A UCCJA FOR THE WHOLE WORLD?

As we all know, the question of custody jurisdiction in international cases is determined here in the United States by UCCJA or UCCJEA, one of which all fifty states have. Other countries use whatever rules of comity have developed in their courts over the ages. The latest law reform effort in this area is a new Hague Convention designed to bring UCCJA-like rules to all the Nations of the Earth.

The Hague Convention on the Civil Aspects of International Child Abduction, which has been around a few years, is of course a summary-return statute which does not get into custody jurisdiction questions at all, much less substantive custody or procedure. The new Convention does deal with custody jurisdiciton. Will it simplify things? It should. The rules proposed for this new Hague Convention on the Protection of Children would be essentially those of the UCCJA, though considerably simplified. This means that American courts will not have to unlearn absolutely all the case law that they developed in applying the Uniform Act to international cases over the years through Section 23. They will continue to apply similar, though simpler, rules.

A preliminary draft of the new Convention on Protection of Children was adopted by the Special Commission of The Hague on September 22 of 1995. Further refinements to the draft will be the subject of an all-day session at the American Bar Association's Family Law Section meeting in Williamsburg, Virginia, on April 10.

The main difficulty with the new treaty is probably that law reformers' predictable infatuation with the rhetoric of infinite inclusiveness has given the treaty a very fuzzy embrace of subject matter and a rather misleading name. The idea of yet another Convention on the "protection of children" will of course sound appealing to all but those who worry about international organizations' incurable desire to replace the authority of a child's own parents with that of internationally-supervised bureaucrats. However, it remains a treaty on the subject of custody jurisdiction masquerading as a rather heroically inspired general-welfare statute.

The draft Convention begins by stating that its purpose is to determine which country will have jurisdiction "to take measures directed to the protection of the person or property of the child." Unable to restrict itself to mere "custody," it goes on to say that it will determine the law applicable to "parental responsibility," whatever that means. There is a helpful paragraph in Article 1 that says that for purposes of this Convention "parental responsibility" includes parental authority.

Wandering through the altruistic fuzzwords, one does find a helpful Article 3 stating what the convention does not apply to, and an Article 4 stating what it "may deal in particular with." It does not apply to persons over 18 years old, and it does not apply to paternity or decisions on adoption, to support, social security, general public welfare measures, criminal matters or asylum and immigration. In the "may deal" category are "attribution, exercise, termination or restriction of parental responsibility." Is this custody? No, because the Convention states that it will deal with rights of custody, relocation and visitation insofar as they are international. It will also deal with guardianship and similar phenomena, foster placements, and matters relating to a child's property.

The jurisdictional scheme, while greatly simplified, is that of the UCCJA, borrowing some terms and concepts from the above-mentioned child abduction convention. Here it has to be said that the great overriding tendency of diplomatic drafting in recent years, at least in the area of multilateral treaties, has been to strive for (believe it or not) great (if not the greatest) simplicity, clarity and brevity. The current drafting of this Convention, wrestling as it does with some extremely broad and vague welfare concepts, is for the most part a marvel of such restraint. The treaty gives jurisdiction over custody to the country of the child's "habitual residence." If the habitual residence changes, jurisdiction changes, and for those children, such as refugees, who have no habitual residence, the country where they are located will have jurisdiction.

The treaty allows countries to defer jurisdiction's exercise and transfer jurisdiction itself to other signatory countries that "would be better placed in the particular case to assess the best interests of the child." It suggests that such countries might be those where the child has nationality, or those in which there is a divorce case pending between the child's parents, or those with which the child has a "substantial connection." Before accepting jurisdiction the new country is required to consider whether accepting it would be in the child's best interest.

The scheme differs somewhat from the UCCJA's basic concept in that the consideration of this deferral question can be initiated by the country that wants to have the case sent there. A country that thinks it is a "better placed" forum can ask the country of habitual residence to consider deferring. If the habitual residence country does not respond within six months, the requesting country obtains jurisdiction.

Countries where the child is present are allowed to take necessary measures in cases of urgency. Those measures, though, must be of a provisional character, and have a territorial effect limited to the country making the decision. Moreover, these temporary measures must lapse as soon as the habitual residence has taken its own necessary measures.

Continuing jurisdiction is provided for, in that a country's "measures" must continue in force even if the circumstances have changed, so long as the country having jurisdiction has not modified those prior orders.

A country is supposed to apply its own law, but may if it wishes in exceptional cases apply law of another country which has a substantial connection with the particular child.

Recognition of other countries' decrees is required, and may be refused only if it was not based on jurisdictional concepts similar to those of this treaty, or if the prior proceedings gave no opportunity for the child to be heard "in violation of the fundamental principles of procedure of the requested state." Parents get some rights, too. There is a provision for refusing "recognition" on the request of any person claiming that a "measure" infringes his or her own "parental responsibility," if that measure was taken (without "urgency") without that parent being given an opportunity to be heard. Recognition can also be refused if it would be manifestly contrary to the public policy of the foreign country, taking into account the best interest of the child.

New forums are bound by the findings of fact in the first forum, and there is to be no review of the merits of a custody decision. Those decisions must be enforced as if they had been decisions of the forum's courts.

As with other Hague Conventions, the signatory nations are required to designate "central authorities" to aid in the operation of the scheme. This includes taking appropriate steps to provide information about a country's own laws to requesting foreign parents, offering mediation and other voluntarily agreed solutions, and helping to locate missing children.

One particularly dangerous weak link in the Convention is Article 23, requiring the country to refuse to comply with a request where it determines that transmission of information about the location of the child would place that child "or a member of his or her family in danger." Obviously this could nullify the effects of the entire Convention if freely used, since there is hardly ever an international relocation or child abduction case in which the removing parent is not smart enough to allege "danger."

Article 24 allows a parent to request the authorities of a country to help with effective exercise of visitation and the maintenance of "direct contacts on a regular basis" between the child and the left-behind parent. One limitation is that if a country decides there is "danger," it is required to inform the authorities of the other country about that supposed danger. The Convention includes a by-now-familiar provision that all documents sent between countries are exempt from requirements of certification, exemplification, and similar formalities.

Currently US representatives are proposing a change that would make it clear that a wrongful removal of a child does not create a new "habitual residence" in the country to which the abducted child was taken. Another of their proposals would change somewhat the situation of a country's acquiring jurisdiction by asking for it and not hearing from the other country for six months. In those situations, they would have the treaty create a new "special nationality jurisdiction" which allows the country of which the child is anational to decide the case. They recognize considerable danger in a default rule which makes an international failure to respond a ground for acquiring jurisdiction. They also suggest changing the continuing-jurisdiction provisions to allow F1 to keep exclusive modification jurisdiction for up to three years after the child has acquired a new "habitual residence," so long as one parent remains in F1 and that parent has maintained or attempted to maintain a close relationship to the child.

The Permanent Bureau at The Hague has some suggestions of its own. The most disturbing is one which would remove the requirement for countries to comply with visitation orders, and instead set up a procedure whereby the person who has visitation rights in his or her own country must then "apply for access" to the courts or bureaucrats of the country where the child has been taken, and wait for that country to decide on such things as "the suitability of such person to have access," the applicant's "housing and living conditions for receiving the child during a temporary stay," and indeed "any other factual circumstances which might affect the desirability of access."