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"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other contracting States."

A. Undertakings, safe harbour orders, mirror orders;

B. Criminal proceedings against the taking parent;

C. Problems relating to enforcement; and

D. Direct judicial communication

"Unless contracting States can feel reasonably assured that when children are returned under the Hague Convention, their welfare will be protected, there is a serious risk that the contracting States and Courts will become reluctant to order the return of children." ⁴

"... the Hague Convention and the Regulations [implementing the Convention in Australian law] contemplate that it is in the best interests of the child for issues such as custody and access to be determined in the courts of the country of the child's habitual residence unless the exceptions referred to in regulation 16 are made out.

The issue in a Hague Convention application is purely one of form, subject to those exceptions, and the paramountcy principle is accordingly not relevant." ⁸

"The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting state has faith in the domestic law of the other Contracting States to deal in a proper fashion with matters relating to the custody of children under the age of 16. Necessarily, proceedings under the Regulations are to be seen as standing apart from [proceedings relating to the custody, guardianship or welfare of, or access to, a child]. It follows that they are not subject to the paramountcy principle." ²²

"... the interests of the children in remaining here should not be sacrificed on the altar of comity between nation States." ²⁴

"Where the system of law of the country of habitual residence makes the best interests of the child paramount and provides mechanisms by which the best interests of the child can be protected and properly dealt with, it is for the Court of that country and not the country to which the child has been abducted to determine the best interests of the child.

... There may well be cases, for example where the laws of the home country may emphasise the best interests of the child are paramount but there are no mechanisms by which that might be achieved, or it may be established that the Courts of that country construe such provisions in a limiting way, or even that the laws of that country do not reflect the principle that the best interests of the child are paramount." ²⁶

"There is a presumption that upon return to the jurisdiction, a competent body will resolve the competing claims over the children. The position was explained by the Full Court in Gsponer v Director General CSV :

"There is no reason why this Court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child's welfare."

Even so, it is no offence to judicial comity to appreciate that Contracting States may have systems which, in practice, differentially facilitate or impede access to such a competent body." ²⁸

"This issue has been of some concern to the Chief Justice of the Family Court since his involvement in a number of cases where an abducting parent has fled a domestic violence situation or has been left destitute on return to the country of habitual residence. In Cooper v Casey (1995) FLC ¶92-575 Nicholson CJ said that the Convention imposes an obligation on Central Authorities to take responsibility for ensuring the protection of children returned under the Convention. Although a similar approach was taken by the NZ Court of Appeal in [ A v Central Authority for New Zealand ] , the acceptance of such an obligation had not received much support from other countries who were consulted about this issue prior to the 1997 Special Commission meeting at The Hague." ³⁰

"Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States 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—

...
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;"

"Following discussion of Australia’s proposal, delegations appeared to accept the following proposals:

1 It is essential to the integrity of the Convention to ensure the safety of children on their return to their country of habitual residence, in order to alleviate possible concerns and the reluctance of judges to order the return of children where issues of (alleged) abuse or violence arise.

2 An increase in the number of refusals to return, in cases where such issues arise, would not be desirable. Accordingly, a narrow interpretation of Article 13 b of the Convention should be encouraged by strengthening the role of Central Authorities in co-operating to facilitate awareness of government or public resources available to parents and children. In that context, Central Authorities should be prepared and encouraged by their respective States to adopt a flexible approach to their obligations under Article 7 h of the Convention.

Conclusions

In view of the above proposals, delegations are urged to adopt the following conclusions:

1 To the extent permitted by the powers of their Central Authority and by the legal and social welfare systems of their country, Contracting States accept that Central Authorities have an obligation under Article 7 h to ensure appropriate child protection bodies are alerted so they may act to protect the welfare of children upon return until the jurisdiction of the appropriate court has been effectively invoked, in certain cases.

2 It is recognised that, in most cases, a consideration of the child’s best interests requires that both parents have the opportunity to participate and be heard in custody proceedings. Central Authorities should therefore co-operate to the fullest extent possible to provide information respecting, legal, financial, protection and other resources in the requesting State, and facilitate contact with these bodies in appropriate cases.

[3 - The measures which may be taken in fulfilment of the obligation under Article 7 h to take or cause to be taken an action to protect the welfare of children may include, for example:

a alerting the appropriate protection agencies or judicial authorities in the requesting State of the return of a child who may be in danger;

b advising the requested State, upon request, of the protective measures and services available in the requesting State to secure the safe return of a particular child;

[c providing the requested State with a report on the welfare of the child;]

d encouraging the use of Article 21 of the Convention to secure the effective exercise of access or visitation rights.]" ³¹

"The delegation of Italy agreed with the suggested changes regarding Conclusion 1. The Italian experts did not object to the wording of Conclusions 2 and 3. They suggested, regarding Conclusion 3, that one item be added, to provide that applications for return, should include, whenever possible, a description of the services or measures available in the requesting State for the protection of the child or the returning parent. The delegation of Austria with respect to Conclusion 2, preferred the wording suggested in Working Document No 20 to that suggested by the Canadian experts. In addition, the Austrian experts wished Conclusion 2 to specify that returning parents should be given assistance even when ex parte custody orders have been issued after the abduction and that such orders should not prejudge the final outcome of the proceedings. The experts also wished that Conclusion 3 c), be deleted and that it be clearly stated, under Conclusion 3 b, that information was only required upon request. The delegation of France, with respect to Conclusions 1 and 2, reminded the meeting that the French Central Authority could not ensure that custody proceedings would be instituted upon return, although it could commit to assist the parent in all possible ways, in particular by contacting other authorities or services. The French experts found Conclusion 3 to be too specific and would prefer it more open ended. Regarding Conclusion 3 c), it was pointed out that the French Central Authority could not provide information beyond the measures taken upon the return, for it lacked the resources needed for a long term follow-up. Other experts expressed similar concerns as those mentioned above, including those regarding Conclusions 3 b) and 3 c). Experts also wished that it be made clear that the purpose of the proposal was to protect the child and not to reward the abducting parent.

The square brackets around Conclusion No 3 reflect the doubts of certain experts as to whether this provision should be retained and the internal square brackets around sub-paragraph c reflect particular doubt as to the acceptability of this provision." ³²

"The acceptance of the resolution was important as abducting parents often raise arguments that they face harm or an intolerable situation (by which they often mean no accommodation, no financial support, no access to legal aid, domestic violence) if they return with children to foreign countries.

At the least, this additional responsibility requires the Central Authority for each country to provide information about services relating to social security, legal aid, emergency accommodation, or domestic violence protection which are available in the city or area to which the abducting parent is asked to return with the children.

In Australia it is accepted that the obligation also involves, where necessary, a Central Authority in commencing proceedings in the courts to ensure the protection of the welfare of children (eg. to enforce an undertaking by the parent who sought the return of the children to provide accommodation or financial support)." ³³

"Until the signatories to the Convention are prepared to develop an effective protocol to secure, to the optimum extent practicable, the safety and welfare of returning children, along the lines proposed by the Government of Australia, it is incumbent upon courts hearing Article 13(b) defences to asses the allegations made carefully and fairly, if necessary taking oral evidence to resolve critical factual disputes, and, in accordance with the requirements of Article 13, to refuse to order a return, where the evidence genuinely establishes a sufficient degree of risk." ³⁵

"It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction...

This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence. Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations... Undertakings have their place in the arrangements designed to smooth the return of and protect the child for the limited time before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child." ³⁸

"Given the preamble's statement that "the interests of children are of paramount importance", courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L., supra; C. v. C., supra; P. v. P. (Minors) (Child Abduction), [1992] 1 F.L.R. 155 (Eng. H.C. (Fam. Div.)); and Re A. (A Minor) (Abduction), supra. Through the use of undertakings, the requirement in Article 12 of the Convention that "the authority concerned shall order the return of the child forthwith" can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for a determination by the court of the child's habitual residence, and any short-term harm to the child is ameliorated." ⁴⁰

"I am satisfied that undertakings may be given by a party to proceedings under the [Child Abduction and Enforcement of Custody Orders Act 1991] and accepted by the court. They are entirely consistent with the 1991 Act and the Hague Convention, they are for the welfare of the child during the transition from one jurisdiction to another. Undertakings may be of particular relevance to very young children.

Undertakings in this situation are compatible with the Act and international law which have as their objectives the desire to protect children internationally from the harmful effects of their wrongful removal from the country of their habitual residence and the establishment of procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of access.

Furthermore, undertakings which are for the welfare of the child are in accord with the constitutional protection of the child and its welfare.

Undertakings may also protect a parent in their role and in the exercise of their rights under the Constitution. Consequently I am satisfied that undertakings may be accepted in cases under the 1991 Act."

"... the conditions as to accommodation and maintenance as identified by the learned trial judge are reasonable. However, in addressing the long term education, maintenance of the child, and bi-annual visits by the child to Ireland, the learned trial judge considered matters more appropriately determined in the Spanish courts."

"... they were not essential for my decision as to whether the terms of Article 13(b) had been met. Nevertheless they were offered and I think it would be appropriate to record them in the Minute of Proceedings in words which appropriately reflect the terms, both express and implied, of what was offered." ⁴⁸

"1. While undertakings are not necessary to operation of the Convention, there are good arguments that their use can be consistent with the Convention. Undertakings are most cleanly consistent with the Convention where they facilitate Article 12's objective of ensuring the return of abducted children "forthwith;" minimize the use of non-return orders based on Article 13; and do not undercut the provisions of Articles 16 and 19, which clearly contemplate that return proceedings under the Convention should be jurisdictional and that substantive issues relating to custody, including maintenance, should be left to the court in the child's place of habitual residence.

2. As a corollary to the above, undertakings should be limited in scope and further the Convention's goal of ensuring the prompt return of the child to the jurisdiction of habitual residence, so that that jurisdiction can resolve the custody dispute. Undertakings that do more than this would appear questionable under the Convention, particularly when they address in great detail issues of custody, visitation, and maintenance." ⁴⁹

"We also note that in order to ameliorate any short-term harm to the child, courts in the appropriate circumstances have made return contingent upon "undertakings" from the petitioning parent. Thomson v. Thomson, 119 D.L.R.4th 253 (Can.Sup. 1994). The district court, on its own initiative, heard testimony about the undertakings Mr. Feder was willing to make in the event that Evan returned to Australia and was not accompanied by Mrs. Feder. Given its denial of Mr. Feder's petition, however, the court did not assess the need for or the adequacy of those undertakings. If on remand the court decides that Evan's return is in order, but determines that Mrs. Feder has shown that an unqualified return order would be detrimental to Evan, the court should investigate the adequacy of the undertakings from Mr. Feder to ensure that Evan does not suffer shortterm harm. See Re O, 2 FLR 349 (U.K.Fam. 1994) (exacting appropriate undertakings is legitimate in Convention cases)."

"A potential grave risk of harm can, at times, be mitigated sufficiently by the acceptance of undertakings and sufficient guarantees of performance of those undertakings. Necessarily, the "grave risk" exception considers, inter alia, where and how a child is to be returned. n13 The undertakings approach allows courts to conduct an evaluation of the placement options and legal safeguards in the country of habitual residence to preserve the child's safety while the courts of that country have the opportunity to determine custody of the children within the physical boundaries of their jurisdiction. Given the strong presumption that a child should be returned, many courts, both here and in other countries, have determined that the reception of undertakings best allows for the achievement of the goals set out in the Convention while, at the same time, protecting children from exposure to grave risk of harm. See, e.g., Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (Blondin II); Turner v. Frowein, 253 Conn. 312, 752 A.2d 955 (Conn. 2000); Thomson v. Thomson [1994] 3 S.C.R. 551, 599 (Can.); P. v. B. [1994] 3 I.R. 507, 521 [*38] (Ir. S.C.). See generally Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 156-72 (1999).

A good example of this approach is the Second Circuit's recent decision in Blondin II. The district court had denied the father's petition to return the children to France because the mother had established that returning the children to their father's custody would pose a grave risk of harm. See Blondin v. Dubois, 19 F. Supp. 2d 123, 127-29 (S.D.N.Y. 1998) (Blondin I). The Court of Appeals vacated the district court's judgment and remanded the case to allow the [*39] district court to consider "remedies that would allow the children's safety to be protected [in France] pending a final adjudication of custody." Blondin II, 189 F.3d at 250.

Yet, there may be times when there is no way to return a child, even with undertakings, without exposing him or her to grave risk. Thus, on remand in Blondin, the district court found that the "return of [the children] to France, under any arrangement, would present a 'grave risk'" because "removal ... from their presently secure environment would interfere with their recovery from the trauma they suffered in France; ... returning them to France, where they would encounter the uncertainties and pressures of custody proceedings, would cause them psychological harm; and ... [one of the children] objects to being returned to France." Blondin v. Dubois, 78 F. Supp. 2d 283, 294 (S.D.N.Y. 2000) (Blondin III), appeal filed, No. 00-6066 (2d Cir. Jan. 20, 2000) (emphasis added). "

"Consideration was given in the course of argument as to whether a Court had power to attach conditions to any order made by it. It seems reasonably clear there can be no power to attach conditions to an order under s 12 in the absence of a finding in favour of a defence under s 13. On the other hand, if such a defence has been made out and the Court is concerned solely with the exercise of his discretion under s 13 of the Act, then it may be possible that conditions could be attached, unless the statutory provisions dealing with conditions in the Act, ss 26, 27 and 28 imply no authority for the imposition of other conditions. See H v H (1995) 12 FRNZ 498. Nevertheless, as has already been stressed in this judgment, it is not the role of a New Zealand Court to interfere with the functions and responsibilities of the relevant Central Authorities and the courts of another jurisdiction. It would be an unusual case which might give rise to the consideration of conditions. No finding is made on this issue." ⁵³

"15 (1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

"... the effect of reg 15(1) is to provide that, in making an order in relation to the return of a child from Australia, the court may include in its order a condition the court considers appropriate to give effect to the Convention.

...

It is impossible to identify any specific and detailed criteria which govern the exercise of the power whereby the Court may impose such conditions on the removal of the child ‘as the Court considers to be appropriate to give effect to the Convention’. Many of the criteria which may be applicable in a particular case are illustrated in the above passages from the Canadian and English decisions. The basic proposition is that, like other discretionary powers given in such terms, the Court has to exercise discretion judicially, having regard to the subject-matter, scope and purpose of the Regulations." ⁵⁷

"... Regulation 15(3) does not enable the Court to place conditions on the return of the child. It merely enables the Court to place conditions on the temporary removal of the child from one place to another before the return of the child is ordered." ⁶¹

"... in our view it was a matter for his Honour to consider which conditions if any he thought it proper to impose, or what undertakings to require, and we are not persuaded that he fell into error. In particular, in the absence of evidence as to United States law and practice on the matter, we see no reason to assume that the undertakings required by his Honour would be less effective in carrying out the intent of the Convention than orders expressed as conditions." ⁶⁴

"If undertakings are to be given it is important to make sure they can be enforced. There does not appear to be any existing mechanism by which the Court that extracts the undertaking can ensure that it is complied with. There does not appear to be any legal basis upon which the court of the State in which the child has been returned, can require compliance with an undertaking given to another Court." ⁶⁶

"One way to avoid this difficulty is for undertakings to be lodged in both the Court hearing the Convention application and a proper Court in the jurisdiction to which the child is to be returned in order to overcome enforcement difficulties. .... In Re S (Child Abduction: Acquiescence) [1998] 2 FLR 893, Sir Stephen Brown P recorded undertakings given by an American father to the English court to not harass the mother and to agree to a de novo custody hearing in California. He ordered that a copy of his reasons for judgment including those undertakings be provided to the Californian court." ⁶⁷

"Once the primary jurisdiction is established then mirror orders in the other and the effective use of the Convention gives the opportunity for collaborative judicial function." ⁶⁹

"It is not clear from these replies whether the common law concept that a party may give undertakings to the Court and that the failure to abide by such undertakings constitutes a contempt of Court is a normal part of the Italian legal code. It may well be that this also applies to many other non common law jurisdictions. In the instant case an additional complication is that the content of the Order of this Court made on the 12 February, 1997 was not conveyed to the Italian Court until the 23 April, 1997 and even then not translated until the 5 May, 1997. The child E had already been removed from the custody of her mother on the 5 March, 1997. Clearly this Court cannot know the reasons for the lengthy delay in conveying the content of the Order of 12 February, 1997 to the Italian Court and of having it translated. Nor can it know whether any attempt was made by the legal representatives of the mother to have the Order legally enforced in Italy. The answer given by the Central Authority for Italy does not in fact make it clear whether it is the Order itself which may be recognised as enforceable or whether the undertakings as apart from the Order may be recognised as enforceable. Unfortunately it appears to me that the situation is now such that there is no useful further action that this Court can take in the matter." ⁷³

"In a case where the Court finds, as I have here, that an Article 13(b) grave risk would be established unless alleviated by undertakings offered or required, and honoured or enforced, it is reasonable . . . for this Court to consider whether the undertakings will be adequately enforceable in the requesting State.

The best practice where such issues arise would be for general information concerning its available processes of enforcement of undertakings to be requested from the Central Authority of the home State pursuant to the provisions of Article 7(e), and consistent with the relaxation upon the reception of evidence as the foreign law which Article 14 provides. However if as here, sufficient information cannot be derived from that source then it may well be necessary to direct the parties to file expert evidence in the more conventional manner

If in relation to any particular Contracting State that process revealed the absence of machinery adequate to give backing to undertakings the observance of which the English Court relied upon to relieve the children of risk of an intolerable situation, then it would be relevant to consider whether the parent proffering the undertakings genuinely intended to honour them."

"... there may be some scope for developing probably on a bi-lateral basis at least to start with, communication and discussion between Central Authorities so that each may have the opportunity of explaining and, it may be, justifying the approach their domestic Courts take to issues which commonly arise in Convention cases. Such an issue may well be these Courts use of undertakings designed to smooth the speedy passage home and to the door of the proper Court of children who should never have been taken from its jurisdiction. By such discussions and the exchange of views and information it may be that comity would be strengthened, and an understanding achieved that neither country wishes to cause any offence to the Courts of the other, nor to seek to interfere with or to influence what that Court then does.

Moreover, it may well be that if such opportunity for the exchange of views does assist to promote co-operation, it should be possible in an appropriate case for the Central Authority of the requested State to liaise with its counterpart in the requesting State to put in place measures agreed by the parties or reasonably required as a proper pre-condition of return."

"We also should not lose sight of the fact that there may be other ways to accomplish the objectives of proposed undertakings. For example, it might be possible for the parties to propose a consent order to the appropriate U.S. court prior to entry of the return order in the United Kingdom. In this connection, you may be interested to know that the private bar in the United States occasionally seeks to facilitate the return of children abducted from the United States by having the left-behind parent seek entry, by the appropriate U.S. court, of an order addressing interim issues of custody and support. We understand that private lawyers sometimes recommend use of these orders, which they call "safe-harbor" orders, in cases where the foreign court may be reluctant to return a child to the United States unless such issues are addressed in some fashion. Where a Safe-harbor order has been entered in the United States, there may be no reason for a foreign court even to consider entering undertakings as part of a basic return order." ⁷⁷

"does not support conditioning the issuance of a return order on the acquisition of a safeharbor order from a court in the requesting state." ⁷⁹

"Although not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, Bangladesh of course has a fully-developed legal system. But within that legal system, the interpretation of child welfare will inevitably and properly be reflective of the culture, traditions and institutions of the state. It does not follow that if the issue of J's future were to be determined by a court in that state, following a breach of the contact, that the mother's relationship with J or the importance of his rooting within this society would receive the same evaluation as in this legal system. That is not to criticise the system of law in Bangladesh, but simply to notice its necessary difference.

Accordingly, it seems to me that to preclude the possibility of competitive litigation within two systems, reflecting different traditions and cultures, it is desirable to confine the risk of competitive litigation by putting in place, wherever possible, whatever buttresses can be devised for the primary adjudication in this jurisdiction. It seems to me that the appearance within the Family Law Reports of the cases of re T and re A whatever may have provoked that appearance, is useful as offering to practitioners a precedent for the sort of mechanisms appropriate where the friendly foreign jurisdiction roots its family justice system in Islamic law.

There is obviously in this case the possibility of notarised agreements. There is the possibility of mirror orders." ⁸¹

"As it happens, for some years now, more often of course in unreported but not infrequently in reported cases, Family Division judges and judges of the Court of Appeal have advocated in appropriate cases that the parties before them, where contact or a move to live abroad is in contemplation, should provide precisely that form of cordon sanitaire in that foreign jurisdiction which in this case the parties would seek to create here for their child.

Thus, England's judges have invited parties to go off and get mirror orders or their non-common law equivalents in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt and even in Saudi Arabia." ⁸⁴

"Then there is the category of case, of which this one is typical, where a foreign court is making provision for contact to take place in another jurisdiction, in this case England. In that category of case it is important that there should be the possibility for orders to be made in advance of and against the arrival of the child so that the parties and the foreign court may have confidence that if either of them seeks to take advantage of the presence of the child in the contact jurisdiction, the court there will not lend itself to any such attempt.

The classic anxiety is of course that, the child having come for contact with the parent in England for a limited period, the parent in England either attempts to remove the child to a third country and to keep the child there, or refuses at the end of the contact to allow the child to return to his country of residence. Armed with a consent order already made in the English jurisdiction, an English judge would virtually inevitably order return first and investigation of the merits in the residence jurisdiction." ⁸⁵

1. How can contracting States to the Convention and common law jurisdictions in particular, best contribute to giving effect to the 1997 resolution? Would fuller, more specific and widely promoted implementation of the 1997 resolution concerning Article 7(h) minimise the need for undertakings, mirror orders or safe harbour orders?

2. Is it sufficient that the 1997 resolution would seem to be accepted as giving rise to a responsibility upon Central Authorities "to provide information about services relating to social security, legal aid, emergency accommodation, or domestic violence protection" ? Where sworn/affirmed evidence has alleged child or partner abuse as a defence to return, should there not be an automatic obligation upon the Central Authority to where the child is returned to convey that evidence to the appropriate child protection and/or criminal investigation authorities?

3. Difficulties have been observed in seeking to use the mechanisms of undertakings, mirror orders or safe harbour orders in non-common law jurisdictions. How should these be addressed?

4. What approach should be adopted to give effect to Singer J's suggestion in Re O (Child Abduction: Undertakings) that "in the absence of machinery adequate to give backing to undertakings the observance of which the English Court relied upon to relieve the children of risk of an intolerable situation, then it would be relevant to consider whether the parent proffering the undertakings genuinely intended to honour them."

5. Is it consistent with the Convention for courts to:-

Should different considerations apply where a consent order is proposed?

6. What benefits, if any, are seen in the use of anticipatory mirror orders and reciprocal registration provisions vis a vis<