention that the removal of their children from England and Wales was wrongful within the meaning of Article 3. See Convention, supra note 1. In both cases, the mothers had sole parental responsibility and took the children abroad. In Re W, the father was, however, on the verge of acquiring parental responsibility through the court al- though he was not carrying out duties and enjoying privileges of a custodial or parental char- acter. See W, [1998] 2 F.L.R. 146. The court, in the opinion by Justice Hale, found that, al- though the father did not have rights of custody, the removal was nevertheless in breach of a right of custody that arose in the court by virtue of the pending custody proceedings. See id. Additionally, during the course of her judgement, Justice Hale stated: that prima facie, removing a child who is habitually resident in this country will also be wrongful under the Hague Convention if: (a) the father has parental re- sponsibility either by agreement or court order; or (b) there is a court order in force prohibiting it; or (c) there are relevant proceedings pending in a court in England and Wales. [Defined as]... proceedings for residence, parental responsibility or to prohibit the removal of the child as these are 'rights of custody' under the [C]onvention. [or] (d) the father is the primary carer for the child, at least if the mother has delegated such care to him. Id. 39. See Perez-Vera report, supra note 6, at 444-45. 40. See S. v. H. (Abduction: Access Rights), [1997] 1 F.L.R. 971. In S. v. H., a single https://scholarlycommons.law.cwsl.edu/cwilj/vol31/iss1/4 10