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10. Deputy Director, Office of Children's Issues, U.S. Department of State, analysis of U.S. practice in parental child abduction cases


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UNDERTAKINGS AS CONVENTION PRACTICE: THE U.S. PERSPECTIVE

Ms Kathleen Ruckman

Deputy Director, Office of Children’s Issues, Department of State, United States of America

Judges in common law countries have incorporated undertakings into return orders under the 1980 Convention since early in its implementation, and their use has become a generally accepted practice. When employed for the limited purpose of ensuring the safety of the child upon return, undertakings promote the purpose of prompt return of a child to its habitual residence. However, the U.S. Central Authority has found that courts in some countries now regularly enter orders including onerous undertakings and pre-conditions to return of children that undermine essential principles of the Convention.

The role of undertakings

Undertakings are a promise or stipulation to a court offered by, or more often imposed upon, an applicant parent, in which he or she agrees to take certain steps to ensure the short-term welfare of a returning child or parent. The limited use of undertakings provides reassurance to requested courts that return will not be harmful to the child, and that a prompt and fair custody hearing will occur in the requesting country upon return. Commentators and courts in the U.S. and elsewhere have noted that undertakings help promote returns where courts may be otherwise reluctant to order a child returned, especially where a respondent parent has demonstrated some risk of harm to the child in the return hearings.[1] Indeed, properly constructed undertakings, voluntarily taken and enforced, can be an important mechanism for overcoming the Article 13(b) defense.

While undertakings are not necessary to the proper operation of the Convention, the U.S. Department of State, Central Authority for the 1980 Convention, supports their limited use where they: (1) are appropriate in scope; (2) facilitate the Article 12 objective of return of the child “forthwith;” (3) help to minimize the issuance of non-return orders based on Article 13; and (4) respect the jurisdictional nature of the Convention by not encroaching on substantive issues relating to custody and maintenance properly left to the court of the habitual residence.[2] Agreements to assist in the return process or to arrange temporary protective measures appropriately facilitate prompt return and are thus seen as reasonable under the Convention.[3]

Additionally, Mr. Michael Nicholls, formerly of the Central Authority for England & Wales, in his report on Hague Convention Operations of November 1995, wisely noted that “[u]ndertakings should be scrutinised with great care to avoid any suggestion of rewarding wrong doing … .” [4] In that vain, courts have stated that undertakings should also impose reciprocal obligations on both parents and explicitly terminate upon action by the court of the appropriate jurisdiction. [5]

Mr. Nicholls further suggested that courts first consider alternatives to undertakings that might achieve the desired results, such as seeking “safe harbor” orders in the requesting country.[6] Where enforceability is a primary concern, courts may require “mirror orders” in the requesting state, although, this alternative may cause delays and further encroach on the authority of the requesting court.

Issues surrounding undertakings and the Convention

Courts that choose to use the mechanism of undertakings walk a fine line. Carefully crafted undertakings can enhance Convention practice, but excessive undertakings may quickly cross the line and work against Convention purposes. Indeed, perhaps because undertakings have questionable enforceability in the requesting jurisdiction, courts now often issue undertakings that are in fact pre-conditions on return. Such conditions necessarily cause significant delays in return of children and considerable hardship for all involved.

The U.S. Central Authority has seen a disturbing trend towards onerous pre-conditions on return that have delayed return of the children, sometimes for many months, while the applicant parent attempts to fulfill the obligations imposed. Problematic conditions in recent return orders from Australia, Israel, and South Africa, have included:

· Full payment of travel costs for the abductor and child;

· Prepayment of fees for abductor’s U.S. attorney;

· Provision of a car for the abductor;

· Requirement to vacate the family home;

· Prepayment of long-term financial support for a returning abductor who had remarried in the U.S. and for whom the applicant no longer had any financial obligation;

· Prepayment of spousal and child support well beyond reasonable amounts for the geographic area in the U.S, or beyond the means of the left-behind parent, including pre-payment of one month support before departure;

· Guaranteed entry visas for the returning abductor;

· Dismissal of temporary ex parte custody orders;[7]

· Withdrawal of criminal charges against the abductor.

As a matter of policy, excessive pre-conditions on return undermine the understood child-protective purpose of the Convention, to deter international parental abduction by promptly returning children to their habitual residence. The Convention addresses in Article 26 the proper distribution of the burden of costs of an abduction by providing that, “[u]pon ordering the return of a child … the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.” U.S. implementing legislation specifically requires courts to order costs to the abducting parent to pay costs, unless doing so would be “clearly inappropriate.”[8] Such provisions support the deterrent purpose of the Convention by denying abductors any rewards for their actions and requiring them to pay the costs incurred. Excessive undertakings, on the contrary, place the burden for return of a child on the already victimized left-behind parent, and may in fact have the unintended consequence of rewarding the abductor for his or her wrongful actions.

As a matter of practice, elaborate conditions undermine the purpose of prompt return of children and cause hardship for parents as well as for Central Authorities, who must act as intermediaries with left-behind parents to negotiate the terms of return, many of which are beyond the control of either Central Authorities or parents. For example, in the U.S., prosecutors have full discretion with regard to decisions to prosecute under criminal statutes. While a request can be made to have charges dropped, neither the U.S. Central Authority nor the left-behind parent has power to control the ultimate decision. In addition, although the U.S. Central Authority will gladly facilitate visa arrangements to the extent possible and appropriate under U.S. law, neither the U.S. Central Authority nor the left-behind parent himself can guarantee that visa issuance is possible under applicable immigration law.

Of particular concern is the imposition by foreign courts of conditions that effectively usurp the function of the court of the habitual residence. Extensive financial conditions, particularly of spousal support, exceed what is contemplated by the Convention and contradict the understood purpose to restore the pre-abduction legal status quo ante. Such matters are properly addressed by the courts of the habitual residence, which are naturally better situated to determine appropriate support and custody arrangements.

Finally, cooperation among international courts and authorities is essential to the proper functioning of the Convention. Extensive conditions on return undermine cooperation by implying a lack of trust in a treaty partner’s judicial and social welfare systems.

Time to reconsider undertakings

The U.S. urges a full and frank discussion of the current use of undertakings in the 1980 Convention at the fall 2006 Special Commission.



[1] See P.R. Beaumont & P.E. McEleavy, “The Hague Convention on International Child Abduction” (1999), at 160.

[2] Letter to Mr. Michael Nicholls from Catherine W. Brown, Assistance Legal Adviser for Consular Affairs, U.S. Department of State, August 10, 1995.

[3] Id.

[4] Report On Hague Convention Operations by the Lord Chancellor's Child Abduction Unit, Central Authority for England & Wales, November 1995.

[5] Catherine Brown letter, attached legal memorandum, citing Zimmermann v. Zimmermann, District Court of Dallas County (l991), and Madden v. Hofmann, [1994] FP 009/478/94.

[6] Above, note 4.

[7] Ex parte orders may be necessary for a parent in the U.S. to pursue measures to supplement the Hague process, such as obtaining assistance from law enforcement. Such orders are only temporary in nature, are readily reconsidered upon return of the child when both parties can be heard, and should cause no prejudice to the returning parent. See Department of State circular, “Ex Parte Custody Orders And The Hague Convention On, The Civil Aspects Of International Child Abduction.”

[8] 42 U.S.C. Sec. 11607(b)(3).



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