US: injunction to stop removal of child from country does NOT constitute right of custody under Hague Convention

One of the fascinating features of the Hague Convention is that rather than each country developing its laws separately, as happens in many ways with family law, there is a body of caselaw in each country that may be applied, distinguished or criticised in other Hague countries- so that hopefully there is a single consistent international approach.

I mention this because of a recent US Court of Appeals decision on what constitutes “rights of custody” under the Hague Convention.

Refresher

The Hague Convention is the shorthand version for the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

A parent, or some other person can only get a child back to the first Hague country from the second Hague country if the child were wrongfully removed or wrongfully retained and that removal or retention is in breach of the rights of custody of that person.

The US decision

The US Court of Appeals for the Fifth Circuit in Abbott v Abbott considered what to do when the mother wrongfully removed a child from Chile in admitted breach of an injunction [which in the US is called a ne exeat order] to prevent the child’s removal and in breach of a Chilean law prohibiting that removal.

Both Chile and the US are Hague Convention countries.

The difficulty for the father was that in earlier Chilean court proceedings, although he had been allowed to have contact with the child, all of the custody rights to the child were ordered in favour of the mother.

The question then became- were the rights under the injunction order preventing the removal of the child from Chile “rights of custody” under the Hague Convention? The court held that they were not.

The father applied to the US District Court, which held that the rights under the ne exeat order were not rights of custody. He then appealed to the US Court of Appeals.

That court reviewed both US and international cases on point. The most significant was an earlier decision of the US Court of Appeals for the 2nd Circuit, Croll, where that court held (about a Hong Kong order) that an order allowing access and an injunction prohibiting the removal of the child from Hong Kong were not enought to constitute “rights of custody” under the Hague Convention. Croll determined that “rights of custody” was a bundle of rights and that breach of one right, namely the order to prevent the child’s removal from Hong Kong, was not a breach of “rights of custody”.

The court in Abbott, summarising Croll said:

The mother had the right to choose where the child would live within
Hong Kong, and the father had no control over her choice. Furthermore,
although the father could refuse to consent to the child’s removal from Hong
Kong, he could not require that the child live in another country; thus, he had
only a veto right over the child’s removal from Hong Kong rather than an
affirmative right to determine the child’s residence.

In the 11th Circuit decision of Furnes, the court held to remove the child from Norway to the US in breach of an injunction not to remove a child from Norway was a breach of the father’s rights of custody. The court in that case noted that the mother could by Norwegian law decide where in Norway the child could live, but that by Norwegian law, both parties had joint parental responsibility which meant in this case that the non-custodial father had the right “to make
decisions for the child in personal matters,” including “decisions that affect the
child’s care.”

International cases

The trial court in Abbott noted that:

the cases from other signatory states addressing the rights
conferred on a parent by a ne exeat order are “few, scattered, [and]
conflicting” and thus do not guide this Court in its consideration of
the issue.

The Furnes court catalogued the foreign opinions on the issue, noting that courts in the United Kingdom, Australia, South Africa, and Israel have held that ne exeat rights do constitute “rights of custody” under the Hague Convention, while Canadian and French courts have reached the opposite conclusion.

The court in Abbott held (at first referring to the trial in the District Court):

The district court focused on the Hague Convention’s distinction
between “rights of access” and “rights of custody” and quoted from the
official history and commentary on the Hague Convention (which had also been
quoted in Croll and in Gonzalez), confirming that despite a discussion on the
issue, there was no agreement by the Hague Convention drafters to establish a
remedy of return for violation of “rights of access.”

The district court concluded:
Although Ms. Abbott’s removal of
[the parties’ son] violated and
frustrated the Chilean court’s order, so too
would the removal of a
child from a country in which any parent with rights
of access
resided. Mr. Abbott’s right of access, however enhanced
and
protected by the ne exeat order, is simply not sufficient to
create
rights of custody that warrant the greater protection intended
under
the Hague Convention. This Court in no way condones Ms.
Abbott’s
action. . . . [The child’s] residence in the United States
obviously
interferes with Mr. Abbott’s visitation rights, as established by
the
Chilean court. However, the Hague Convention explicitly creates
a
different set of remedies for those parents whose rights of access
are
frustrated by the custodial parent’s removal of a child . . . .
The
district court denied return of the child, finding that the father did not
establish by a preponderance of the evidence that his son’s removal constituted
a breach of “rights of custody” as defined by the Hague Convention.

We note that the ne exeat order prohibited either parent from removing
the
child from Chile without the consent of the other. The ne exeat order
thus gave
the father a veto right over his son’s departure from Chile, but it
did not give
him any rights to determine where in Chile his child would live.
Furthermore,
the Chilean family court, in its second order, expressly denied
the father’s
request for custody rights and awarded all custody rights to the
mother.
We find persuasive Croll’s reasoning that the Hague Convention
clearly
distinguishes between “rights of custody” and “rights of access” and
that
ordering the return of a child in the absence of “rights of custody” in
an effort to
serve the overarching purposes of the Hague Convention would be
an
impermissible judicial amendment of the Convention.

We hold that ne exeat rights, even when coupled with “rights of access,” do
not constitute “rights of custody” within the meaning of the Hague Convention.
The Hague Convention
provides a remedy of return only for a parent who holds
“rights of custody.” The
father in this case did not hold such rights.