The Hague Conference on Private International Law maintains a website that provides practitioners with access to international child abduction materials, including foreign case law. This article deals with two important difficulties with the website and its use that became evident in Abbott v. Abbott, 130 S. Ct. 1983 (2010). (While this article was in press, Abbott was decided: The Supreme Court granted Mr. Abbott’s appeal and remanded for further proceedings in the district court.)We begin with the first difficulty—a citation that suggested undeserved significance to a Special Commission document—then turn to inaccuracies in the website’s materials on foreign cases that are relevant to the Supreme Court’s review in Abbott.
Abbott is the first U.S. Supreme Court case to deal with the Child Abduction Convention. It addresses a narrow but important question: whether a child will be returned to his or her former habitual residence if the child was removed by a sole custodial parent in violation of a statutory travel restriction and the person seeking the child’s return holds visitation rights. The issue arises because the Child Abduction Convention returns wrongfully removed children to custodial parents and to those who hold joint custody rights but has a different rule for non-custodial parents.
A difficulty of citation. The first difficulty to be discussed is the matter of a citation to a post-meeting staff report for a proposition beyond the competence of the experts who attended the meeting. A brief introduction to the practices that attend Special Commissions will clarify why a document cited in Abbott should not be read to establish a binding agreement among nations.
Special Commissions to discuss the practical operations of the Child Abduction Convention have been convened from time to time since the convention entered into force. In preparation, the Permanent Bureau prepares a questionnaire directed to States Parties, collects their responses, and prepares a summary. It may also provide one or more background reports on matters that are likely to be addressed at the meeting.
A typical questionnaire is disseminated well in advance of the meeting and addresses the country’s experience under the convention, with topics ranging from administrative matters to decisions in Child Abduction Convention cases. Particular emphasis may be placed on issues of special concern. Responses to the questionnaire are then collected in a preliminary document that is given a number and date. Documents prepared by the Permanent Bureau or submitted before the meeting by States Parties are identified in the same fashion. All of these documents are posted online.
Materials that are, instead, first circulated during a Special Commission are known as working documents. Unlike preliminary documents, however, their language is not included in subsequent reports of the Special Commission, nor are they made available online. Following each of these post-promulgation Special Commissions, the staff prepares a report to summarize what took place. The report refers to Central Authorities, which are established under Article 6 of the Child Abduction Convention to carry out duties imposed by Articles 7 and 21, such as locating the child, exchanging information, and initiating or facilitating legal proceedings to secure a child’s return. As these sources make clear, Special Commissions were not convened to resolve legal matters and were not diplomatic sessions at which delegates would have been empowered to negotiate on behalf of their governments.
Their nature took on importance in Abbott because Timothy Abbott, the father in the case, argued that at the 1993 Special Commission, a consensus was reached that a French trial court decision controls the meaning of the Child Abduction Convention. His argument misconstrues the nature of a Special Commission meeting of this character. The meeting is intended as a relatively informal venue to improve Convention operations and not as a negotiating or lawmaking session. As contrasted with a negotiating or lawmaking session, there is no formal decision-making mechanism. The report’s summaries are scarcely capable of being understood without citations for the cases and ready access to them and to the checklist to which the report refers. These citations were contained in Preliminary Document No. 1 of November 1992.
Unfortunately, unlike preliminary documents for later Special Commissions, preliminary documents for the 1993 meeting, including these two important ones, are not made available on the Hague Conference’s website. Further, the checklist became the meeting’s agenda. These additional sources, as is customary for working documents, are also unavailable online, and typical users of The Hague’s website will have only the posted 32-page summary report, not the 51-page checklist, as supplemented, to consult.
This means that the U.S. Supreme Court, unless it obtained these documents from The Hague, could not properly evaluate Timothy Abbott’s claims, and any other court requiring information from these or similar unposted documents is placed in a comparable unsatisfactory position.
Two troubling facts are revealed by the relevant preliminary documents: (1) an appellate reversal that had been entered in February 1992 did not appear in the checklist produced in November 1992, and (2) the country-by-country list of cases, dated January 1993, revealed only that an appellate decision had been entered on the merits almost a year earlier, but not that it had reversed the lower court’s decision.
Inadequacies of the INCADAT database. The International Child Abduction Database (INCADAT), available free of charge at the Hague Conference website, provides access to summaries of significant decisions of national courts construing the Child Abduction Convention and may include a comment drafted by the Permanent Bureau. In the Abbott case, the relevant comment was inaccurate and misleading in several respects. The case summaries were also of varying accuracy.
Although INCADAT does not link to commercially published databases, it does include citations to legal journals. Links are also provided to materials on child abduction in non-Convention states and on inter-American child abduction issues.
A second important document for anyone who must evaluate the accuracy of INCADAT summaries is the report of a 2003 correspondent’s meeting and its two annexes: Annex 1 discusses the linguistic and analytical aspects of the summaries and is framed in terms of the differences between common law and civil law jurisdictions, whereas Annex 2 is a guide to preparing summaries that contains examples from the INCADAT database.
These materials reveal that INCADAT is not a comprehensive database. The cases it includes are selected by correspondents, who are instructed to choose significant cases from their jurisdictions. Despite the importance of their task, their authorship is not identified in the summaries they prepare, and their names are not listed on ’s website. These practices prevent users from evaluating their training, linguistic skills, education in comparative law, and legal experience—all relevant information.
Our search experiences prompt several suggestions for improvements to INCADAT. First, comments by the Permanent Bureau must be vetted to ensure accuracy. Second, case summaries should include every legal expression commonly used for the same concept (e.g., ne exeat and travel restrictions). Next, many users who speak other languages and practice in other legal cultures may lack the skills and resources that are needed to find the full language of a decision and track its history. It is, therefore, important that INCADAT summaries provide a case name and citation that will lead to the case in print reporters, commercial databases, and court websites, even if these become available only after the summary is posted. Finally, an INCADAT glossary of terms would be useful for users, as would brief memoranda that correspondents might provide on the court structure, proper legal citations, and means of locating subsequent history in each country for which INCADAT contains case summaries.
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