THE HAGUE CONVENTION and THE UNITED STATES OF AMERICA ---------------------------------------------------------------- REPORT ON HAGUE CONVENTION OPERATIONS by the Child Abduction Unit November, 1995 The Lord Chancellor's Child Abduction Unit Central Authority for England & Wales ---------------------------------------------------------------- PART I - INTRODUCTION A few recent cases in which the High Court has resumed children under the provisions of the Hague abduction convention FN1 have drawn considerable public criticism. In particular there has been a growing belief that the courts of other contracting states, notably the United States of America, are reluctant to enforce undertakings FN2 given by an applicant for a return order which are intended to secure the return of the child by alleviating any anxiety on the part of the judge that the child might otherwise be returned to an intolerable situation FN3. The problems relating to the enforcement of undertakings in the United States have been the subject of correspondence between the State Department, the Central Authority of the United States of America FN4, and the Child Abduction Unit, the Central Authority for England & Wales. In October, 1995 Mr Michael Nicholls of the Child Abduction Unit visited the United States to try to resolve outstanding difficulties in the use of undertakings by the English courts, to discuss the workings of the Convention generally and to visit the National Centre for Missing and Exploited Children, who will in future process applications for the return of children from the United States. This report describes the present situation regarding undertakings (including a model order at Annex A) and other matters relating to the operation of the Convention between England and the United States FN5. PART II - UNDERTAKINGS AND THE COURTS OF THE UNITED STATES There is little evidence to support the view that the courts of the United States are either hostile to the concept of undertakings or will refuse to enforce them. The research conducted by the State Department (Annex B) has identified the use of undertakings by the domestic courts of the United States, who would look to the courts of other contracting states to support their orders. It is likely that the difficulties which have arisen in a very few cases stem from lack of familiarity with Hague Convention proceedings and private international law, differences in legal terminology and the form of English orders and from the undertakings sought to be enforced being too wide. The Scope of Undertakings Like the Court of Appeal, the State Department, as the Central Authority of the United States, takes the view that undertakings should be used sparingly and should be strictly limited to furthering the purposes of the Convention - that is, effecting the return of the child under the obligations conferred by Article 12. Undertakings should be scrutinised with great care to avoid any suggestion of rewarding wrong doing and infringing matters covered by other Conventions - for example, reciprocal enforcement of maintenance. Alternatives to Undertakings Before the parties or the court consider undertakings, they should first ask whether the results they wish to achieve could be accomplished in some other manner FN6. Equally, consideration should be given to making orders in the requested jurisdiction, a course which might be preferable if proceedings are in progress there. Such an order has been used in the United States, where it is known as a "Safe Harbour" order. The Enforcement of Undertakings in the United States Although the courts of the United States have not shown themselves to be hostile to enforcing undertakings given to the High Court, it would be helpful to have some appreciation of the difficulties which they face. The recognition and enforcement of foreign orders is a matter for each individual state as a separate jurisdiction FN7. As a matter of generality, the foreign relations law of the United States is such that whilst reciprocity is not a prerequisite to recognition, finality in the order is - that is, interlocutory orders are not generally recognised FN8. However, in family matters, it is usual for the courts of the United States to recognise and regard as enforceable initial custody orders made in those jurisdictions in which the parties were habitually resident at the time that the order was made. At first sight, therefore, undertakings given to a court in whose jurisdiction neither the child nor the applicant is habitually resident and which are intended to have an effect limited in time do not easily fit within the usual rules. Nevertheless, it was the opinion of Judge Zinora Mitchell-Rankin of the Superior Court, Washington DC that provided that the order had what she referred to as the necessary "indicia of correctness" and was voluntary and informed, it should be recognised on the ordinary principles of comity. She regarded undertakings as being a contract with court. The fact that an applicant found proffering undertakings difficult to accept did not make them any the less "Voluntary". The Draft Order The draft order at Annex A has been prepared by Michael Nicholls and Mr William Hilton, an attorney specializing in Hague cases, in a form which they believe will commend itself to judges in both England and the United States. It attempts to avoid the criticisms that have been made of earlier orders - for example, that the undertakings do not form part of the order of the court, or that the applicant was not aware of the nature of the obligations he was entering into - and to define its purpose more clearly. Although the views of Judge Zinora Mitchell-Rankin are encouraging, one should reflect the caution expressed, amongst others, by Professor Linda Silberman of the University of New York's School of Law to the effect that enforcement is ultimately a matter of judicial discretion. Nevertheless, the draft attempts to bring the form of the order more clearly within that class of orders which the courts of the United States have a discretion to enforce. PART Ill - THE JUDICIARY Judicial training The United States receives about four hundred new Hague Convention cases every year. Bearing in mind that each state in the Union is separate jurisdiction, and that Hague Convention cases can be heard in both State and Federal courts, a judge may meet such a case only rarely, and therefore lack of familiarity with these rather unusual proceedings may be a source of some difficulty. Judges in the United States do not specialise, but either exercise general jurisdiction or undertake work on a rota basis - after doing family cases for a period of time, they would move on to other work. They do receive training when moving to a specific division, for example, the family division. Given this, it seemed to be accepted that generalized training in child abduction would probably be impractical and too thinly spread. However, much may be accomplished by judicial communication, and the tentative question as to whether a visit by a judge of the Family Division would be welcomed brought an encouraging response. Suggested bodies or institutions which might be the proper place for a judicial visit are the Family Law Conference of the American Bar Association, which the judges attend, the National Judicial College at Reno, Nevada, the national Family Law Judges' Institute and the Conference of Chief Justices' of the States. As Judge Zinora Mitchell-Rankin pointed out, novel problems are usually tackled as and when they arise, and therefore some readily-available guidance would be very helpful. In the United States judges have access to "Bench Books" which provide a ready reference to different areas of law. Ms Patricia Hoff of the American Bar Association is in the process of writing a Bench Book for judges which will include a discussion of the Hague abduction convention. Judicial Cooperation Judicial cooperation and communication is positively encouraged by the Uniform Child Custody Jurisdiction Act, but has to be treated with some degree of caution, in that a substantive discussion about the merits of a case should normally take place in front of the parties unless their lawyers have agreed otherwise FN9. However, Judge Zinora Mitchell- Rankin suggested that to avoid this potential difficulty, it would be quite permissable for an English judge to speak to the Presiding or Deputy Presiding Family fudge, who would discuss the case in an administrative capacity. PART IV - LEGAL REPRESENTATION IN THE UNITED STATES Applicants for return orders who are of modest means find it difficult to pursue their cases in the United States, because legal aid is not generally available for civil cases. In some states, notably California, the District Attorney is willing to apply for a return order, and in others limited legal aid might be available. In most cases, however, the applicant is reliant upon the State Department, as Central Authority, finding a lawyer willing to take the case on a pro bono basis. Although it is right to say that the State Department has never failed to find a lawyer willing to act, sometimes it has been a lengthy process. The American Bar Association's Centre on Children and the Law is about to institute a fixed- term project, known as the International Child Abduction Attorney Network (ICAAN), funded by a grant from the Department of Justice. The purpose of the project is to identify about three hundred attorneys nationwide, with an emphasis on those areas where abduction cases are most prevalent, who are willing to take one Hague case a year, on a pro bono basis. It is not, however, the intention that the ABA should run the Network. In connexion with the ICAAN project, Ms Hoff of the ABA is preparing a series of "issues briefs" for attorneys on specific topics, such as Article 13 defences FN10. PART V - THE NATIONAL CENTRE FOR MISSING AND EXPLOITED CHILDREN The National Centre for Missing and Exploited Children (NCMEC) is a private, non-profit organization which operates throughout the United States. Its function is to locate and recover missing children, whether abducted by parents, strangers or those that have run away. It works in cooperation with the Department of Justice and is largely staffed by former law enforcement officers with a wide range of contacts. It has impressive communications equipment and computer software, and ready access to forensic science services, the FBI, INTERPOL and access to printing facilities for posters and other forms of publicity. Under an agreement made on the 1st. September, 1995 applications under the Hague Convention for the return of children abducted to the United States will be processed by the NCMEC under the supervision of the State Department, which will continue to be responsible for policy and legal guidance on the Hague Convention [see Annex D]. Hague cases at the NCMEC will be handled by legally qualified staff. Consideration may also be given to the NCMEC running ICAAN. PART VI - THE EFFECT ON HAGUE CONVENTION OPERATIONS IN ENGLAND There will be no need to make any substantial changes to the operating methods of the Child Abduction Unit to accommodate the proposed operational changes in the United States. We are already telling the United States Central Authority whether the applicant in England believes that there is any merit in trying to achieve a voluntary return. We shall now say if the applicant is eligible for legal aid, which may be helpful in demonstrating that they are deserving of pro bono representation in the United States. PART VII - TRENDS IN HAGUE CONVENTION CASES Professor Linda Silberman perceived an increasing sophistication in the use of Article 13 defences, especially those related to the wishes of the children. She also expressed a concern that cases should be seen to have been decided properly, and not on a parochial basis. PART VIII - CONCLUSIONS All of the bodies or institutions who are involved in the Hague Convention in the United States of America are committed to making it work and improving its operation. The initiative by the American Bar Association in identifying lawyers willing to take cases on a pro bono basis should in due course speed cases considerably. The special skills of the National Centre for Missing and Exploited Children will be of particular benefit in those few international cases in which the whereabouts of the child is not known. Judicial cooperation should be encouraged, and it is hoped that the proposed form of order will, in the small number of cases in which it is appropriate to include undertakings in an order, commend itself to recognition and enforcement. Supplement A supplement to this report is available, which contains Mr Hilton's precedents for an international request for assistance from a foreign court and ne exeat orders and agreements. /s/ Michael Nicholls Michael Nicholls Central Authority for England & Wales 30th. November, 1995 References 1. Long title: Hague Convention on the Civil Aspects of international Child Abduction. 2. Known in the United States as "stipulations". 3. See Article 13 of the Hague Convention. 4. The duties of the Central Authority are carried out by the Department of State's Office of Children's Issues, (CA/OCS/CI), Room 4811, Department of State, Washington DC 20520-4818. 5. The views in this report are those of the author, Michael Nicholls, and should not be regarded as being attributable to, or reflecting the policy of, the United States Department of State, whose views are set out in Annex B. 6. See, for example, Hague International Child Abduction Convention: A Progress Report; Prof. Linda Silberman in Law & Contemporary Problems, Volume 57, page 209 @ 268 (School of Law, Duke University, Summer, 1994). Other examples might perhaps be making the return order effective only on the provision of an airline ticket or the deposit of funds for limited maintenance. 7. When considering enforcing a foreign judgment in the United States, it is necessary to differentiate between matters which are entirely for the individual states (the "whereabouts" question) and those with a federal element, where the states are bound collectively by an obligation entered into by the Federal Government. Accordingly, it could be argued that when an order is made ancillary to an international treaty such as the Hague Convention, the enforcement standard should be federal. 8. Note the distinction between recognition and enforcement; a foreign judgment may not be enforced unless it is entitled to recognition. Judgments granting injunctions, declaring rights or determining status, and judgments arising from attachments of property, are not generally enforceable, but particular findings may be entitled to recognition - see Restatement of the Law (3rd); The Foreign Relations Law of the United States, vol.1 Sec 481 (American Law Institute). 9. Attempts at judicial discussion other than in the presence of the parties and without a waiver from their lawyers on the record have been attacked on the ground of contravention of "due process". 10. A note of the current family abduction and missing children projects being conducted by the ABA Centre on Children and the Law is at Annex C. ================================================================ THE HAGUE CONVENTION and THE UNITED STATES OF AMERICA ANNEX A Model Order ---------------------------------------------------------------- TO [Name] TAKE NOTICE that if you neglect to obey this order (which includes the undertakings or stipulations that you have given to the court) you may be held in contempt of Court and liable to imprisonment No. IN THE HIGH COURT OF JUSTICE FAMILY DIVISION BEFORE THE HONOURABLE MR. JUSTICE [Name], Knight, one of the Justices of the High Court sitting at the Royal Courts of Justice, Strand, London. IN THE MATTER OF [Names] (Minors) AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985 BETWEEN: [Name] Applicant - and - [Name] Respondent UPON HEARING.................... AND UPON READING............... IT IS ORDERED THAT 1(i). in support of the obligation conferred on this court under Article 12 of the Hague Convention on the Civil Aspects of Intemational Child Abduction ("the Convention") this court accepts the undertakings or stipulations given to this court by the Applicant [Name] and set out in the Schedule attached hereto and being part of this order, such undertakings or stipulations constituting binding and enforceable obligations and in consequence of such undertakings or stipulations DIRECTS (ii). the return of the minor [Name] to [the jurisdiction of] (iii.) [consequential directions] 2. [Costs, Legal Aid taxation, etc.] DATED THIS _________ DAY OF_________ 1995 SCHEDULE The following undertakings or stipulations (which terms shall be used interchangeably); have been accepted by the court to achieve the objects of Article 12 of the Convention and for the limited purpose of returning the minor [Name] to [Name of requesting state] and securing his/her welfare until such time as the courts [or identify the court if proceedings are in progress in the requesting state] of [requesting jurisdiction] shall exercise jurisdiction over the minor [Name]; have been offered by the Applicant [Name] he/she having been advised by solicitors and counsel about their nature and effect and being fully aware of their binding and enforceable nature in both England and Wales and the courts of [requesting jurisdiction] AND IN CONSEQUENCE OF WHICH the Applicant [Name] and the Respondent [Name] have agreed to an order being made for the return of the minor [Name] to the jurisdiction of [set out]; shall have effect for a period of twenty-eight days from the date of this order or until a court of competent jurisdiction in [set out] shall exercise its jurisdiction over the minor [Name] whichever shall be the sooner; nothing in the undertakings or stipulations set out in this order shall be construed as usurping the jurisdiction of the courts of [set out] over the minor [Name] [set out undertakings/stipulations] SIGNED _______________ Applicant SlGNED _______________ Solicitors for the Applicant Dated _______________ ================================================================ THE HAGUE CONVENTION and THE UNITED STATES OF AMERICA ANNEX B Coment on Undertakings United States Department of State ---------------------------------------------------------------- United States Department of State Washington, D.C. 20420 August 10, 1995 Michael Nicholls Lord Chancellor's Department Child Abduction Unit 81 Chancery Lane London WC2A 1DD RE: Undertakings and the Hague Convention on the Civil Aspects of International Child Abduction Dear Mr. Nicholls, You have raised with us a number of questions about the attitude of courts in the United States and of the United States Department of State toward undertakings entered by courts of the United Kingdom in connection with ordering the return of children to the United States under the Hague Convention on Civil Aspects of International Child Abduction. We understand Your concerns to be those stated in your memorndum to me of February 6, 1995, and in your letter to the Legal Adviser, Conrad Harper, of March 2O, 1995, as well as those expressed to us both when you and I met in London in January and in subsequent telephone conversations with me and meambers of my office. Mr. Harper advised you in his letter of March 28, 1985, that we would be reviewing the issues you had raised and that we hoped it would be possible to resolve to our mutual satisfaction any difficulties in the interpretation and enforcement of undertakings in the United States and the United Kingdom. We are now in a position to address most of the issues you raised. As a starting point, we undertook to research the use of undertakings under the Convention. The attached paper reflects the results of that research and suggests several relevant conclusions: 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. 3. We did not find any persuasive evidence that courts in the United States are hostile to the concept of undertakings. Our ability to evaluate how U.S. courts have viewed undertakings is limited because child custody proceedings are frequently conducted 'under seal'' or, in any event, are not reported. We identified only three specific relevant cases. Significantly. in two of these cases a U.S. court entered an order directing the return of an abducted child to the country of habitual residence and also containing provisions that were essentially "undertakings." The third case was Roberts, in which enforcement of undertakings entered by a British court was denied. Given our findings, we believe that any concern on the part of the English judiciary about the manner in which United States courts have viewed undertakings issued by foreign courts is unwarranted. You indicated that this concern has been prompted by a "small number of cases", of which we understand the Roberts case to be the most significant. While the U.S. court in Roberts denied enforcement of the undertakings, the undertakings in any event by their terms would have been effective only until the U.S. court further adjudicated "custody, care, and control." That occurred only eight days later, when the U.S. court issued a temporary custody order that closely approximated the content of the undertakings. Moreover, based on the information available to us, we believe that the Roberts court might well have enforced more narrowly tailored undertakings. The undertakings entered by the British court in Roberts went well beyond what was necessary to ensure the prompt return of the child. For example, they provided that the left-behind father would provide the mother and their three children a motor vehicle; that he would cover schooling expenses; that he would provide maintenance at the rate of $200 a week; and that he would pay medical and dental insurance expenses. These undertakings seem to us not to have given appropriate respect to the fact that the Hague proceeding should be essentially jurisdictional and not attempt to address the underlying dispute. The U.S. court's order suggests that the court believed that the U.K. court's authority was jurisdictional only and that it, and not the U.K. court, should decide what temporary arrangements should be in place pending final resolution of the custody dispute. Thus, we do not believe that the Roberts case should give rise to any particular concern about the way in which the Convention is operating between the United States and the United Kingdom. This is particularly true when at least two U.S. courts themselves have entered undertakings in connection with ordering the return of a child. Rather we would read Roberts as an example of the possibility that undertakings may not be enforced if they are overly detailed and broad. I recall your informing me that the undertakings in Roberts were essentially volunteered by the left-behind parent in the United States. In London in January we discussed whether the treatment of undertakings should vary depending on whether they are volunteered by the litigant or required by the court. This possibility is also mentioned in your note to me of February 6, 1995. Although this distinction is somewhat appealling, upon reflection we believe that there are also strong reasons why voluntariness should not be determinative of whether undertakings will be enforced. In the context of child abduction cases, it will be difficult to know whether the left-behind parent is ever really acting "voluntarily", or rather out of a sense of desperation. Also, it seems unnecessarily burdensome to expect a court in the country to which the child is returned to look behind undertakings to determine whether they were volunteered by the parties or imposed upon them. Focusing instead on whether the undertakings themselves are appropriate would avoid both of these problems. Moreover, we would not favor the establishment by courts of requirements for extra-Convention undertakings as a condition precedent to the issuance of a return order under the Convention. Assuming that the use of undertakings is accepted as consistent with the Convention, we are therefore inclined to say that the key question in any particular case where the enforcement of undertakings is at issue should be whether the undertakings are appropriate in scope. In your letter to Mr. Harper of March 20, 1995, you suggested that undertakings might be "limited to those necessary to make the return of the children easier and to provide for necessities, such as a roof over their head and adequate maintenance." In an earlier fax message, you suggested that undertakings "should be realistic and not go beyond what is necessary for the immediate protection of the child pending the matter being brought before the courts of the requesting state." It seems to us difficult, particularly at this early stage of practice under the Convention, to draw up definitive rules as to what is appropriate for an undertaking and what is not. The principles you have suggested seem reasonable, but there is considerable room for discussion about the degree to which undertakings can appropriately provide for "necessities." Providing that the children should return and reside in the family home with the abducting parent is one thing; providing for on-going monthly maintenance payments may be quite another. The extent to which undertakings address "necessities" may not be particularly important if the court in the state of habitual residence is able to act quickly to address the same issues, and to provide for temporary support of the child pending full resolution of the custody issues (at which point we assume the undertakings order would lapse in any event). To the extent that questions of enforcing undertakings relating to interim maintenance do require resolution, however, we believe that they should be addressed on a case-by-case basis by the courts. Over time, some general principles on what is and is not appropriate in undertakings may emerge. For now, however, we are prepared to say that we view the Roberts undertakings as too broad, and that undertakings such as those entered by the U.S. court that ordered the return of children to the United Kingdom in the Zimmerman case seem appropriate. In that case, the undertakings were essentially that the mother would accompany the children to the U.K. and report immediately to the family court there; that the father would pay for her return flight and that of their two children; and that the mother would have custody of the children until custody was resolved by the U.K. court. Another related issue you have raised with us is how courts in the U.K. might be assured that undertakings they enter will be enforced in the United States. You recognized, in your letter to Mr. Harper, that the Department of State cannot bind our judiciary. Ultimately the question of enforcement is a decision for the courts and we cannot control the outcome. It does appear, however, that U.S. courts might be persuaded to enforce appropriately tailored undertakings during the period before they enter a superseding order, on a number of different legal theories. Moreover, while it is not our practice to intervene even as amici in lower court proceedings, to the extent that we receive informal requests for advice we would at this time be prepared to encourage serious consideration of the enforcement of undertakings that are narrowly tailored. 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. The Uniform Child Custody Jurisdiction Act ("UCCJA") is of dubious relevance, however. That statute is similar to the Convention, in that it seeks to ensure the return to the state of habitual residence of a child abducted from one state of the United States to another. The UCCJA also provides for enforcement in any state of a custody order entered by the state of habitual residence. Foreign custody decrees may obtain similar recognition in appropriate cases. The UCCJA may not be relevant to enforcement of undertakings, however, because return orders in principle are not the kinds of orders the UCJJA enforces -- that is, they are not custody orders entered by the jurisdiction of habitual residence, but rather orders facilitating the return of children to the appropriate jurisdiction to determine custody. It is not clear to us that a return order that included undertakings addressing custody on an interim basis could properly be considered a custody order under the UCCJA for enforcement purposes. Given how early we are in implementation of the Convention in the United States, my office and the U.S. Central Authority are taking a special interest in following the development of precedents in U.S. courts. We will undoubtedly refine our views as we see more Convention issues addressed by the judiciary. In addition, we agree with the proposal by the Government of Australia that it would be useful to address the subject of undertakings at a session of the Hague Special Commission on implementation of the Convention. A broad discussion of this issue among the states party to the Convention would be invaluable. I hope that these observations and the attached memorandum will be useful to you and respond adequately to your questions relating to the attitudes of the United States towards undertakings. Assuming that you are still planning a trip to Washington in the Fall, we can continue this discussion and arrange at that time for you to meet with members of the private bar as well as the U.S. Central Authority. We look forward to seeing you at that time. Best wishes, Sincerely, /s/ Catherine W. Brown Catherine W. Brown Assistant Legal Adviser for Consular Affairs Attachment: Legal memorandum. ---------------------------------------------------------------- The Hague Convention on the Civil Aspects of International Child Abduction - The Role of Undertakings and Their Recognition in the United States Background: Undertakings have been entered principally by courts in the United Kingdom, Australia, and New Zealand in connection with the issuance of orders for return under the Hague Convention on the Civil Aspects of International Child Abduction. FN1 The concept of an undertaking is derived from the law of contracts which defines an undertaking as a promise unsupported by consideration. FN2 In the context of the Hague Convention, an undertaking is a promise, generally given by the left-behind parent during the course of an Article 12 hearing to secure the prompt return of a child wrongfully removed under the Convention. The scope of undertakings entered by Hague Convention courts varies significantly. Limited undertakings have been entered requiring the left-behind parent to provide a return airplane ticket for the taking parent or requiring the child to be returned to his/her country of habitual residence in the custody of the taking parent. Other courts have entered extensive undertakings regulating virtually all matters bearing on custody and maintenance. The Department has identified only three cases where United States courts have addressed the role of undertakings under the Convention. In two of these cases, limited undertakings were entered in connection with the issuance of a Hague Convention return order. FN3 In the third case, a Massachusetts state family court denied enforcement of broad undertakings issued by an English court relying on Article 19 of the Convention which specifies that Convention orders are not to be determinative of underlying custody issues . FN4 Given the limited body of judicial precedent available to the State Department on the subject of undertakings, this paper can only provisionally consider the role of undertakings under the Convention. Nevertheless, this paper examines whether the Hague Convention authorizes the judicial and administrative authorities responsible for entering return orders under Article 12 to issue undertakings and the permissible scope of such undertakings. Summary: No article in the Hague Convention on the Civil Aspects of International Child Abduction FN5 provides express legal authority for the issuance of undertakings. The negotiating history of the Convention, however, reveals that the drafters contemplated that the judicial and administrative authorities responsible for ensuring the return of a child to his/her country of habitual residence might seek to enter provisional orders comparable to undertakings pursuant to their domestic legal authorities. Furthermore, Article 12 of the Hague Convention appears to permit the issuance of undertakings that are narrowly tailored to ensure the prompt return of a child to his/her country of habitual residence. Although limitations on the legal authority of the executive branch do not permit the Department of State to require state and federal courts to recognize undertakings, the Department could, consistent with the Convention, encourage enforcement in the United States of limited undertakings when issued by foreign courts and administrative bodies. Legal Basis and Scope of Undertakings: Foreign courts FN6 have relied on internal law and the Hague Convention itself to issue orders containing undertakings under the Convention. Specifically, some courts have relied on internal legislation, FN7 constitutional provisions FN8 and general equitable jurisdiction FN9 to justify the issuance of return orders containing undertakings. Other courts have invoked Articles 12 FN10 and 13 FN11 of the Hague Convention to justify the issuance of orders including undertakings. Although no Article of the Convention explicitly refers to undertakings, the negotiating history of the Convention provides support for judicial reliance on internal law to issue return orders containing undertakings. Further, undertakings appear to be consistent with Article 12. The negotiating history examines the role of the Convention viz. the internal laws of Contracting states bearing on child custody and international conventions governing the protection of minors and the enforcement of custody decisions. The negotiating history emphasizes that: "The Convention must necessarily coexist with the rules of each Contracting State on applicable law and on the recognition and enforcement of foreign decrees, quite apart from the fact that such rules are derived from internal law or from treaty provisions. On the other hand, even within its own sphere of application, the Convention does not purport to be applied in an exclusive way. It seeks, above all, to carry into effect the aims of the Convention and so explicitly recognizes the possibility of a party invoking, along with the provisions of the Convention, any other legal rule which may allow him to obtain the return of a child wrongfully removed or retained or to organize access rights." (Emphasis added) This statement suggests that the drafters intended the judicial and administrative authorities to enter temporary or provisional remedies based on other "legal rules," such as internal law, to better effectuate the Convention's purpose of "secur[ing] the prompt return of children wrongfully removed to or retained in any Contracting State." FN12 Article 12 also appears to provide a legal basis for the issuance of undertakings if their purpose is to secure the prompt return of a child to his/her country of habitual residence. Specifically, Article 12 requires the judicial and administrative authorities in the requested state to "order the return of the child forthwith." This obligation to ensure the expeditious return of a child has been interpreted by a number of courts as providing a legal basis for the issuance of undertakings. Underlying judicial reliance on Article 12 is the idea that undertakings further the aims of the Convention by encouraging taking parents promptly to return a child to the requesting state. Undertakings also tend to diminish the likelihood that a taking parent will engage in protracted litigation to avoid a return order. A number of courts have invoked Article 13(b) to justify the issuance of return orders containing undertakings. FN13 Article 13(b) prohibits the judicial and administrative authorities in requested states from ordering the return of a child where "there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Courts have relied on Article 13(b) to enter undertakings on the ground that undertakings are necessary to prevent a "grave risk" of harm to the child which would result from an unconditional order of return. Undertakings of this nature might, for example, order the return of the child in the custody of the taking parent and permit the taking parent to retain custody until custody was determined by the court of the place of the child's habitual residence. (Such an order was issued by a U.S. court in the Zimmermann case.) The negotiating history of the Convention plainly indicates that Article 13(b)'s "grave risk" exception to return is "to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. FN14 Limited undertakings of the kind just described would be consistent with this approach, as it would temporarily obviate any concern about placing the child in the immediate custody of the left-behind parent while still effectuating a prompt return of the child to his/her country of habitual residence. If the requested state court is presented with unequivocal evidence that return would cause the child a "grave risk" of physical or psychological harm, however, then it would seem less appropriate for the court to enter extensive undertakings than to deny the return request. The development of extensive undertakings in such a context could embroil the court in the merits of the underlying custody issues and would tend to dilute the force of the Article 13(b) exception. Thus, the negotiating history and Article 12 of the Convention support the issuance of undertakings. Limited undertakings may also help ensure that Article 13 is used only restrictively, as intended. The appropriate scope of undertakings remains a serious issue, however. In a number of cases, courts have entered return orders containing undertakings which appear to have gone beyond what was necessary to secure the prompt return of a child under Article 12. FN15 Undertakings that delve deeply into custody and maintenance issues would seem inconsistent with the intended sense of Article 12 and to contravene both the spirit and the letter of the Convention. Broad undertakings run counter to the jurisdictional nature of the Convention, which is repeatedly emphasized in the negotiating history: "[T]he Convention does not seek to regulate the problem of the award of custody rights. On this matter, the Convention rests implicitly upon the principle that any debate on the merits of the question, i.e., of custody rights, should take place before the competent authorities in State where the child had its habitual residence prior to its removal; . . ." Undertakings bearing on custody issues in any but the most temporary and minimalist way necessary to effectuate prompt return also contravene Articles 16 and 19 of the Convention. Specifically, Article 16 prohibits requested state courts from "decid[ing] on the merits or rights of custody until it has been determined that the child is not to be returned." Article 19 further emphasizes the jurisdictional nature of the Convention, stating that: "A decision under this Convention . . . shall not be taken to be a determination on the merits of any custody issue." FN16 Extensive undertakings, even if voluntary, do not appear, therefore, to be appropriate under the Convention. Undertakings would appear most consistent with the Convention when designed primarily to restore the status quo ante, or when they impose reciprocal obligations on both the left-behind and the taking parent. For example, in Madden v. Hofmann FN17 a New Zealand court ordered the child's return to Australia on condition that the child remain in the mother's (the taking parent's) custody until a full custody order issued by the Australian court. The New Zealand court also ordered the mother to appear in Australian family court within one week of her return, however. Similarly, in Zimmermann v. Zimmermann, FN18 the District Court of Dallas specifically ordered the mother, the abducting parent, to report immediately to the U.K. family court upon her return. The court further specified that the undertakings would cease to have effect upon the issuance of U.K. court orders. The approach taken by the Madden and the Zimmermann courts, whereby undertakings are reasonably tailored to expedite the return of the child, impose reciprocal obligations on both parents, and explicitly terminate upon action by the court of appropriate jurisdiction, seems entirely appropriate. Recognition of Undertakings in the United States: The Convention has been used successfully to return abducted children to and from the United States in many cases without reliance upon undertakings, particularly when civil countries are involved. Thus, it is clear that the Convention can function effectively without the use of undertakings. While not necessary to the operation of the Convention, undertakings and their enforcement may facilitate the return of children and do not appear inconsistent with the Convention when limited in scope. The Department, as Central Authority for the United States, could support or at least not object to the recognition of undertakings issued by foreign courts which are reasonably limited in scope and duration. Neither the Hague Convention nor federal implementing legislation, however, specifically provides a mechanism for the domestic enforcement of foreign undertakings issued in connection with Convention orders for return. FN19 The Department cannot directly compel enforcement of undertakings in United States state and federal courts, nor act as an attorney or in any fiduciary capacity in legal proceedings arising under the Convention. FN20 Enforcement will, therefore, depend primarily on comity. The Department could support or at least accept the use of "safeharbor orders" FN21 which typically impose conditions on return similar to those imposed by undertakings, but can be enforced domestically as they are issued by U.S. state and federal courts. Such orders appear to facilitate the return of children to the United States and to obviate the concerns that occasionally prompt foreign courts to issue return orders containing undertakings. However, the Department does not support conditioning the issuance of a return order on the acquisition of a safeharbor order from a court in the requesting state. In light of the limited number of United States court cases analyzing undertakings, the Department will want to keep this issue under review and continue to monitor the use of undertakings in connection with Hague Convention return orders. The Department's view of use of undertakings under the Convention may evolve as a fuller judicial record is developed. In this connection, the Department may well support the Australian recommendation that the agenda of the next session of the Hague Special Commission on implementation of this Convention include a discussion of undertakings. ================================================================= THE HAGUE CONVENTION and THE UNITED STATES OF AMERICA ANNEX C ABA Center on Children and The Law FAMILY ABDUCTION AND MISSING CHILDREN REPORT PROJECTS ---------------------------------------------------------------- ABA CENTER ON CHILDREN AND THE LAW FAMILY ABDUCTION AND MISSING CHILDREN PROJECTS Obstacles to the Recovery and Return of Parentally Abducted Children The first "Obstacles" project was a two year research project designed to identify the legal, policy, procedural and practical obstacles to the recovery and return parentally abducted children. The report is available through the Juvenile Justice Clearinghouse at 800-638-8736. The current "Obstacles" project is a training, technical assistance, and dissemination project. Among the activities are the development of a benchbook for judges, practice tips for attorneys, and training curricula as well as technical assistance in relation to law refomm. A recently added component is the establishment of an International Child Abduction Attomey Network (ICAAN) for incoming cases under the Hague Convention. Prevention of Parent and Family Abduction Through Early Identification of Risk Factors Conducted in collaboration with the Center for the Family in Transition in Califomia, this research has identified characteristics of families in which there has been an abduction and compared them with high-conflict parents who have litigated custody. Currently, parents identified as at-risk for abducting are referred to the project for either an educational or therapeutic intervention. The results of the project will be disseminated in 1996. North American Symposium on International Child Abduction Held in Fall 1993, the Symposium provided in depth training to about 400 lawyers, judges, and others involved in resolving international abduction cases. The Compendium of materials is available through the Juvenile Justice Clearinghouse at 800-638-8736. It includes 4 diskettes of applicable case law. (Convener, Patricia Hoff, Esq.) Issues in Resolving Cases of International Parental Abductions of Children This research project is designed to identify the cultural and institutional barriers to resolving international parental abductions and to examine the effectiveness of the Hague Convention on the Civil Aspects of International Child Abduction. The project has completed focus groups with leff-behind parents from Hague and non-Hague countries, in preparation for a survey of left-behind parents. A survey of Central Authorities under the Hague Convention will also be conducted. Criminal Justice System Processing of Parental Abduction Cases This research project involves a nationwide survey of the criminal justice system's response to parental abduction cases. The final report will include a summary of findings as well as recommendations for reforms in policy and practice. (Director, Kathi Grasso, Esq.) Effective Community Based Approaches for Dealing with Missing and Exploited Children This project will involve a national search of communities that have implemented a multi-agency response to missing and exploited children, an evaluation of five selected communities, and the development of a training curriculum to help communities implement multi-agency programs. ----------------------------------------------------------------- Linda Girdner, Ph.D., Director of Research, directs the above projects, except where otherwise noted. For more information, contact her at 202/662-1722 (tel.) or 202/662-1755 (fax), ABA Center on Children and the Law, 740 15th St. NW, 9th Floor, Washington, D.C. 20005-1009. Funding is provided by grants from the Omce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, to the American Bar Association Fund for Justice and Education. ================================================================= THE HAGUE CONVENTION and THE UNITED STATES OF AMERICA ANNEX D United States Department of State Letter of 20 Sep 1995 Concerning the National Center for Missing and Exploited Children ---------------------------------------------------------------- United States Department of State Washington, D.C., 20520 UNITED STATES CENTRAL AUTHORITY HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION Office of Children's Issues, Room 4811 Bureau of Consular Affairs Department of State Washington, D.C. 20520 TEL: (202) 647-2688 FAX: (202) 647-2835 September 20, 1995 Mr. Michael Nicholls Office of the Official Solicitor 81 Chancery Lane London WC2A 1DD United Kingdom Dear Mr. Nicholls: I am writing to inform you of an important change in the processing of Hague Convention child abduction cases, which will enhance the U.S. Central Authority's service to applicants in your country. On September 1, 1995, the U.S. Central Authority signed an agreement with the U.S. Department of Justice and the National Center for Missing and Exploited Children. Under the agreement, applications seeking return of or access to children abducted to the United States will be processed at the National Center for Missing and Exploited Children. The U.S. Central Authority, in the Office of Children's Issues at the U.S. Department of State, will continue to handle all policy issues. We will also supervise and have responsibility for the handling of Hague cases by the National Center. James Schuler on my staff will serve as the coordinator with regard to the new supportive functions of the National Center. The U.S. Central Authority will continue directly to process cases of children abducted from the U.S. to another Convention country. For more than ten years, the National Center for Missing and Exploited Children has provided invaluable technical assistance to parents seeking to recover children missing in the United States. Through its excellent communication system with law enforcement and social agencies throughout the country, it processes more than 4000 domestic parental child abduction cases annually. The National Center also has an on-line computer information network and operates a nationwide missing child poster distribution service. If you have access to the Internet, you may obtain further information on the National Center and its many resources on the missing children forum. The transfer of routine, day-to-day handling of Hague Convention cases to the National Center will permit us to take advantage of the National Center's extensive experience in locating missing children in the United States. It should also expedite the processing of cases and make it possible for our colleagues in other Central Authorities to communicate by telephone earlier in the day and later at night than is now possible. The National Center staff will be available to you from 8a.m. to 8p.m. local time (EST), Monday through Friday, even on most U.S. holidays. In addition, the National Center offers a toll free telephone number to callers from the United Kingdom. That number is 0-800-962587. The National Center is located just outside of Washington D.C. in Arlington, Virginia. Enclosed for your convenience, please find a card with important telephone and fax information. for the National Center. We are conducting an intensive training program for the National Center staff during the current transition period as they begin to process cases. For the time being, and until further notice, please continue to send all applications and communications to the U.S. Central Authority. For your information, I have also enclosed brochures which our office distributes to the public, including statistics on international child abduction. The U.S. Central Authority processed approximately 700 Hague applications in 1994; roughly 300 of these cases were applications for the return of a child abducted to the United States. We would appreciate receiving similar information from other Central Authorities. I am very pleased that the U.S. Central Authority is able to offer applicants in your country this enhanced service. If you have any questions, concerns or comments regarding this change, please feel free to contact me or James Schuler at (202) 647-2688. Sincerely Yours, /s/ Leslie Rowe Leslie Rowe Director U.S. Central Authority Enclosures: As stated. ================================================================= LORD CHANCELLOR'S DEPARTMENT CHILD ABDUCTION UNIT 51 Chancery Lane London WC2A 1DD Telephone Direct Lines (0)171-911 7045/7047 General Enquires (0)1751-911 7127 FAX (0)171-911 7248 Document Exchange DX 0012 Chancery Lane IF THIS MESSAGE IS CORRUPT TELEPHONE (0)171-911-7045/7047 FACSIMILE TRANSMISSION INFORMATION SHEET FROM: Michael Nicholls TO: William M Hilton FAX NO: 00 1 408 246 0114 SUBJECT: Undertakings and Stipulations No. OF PAGES (including this): 6 DATE: 12 July 1996 TIME: Our draft order has now been incorporated into the standard text-book on family law in England "Rayden & Jackson", which you will see from the attached extract from a High Court law report is highly regarded by the judges. I have attached the relevant pages, which I thought that you would like to see. MICHAEL NICHOLLS Central Authority for England and Wales Excerpted from Rayden & Jackson Issue 17 Chapter 45 Recognition and Enforcement of Child Orders. Undertakings. The Court of Appeal has approved the practice whereby undertakings can be accepted by the English court in order to remove/alleviate what would otherwise be the grave risk of the child being placed in an intolerable situation by an order for return: C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, CA, per Butler-Sloss LJ 659A-660G, 661G-H; Re G (A Minor) (Abduction) [1989] 2 FLR 475, CA per Purchas LJ at 478e- 482A, 483C-484D and Butler-Sloss LJ at 485B. These undertakings have covered a large range of matters and in many cases are required before the court will order a return: see C v C (Abduction: Rights of Custody) and Re G (A Minor) (Abduction). Cf Police Comr of South Australia v Temple (No 2) (1993) FLC 92-424, the Full Court of the Family Court of Australia, in which a father seeking a return of a child to England was required by the Australian court to give an undertaking to an English court as a precondition to the return of the child to England but wider undertakings required by trial judge were not approved. However (i) where a party is not in a position to give extensive undertakings to the court, the court will not require them: Re A [1992] Fam 106, CA. (ii) the undertakings are to make the return of the child easier and to provide for its necessities (eg accommodation and maintenance) until and only until the court of habitual residence can become seised of proceedings brought in that Jurisdiction, and they should not be so elaborate that proceedings become bogged down in protracted hearings or investigations or the paramount decision to return becomes delayed: Re M (Abduction: Undertakings [1995] 1 FLR 1021, CA See also Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89, [1995] 2 FCR 265, CA (undertaking to Italian court was a conscientious endeavour, in a different legal context, to fulfill the promise that had been given to the English judge as to a submission to the jurisdiction in Italy) See aLso Re O (Child Abduction: Undertakings) [1994] 2 FLR 349, [1995] 1 FCR 721, Singer J. (mother wrongfully removed child aged six and a half from Greece to England. Article 13(b) defence raised. Expert evidence was called to show that Greek courts had no place for the concept of contempt of court and would not enforce undertakings and there was no mechanism whereby the undertakings could be enforced, the court therefore considered whether the Article 13(b) defence succeeded notwithstanding undertakings unenforceable. Held: (1) An assertion by a parent in the context of an Article 13(b) defence that the courts of Convention country would not permit a second and lawful emigration of the child or children concerned should only be entertained if it were established in relation to a given country that there was some fixed embargo on allowing the removal of children or perhaps precluding the removal of children by a parent who had once wrongly removed them. (2) Where an Article 13(b) defense is raised which involves investigation of the domestic law of a Convention country and the court considers that investigation necessary for the determination of the defence such an investigation can and should properly take place notwithstanding well-recognised principles of comity. The: English court can consider whether undertaking will be adequately enforceable in the requesting state; a request for information should be made of the Central Authority of the requesting state, but if insufficient information is received, it may be necessary to direct the parties to file expert evidence in the normal way. Order made for the child's return to Greece. However see the approach of the Court of Appeal in Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89, CA and Re M (Abduction: Undertaking) [1995] 1 FLR 1021, [l995] 3 FCR 745, CA. "The fact that there is jurisdiction to grant a peremptory return order in child abduction cases where the Convention does nor apply is, itself, based upon nothing else but an appreciation of the general demands of the best interests of all children. It assumes that in absence of specific circumstances it will best serve the immediate welfare of the abducted child to have its long term interests judged in the land from which it was abducted. When that principle is taken with the general principle of comity which applies between civilised countries, and especially between partners in the European Union, an element of trust is bound to become involved. Judges in one country arc entitled and bound to assume that the courts and welfare services of the other country will all take the same serious view of a failure to honour undertakings given to a court of any jurisdiction, failure to maintain financially, failure to afford contact, and so on. It is to be assumed that the courts in every country will not hesitate to intervene to enforce whatever orders, or to direct whatever enquiries are called for, in the children's best interests. In that process, every judge is bound to take a full and careful account of what his or her colleague has already ordered in antecedent proceedings in another jurisdiction" per Waite LJ in Re M (Abduction: Non-Convention Country) 98B-E And see Re M (Minors) (Abduction: Peremptory Return Order) [1996] 1 FLR 478, CA (Dubai; judges should normally assume that facilities for a fair hearing would be available in the courts of another country and that those courts would take due account of orders made and undertakings given in England). The following draft order has been prepared by Mr. Michael Nicholls of the Central Authority for England and Wales and Mr. William Hilton, an attorney specialising in cases under the Hague Convention, in a form which they believe will commend itself to judges in England and in the United States. It attempts to avoid criticisms which have been made of earlier orders (for example that the undertakings do not form part of the order of the court or that the applicant was not aware of the nature of the obligations into which he or she was entering) and to define its purpose more clearly. The editors are grateful to Mr. Nicholls for permission to reproduce it. [FOR FULL TEXT OF THE FORM SEE ABOVE] Comment by Mr. Justice (Now Lord Justice) Thorpe in Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 325 By way of footnote I would like to make two observations. Since the introduction of the Children Act 1989 a number of very useful textbooks and practice guides have been published and enthusiastically received by the Bar. But for a case that involves any difficult question of law this has illustrated the essential function that Hayden continues to serve. Thanks to the ring-binder service to the 16th edition the decision in H v H (Minors) (Forum Conveniens) (No 3) [1994] Fam Law 13 emerged, as did the decision of the Court of Appeal in Re S (above). Rayden, vol 1 para 44.29 notes the proposition that the concept of forum conveniens as the phrase is used in other kinds of litigation has no place in the wardship jurisdiction. The authority for that, of course, remains Re R (above). It seems to me that that passage will need to be reconsidered before the new edition is published. Secondly I would like to record that the issues have been tenaciously and most ably argued by Miss Jones and Miss Cook on behalf of the father and the mother, and the court has received invaluable aid from Mr Levy and from Mr Nicholls acting not only an amicus curiae but also as guardian ad litem following the appointment on 15 September 1994. There will be no order as to costs save legal aid taxation -------------------- 1. Courts in the United States, Canada, Hungary and Switzerland have also issued Hague Convention orders containing undertakings. In preparing this report, the Department examined eighteen cases containing undertakings: Wadda and Wadda v. Ireland, High Court [l994] 1 ILRM 126, P v. P. [1992] 1 FLR 155, Police Commissioner of South Australia v. Temple, [1993] FLC 92-424, In Re G. Court of Appeal [1989] 2 FLR 475, Thomson v. Thomson, [1994] S.C.R., Court of the Capital of Buda Court of Appeal [1988] No. 50.Pf.548/1988/3, C v. C, Court of Appeal [1989] 1 FLR 403, In Re M, Court of Appeal [l994], Korowin v. Korowin, District Court of Horgen [1991], Madden v. Hofmann, [1994] FP 009/478/94, McOwan v. McOwan, Family Court of Australia [1933], Zimmermann v. Zimmermann, District Court of Dallas County [1991], P v. B. Supreme Court [l994] 1 ILRM 201, Hemard v Hemard, U.S. District Court for the Northern District of Texas [1995] 7-94CV-110-X, Boy v. Boy, [l994] FP No. 734/93. 2. See, e.g., Corwin, Section 13. 3. See, Zimmermann v. Zimmermann, District Court of Dallas County [l991], and Hemard v. Hemard, U.S. District Court for the Northern District of Texas [1995] 7-94CV-110-X. 4. The Massachusetts state family court decision denying the enforcement of undertakings issued by a U.K. court, the Roberts case, has not been reported as this case has been impounded. Because state family court cases typically remain unreported, this listing of U.S. case law on undertakings is likely incomplete. 5. Hereinafter the Convention or the Hague Convention. 6. As noted previously, the Department is aware of only two cases in which a state court in the United States has entered a return order containing undertakings. See supra, note 3 and accompanying text. This paper, therefore, focuses on the practice of foreign courts in analyzing the legal bases under the Convention for the issuance of undertakings. 7. See, e.g., P v. B. [1995} 1 ILRM 201 (Where the Irish Supreme Court upheld a trial court order containing undertakings under the Child Abduction and Enforcement of Custody Orders Act 1991 and the Irish Constitution); Police Commissioner of South Australia v. Temple, [l993] FL 92-424 (Finding limited undertakings to be permitted under Australian legislation implementing the Convention, Regulation 15(3).) 8. See, e.g., Wadda and Wadda v. Ireland, High Court [l994] 1 ILRM 126. 9. See, e.g., Madden v. Hofmann, [1994) FP 009/478/94. 10. See e.g., Thomson v. Thomson, [1994] S.C.R. (Canada), In Re M, [1994] Court of Appeal (UK), and Korowin v. Korowin, [1991], District Court of Horgen (Switzerland). 11. See, e.g., C v. C, [1989] 1 FLR 403 Court of Appeal (UK), Zimmermann v. Zimmermann, [1991] District Court of Dallas County (U. S.). 12. Article 1. 13. See, e.g., In Re G. [1989] 2 FLR 475; C v. V, [1989] 1 FLR 403. 14. Perez-Vera Report, at 434. 15. For example, in C v. C., involving an abduction from Australia to the U.K., the U.K. Court of Appeal issued extensive undertakings requiring the father, the left-behind parent, to pay A$650 a week maintenance to the mother, obtain housing for the mother, to secure a place for the child at a preparatory school, to pay all fees relating to the children education, to provide air tickets for the child and the mother to return to Sydney, and to provide a car for the mother for her use for two months or until resolution of the custody case, whichever proved to be longer. The Court of Appeal also prohibited the father from enforcing a 1988 custody order which had been issued ex parse, from removing the child from the mother pending full resolution of custody by an Australian court, from instituting contempt proceedings against the mother, and from impounding the mother's passport. 16. This was the position taken by Judge Sabaitis in the Roberts case, where an English court had entered undertakings regulating virtually all matters bearing on custody. 17. 1994] FP 009/478/94 18. [1991] District Court of Dallas County 19. Parents could conceivably attempt to invoke the Uniform Child Custody Jurisdiction Act to seek enforcement of undertakings. ("UCCJA") Section 23 of the UCCJA generally requires state courts to grant full faith and credit to foreign custody orders provided minimum standards of due process have been accorded both parties. By its terms, however, Section 23 would not normally encompass Hague orders for return, as Section 23 applies only to foreign "custody decrees." The question would be whether a U.S. court would regard a return order that included undertakings relating to temporary custody as a "custody decree' within the meaning of Article 23. If so, it would presumably be subject to modification by the U.S. court, which would have jurisdiction to decide custody issues, both under the Convention and the UCCJA. 20. See, 22 C.F.R. 94.4 21. A "safeharbor order," is a temporary order obtained from a court in the child's country of habitual residence. It is generally obtained by the left-behind parent prior to initiating Hague Convention proceedings in the country to which the child has been wrongfully removed or retained. The safeharbor order will typically recite that the left-behind parent agrees to submit to the jurisdiction of the home-state court upon return of the child, will provide financial arrangements for the return of the child, and any other additional conditions which may expedite return of the child.