Library Research

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Discussion:
Library Research
Finding out about current research in archaeology is an important part of our course. And browsing the published journal articles is a great way to discover the interesting studies that archaeologists are doing all over the world!  In this module, we are learning how to find scholarly journal articles on topics that are interesting or important to us.
Please complete the discussion by posting a citation of a scholarly journal article that you found through our library search engine, JSTOR.  Be sure to use APA citation formatting style.  Your citation will probably be less than our regular minimum word count requirement – that is OK for this assignment.
Then, in your second post, please read the citation of an article that one of your peers discovered.  Use the information provided in their post to find that article through JSTOR (Hint: you could try searching the title of the article in quotes, the name of the author, or by picking out some key words from the title).  Once you have found the article, skim the abstract or introduction and make a brief statement on your opinion of the article.
British Institute of International and Comparative Law
International Child Abduction: The English Experience
Author(s): Nigel Lowe and Alison Perry
Source: The International and Comparative Law Quarterly, Vol. 48, No. 1 (Jan., 1999), pp.
127-155
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
Stable URL: http://www.jstor.org/stable/761623
Accessed: 21-07-2018 22:42 UTC
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Comparative Law Quarterly
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SHORTER ARTICLES, COMMENTS AND NOTES
INTERNATIONAL CHILD ABDUCTION-THE ENGLISH
EXPERIENCE
A. Introduction
1. The Abduction Conventions
Since 1 August 19861 the United Kingdom has been party to two international
conventions on child abduction: the Hague Convention of 25 October 1980 on the
Civil Aspects of International Child Abduction, and the European (Luxembourg)
Convention of 20 May 1980 on the Recognition and Enforcement of Decisions
Concerning Custody of Children and on Restoration of Custody of Children.
While differing in various respects, each Convention seeks to tackle the problem
of international child abduction by expediting the return of children under the age
of 16 to their country of habitual residence following a wrongful removal to or
retention in another contracting State. The principal difference between the Con-
ventions is that while the Hague Convention deals with breaches of “rights of cus-
tody” or rights of access which may arise whether or not any court order exists with
regard to the child, the European Convention is concerned solely with the recog-
nition and enforcement of orders and decisions relating to custody and access.
Each Convention requires contracting States to establish a central authority (or
central authorities) responsible for receiving and transmitting applications under
the Conventions. In England and Wales the Lord Chancellor’s Department’s
Child Abduction Unit acts as central authority under both Conventions. Scotland
and Northern Ireland have their own central authorities. Neither Convention dic-
tates the level of court competent to hear applications. Commonly, however, con-
tracting States have permitted a number of different courts, even those at the
lowest level, to have jurisdiction. This has meant that in Germany, for example,
over 300 courts have potential jurisdiction to hear Convention cases at first
instance.2 In contrast some jurisdictions, notably those in the United Kingdom but
also Ireland and Australia, have chosen to vest jurisdiction to hear Convention
applications exclusively in a single high level of court (viz. in the case of England
and Wales, the High Court).
2. The research
Our findings are based on an examination of the Child Abduction Unit’s records
of all the Convention applications dealt with in 1996.3 Although much has been
written on the general operation of the Conventions and on the interpretation of
1. When the Child Abduction and Custody Act 1985 came into force.
2. See Lowe and Perry, “The Operation of the Hague and European Conventions on
International Child Abduction between England and Germany Parts I and II” [1998]
International Family Law 8 and 51.
3. I.e. our research is confined to applications concerning England and Wales.
127
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128 International and Comparative Law Quarterly [VOL. 48
the Conventions in the English courts,4 and although there has been similar
research in the United States and Canada,5 this is the first time a socio-legal analy-
sis has been applied to Convention applications dealt with by the English Central
Authority. Where possible our findings will be compared with previous research
findings, and suggestions will be made about the general operation of the Conven-
tions. One question in particular which might be informed by this research is
whether the nature of abduction has changed since the drafting of the Conven-
tions, and whether as a consequence the scheme of the Conventions needs
rethinking.
Time constraints limited the project to an examination of cases dealt with over
one year, and 1996 was chosen simply because it would give the most up-to-date
picture. We have no reason to believe 1996 to be anything other than a typical year
in terms of use of the Conventions.6 In all, we examined 372 files, covering both
“incoming”‘7 and “outgoing”8 applications made under the Hague and European
Conventions. Information was collected, where available, on the type of appli-
cation, the country involved, the abductor, applicant and children, on the length of
the process and on the outcome of the case.
4. See e.g. Bruch, “Child Abduction and the English Courts”, in Bainham and Pearl
(Eds), Frontiers of Family Law; Everall, “Child Abduction after the Hague Convention”
[1990] Fam.Law 169 and “The Hague Convention: The Children Act and other Recent
Developments” [1992] Fam.Law 164; Schuz, “The Hague Child Abduction Convention:
Family Law and Private International Law” (1995) 44 I.C.L.Q. 771; Silberman, “The Hague
International Child Abduction Convention: A Progress Report” (1994) 57 Law and
Contemp. Probs 208, and “Hague Convention on International Child Abduction-A Brief
Overview and Case Law Analysis” (1994) 28 Fam.L.Q. 9.
5. In the 1970s Michael W. Agopian studied a sample of 91 families known to the Los
Angeles County court system for child snatching (“Parental Child Stealing: Participants and
the Victimisation Process” (1980) 2-4 Victimology: An Int.J. 5 and Parental Child-Stealing
(1981)). Rosemary F. Janvier, Kathleen McCormick and Rose Donaldson surveyed 65
parents who had sought help in locating their children from missing children’s organisations
(“Parental Kidnapping: A Survey of Left-Behind Parents” (1990) Juvenile and Family Court
J. 41). Chris Hatcher has carried out longitudinal research into the impact of abduction on
parents and children (Hatcher, Cole Barton and Loren Brooks, Families of Missing
Children: Psychological Consequences (1992)). Geoffrey L. Greif and Rebecca L. Hegar
studied a sample of 371 “left-behind” parents who had sought help in searching for their
missing children (When Parents Kidnap (1993)). See also Linda K. Girdner and Patricia M.
Hoff (Eds), Obstacles to the Recovery and Return of Parentally Abducted Children: Final
Report (1992), and Joan Fisher, Missing Children Research Project: Vol. 1 Findings of the
Study (1989).
6. An examination of the Child Abduction Unit’s records for 1994,1995 and 1997 to date
showed that there was nothing unusual about the rates of use of the two Conventions in 1996,
or about the remedies applied for, or the countries most frequently involved in the
applications. Since the coming into force of the Conventions official statistics show that there
has been a steady increase in the numbers of applications dealt with each year, from 16 in
1986, to 171 in 1990, 273 in 1993 and 372 in 1996. Note, however, that the number of countries
party to each Convention has also increased: in 1986 the Hague Convention was in force
between only 6 countries and the European between 7, by the end of 1996 these figures had
increased to 45 and 20 respectively.
7. An “incoming” application is an application received by the central authority for
England and Wales, referring to a child or children brought into England and Wales.
8. An “outgoing” application is an application made by the central authority for England
and Wales, referring to a child or children taken from England and Wales.
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JANUARY 1999] International Child Abduction 129
3. The worldwide operation of the Conventions
Before examining in detail the use of the Conventions by the central authority
for England and Wales in 1996 some background information on the general oper-
ation of the Conventions in that year may be considered. Using statistics provided
by central authorities we have compiled a “league table” of Convention countries
based on the volume of applications made and received by each country in 1996.9
According to these figures, by far the most active Convention jurisdiction is the
United States, whose central authority handled 653 applications in 1996. Given the
size of the US population these figures are not particularly surprising. What is
perhaps surprising is that England and Wales was the next most active Convention
jurisdiction, making 206 and receiving 166 applications in 1996. Many of its appli-
cations involve Ireland”‘ and it may be that these Irish cases skew the figures
slightly, but such inflated Convention traffic between countries which are particu-
larly close geographically, or which have other close links, is not unusual, for
example there are many applications between the United States and Mexico and
Canada.”
In addition to these general figures, we have been able to obtain more limited
figures concerning the respective use of the Hague and European Conventions by
various countries in 1996.12 These show that the European Convention is not fre-
quently used by any country, a fact attributed by several of the central authorities
we contacted to the complexity of its provisions. It appears to be used most often
by the central authority for England and Wales, which made 19 applications under
the European Convention in 1996 (compared to 187 under the Hague
Convention).13
B. Analysis of the Data
1. The Child Abduction Unit’s 1996 applications
(a) “Incoming” and “outgoing” applications by Convention used. Of the 372
applications dealt with by the Child Abduction Unit in 1996, 93 per cent were
Hague Convention applications and only 7 per cent were European Convention
applications.14 Among the Unit’s 206 “outgoing” applications, just under 91 per
cent were made under the Hague Convention, with the remainder being Euro-
pean Convention applications. Among the 166 “incoming” applications received
in 1996, 95 per cent were brought under the Hague Convention and only 5 per cent
under the European Convention.
It is clear, therefore, that the Hague Convention was used far more than its
European counterpart in applications made and received by the Child Abduction
9. See Appendix 1, Fig.Al. Note that statistics were not provided by every central
authority.
10. See Appendix 1, Table Al and A2 for the 1996 position.
11. Greif and Hegar, op. cit. supra n.5.
12. See Appendix 1, Table A3.
13. Although when European Convention applications are looked at as aproportion of all
applications both France and Portugal were higher users than England and Wales in 1996.
14. The equivalent figures for 1994 were 94% Hague and 6% European, for 1995 they
were 90% Hague, 10% European, and for 1997 up to 22 July they were 89% Hague and 11%
European. Percentages have been rounded up throughout.
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130 International and Comparative Law Quarterly [VOL. 48
Unit in 1996. This is not surprising as there is much anecdotal and concrete evi-
dence that the European Convention is little used,'” which would suggest that
these figures are illustrative of the general state of affairs and do not simply rep-
resent a “bad year” for the European Convention. Interestingly, however, the
European Convention was used more than twice as often in “outgoing” cases than
in “incoming” cases. Whether this is representative of the general situation or is a
peculiarity of the Unit’s 1996 applications is not known. Whichever is the case,
however, even in “outgoing” applications the European Convention was used in
only 9 per cent of the cases.
(b) Applications for what? Under the Hague Convention an application may be
made either for the return of a child or for access arrangements to be made or
clarified. Under the European Convention it is possible to apply to have an access
or a custody order registered and enforced in another country. Clearly an appli-
cation for registration and enforcement of a custody order may have the same
effect as an application for “return”, and, similarly, an application for registration
and enforcement of an access order has a similar effect to a Hague application for
“access”.16
The vast majority of the Child Abduction Unit’s 1996 applications, both
“incoming” and “outgoing”, were applications for return of the child under the
Hague Convention. Such applications represented 89 per cent of all the
“incoming” and 76 per cent of all the “outgoing” applications.
Of the “incoming” Hague Convention applications 94 per cent were appli-
cations for return of the child or children while only 6 per cent specifically con-
cerned access. Of the “incoming” European Convention applications, 75 per cent
were for the registration and enforcement of a custody order and 25 per cent for
the registration and enforcement of an access order. Of the “outgoing” Hague
Convention applications, 83 per cent were for return while 17 per cent concerned
access. Among the “outgoing” European Convention applications, 58 per cent
were for the registration and enforcement of a custody order and 42 per cent for
registration and enforcement of an access order.
The relatively small percentage of access applications under the Hague Con-
vention is suggestive that that Convention is not perceived as being particularly
useful in that regard, and while in percentage terms the European Convention is
being used more for access disputes, the actual numbers remain low (viz. two
“incoming” and eight “outgoing”). It must also be borne in mind that some return
applications may in fact conceal disputes over access.17
2. The countries
In 1996 the Child Abduction Unit received applications from and made appli-
cations to a total of 26 countries, details of which can be found in Appendix 2. In
terms of numbers of applications made to England and Wales in 1996, three coun-
15. See e.g. the figures in Appendix 1, Table A3.
16. In fact, an access application under the European Convention may well be more
effective since its provisions on access are generally considered superior to those of the
Hague Convention.
17. See S v. H (Abduction: Access Rights) [1997] 1 F.L.R. 971.
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JANUARY 1999] International Child Abduction 131
tries stand out: the United States, whose 42 applications far exceeded those from
any other country; Ireland, which made 25 Hague and four European Convention
applications; and Australia, which made 19 Hague applications to England and
Wales. Similarly, among the “outgoing” cases, more applications involved the
United States and Ireland than any other countries. Forty-one applications were
made to the United States and 33 (27 Hague and six European) to Ireland. In third
place, so far as “outgoing” applications were concerned, was Spain, which
received 25 (23 Hague and two European) applications from England and Wales
in 1996.
(a) Remedies applied for by country involved. The data were examined to find
out whether there were any discernible trends in the remedies sought in the appli-
cations made to and received from the various countries. The full details can be
seen in Appendix 2, Tables A4 and A5, but our examination of remedies applied
for by the country involved revealed two points worthy of note.
First, Ireland made more use of the European Convention in its 1996 appli-
cations to England and Wales than did any other country, and, conversely, more
use was made of the European Convention in applications to Ireland than to any
other country.’8
Second, while a total of ten applications concerning access were received under
the Hague Convention, only two such applications were received under the Euro-
pean Convention. Six of these Hague applications were made by non-European
Convention countries, so there was no alternative but to proceed under the Hague
Convention. The remaining four Hague access applications, however, were made
by countries which are parties to both Conventions, and so theoretically have a
choice about which Convention to use. It may be that in these cases there was
simply no court order, the existence of which is a prerequisite to proceeding under
the European Convention. Alternatively, it may simply have been that it was on
poor advice that a decision was made to proceed under the Hague Convention
even though its provisions on access are far from satisfactory,’9 and despite the
English ruling20 to the effect that the Hague Convention does not impose any
duties on judicial authorities with regard to access applications. This ruling means
that any court applications for access made in conjunction with Hague Convention
proceedings have to be made under domestic law with the result that the special
favourable rules on legal aid which apply to Convention applications21 are ousted.
3. The families involved in abduction
(a) The children. Our figures refer only to children taken to or brought from a
Convention country and about whom an application has been made under one or
18. One possible explanation being the level of trust the two countries have in each other’s
legal systems, while another factor is the Irish central authority’s apparent practice of
refusing to accept applications concerning access under the Hague Convention (although
only 2 of the 6 applications made to Ireland in 1996 under the European Convention were
access applications).
19. See Lowe, “Problems Relating to Access Disputes under the Hague Convention on
International Child Abduction” (1994) 8 Int.J. Law and the Family 374.
20. In Re G (A Minor) (Enforcement of Access Abroad) [1993] Fam. 216 (CA).
21. I.e. whereby Convention applicants are neither means nor merits tested: see Civil
Legal Aid (General) Regulations 1989, reg.14.
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132 International and Comparative Law Quarterly [VOL. 48
other of the Conventions. In addition to these children there are others who have
been taken to or brought from non-Convention countries, or about whom a Con-
vention application has simply not been made. It is not known how many such
children there may have been in 1996.
The 372 applications studied concerned a total of 559 children,22 271 of whom
were the subject of “incoming” applications, 288 the subject of “outgoing”
applications.
The youngest child was two months old, and a further ten children were less than
one year old when the application was made. At the other end of the scale, 12
children were already 15 years old at the time of the application. The average age
of the children was just over six years.23 Half of the children brought into England
and Wales in 1996 were aged five or under, and 19 per cent were aged ten or more.
Among the “outgoing” applications the equivalent figures were 43 and 25 per cent
respectively.
Excluding multiple applications concerning the same child or children, 59 per
cent of the 1996 cases involved abductions of single children, 29 per cent two chil-
dren, 9 per cent three children, 3 per cent four children, and in one case five siblings
had been abducted.24 Other research has also found single-child abduction to be
more common than abduction of sibling groups.25
(b) The abductors. In the vast majority (97 per cent) of the cases analysed,26 the
abductor was one or other of the child’s parents. Other abductors included grand-
parents, aunts, uncles and, in one case, the child’s nanny. In the popular conscious-
ness the words “child abduction” conjure up images of children snatched from
school or from their homes, bundled into a car and whisked away to some distant
land, usually by their fathers. According to our findings, however, such images are
false. In our sample, fathers were responsible for only 27 per cent of the abduc-
tions, while the children’s mother was the abductor in 70 per cent of the cases, with
grandparents and “others” making up the remaining 3 per cent.27 Although our
information on the nature of the abduction was limited,28 the child was “snatched”
22. Although some of these children were the subject of more than one application. In all
there were 28 applications in 1996 concerning the same child or children. A child who was the
subject of more than one application has only been counted once. This figure of 559 children
compares to the 519 children involved in the Greif and Hegar study, op. cit. supra n.5.
23. In Greif and Hegar’s study, ibid, 75% of the children were 6 years old or less. In our
sample 56% of the children were aged 6 or under. This difference may in part be accounted
for by the fact that their study was of domestic as well as international abductions, while ours
involved international abductions only: Greif and Hegar also found that children taken
abroad tended to be older.
24. 93 of the single children were involved in “incoming” applications and 119 in
“outgoing” applications, while equal numbers of children were involved in “incoming” and
“outgoing” sibling group abductions. For a detailed analysis of applications concerning
single children and sibling groups, see infra Section C.
25. Agopian (1980) and (1981), Greif and Hegar, all op. cit. supra n.5.
26. Again, excluding multiple applications concerning the same child or children.
27. In the American research, in the samples studied by both Greif and Hegar, and
Janvier et al. (both supra n.5) about 45% of the abductions were perpetrated by the child’s
mother while around 55% were carried out by fathers. In Agopian’s sample (supra n.5)
around 71% of the abductors were fathers and only about 29% mothers, almost the exact
opposite to the situation found among our 1996 sample.
28. Such information being available in just under 41% of the cases.
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JANUARY 1999] International Child Abduction 133
or taken from school in only 4 per cent of the cases,29 while by contrast 24 per cent
of the cases involved one or other parent taking the child on holiday and failing to
return. It is important to remember, however, that our figures concern only abduc-
tions to Convention countries about which a Convention application has been
made and it may well be that different patterns exist among abductions to non-
Convention countries.
At the Third Review of the Hague Convention0 some discussion31 focused on
the apparently changing nature of international child abduction, and in particular
upon the fact that increasing numbers of abductions appear to be being per-
petrated by mothers attempting to escape domestic violence.32 We have no back-
ground information about the families in our sample or about the possible reasons
for the abductions, but we do have data on the ratio of mother to father abductions
and, by comparing the country of abduction to the nationality of the abductor, we
are in a position at least to theorise about the nature of the abduction.33
One theory on the changing pattern of abduction is that the Hague Convention
has come to act as a deterrent to would-be “abductors” in the popular sense of the
word, that is, men who are contemplating kidnapping their children. However, the
deterrent effect of the Convention has not been so strong among women, the the-
ory has it, because their motivation is likely to be to escape a violent or abusive
relationship, which action may perhaps inadvertently involve their “abduction” of
their children. This theory is in part substantiated by the figures: in 1987, a year
after the coming into force of the Convention in the United Kingdom, the Child
Abduction Unit dealt with 40 applications, in 45 per cent of which the mother was
the abductor, while the father was the abductor in 48 per cent.34 Between 1987 and
1996 there has therefore been a considerable shift in the ratio of mother to father
abductors: from about 1:1 in 1987 to more than 2.5:1 in 1996. Bearing in mind that
our data relates solely to Convention applications, all that can be said with cer-
tainty is that the number of both mothers and fathers who are the subject of Con-
vention applications is increasing, and while the proportion of applications
29. The term “snatched” is used here as a shorthand expression to cover cases where some
type of physical violence has been used to achieve the abduction. There were 6 such cases, in
4 of which the abductor was the child’s father, 1 the child’s mother and 1 the child’s
grandparents.
30. The Third Meeting of the Special Commission to Discuss the Operation of the Hague
Convention on the Civil Aspects of International Child Abduction held at The Hague in
Mar. 1997.
31. For the oblique reference to the discussion see para. 59 of the official report, Report of
the third Special Commission meeting to review the operation of the Hague Convention on
the Civil Aspects of International Child Abduction (17-21 Mar. 1997) (Hague Conference
on Private International Law, Aug. 1997).
32. This was a common scenario among Greif and Hegar’s sample, op. cit. supra n.5.
33. As to which, see infra Section B.3(b)(ii).
34. The identity of the abductor was not ascertainable in the remaining 7% of the cases.
Note that these figures were arrived at after an examination of the CAU’s own records for
that year, and that the files themselves were not examined. While it is possible to surmise
from these records that the abductor was the child’s father or mother, we cannot be certain,
since only names are given and not relationship. Thus, the figure given for mothers above
might well include some grandmothers or aunts and, similarly, the figure for fathers may
include other male relatives. However, bearing in mind that most abductions dealt with by
the Unit are carried out by parents, the figures are likely to be reasonably accurate.
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134 International and Comparative Law Quarterly [VOL. 48
concerning mothers has increased over the years, the proportion concerning
fathers has declined. The theory outlined above is only one possible explanation
for this. It may be the case that “left behind” fathers are more likely than “left
behind” mothers to make Convention applications. Further research is needed to
discover why parents abduct their children.
(i) Age ofthe abductingparents. The abducting mothers were aged between 20
and 54 years.35 The abducting fathers tended to be older, with ages ranging from 26
to 57 years.? The average age of the abducting mothers was 33 while the average
age of the abducting fathers was 38.37
(ii) Nationalities of the abducting parents. Greif and Hegar identify two types
of international abductions: those featuring an abducting parent with no close ties
abroad who attempts to throw off pursuers by escaping abroad; and those involv-
ing a foreign-born parent who, on the breakdown of a marriage or relationship,
returns with the children to a culturally familiar country where family and legal
support may be available.38 Although it may not always be an accurate name, in
what follows we label this latter type of abduction “going home”.
Unlike Greif and Hegar we had no information on whether or not the abducting
parents in our sample were foreign-born, but we did know their nationalities and
were therefore able to identify abductions of the “going home” type by comparing
the nationality of the abductor with the country to which the child was abducted.
While, clearly, not everybody has his or her home in the country of which he or she
is a national, it is surely not too presumptuous to assume that most British citizens
coming to the United Kingdom or US citizens travelling to the United States are
returning to their “home” country.39
In our sample, the abductor’s nationality matched the country of abduction in 55
per cent of all the abductions by parents. Sixty-one per cent of mothers and 69 per
cent of fathers bringing children into England and Wales were British nationals
(by virtue of either sole or dual nationality) who might therefore be said to be
“coming home”. These figures suggest a high rate of “going home”-type abduc-
tions among both abducting fathers and abducting mothers. Among the “outgo-
ing” cases, only 44 per cent of mothers and 57 per cent of fathers had taken their
children to their “home” country. In comparison with “incoming” cases, there-
fore, a considerably smaller proportion of the “outgoing” cases involved parents
apparently taking their children “home”.
In summary, based on our admittedly crude criterion of nationality, more than
half the parental abductions in the cases examined were of the “going home” type,
35. The mother’s age was ascertainable in 231 of the 252 cases in which the mother was the
abductor.
36. The father’s age was known in 81 of the 95 cases where the father was the abductor.
37. In Agopian’s research, op. cit. supra n.5, the abductors were mostly aged between 27
and 36, while the average age of abducting parents involved in international abductions in
Greif and Hegar’s study, op. cit. supra n.5, was 36.
38. Greif and Hegar, ibid.
39. We are aware of the limitations of relying on the abductors’ nationality in this way,
when it may well be that nationals of a particular country in fact have cultural or family links
elsewhere. The link between nationality and “home” becomes even more tenuous in the case
of truly peripatetic families.
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JANUARY 1999] International Child Abduction 135
and, interestingly, in our sample a higher proportion of the abductions by fathers
were of the “going home” type than of the abductions by mothers. This belies the
stereotypical image of fathers abducting children to countries with which they
have no connection.
(iii) Marital status of abducting parents. By considering the current status of the
parents it was possible to see whether the abduction had taken place in the context
of an “intact” family or whether the family had already broken down by the time of
the abduction. Thirty-four per cent of the parents in the sample were still married
at the time of the Convention application,” 24 per cent were divorced, 18 per cent
were physically separated (hereafter referred to simply as “separated”) and 20 per
cent had never been married to each other.41
Bearing in mind that in some cases no information was available and so a mea-
sure of supposition will inevitably be involved, it seems fair to say that in most
cases where the parents were recorded as “married” the abduction will have taken
place from an intact family, while in those cases where the parents were divorced
or separated the family will already have broken down at the time of the abduc-
tion. Cases where the parents were recorded as never married to each other are
more problematic. While it was clear in a minority of these cases that the parties
had been living together as a family before the abduction,42 in most that infor-
mation was not available and it is therefore difficult to make any overall assump-
tions about the family background against which these abductions took place.
The profiles of parental status and, by supposition, the family context within
which the abduction took place differ substantially according to which parent was
the abductor. Thirty-eight per cent of the abductor-mothers were classified as
married, and 36 per cent were recorded as divorced or separated. That is to say, 38
per cent of the abductions by mothers may be supposed to have taken place from
within an “intact” family, and 36 per cent from a family which had already broken
down. By contrast, only 23 per cent of abductor-fathers were classified as married,
while a much greater 55 per cent were already divorced or separated at the time of
the abduction.
Bearing in mind the caveat that this analysis necessarily involves a degree of
supposition, as well as the more general point that these figures relate solely to
1996, it is possible to conclude not only that mothers abduct children more often
than do fathers, but also that mothers take children from “intact” family situations
40. But over a quarter of these (9% of all the parents) had initiated divorce proceedings
apparently as a result of the abduction.
41. The marital status of the remaining 4% was not known. These figures compare with
those in both Greif and Hegar’s and Janvier’s samples: they respectively recorded 17% and
9% of “left-behind” parents as still married at the time of the abduction; 43% and 40% as
divorced; 27% and 38% as separated; and 13% and 12% respectively as never married to the
abductor.
42. The parties’ prior living arrangements were known in only 7 of the 54 cases involving
abducting mothers who were not married to the child’s father; in 3 of these cases the
abduction took place during a contact visit, so the parties could not have been living together
at the time, and in the remaining 4 it was clear that the parties were cohabiting at the time of
the abduction. In the 17 cases where the abductor was an unmarried father, 4 abductions
took place during a contact visit, while none were known to have taken place while the
parents were living together.
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136 International and Comparative Law Quarterly [VOL. 48
more frequently than fathers. In our sample they did so in almost twice as many
cases as did fathers. Although these findings are in line with the theory that women
tend to abduct to escape domestic violence, we have no information on why the
mothers in our sample left, and of course there may be a whole host of reasons why
wives choose to leave their husbands.
C. Looking Further into the Data
In the following sections possible links between the characteristics of abductors
and the characteristics of the child or children abducted are examined; for
example, whether mothers are more likely to abduct very young children, or
whether fathers are more likely to abduct sons than daughters.
1. Abductors of single children and sibling groups
Excluding multiple applications concerning the same child or children, 59 per
cent of all the cases (i.e. both “incoming” and “outgoing”) handled by the Child
Abduction Unit in 1996 involved abductions of a single child. Of these, 67 per cent
were abductions by mothers, 28 per cent by fathers, 2 per cent by grandparents,
and just under 2 per cent by “others”.43 Abductions of groups of two or more sib-
lings accounted for 41 per cent of the cases handled by the Unit in 1996. Seventy-
six per cent of the sibling groups were abducted by their mothers, only 24 per cent
by their fathers. While, therefore, just over twice as many of the abductions of
single children were carried out by mothers than by fathers, more than three times
as many of the sibling group abductions were perpetrated by mothers than by
fathers. Strikingly, no grandparents or “others” were responsible for the abduc-
tion of any sibling group in the sample.
2. Abductors by age of the child or children abducted
Was there any correlation between which parent was the abductor and the age
of the abducted child or children?
(a) Single children. Perhaps not surprisingly we found that far more young chil-
dren (viz. under the age of two years) than older children were abducted by their
mothers. In fact, 20 per cent of the single children abducted by their mothers were
under the age of two, 53 per cent under the age of five and 73 per cent were aged
seven or less. By contrast, only 5 per cent of the children taken by their fathers
were under two years old, none was less than one year old, and 27 per cent were
aged ten or over. The average age of single children abducted by their mother in
the sample was just under five, while that of children abducted by their father was
just under seven years old. Although the overall number of abductions of single
children by fathers was much lower than the number of such abductions by moth-
ers,44 when abductions of children over the age of ten were examined, there were
actually more such abductions by fathers than by mothers.45
43. These were: two aunts, one paternal, one maternal; one maternal uncle with a
residence order; and one nanny. In 2 cases the abductor was not identified on the file.
44. The numbers respectively are 60 to 141.
45. There were 16 abductions of single children over 10 years old by fathers, and 14 by
mothers.
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JANUARY 1999] International Child Abduction 137
(b) Sibling groups. As might have been expected, given our findings in relation
to single-child abductions, mothers were responsible for many more of the abduc-
tions of groups of very young children (i.e. where all the children were under five)
than were fathers, with 85 per cent of such sibling groups being abducted by their
mothers. Where the siblings were all aged between five and ten, 79 per cent of the
abductions were “mother abductions”, 21 per cent “father abductions”; and where
all the children in the group were over ten the proportion of “mother” to “father”
abductions had become 67 to 33 per cent. These figures confirm the picture drawn
from the analysis of single-child abductions: that mothers take young children pro-
portionately more often than do fathers (here 15 per cent of the “mother abduc-
tions” were of sibling groups of under-five-year-olds, while this age group
accounted for only 8.5 per cent of the “father abductions”); and that as between
mothers and fathers, the difference between the proportion of abducting mothers
and abducting fathers narrows significantly as the ages of the children involved
increase.46
3. Abductors by sex of the abducted child
In our overall sample more boys than girls were abducted,47 and the male to
female ratio was particularly high in the cases where the abductor was the chil-
dren’s father. In fact, 63 per cent of the children abducted by their fathers were
boys, compared to 51 per cent of those abducted by their mothers. The predomi-
nance of boys in both groups is interesting; it could merely be an accident of the
sample or it could be that because of the value placed on a son by many parents
(particularly fathers) and communities it may indeed be the case that boys are
more likely to be abducted than girls.
4. Abductors by age and sex of the child
The age and sex of the abducted child were analysed to see whether there was
any correlation between these characteristics and the sex of the abducting parent.
Confining our analysis to abductions of single children, we found that not only did
mothers take more younger than older single children of both sexes, but also that
the single children most often abducted by mothers were girls aged between one
and two years. The single children most often abducted by fathers were five- and
seven-year-old boys, while by contrast girls of these ages were abducted very
rarely. Interestingly, we recorded no abduction by a father of any girl over the age
of 12.
D. The Speed of the Convention Process
It is important to the working of the Conventions that applications are dealt with
speedily,48 and in this section we examine how long, from the time the Convention
46. For the first age group, the proportion of abductions by mothers to abductions by
fathers was over 5:1, for the second age group this had gone down to just over 3:1, and for the
third age group it had decreased to 2:1.
47. There were 305 boys and 254 girls.
48. See particularly Art.11 of the Hague Convention, which enjoins judicial and
administrative authorities to act expeditiously. The importance of speed is also emphasised
in the Explanatory Report (the Elisa P6rez-Vera Report) on the Convention (Hague 1982)
at e.g. para.104.
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138 International and Comparative Law Quarterly [VOL. 48
machinery was first put into motion, it took to complete the applications made and
received by the Child Abduction Unit in 1996. Multiple applications concerning
the same child have been included in this analysis, but, because we are interested in
how quickly cases are dealt with by the central authorities and judicial systems of
the countries involved, applications which were withdrawn by the applicant have
been removed.49
1. The length of the Child Abduction Unit’s 1996 cases
Of the “incoming” applications received in 1996, 75 per cent had been com-
pleted at the time of data collection, while the equivalent figure for “outgoing”
applications was 63 per cent.
The length of completed cases varied between one day and nearly a year. The
average length of a completed “incoming” case was six and a half weeks,50 while
the average length of a completed “outgoing” case was just over 11.5 weeks. Of the
“incoming” applications, 34 per cent were completed within four weeks of receipt
of the application, 60 per cent within eight weeks, 67 per cent within 12 weeks and
70 per cent within 16 weeks. Among the “outgoing” cases 20 per cent were com-
pleted within four weeks, 29 per cent within eight weeks, 39 per cent within 12
weeks and 49 per cent within 16 weeks.5′ Of those “incoming” applications which
had been neither withdrawn nor resolved at the time of data collection just under a
quarter had been ongoing for more than 16 weeks, compared with 46 per cent of
the equivalent “outgoing” applications.
(a) The length ofjudicially resolved cases. The various outcomes among the com-
pleted cases have for convenience been grouped into two major categories,52
namely, judicial resolutions53 and voluntary resolutions.54 The length of judicially
resolved cases in the sample varies between less than a week and over ten months.
The average time it took for a judicial resolution of an “incoming” case was seven
49. The resulting sample size is 336.
50. The CAU sets itself an 80% target of forwarding “incoming” cases to solicitors within
24 hours, and according to Wall J “it invariably achieves 100% rate”. His Lordship also
mentioned that the average-turnaround time between receipt of an “incoming” application
and the final order is 6 weeks and for applications that go before the Court of Appeal the
average turnaround is 15 weeks: Re S (Child Abduction: Delay) [1998] 1 F.L.R. 651. The need
to maintain the momentum of speedy disposals in the event of an appeal was emphasised by
Thorpe L in Re HB (Abduction: Children’s Objections) [1998] 1 F.L.R. 422, 427 (CA). Our
findings confirm the overall turnaround figure, but are not broken down into cases which are
or are not appealed.
51. See Appendix 3, Table A6, which sets out the outcomes reached within time periods
up to 32 weeks.
52. In fact we identified a third category, namely, “other resolutions” which included the
application being rejected by the requested central authority, cases where the child was
taken to another country and cases which for various reasons petered out. Since we are
interested here in the speed of the Convention machinery the length of these cases is of little
interest.
53. This group includes judicial returns, judicial refusals to return, registration of custody
and access orders, refusal to register orders, the making of access orders, and cases where the
Convention proceedings were stayed or dismissed by the court.
54. This category comprises voluntary return of the child and other voluntary agreements
not necessarily involving a return.
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JANUARY 1999] International Child Abduction 139
weeks, while the average length of a judicially resolved “outgoing” case was 14
weeks. Half of all the judicial resolutions in “incoming” cases took five weeks or
less from the date of the original application, while only 15.5 per cent of the
judicially resolved “outgoing” cases had been completed in the same time. Inter-
estingly, while more than a third of “incoming” and 18 per cent of “outgoing” cases
resulting in a judicial return were completed within three weeks of the date of the
application, no case resulting in a judicial refusal was resolved in less than four
weeks.
(b) The length of voluntarily resolved cases. Sixteen of the “incoming” and 44 of
the “outgoing” cases were voluntarily resolved. The average length of these
“incoming” cases was just under five weeks, compared with nine and a half weeks
in “outgoing” cases.
These findings provide hard evidence of the fast disposal of Convention appli-
cations both by the court and by the central authority in England and Wales as
compared with other Convention countries.
2. Length of completed applications by Convention used and remedy applied
for
The number of completed European Convention applications was too small to
allow meaningful comparison of the relative lengths of applications made under
the two Conventions.” However, it was noticeable that among both “incoming”
and “outgoing” cases, none of the applications made under the European Conven-
tion was completed within one or two weeks, while by contrast 16 per cent of the
“incoming” and 13 per cent of the “outgoing” Hague Convention applications
were completed within two weeks of the date of the application.56 Of all the
“incoming” applications handled by the Unit in 1996, a far higher proportion of
the Hague Convention applications reached some final conclusion (by means
other than withdrawal of the application) than did applications brought under the
European Convention.57 The “outgoing” applications reflect this pattern,
although here the disparity between the proportion of cases completed under each
Convention is far less pronounced.”8 These findings suggest that it is harder to
55. There were 3 completed “incoming” European Convention applications, of which 1
was completed within 3 weeks of the application being made, 1 within 7 weeks, while the
third took 35 weeks to reach a conclusion; and 9 completed “outgoing” European
Convention cases, lasting between 3 and 38 weeks.
56. Of the “incoming” Hague applications resolved within 2 weeks, 56% were judicially
resolved (all by orders for return of the child), 20% resulted in a voluntary return, 20%
resulted in the child being taken to another Convention country, and in 1 case an access order
was forwarded to the requesting central authority. Among the “outgoing” applications
resolved within 2 weeks or less, 12.5% resulted in a judicial return of the child, 58% resulted
in a voluntary return, 21% ended with the child being taken to a non-Convention country
and 8% with the child being taken to another Convention country.
57. 72% of the applications made under the Hague Convention had been finally dealt with
by the time the data were collected, while only 38% of the European Convention
applications had come to a conclusion.
58. 56% of the Hague applications and 47% of the European applications had been
completed at the time of data collection.
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140 International and Comparative Law Quarterly [VOL. 48
resolve applications under the European Convention quickly as compared with
Hague Convention applications.59
Analysis of the length of completed cases according to the remedy originally
applied for was again hampered by the small numbers involved.60 A comparison of
the proportion of cases completed according to the remedy applied for was, how-
ever, possible. Many more of the “incoming” applications for return of the child
had reached a conclusion by the time of data collection than had those applications
for access. In percentage terms, 79 per cent of the applications for return had been
completed, while only 27 per cent of the access applications had been. The min-
ority of access applications which had reached a conclusion, however, had all done
so within five weeks of the application being received by the Child Abduction
Unit, perhaps suggesting that “incoming” access applications will either be
resolved quickly or will drag on for some considerable time. Interestingly, none of
the completed “incoming” access applications resulted in a judicial resolution.
These findings complement the results of our research into the operation of the
Conventions between England and Wales and Germany, where it was found that,
among “incoming” cases, access disputes took nearly six times longer to resolve
than return applications,6′ thus reflecting the complexity of the problems posed by
such disputes.
Among the “outgoing” cases 69 per cent of the applications for return of the
child and 40 per cent of the access applications had been completed at the time of
data collection. Both return and access applications covered a wide range of “com-
pletion times”,62 although it was noticeable that no access case was completed
within, one or two weeks of the application being made, 24 return cases had
reached a conclusion within that time. Again, these findings are complemented by
our Anglo-German research, where “outgoing” applications for return had an
average length of 21.5 weeks, while the average length of access applications was
just under 35 weeks. Among both “incoming” and “outgoing” cases, therefore,
international access disputes do not appear to be easy to resolve.
3. Length of completed applications by abductor
Was there any difference between the length of cases, or the proportion of cases
completed at all, where the mother was the abductor compared to those where the
father was the abductor? Among all the “incoming” cases in the sample, 73 per
cent of the abductors were mothers while 26 per cent were fathers, and it might be
expected that roughly equivalent proportions would be found among the com-
pleted cases. However, among applications completed within four weeks the
59. It might also be noted that because of the relative ease with which the child’s welfare
can be raised as an issue under Art.10, the experience in England and Wales, at any rate, is
that it is much more likely that a welfare report will be ordered in European Convention
proceedings than in Hague Convention proceedings.
60. Only 3 of the completed “incoming” cases and 14 of the completed “outgoing” cases
concerned access.
61. The average length of the “incoming” Anglo-German return applications was just
under 6 weeks, while that of access applications was 35.5 weeks. See Lowe and Perry, op. cit.
supra n.2.
62. Applications for return took between 1 and 46 weeks to complete, while completed
applications for access lasted between 3 and 34 weeks.
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JANUARY 1999] International Child Abduction 141
equivalent figures were 58 and 39 per cent respectively. This could be explained in
a number of ways: it could be a mere coincidence, it could indicate a greater will-
ingness on the part of abducting fathers to reach a speedy voluntary resolution, or
it could suggest that the Child Abduction Unit, lawyers and the courts have an
inclination to deal more quickly with cases where the father is the abductor than
with cases where the mother is.63 As the length of the completed cases increases,
the proportion of mother to father abductors begins to reflect more closely the
proportion in the sample overall, so that among cases completed within eight
weeks of receipt of the application 66 per cent were “mother abductor” cases,
while 32 per cent were abductions by fathers, and among all the completed
“incoming” cases 68 per cent are cases where the mother was the abductor and 30
per cent are cases where the father was the abductor.
The completed “outgoing” cases show a similar pattern. Whereas among all the
“outgoing” cases 66 per cent of the abductors were mothers and 31 per cent were
fathers, of the “outgoing” cases completed within four weeks, only 49 per cent
were “mother abductor” cases, while 43 per cent were cases where the father was
the abductor. As with the “incoming” cases this over-representation of abducting
fathers among the completed cases begins to lessen as the length of the cases
increases, but it does not entirely disappear. Of the “outgoing” cases completed
within eight weeks of the application being made, 53 per cent involved abductions
by mothers and 41 per cent abducting fathers, and for all the completed “outgo-
ing” applications the figures are 64 and 32 per cent respectively. It appears, there-
fore, that both “incoming” and “outgoing” cases where the father is the abductor
are more likely to reach a conclusion within a relatively short time than cases
where the abductor is the mother. Why this should be is a matter for speculation,
but a plausible reason is that this apparent greater concern about children
deprived of their mothers rather than of their fathers is based not on gender con-
siderations but upon the fact that mothers are more likely to be the principal carer.
4. Completed case length by country
This section examines the time taken to resolve “outgoing” applications in each
country to which more than ten applications were made in 1996. For ease of com-
parison the time taken to resolve “incoming” cases can be summarised as follows:
75 per cent of the 155 cases not withdrawn by the applicant had reached a con-
clusion by the time of data collection. Thirty-four per cent of them had done so
within four weeks of receipt of the application, and 60 per cent within eight weeks;
67 per cent had been resolved within 12 weeks and 70 per cent within 16 weeks.
Three of the remaining seven completed cases were resolved within 20 weeks, with
the other four cases lasting between 21 and 44 weeks.
(a) “Outgoing” applications to the United States. Forty-four per cent of the
“outgoing” applications to the United States were completed by the time of data
collection: 17 per cent had reached a conclusion within four weeks of the appli-
cation being made, 20 per cent had been resolved within eight weeks and 32 per
63. It might also reflect the possibility that fathers experience greater difficulties than
mothers in raising Art.13(b) defences that the child might be exposed to grave or
psychological harm or otherwise be placed in an intolerable situation, if returned.
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142 International and Comparative Law Quarterly [VOL. 48
cent within 16 weeks. One case was completed within 18 weeks of the application,
while the remaining three completed cases each lasted for more than six months.
(b) “Outgoing” applications to Ireland. Sixty-seven per cent of the applications
to Ireland had been completed by the time of data collection: 15 per cent were
resolved within four weeks of the application and 36 per cent reached a conclusion
within eight weeks, 48 per cent were completed within 12 weeks and 57 per cent
had been resolved within 16 weeks. The remaining three completed cases took 23,
26 and 38 weeks respectively.
(c) “Outgoing” applications to Spain. Sixty per cent of the applications made to
Spain had reached a conclusion when the data were collected: 28 per cent within
four weeks of the application, 32 per cent within eight weeks, 44 per cent within 12
weeks and 48 per cent within 16 weeks. The three remaining completed cases each
lasted six months or more.
(d) “Outgoing” applications to Germany. Half of the “outgoing” applications to
Germany had been completed at the time the data were collected. One case (or 7
per cent) was resolved in the week following the application but, aside from this,
no other application to Germany reached a conclusion in less than two months.
Three cases, or 21 per cent, were resolved within 12 weeks of the application being
made. Two of the remaining completed cases lasted 18 weeks, one lasted 20 weeks
and one took 21 weeks.64
(e) “Outgoing” applications to France. Only 23 per cent of the applications to
France had been completed by the time of data collection: 15 per cent were
resolved within four weeks, while the remaining 8 per cent (one case) lasted 46
weeks.
(f) “Outgoing” applications to Australia. Forty-five per cent of the applications
to Australia had reached a conclusion by the time the data were collected. None of
these was completed within four weeks of the application, but 9 per cent had been
resolved within five weeks, 27 per cent within ten weeks, and all 45 per cent within
14 weeks.
Because these figures represent a snapshot of one year only, caution must be exer-
cised when seeking to draw conclusions from them. It can nevertheless be seen
that England and Wales is consistently “top of the league” in disposal of Conven-
tion applications, with Ireland not too far behind, France, Germany and the
United States noticeably slower, and Spain and Australia somewhere in between.
Undoubtedly, one reason for the fast disposal of applications in England and
Wales is that jurisdiction is vested in a single court, which has consequently devel-
64. For further analysis of the operation of the Conventions between England and Wales
and Germany see Lowe and Perry, op. cit. supra n.2.
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JANUARY 1999] International Child Abduction 143
oped a considerable expertise. As we have previously explained, not many other
countries have adopted such a unitary system, but where they have, such as in
Ireland or Australia, cases are disposed of relatively speedily. In other countries
such as Germany, where jurisdiction is vested in the lowest court in the land and
appeal is common, it is clear that multiplicity of courts competent to deal with
abduction noticeably slows disposal rates.
E. The Case Outcomes
1. What were the case outcomes?
The four most frequently occurring outcomes in the cases studied were “judicial
return”, “voluntary return”, “application withdrawn” and “no result yet”.65
Judicial refusals to return occurred in only 5 per cent of the cases. However, not
only do the various results occur in different proportions among the “outgoing”
and “incoming” cases, but different outcomes occur among the two sets of cases.
Among the “incoming” cases the most common result was judicial return of the
child or children. In all, 43 per cent of the “incoming” cases were resolved by a
court ordering the child’s return, ,6while 5 per cent resulted in a judicial refusal to
return. Twenty-one per cent of the “incoming” cases had not been resolved at the
time of data collection, 8 per cent resulted in the voluntary return of the child or
children, and 6 per cent of the applications were subsequently withdrawn. In 5 per
cent of the cases the Convention proceedings were stayed, dismissed or withdrawn
but a court order, such as a residence order under the Children Act 1989, was
nonetheless made.67
The most frequently occurring outcome among the “outgoing” applications was
that there had been “no result yet”, with unresolved cases accounting for 27 per
cent of all the “outgoing” cases. In 19 per cent there was ajudicial return68 and in 17
per cent a voluntary return, while 12 per cent were withdrawn. There was a judicial
refusal to return in 7 per cent, while in 1 per cent there was a mixed judicial out-
come, with return being refused for certain siblings but ordered for others.69 Five
65. 30% of the cases resulted in a judicial return or the registration of a custody order,
while 13% resulted in the voluntary return of the children. 24% of the cases had not been
resolved at the time of data collection, and a further 11% of the applications had been
withdrawn by the applicant.
66. 89% of these cases involved a straightforward judicial return, 8% involved a judicial
return by consent order and 3% involved registration of a custody order.
67. In 6 of these cases the court order was made by consent. The remaining 12% of cases
were resolved as follows: the Unit refused 3% of the applications, 2% were voluntarily
resolved without court intervention (but not necessarily by means of a voluntary return) and
1 case, or 0.6%, resulted in the registration of an access order. In 1 of these cases the
applicant’s instructions simply petered out, in 1 the file was closed because the child could
not be traced, in 3% of the cases the child was taken to another Convention country and in 1
case the children had been taken to a non-Convention country. One case was dismissed and 1
stayed, but no further details were available, and finally, in 1 case (an access application from
the US) the recorded result was that an existing access order had been forwarded to the US
central authority. In 1 case, or 0.6%, the outcome was not known.
68. 72% of these were simple judicial returns, 20% were returns by consent order and 8%
involved registration of a custody order.
69. In each case return of the eldest child was refused on the grounds of his or her
objections to being returned.
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144 International and Comparative Law Quarterly [VOL. 48
per cent of the cases were voluntarily resolved although not necessarily by return
of the child. In 3 per cent of the cases the child was taken to a non-Convention
country, and in 2 per cent to another Convention country. Access orders were
made in 2 per cent of the cases.70
A much smaller proportion of the “outgoing” cases resulted in a judicial return
than was the case among the “incoming” applications, and more “outgoing” than
“incoming” cases remained unresolved at the time of data collection. These find-
ings are reflected in our Anglo-German research, where 58 per cent of the
“incoming” cases resulted in a judicial return order, while this was the result in
only 9 per cent of the “outgoing” cases, and where “outgoing” cases took much
longer to reach a conclusion than “incoming” cases.71 It is also worth noting that
the Child Abduction Unit refused to accept nearly as many applications in 1996 as
did all the requested central authorities in the “outgoing” cases put together.72
2. Reasons for judicial refusals
The reasons relied upon by the court in refusing to return children were known
in about 80 per cent of the cases resulting in a judicial refusal. Among both the
“incoming” and “outgoing” cases the reason most frequently relied upon for
refusing to order the child’s return73 was that the child objected to being returned.
The youngest child whose objections were relied upon by the English court was
nine years old, while among the “outgoing” cases the objections of an eight-year-
old were taken into account alongside those of his 12-year-old sister.74 Refusals
were also based upon the applicant’s lack of “rights of custody”,75 failure to meet
the Convention requirements on habitual residence,76 risk of harm, consent, and
(under the European Convention) a change of circumstances meaning that a
return would manifestly no longer be in the child’s interests.77
3. Summary of the results
To obtain a simpler picture the outcomes have been grouped into five broad
categories comprising:
(1) judicial returns (which for these purposes will include judicial resolutions of
access applications as well as to return applications);”8
70. In each case by consent. The requested central authority refused 4% of the cases, in
1% the file was closed because the child could not be traced, 1% of the cases were closed after
lack of instructions from the applicant, and an unspecified court order was made in less than
1% of the cases. In 1 case no action was taken.
71. See supra Section D.1 and Lowe and Perry, op. cit. supra n.2.
72. The CAU refused 5 cases, while among the “outgoing” cases, 7 applications were
refused by central authorities.
73. Occurring in 43% of the “incoming” cases and 31% of the “outgoing” cases.
74. See also our analysis of the reasons for refusals to return in Anglo-German cases in
Lowe and Perry, op. cit. supra n.2.
75. In 29% of “incoming” and 10% of “outgoing” cases.
76. In 14% of “incoming” and 10% of “outgoing” cases.
77. Each occurring in 10% of “outgoing” cases where return was refused.
78. The category “judicial returns” therefore comprises judicial returns, the registration
of a custody or access order, the making of access orders, and those cases where the
Convention proceedings were stayed, dismissed or withdrawn but a court order was
nonetheless imposed upon the parties.
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JANUARY 1999] International Child Abduction 145
(2) judicial refusals;79
(3) consensual resolutions (whether or not involving a court order);”
(4) withdrawn applications;81 and
(5) “no result yet”.
Figure 1 allows a comparison to be made between the outcomes of “incoming” and
“outgoing” cases when grouped according to these categories82
Figure 1. Results of ‘Incoming’ and ‘Outgoing’ Cases
dealt with by the Child Abduction Unit in 1996
70
60 56 58
60
0 40″
E “”r~ ElIncoming Cases
20 i =NOutgoing Cases
10-
00
ul
C 0 0 0
0 4z
79. Including: judicial refusals under the Hague Convention, and refusals to register
orders under the European Convention, but not those cases where a court order having the
effect of a judicial refusal was made by consent.
80. The category “consensual resolutions” therefore comprises the following case
outcomes: voluntary return, judicial return and judicial refusal by consent, the “other
voluntary resolution” cases, and those cases where the Convention proceedings were stayed,
dismissed or withdrawn but consent orders were made.
81. For present purposes, cases where the applicant ceases to give instructions have been
classed as “withdrawn”.
82. Note that Fig.1 does not account for every case as some of the more unusual results
recorded do not fit into any of these categories.
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146 International and Comparative Law Quarterly [VOL. 48
The proportions of unresolved cases among “incoming” and “outgoing” cases
have already been noted,83 but there are three further points to make. First, the
figures confirm the comparative rarity of judicial refusals to return children, which
is well in line with the aims of the Conventions and which demonstrates that coun-
tries are generally putting the spirit of the Conventions into practice. Second,
more “outgoing” than “incoming” cases are voluntarily resolved, which is reflec-
tive of the English emphasis on judicial resolution of Convention disputes rather
than a more consensual approach which is favoured by other systems-as, for
example, in Germany.’ Finally, the relatively high number of withdrawals is to be
noted. One possible explanation for this could be that the parties reconcile. An-
other could be that the application is withdrawn following the respondent’s agree-
ment to return children rather than face an adverse court finding branding him or
her an “abductor”. Alternatively, it may be that some applicants simply give up.85
In any event it is by no means clear why more “outgoing” than “incoming” cases
are withdrawn although it may be suggestive of different practices in different
countries. The reasons so many applications are withdrawn merit further
investigation.
F. Conclusions
Worldwide, in 1996 the United States dealt with the highest number of Conven-
tion applications. Less predictably, England and Wales dealt with the second high-
est number and, although many of these involved Ireland, inflated Convention
traffic between countries enjoying cultural, linguistic or geographical proximity is
found elsewhere, for example between the United States and Canada, so the Irish
applications in our sample should not be seen as artificially inflating the figures.
Although the Conventions apply to children up to 16 years old, in our sample
the children were generally young, with an average age of just over six years, and
less than a quarter aged ten or more. These findings are worth bearing in mind
when considering the Convention exceptions based upon the child’s objections to
being returned, for generally these exceptions will not be available to younger
children and so the arguments about them will be relevant in only a minority of
cases. Even so, the child’s objection was the most common reason for judicial
refusals to make a return order.
The sample confirmed the suspected position that mothers are more often the
abductor: 70 per cent of the abductors were mothers and 27 per cent fathers. Inter-
estingly, this was not the case when the Hague Convention first came into force,
when the number of applications concerning abducting fathers slightly exceeded
83. At supra Section D.4. Our follow up analysis has since revealed the following: with
regard to incoming cases where the result was not known in 1% of cases, 48% were ordeed to
be returned, 8% were voluntarily returned, 8% ended in judicial refusals and 11% were
withdrawn. With regard to outgoing cases the result was not known in 5% of cases, 23% were
ordered to be returned, 20% were voluntarily returned, 9% ended in judicial refusals and
19% were withdrawn.
84. See Lowe and Perry, op. cit. supra n.2.
85. I.e. perhaps because of the time and costs involved. It has also been suggested to us
that because, at any rate in England and Wales, it is so easy to make an application applicants
may do so without really thinking, only to withdraw sometime later.
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JANUARY 1999] International Child Abduction 147
the number concerning mothers. These findings lend weight to the assertion that
the nature of the abduction problem has altered since the coming into force of the
Conventions: the problem remains one of parental abduction (abductions by other
relatives account for only 3 per cent of cases), but mothers rather than fathers now
appear to be the parent more likely to abduct. Not only did mothers abduct much
more often than fathers in the sample, but they were also more likely to take young
children and sibling groups than were fathers. It is a moot point whether this infor-
mation could help immigration officials to identify abductors. Interestingly, the
abducting mothers in the sample were more likely than the fathers to abduct chil-
dren from an “intact” family, so that the abduction was the first outward sign of
family breakdown, while fathers tended to abduct children after the family had
already broken down. In addition, in the whole sample just over a fifth of the
abducting parents had never been married to the child’s other parent, and while
among “outgoing” cases nearly a quarter were unmarried this figure is still surpris-
ingly low in the light of the fact that about one of every three children in the United
Kingdom is now born to unmarried parents.
Tantalisingly, our data did not include information on what motivated the par-
ents in the sample to abduct their children, and we can therefore neither verify nor
refute the theory that abducting mothers tend to be attempting to “escape” dom-
estic violence or other difficulties. Perhaps surprisingly, our findings show, how-
ever, that abducting fathers appear to be “going home” in a higher proportion of
cases than abducting mothers. Clearly, it would be useful to investigate further the
sorts of circumstances in which abductions tend to take place and the motivations
behind them. The “escape” theory brings into sharp relief concerns about the
safety of children returned under the Conventions, a matter raised at the Third
Review of the Hague Convention6 and about which further research would be
useful.
The Hague Convention is generally considered to be a success, a fact evidenced
by the growing number of countries signing the Convention. The number of con-
tracting States, including the United Kingdom, has risen from six in 1986 to 51 at
the time of writing. None of our evidence suggests that the reputation of the Hague
Convention is in any way undeserved: applications are generally dealt with speed-
ily (England and Wales appears to have the most expeditious system for dealing
with Convention applications; in our sample the average length of a completed
application here was six and a half weeks compared to an average of 11.5 weeks
among “outgoing” cases),87 and relatively few result in refusals to return children.
By contrast, and despite its growing number of signatories,88 it is evident that the
European Convention is little used, even in relation to access disputes, and when
used takes longer to reach a conclusion. The requirement that there must be a
custody or access order concerning the child clearly limits the scope of the Euro-
pean Convention, but the low level of use of the Convention also stems in part
from its alleged complexity.
86. See Report, supra n.31, at paras.60 et seq. and Annexes I-III.
87. Ireland came a close second in terms of speed while, at the other end of the scale,
Germany’s system for dealing with Convention applications is particularly slow; see Lowe
and Perry, op. cit. supra n.2.
88. Which at the time of writing amount to 21.
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148 International and Comparative Law Quarterly [VOL. 48
Where neither Convention appears to be working particularly well is in relation
to applications concerning access: the numbers of such applications are low and
our evidence shows that they take much longer than return applications to reach a
conclusion. These findings point to the need for revision of the Convention pro-
visions on access, or for their replacement with a new Convention specifically
addressing the problem of international access disputes.
NIGEL LOWE and ALISON PERRY*
* Respectively Director and member of the Centre for International Family Law Studies,
Cardiff Law School, University of Wales. We are most grateful to the Nuffield Foundation
for funding this project. We would like to express our thanks for being given access to records
held at the Child Abduction Unit, and would like to thank in particular Peter Harris, the
Official Solicitor, Michael Nicholls, Andrea Dye and Mark Cinque for their assistance. We
would also like to acknowledge the help given by Denise Carter and Anne-Marie
Hutchinson of REUNITE, and to thank Carolyn Hamilton of the University of Essex for her
comments on earlier drafts of this article.
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JANUARY 1999] International Child Abduction 149
Appendix 1
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Notes
* The figures provided by the Australian Central Authority cover the period July 1995 to
December 1996, i.e. 6 months more than those of the other countries.
t No information was provided on applications concerning children taken from Italy.
t The Portuguese figures do not include applications concerning children taken to or
brought from France and Luxembourg. These applications are dealt with by means of
bilateral agreements between Portugal and those countries.
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150 International and Comparative Law Quarterly [VOL. 48
Table Al “Incoming” applications received by the Child Abduction Unit in 1996
Number of applications
Hague European
Country Convention Convention Total
USA 42 42
Ireland 25 4 29
Australia 19 19
Germany 9 1 10
Greece 9 9
France 7 1 8
Spain 8 8
Italy 6 1 7
Canada 6 6
New Zealand 4 4
Cyprus 5 5
Switzerland 4 4
Sweden 3 1 4
Denmark 3 3
Hungary 2 2
Israel 2 2
Finland 1 1
Mexico 1 1
Netherlands 1 1
Portugal 1 1
Total 158 8 166
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JANUARY 1999] International Child Abduction 151
Table A2 “Outgoing” applications made by the Child Abduction Unit in 1996
Number of applications
Hague European
Country Convention Convention Total
USA 41 41
Ireland 27 6 33
Spain 23 2 25
Germany 12 2 14
France 10 3 13
Australia 11 11
Netherlands 9 1 10
New Zealand 9 9
Canada 7 7
Greece 7 7
Cyprus 4 1 5
Italy 4 1 5
Poland 4 4
Portugal 3 1 4
Sweden 2 1 3
Austria 2 2
Finland 2 2
Norway 1 1 2
Switzerland 2 2
Bosnia 1 1
Denmark 1 1
Hungary 1 1
Israel 1 1
Mexico 1 1
Romania 1 1
Zimbabwe 1 1
Total 187 19 206
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152 International and Comparative Law Quarterly [VOL. 48
Table A3 1996 applications by Convention used
Statistics on the number of applications brought under each Convention were available in
relation to ten countries only.
Country Convention “Incoming” “Outgoing”
applications applications
Cyprus Hague 6 5
European 0 2
England and Wales Hague 158 187
European 8 19
France Hague 22 25
European 10 13
Germany Hague 114 81
European 13 3
Greece Hague 22 8
European 2 2
The Netherlands Hague 54 6
European 2 2
Portugal Hague 12 7
European 4 4
Scotland Hague 12 9
European 0 3
Sweden Hague 16 16
European 3 1
Switzerland Hague 27 28
European 3 3
Appendix 2
In 1996 the Child Abduction Unit received applications from and made appli-
cations to a total of 26 countries, namely, Australia, Austria, Bosnia, Canada,
Cyprus, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Israel,
Italy, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal,
Romania, Spain, Sweden, Switzerland, the United States and Zimbabwe.
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JANUARY 1999] International Child Abduction 153
Table A4 illustrates how many applications for particular remedies were received
from the different countries by the Child Abduction Unit in 1996. It also shows,
where appropriate, which Convention was used. Where a country is not a party to
the European Convention, each box representing a remedy sought under that
Convention is marked “Not Applicable”.
Table A4 “Incoming” applications received by England and Wales in 1996
Country Hague Convention European Convention
Remedy sought
Return Access Registration of Registration of
custody order access order
USA 38 4 N/A N/A
Ireland 24 1 2 2
Australia 18 1 N/A N/A
Germany 9 0 1 0
Greece 9 0 0 0
Spain 7 1 0 0
France 7 0 1 0
Italy 6 0 1 0
Canada 6 0 N/A N/A
Cyprus 4 1 0 0
New Zealand 4 0 N/A N/A
Switzerland 4 0 0 0
Sweden 3 0 1 0
Denmark 3 0 0 0
Hungary 1 1 N/A N/A
Israel 2 0 N/A N/A
Finland 1 0 0 0
Mexico 1 0 N/A N/A
Netherlands 0 1 0 0
Portugal 1 0 0 0
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154 International and Comparative Law Quarterly [VOL. 48
Table A5 illustrates the same points, but in relation to “outgoing” applications.
Table A5 “Outgoing” applications made by England and Wales in 1996
Country Hague Convention European Convention
Remedy sought
Return Access Registration of Registration of
custody order access order
USA 33 8 N/A N/A
Ireland 26 1 4 2
Spain 17 6 2 0
Germany 10 2 1 1
France 8 2 2 1
Australia 8 3 N/A N/A
Netherlands 9 0 0 1
New Zealand 8 1 N/A N/A
Canada 5 2 N/A N/A
Greece 7 0 0 0
Cyprus 4 0 0 1
Italy 3 1 1 0
Poland 2 2 0 0
Portugal 3 0 1 0
Sweden 1 1 0 1
Austria 1 1 0 0
Finland 2 0 0 0
Norway 1 0 0 1
Switzerland 2 0 0 0
Bosnia 1 0 N/A N/A
Denmark 1 0 0 0
Hungary 1 0 N/A N/A
Israel 1 0 N/A N/A
Mexico 0 1 N/A N/A
Romania 1 0 N/A N/A
Zimbabwe 1 0 N/A N/A
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JANUARY 1999] International Child Abduction 155
Appendix 3
Table A6 sets out the principal outcomes in “incoming” and “outgoing” appli-
cations completed within 32 weeks. The figures given are the actual number of
cases.
Table A6 Outcomes reached within specified time periods
Up to 4 5-8 9-12 13-16 17-20 21-24 25-28 29-32
weeks weeks weeks weeks weeks weeks weeks weeks
“Incoming” or In Out In Out In Out In Out In Out In Out In Out In Out
“outgoing”
cases
Judicial return 32 6 24 8 5 9 4 6 1 4 1 1 1 0 0 1
Judicial refusal 1 1 5 2 2 2 0 3 1 0 0 4 0 0 0 0
Other judicial
resolution 2 0 2 1 3 1 1 2 0 1 0 0 0 1 0 1
Voluntary
return 9 20 3 2 0 5 0 2 1 1 0 0 0 1 0 0
Other
voluntary
resolution 0 2 3 1 0 1 0 2 0 1 0 0 0 1 0 0
THE INTERPRETATION OF ARTICLE 30 OF THE EC TREATY
AND THE “DORMANT” COMMERCE CLAUSE BY THE
EUROPEAN COURT OF JUSTICE AND THE US SUPREME
COURT
THERE are numerous publications on the interpretation of Article 30 of the EC
Treaty by the European Court of Justice’ which for the last 20 years has been one
of the most controversial issues in EC law. It is, however, surprising that there is
much older, yet strikingly similar, case law of the US Supreme Court which has
remained almost unnoticed in Europe. In this article the respective case law of the
two courts will be compared. Such a comparison is not only of interest as such, but
can also contribute to the discussion about the correct scope of Article 30-which
has certainly not yet been exhausted.
1. Cf. e.g. E. White, “In Search of the Limits to Article 30 of the EEC Treaty” (1989) 15
E.L.Rev. 224; K. Mortelmans, “Article 30 of the EEC Treaty and Legislation Relating to
Market Circumstances: Time to Consider a New Definition?” (1991) 28 C.M.L.Rev. 115; J.
Steiner, “Drawing the Line: Uses and Abuses of Article 30 EEC” (1992) 29 C.M.L.Rev. 749;
W. Wils, “The Search for the Rule in Article 30 EEC: Much Ado About Nothing?” (1993) 18
E.L.Rev. 475; T. Friedbacher, “Motive Unmasked: The European Court of Justice, the Free
Movement of Goods and the Search for Legitimacy” (1996) E.L.J. 226.
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