Contrast  this  with  applications  under  the  European Convention 19802 which are made for :-

1. recognition and enforcement of a custody order including enforcement by means of returning the child to the person in whose favour the custody order was made;

2. recognition of a custody or contact order;
   or

3. recognition and enforcement of a contact order.

 Before the Hague Convention, the most common remedy to a parent  seeking the return of a child in most countries in  the  Commonwealth was to make the child  a  ward  of  court and then obtain an order for the summary return of the  child  from that court. During the 1960's  the  approach  in England was to order the return of the  child unless  it  was satisfied that to send  the  child  back would  cause  him harm. It would  also  consider  public policy  principles such as comity, forum conveniens  and injustice  to the parent seeking the return  3.  This approach was modified in Re L (1974) 1 WLR 250 which re-established  the  principle of the  child's  welfare  as being  the first and paramount consideration. This  prevailed in the 1970s and 1980s 4.

"Kidnapping"  was strongly discouraged and the  discouragement took the form of a swift, realistic and unsentimental  assessment of the best interests of  the  child, leading  to  the prompt return of the child to his  own country but not the sacrifice of the child's welfare  to some other principle of law.

The  court gave close consideration to the "merits" of the welfare issue and did not really have to investigate too  closely the lawfulness or otherwise of the  removal of  the  child. A prompt application was always  in  the interests  of  the wronged parent;  procrastination  and delay assisted the abducting party. Because welfare  was the  1st  and paramount consideration, the  court  would often  decline to order a summary return of the  child. It has been said that the advent of the Hague Convention has meant that in cases to which the Convention applies, the position is now more akin to that prevailing in  the 1960s:  the court will order the summary return  of  the child  unless to do so would clearly cause harm  to  the child5. 

In Malaysia, the wardship jurisdiction is not a commonly accepted notion except if viewed from common law principles which state that the court acting in parens patriae (as  a parent) has wardship jusrisdiction on  the  basis that  it has the right to decide on the residence  of  a child.  Malaysia has not ratified the Hague  Convention. Even without expressly invoking inherent wardship juris diction,  Malaysian courts have not hesitated to act  in cross-border  abduction cases. A recent example was  the case  of  Neducheliyan  Balasubramaniam  v.  Kohila  a/p Shanmugam.  (1997) 4 AMR 3643. Here the wife was  Malaysian  but the husband and children were  Canadians.  The Court of Appeal took the view that the Court had  jurisdiction under Section 3 (1) of the Law Reform  (Marriage &  Divorce) Act 1976 which refers to all persons  physically present in Malaysia in cases which did not involve divorce jurisdiction.

According  to  the August 1999 issue of Family  Law,  49 countries have ratified the Convention6. In an  article "International Child Abduction - The English Experience" by Nigel Lowe and Alison Perry7 the authors did a  survey  of  their country's  Child  Abduction  Unit's records  concerning England and Wales for 1996  and  referred to the Third Meeting of the Special Commission to Discuss  the Operation of the Hague Convention  held  at the Hague in March 1997 where reference was made to  the apparently changing nature of international child abduction and the fact that increasing numbers of  abductions appear to be done by mothers attempting to escape domestic violence.8

Lowe  and  Perry  say that one theory  on  the  changing pattern is that the Hague Covention has become 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  has  not been so strong among women because their motivation  was likely  to be to excape a desperate situation such as  a violent or abusive relationship.

It  was  also noticed that abducting mothers  were  more likely  than  the  fathers to abduct  children  from  an "intact" family so that abduction was the first  outward sign of family breakdown, while fathers tended to abduct children after the family had already broken down. 

The  Hague  Convention is generally considered to  be  a success as witnessed by the growing number of  countries signing the Convention. 

Much of the cases under the Hague Convention have  dealt with the following issues:-

1. What is wrongful removal and retention ?

2. What are rights of custody and rights of access?

3. Whether  the  child  is "now settled "  in  his  new environment and the degree of settlement.

4. Whether  the  wronged parent has  given  consent  or acquiescence to the abducting parent's removal or retention of the child. 

5. Whether  there  is  a "grave risk"  of  physical  or psychological harm to the child.

6. Whether  the child objects to being  returned  (Contrast the European Convention which has no provision for taking into account the child's objections).

7. What is the "habitual residence" of the child ?

The  answers to the above issues will have a bearing  on whether the child is returned to his country of habitual residence9.

In  cases involving non-Convention countries, the  Court of  Appeal in England has been developing this  area  of law by analogy with the Hague Convention. See for  example  Re  M (1996) 1 FLR 478 where the  Court  of  Appeal upheld Bracewell, J's decision to order the return of 2 brothers aged 10 and 2 1/2 forthwith to the United  Arab Emirates.  Their  mother was born in the  U.K.,  married their  father, a Dubai native, 11 1/2 years  previously at  an Islamic ceremony in Dubai and they had  lived  in Dubai until the abduction by the mother during a holiday in England.

She  petitioned for divorce in England and  obtained  an interim residence order for the boys. Bracewell  considered  the case fell within the philosophy of  the  Hague Convention as applied to non-Convention countries. 10 

Waite,  LJ justified the Court of Appeal's  decision  by referring to the principle of international comity:

"Underlying  the whole purpose of the peremptory  return order is a principle of international comity under which judges in England will assume that facilities for a fair hearing  will  be  provided in the court  of  the  other jurisdiction... Very exceptional circumstances would  be justified in departing from that general principle". 

There is an argument that this approach of the Court  of Appeal  is  clearly wrong in the case  of  international child abduction from a non-Convention country and refers to the leading authority for non-Convention cases (McKee v.  Mckee  (1951)  AC 352) in which  the  Privy  Council stated  that the paramount consideration of the  child's welfare  takes precedance over all other  questions  including international comity. 11

The Hague Convention philosophy is based on the  acceptance of Comity between nations. This acceptance is based on  the understanding that most of the member states  of the  Hague Conference and all of the contracting  States to  this  Hague Convention base their decisions  on  the upbringing  of  children on the "best interests  of  the child"  principle. This principle is underlined  in  the Convention's preamble:-

"The  States  signatory to the present  Convention,  ...Firmly  convinced that the interests of children are  of paramount importance in matters relating to their custody ....".

Some Commonwealth jurists have, however, concluded  that this principle is not practised in many countries in the world and in particular they refer to Islamic countries. They  refer to unacceptable alternative principles  such as  an irrefutable right that the parent of one  sex  or other  will have custody; or that custody is decided  on grounds of social "fitness" or "unfitness" of one of the parents regardless of their parenting ability. 

Jeremy  Rosenblatt  has  noted  that  Islamic  countries unlike  most  Western States have refused  to  sign  the Hague  Convention and therefore returning a child to  an Islamic  State  does not ensure that the  Islamic  State will acknowledge an English Contact (access) Order.12

He says English practitioners have often been exasperated  by the English Courts' application of Hague  Convention principles without acknowledging the limitations of the  application of Muslim Law for example  in  Pakistan (see Re S (1994) FLR 297). He sees hope in the fact that recent  case  law in England shows a change  in  dealing with  non-western, non-Hague Convention  legal  systems.13 He points out that the tragedy belongs not just  to the child and the western parent but also to the  Muslim parent  who whilst gaining the advantage of the  Syariah legal system when abducting his child, finds it has  its limitations  for  vacation contact purposes.  Until  the Syariah  court  understands the concept  of  the  mirror order with which the English Court would have confidence to  let its English children go, such  vacation  contact understandably sought by the Muslim father will probably never take place in his home country.

We  now come back to the original question posed at  the beginning of this paper: 

Given that we have the Hague Convention, is there a need for a Commonwealth understanding ?

To answer that question, we need to look at the  special historical nature of the Commonwealth. 

Sir  William  Dale (former Legal  Advisor,  Commonwealth Office)  in  1983 pointed out in his  book  "The  Modern Commonwealth" that the Commonwealth countries occupy  one-fifth  of the world's land and their  peoples  total one-quarter  of  the world's population. They  were  all former colonies of the British having similar  constitutions and similar legal systems. It is therefore  easier for a Malaysian to understand the Nigerian legal  system than the French legal system.

The  Singapore  Declaration issued  unanimously  by  the Heads  of Government of all the then Commonwealth  countries  on 22/1/71 in Singapore (referred to as the  Commonwealth Declaration) stated in its covering communique:-

"In  pursuing these principles, the members  ......  believe  that they can provide a constructive  example  of the multi-national approach which is vital to peace  and progress in the modern world.

The association is based on consultation, discussion and co-operation"

There  is  a need for a  Commonwealth  understanding  on child  abduction  to be reached using  the  approach  of consultation and co-operation described in the Singapore Declaration.  Certain decisions in various  Commonwealth countries  on  this  subject show  a  prejudice  against Islamic  legal  systems in  non-Convention  cases.  This prejudice  arises from judging an Islamic approach  from the viewpoint of a non-Islamic system. 

Common  Law  rules  of private  international  law  have allowed  courts  of  one country to judge  the  laws  of another  country as deficient and therefore to deny  the validity  of  a foreign decree. In the  case  of  cross-border  child  abduction, this has  resulted  in  courts refusing  to  return children to  a  jurisdiction  whose standard of justice fell short of that expected by  such courts. While there may be cases where such an  approach is justified on humanitarian grounds, in other cases  it may  amount to unfairly imposing one country's  cultural values  on another country. The problem lies in when  to draw the line.

With  the influx of immigrants into  England,  Australia and Canada from countries of various cultures and  religions,  the courts of those countries have had  to  deal with situations where there were clashes of cultural and religious  values. There is for example the recent  case of  Re  KR (Abduction) (1999) 2 FLR 542  involving  Sikh parents who forcibly removed their 17 year old  daughter KR  from England because of fear that she  would  follow the  path of her elder sister who had left home and  was living  with a young man. They intended to marry off  KR to  a  man  in India in an arranged  marriage  once  she became 18 and no longer a ward of court. 

The  answer to the vexing question of when to  draw  the line may be found in the judgement of Mr. Justice Singer at Page 548, Para A-E:- 

"Of  course I recognise that, approaching  these  issues from  the  point of view of her parents  and  of  others within  their family and community who share their  convictions  and their outlook, this outcome is an  affront to their traditional values, possibly to their religious tenets,  and certainly to their concept of  family  (and perhaps  particularly paternal) authority.  Furthermore, although this is a Sikh family, there are other communities well-established in this country amongst whom these events could have taken place. Nor does one have to look back far, not only in literature but no less in life, to find  at  various levels of indigenous  English  society strong  if  not overbearing parental  influence  upon  a child's  choice  of suitor and of hand.  It  should  not therefore be thought that English courts are insensitive to these considerations, nor to the often strongly  held views of parents and of persons of their generation.

Nor  is  this  a problem peculier to  this  country.  In France,  as  I understand  it,  comparable  difficulties arise  in relation to families whose traditions  lie  in the  country  of the Maghreb; and in  various  parts  of Europe, particularly in Germany, families with a Turkish background may find themselves in similar conflict  with the  attitudes prevalent in their host or adopted  countries of residence.

Sensitivity  to these traditional and/or  religious  in fluences  is however likely, in English courts,  usually to give way to the integrity of the individual child  or young  person concerned. In the courts of  this  country the  voice of the young person will be heard and, in  so personal  a  context  as opposition to  an  arranged  or enforced  marriage,  will prevail. The courts  will  not permit what is at best the exploitation of an individual and may in the worst case amount to outright trafficking for financial consideration".

In most cross-border child abduction cases, the clash of cultural  or religious values arise not in  relation  to the  child but in relation to the parent and his or  her rights  as a parent, spouse or ex-spouse. As far as  the child is concerned, in Convention cases, it is usually a question  of returning him to the cultural or  religious environment of his country of habitual residence and  in non-Convention cases, it is usually a question of whether  returning him to the country of his  habitual  residence would be in the interests of his welfare.  Resolving the issue of his welfare therefore does not  involve choosing  between two cultures or religions  but  rather answering the straightforward question of which  country is the country of his habitual residence. 

Problems  arise  when the courts  confuse  the  parent's rights  with the child's rights and this has often  been done in Convention cases under the guise of interpreting "grave  risk" involved in sending the child back to  the country from where he has been abducted. 

This  problem  is highlighted by the  Raja  Bahrin  case 14. This case was decided at a time when Australia was not  yet  a Contracting State to  the  Hague  Convention 15. The husband, a Malaysian citizen, and the wife, an Australian  citizen went from Australia to  Malaysia  to live  in late 1982. Two children were born in 1983,  and 1985  respectively. Marital difficulties  occurred.  The husband  took a second wife as permitted by  his  Muslim religion. In November 1985 the wife brought the children on  a  holiday  to Australia. She failed  to  return  as agreed  but  applied ex parte to the  Family  Court  for guardianship,  custody and urgent  maintenance.  Interim orders were made in November 1985. The wife had no right of  permanent residence in Malaysia and in view  of  the parties'  separation her present status  was  uncertain.

She  had no right to work in Malaysia and, possibly,  no right  to  maintenance  from her  husband.  The  husband applied  successfully  for orders for  guardianship  and custody of the children, and for the return to cohabitation of the wife, from the Chief Kadi Court in Malaysia.

The husband then came to Australia to commence  proceedings  in the Family Court. On 11 February 1986  further orders were made, the effect of which was to require the parties and the children to return to Malaysia to  dispute custody of the children. The husband was ordered  to proceed in the High Court of Malaysia rather than in the Kadi Court and to give certain undertakings to the wife.

The  wife  was ordered to return to  Malaysia  with  the children  for  the purposes of the case.  The  wife  appealed, seeking to introduce fresh evidence relating  to her  resident  status and to the law  of  Malaysia  with respect  to guardianship, custody, and  maintenance  for herself  and  her children. The  husband  cross-appealed against the maintenance orders. 

Held  allowing the wife's appeal and granting  her  sole custody  pending  a rehearing; and dismissing  the  husband's  cross-appeal against maintenance and  other  orders: 

(i) The choices open to his Honour were either to return the children to Malaysia or order a full custody hearing in Australia. The orders made against the husband  denying  him  access to the Malaysian courts  and  requiring undertakings  to be performed in Malaysia  were  outside the  court's jurisdiction and unenforceable. The  orders made  for the wife to return to Malaysia were also  outside the jurisdiction.

Re  R (minors) (Wardship jurisdiction) (1981) 2 FLR  416 (Eng), applied.

(ii) Although, semble, Malaysian courts would  treat the child's welfare (in the context of the Muslim  religion)  as the overriding consideration, in view  of  the real  doubt whether the wife would be in a  position  to present her case at all adequately in any context in the Malaysia  courts, questions of custody and  guardianship should be determined in Australian courts. 

(iii) Per  Gee J: it was open to his Honour  to  find that this was a "kidnapping" case in accordance with the authorities  and that he should embark on a  preliminary investigation as to whether it was in the best interests of  the children to have a full hearing in Australia  or direct  that  they be returned to be dealt with  in  the courts of Malaysia. The definitions from the cases of In the  Marriage of Reihana (1980) 6 Fam. 134;  (1980)  FLC 90-835  and Re A (infants) (1970) 3 All ER 184 were  not exhaustive.

Per Strauss J: the appropriate question was not  whether the    facts   fitted   judicial pronouncements  on "kidnapping",  but whether because of the  circumstances (including  the wife's reason for coming  to  Australia) the welfare of the child required that their custody and guardianship  be  decided by the Malaysian and  not  the Australian court.

(iv) Per  Strauss and Joske JJ, Gee J dissenting  as to  part of the evidence: the fresh evidence  should  be received. The discretion of the Full Court of the Family Court with respect to reception of fresh evidence should not  be  fettered by binding rules. The  nature  of  the proceedings and the possible consequences and the  question  whether  persons  other than the  parties  may  be affected by the outcome should bear upon the exercise of the  discretion. In the present circumstances, the  evidence  had a substantial bearing on the children's  welfare.

(v) Leave for the husband to appeal out of time  against orders relating to maintenance should be refused.

In  the Marriage of Hartig (1983) 9 Fam. LR 250;  (1983) FLC 91-361 at 78,418, followed. 

(vi)  The maintenance order granting the wife a  sum  to cover  her  legal  expenses  was  upheld.  "Maintenance" should be widely construed, to include payment of existing  debts and liabilities incurred in  making  arrangements for the future.

In  holding the undertakings required of the husband  as being unenforceable and ordering a rehearing, in  effect the  Court  of Appeal was sending the case back  to  the judge  for  him to order custody  under  Australian  law which  was certain to order it in favour of the  mother. It  is no wonder then that the husband did not take  the matter further.

In 1992, the father found that the mother who had remarried had changed the children's Muslim names to "Gillespie" and had them baptised in the Christian faith  without  his consent or knowledge. This was when he  decided to abduct his children back to Malaysia.

The Court of Appeal's decision in 1986 was unfair to the father  because it made a decision based  on  Australian Family Law regarding 2 Malaysian Muslim children who had been  abducted  from their habitual residence  by  their Australian mother. 

The  Court of Appeal relied on the evidence of a  Malaysian lawyer that the mother's rights to maintenance were limited  and unfavourable when compared with her  rights under Australian law. It also relied on evidence showing her  inability to work under her visit pass in  Malaysia and  doubts  as to whether she can  remain  in  Malaysia after divorce.

Undoubtedly  under  Muslim  Law, since  the  mother  had remarried, she would have been disqualified from  having custody.  But if it is recognised that the personal  law of  the children should prevail under the  principle  of international  comity, then the Australian Court  should have  disregarded this disadvantage faced by the  mother in  a Malaysian Syariah Court, and should  have  ordered the  mother to return the children to Malaysia. In  this case only the children's personal law should prevail and under  it, the children's religion and culture  must  be considered in the interests of their welfare. 

In another Australian case, State Central Authority  and Ayob  (1997)  21  FLR 567, again  the  Australian  court decided  it  could not be confident  that  the  American father  would  get a fair hearing  under  the  Malaysian Legal  system and therefore ordered the child  (7  years old) to be returned to the U.S.A. In this case, however, the  child's  habitual residence was  obviously  in  the U.S.A.  and she had been brought back by  the  Malaysian mother  without  the father's permission,  intending  to permanently live with the child in Malaysia. 

It  would appear that had the children in Raja  Bahrin's case  been non-Muslims the Court of Appeal in  Australia would have ordered the child returned to Malaysia on the assumption  that a civil court in Malaysia would act  on the same principles as an Australian Court. 

There  is therefore a need for a  Commonwealth  approach which acknowledges that the interests of children of its member nations should be decided by each nation's domestic  courts.  In fact the civil courts  of  most  member nations  in the Commonwealth have laws similar to  those in England which state the welfare of children should be the  paramount consideration when deciding custody.  The Commonwealth  approach should also acknowledge that  the Islamic  court acts on similar principles i.e. with  the same paramount consideration.  

The problem has been compounded by decisions such as the Privy  Council's in McKee v. Mckee (1951) AC  352  where the Privy Council denied that a foreign custody order is conclusive.  Here the order in question was  a  Canadian court's order. After the mother obtained custody of  the infant,  the  father removed it to Ontario.  The  mother instituted habeas corpus proceedings in Ontario to  have the  child returned to her. The trial judge  arrived  at the  opposite  conclusion to the foreign  court's  order which  had  been in favour of the  mother.  The  Supreme Court of Canada reversed the trial judge's order but the Privy  Council  restored  it, saying that:  "it  is  the negation  of  the proposition .....  that  the  infant's welfare  is  the paramount consideration" not  to  enter into  the  merits  of the question afresh  and  form  an independent judgement. 

The  Privy Council's decision in McKee v. McKee is  very troubling  as proper weight should be given to the  foreign court's order. Only if there is a change in circumstances should the foreign court order be re-opened  for scrutiny. 

If  the  approach  of McKee v McKee is  carried  to  the extreme,  it only encourages unhappy parents  like  Raja Bahrin to resort to abduction. 

The  McKee  approach has not been changed  much  by  the locus  classicus of Re L (Minors) (Wardship :  Jurisdiction) (1974) 1 WLR 250. 

The  Commonwealth approach should be diverted  from  the McKee  approach to the more reasonable path of  international  comity and to one which acknowledges the  rights of  the child under the Convention on the Rights of  the Child  198916 and in particular the preamble  of  the 1989 Convention which refers to: 

"Taking due account of the importance of the  traditions and  cultural values of each people for  the  protection and harmonious development of the child". 

In  an age when we talk increasingly of the Global  Village,  it  is  easy to forget that the  world  is  still divided  by  many different religions and  cultures.  It would be timely for us to remember that Article 8 of the 1989 Convention states :- 

"1. States Parties undertake to respect the right of the child to preserve his or her identity, including nation ality  name  and family relations as recognised  by  law without unlawful interference.

2. Where a child is illegally deprived of some or all of the  elements  of his or her  identity,  States  Parties shall  provide  appropriate assistance  and  protection, with  a  view  to speedily re-establishing  his  or  her identity. 

Article 9 of the 1989 Convention further states:-

"1. States  Parties shall ensure that a child shall  not be separated from his or her parents against their will, except  when competent authorities subject  to  judicial review determine, in accordance with applicable law  and procedures,  that such separation is necessary  for  the best  interests of the child. Such determination may  be necessary  in  a particular case such as  one  involving abuse  or  neglect of the child by the parents,  or  one where  the parents are living separately and a  decision must be made as to the child's place of residence." 

The  abovesaid Articles 8 and 9 can be subverted by  the earlier Hague Convention, Article 20 which states :- 

"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by  the fundamental  principles of the requested State  relating to the protection of human rights and fundamental  freedoms"

Under  "human rights and fundamental freedoms"  are  included principles of natural justice, denial of substantial justice, duress and public policy.

There  are many cases where the English courts have  not recognised foreign decrees. 

In  Viswalingam  v.  Viswalingam (1980) 1  MLJ  10,  the husband's conversion to Islam and the automatic dissolution  of  his  English marriage under  Islamic  Law  was viewed  with disapproval by the English Court of  Appeal because "it offends our concept of justice". 

Indyka  v. Indyka (1969) 1 AC 33 has laid down 3  limits to  the  wide-ranging scheme of recognition  of  foreign decrees  of divorce: public policy, natural justice  and evasion or fraud. 

In  Re Meyer (1971) P 294, a foreign divorce decree  was not recognised by the English court because it had  been obtained by the wife under duress.

Problems  can  arise  if  any  court  interprets  "human rights"  to include the right of the child to  have  his mother accompany him, especially if he is of tender age. In  Raja Bahrin's case, the Australian Court  of  Appeal considered that the mother's rights to maintenance under Islamic Law in Malaysia were not favourable to her  when compared  with  Australian Law. Furthermore,  the  Court took  into account her dubious position as a visit  pass holder after divorce under Malaysia's immigration  laws. Under such circumstances, it is arguable that the mother could  not  freely accompany the 2  young  children  to Malaysia  because she was not free to make a  reasonable choice.

In  Raja Bahrin's case, had Malaysia and Australia  been signatories  to the Hague Convention, it is  conceivable that  if the father had applied within 12  months  after the mother removed the children, there would have been a peremptory  order  for  the return of  the  children  to Malaysia because it would have been within the spirit of the  Hague Convention. There would be no problem  unless it  came  within  the purview of Article 20  and  it  is doubtful it would. Unfortunately, it being a non-Convention case, it was dealt with as an ordinary custody case within  the jurisdiction of the Australian family  court and  hence,  the  Court felt entitled  to  look  at  the child's  welfare from the mother's position as an  immigrant  ex-wife under Islamic law in Malaysia, coming  to the  conclusion that somehow the child's welfare was  at risk because the mother's rights to maintenance and  her right to stay in Malaysia were unfavourable.

This  hotchpotch approach is not peculiar to  Australian courts  and is true also of English  Courts  considering child abduction cases. See for example Re P  (Abduction: Non-Convention  Country)  (1997) 1 FLR  780.  Here,  the mother  gave birth in England and then returned  to  the father  in Madagascar. The family later moved to  India.

The  mother was unhappy and eventually left  India  with the  child  and returned to England.  The  mother  began wardship proceedings in England and the father issued an application  for the return of the child to  India.  The mother's case was that a return by her with the child to India  would adversely affect the child. Held it was  in the  interests of the child's welfare for it  to  remain with the mother in England. The court took into  consideration  one  Dr. Anderson's evidence  that  the  mother suffered from clinical levels of depression and  anxiety and needed the emotional support and supervision of  her medical  treatment by her parents in England and if  she returned  to India, her ability to look after the  child would be adversely affected.

Contrast  this  case  with Re C  (A  Minor)  (Abduction) (1989)  1 FLR 403. Here the abducting mother refused  to accompany  the  child back to Australia.  The  judge  at first  instance  had found that a return in  such  cases would  expose  the child to psychological  harm  and  he refused to order a return. The Court of Appeal disagreed and was not prepared to be "blackmailed" by the  mother. Butler - Sloss, L.J. said:

 "The  Convention  does  not require the  court  in  this country  to consider the welfare of the child  as  para mount, but only to be satisfied as to the grave risk  of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back  .... Is a parent to create a psychological  situation,  and  then  rely upon it ? If the  grave  risk  of psychological harm to a child is to be inflicted by  the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him  out of the jurisdiction and refused to return  ....

I,  for  my  part, cannot believe that this  is  in  the interests of international relations."17

These conflicts issues are not peculiar to child  abduction cases but run through the spectrum of all conflicts cases  in the Commonwealth involving issues of  marriage validity, inheritance rights, adoption, divorces, etc.

Common  to these cases is the perennial vexing  question of which personal law should prevail in a set of circum stances  involving foreign elements. What seems to be  a common weakness or strength (depending from which  view point you judge it) is that the court deciding the issue will invariably bring its own domestic views of fairness to bear upon the case before it.

With  the concept of the child's welfare being of  para mount  importance,  it follows that  personal  laws  are irrelevant. 18 

However,  there  are  also cases which  have  held  that custody  should not be awarded to such a party  as  must result  in  the  child being made  to  practise  another religion.19.Such  decisions are more  compatible  with the underlying principles found in the Convention on the Rights of the Child 1989.

In  other  words, when the court considers  the  child's welfare,  it  cannot ignore the fact  that  its  welfare includes being allowed to continue in the religious  and cultural environment of its habitual residence.

The  cases in which for example English  and  Australian courts  have cast aspersions on the fairness of  Islamic legal  systems show that they did so despite other  connecting  factors which pointed to the foreign  court  as being  the proper forum for the question of custody  and access.

Even  if  the  Islamic countries in  question  had  been signatories  to the Hague Covention, it is  not  certain that the decisions would have been different  especially as  the English and Australian Courts for example,  have been  rather creative in interpreting "grave  risk"  and "place  the child in an intolerable situation"  as  including  situations  where the mother's own  rights  and mental health were given much weight.

International comity principles have thus been given lip service only. It  has been pointed out that where a child is  abducted to  a  non-Hague  Convention country  and  the  wardship jurisdiction  is  invoked, it is necessary  to  seek  an order permitting release to the press (See "Children and the  Media"  by Jeremy Rosenblatt in (1997)  Family  Law 498)  Once  such an order is obtained, the  lawyer  concerned  should inform the mass media  including  Reuters for  example, giving details of the child, the  abductor and  the likely place of location. Using the media  will facilitate an early location of the child.

Lastly, the Commonwealth countries could incorporate  in a  Memorandum  of Understanding  provisions  similar  to those  in  the Hague Child  Protection  Convention  1996 under  which judges in different countries are  required to communicate with each other as has been done successfully  in  the  U.S.A under the  Uniform  Child  Custody Jurisdiction  Act.  In  fact the 1996  Convention  is  a revised  and updated version of the Hague Convention  on the Protection of Minors made on 5th October 1961.

The  1996 Convention came about following a  recognition of  the  need to improve the protection of  children  in international  situations.  Apart from  reaffirming  the principles of the 1980 Convention, the underlying  principle  of  the  1996 Convention is  that  the  competent authorities for dealing with issues relating to a  child are those of the State of the child's habitual residence (subject to some exceptions).

Again  here, the exceptions could give rise to  problems especially the exception that says change of name of the child is not a matter which of itself can be said to  be protective  of the child. One can imagine  the  infinite number  of factors which can come up for scrutiny  under the test of "protective of the child", and the divergent views on what passes under the test.

 Having  a  habitual  residence as a  centre  of  gravity reduces  complications  where an abducting  parent  goes from  state  to state until by the time the  case  comes before  a  court,  the state of  habitual  residence  is different  from  the State of nationality  or  state  of divorce  jurisdiction.  By giving effect  to  this,  the child  is given a more acceptable centre of  gravity  in international relations.

We  should note the English provisions  regarding  child abduction  cases under the Rules of Supreme Court  under which  time for acknowledgement of service is  shortened and  there  is prohibition of adjournment for  a  period longer than 21 days at any one time (Order 90, Rules  37 and 41). Provision is made to facilitate presentation of evidence  (Order 90 Rule 38). Oral evidence is  discouraged  because it could drag  proceedings  unnecessarily: See Re E (1989) 1 FLR 135 at Page 144. In Re C (1999)  2 FLR 478, the English Court of Appeal said a straightforward  case with affidavit evidence should take  6  weeks from  initiation to conclusion (including at  first  instance and on appeal). In Re C, the case including up toappeal  stage had taken almost a year to come to a  conclusion.

In England, the wronged parent is entitled to legal  aid without regard to his means or to the reasonableness  of his  case (Civil Legal Aid, General,  Regulations  1989, Regulation 14).

The  form which the guidelines should take in  order  to have  legal effect is something for the Commonwealth  to work out.

As  so often happens in cases involving young  children, the  tragedy lies in the fact that adult decisions  have to  be made with no input from the subject of the  decision-making.  In  child abduction cases  involving  very young  children,  the  court's decision  can  have  very drastic effect on the child's future emotional  development.

Too  often,  lawyers and judges forget  that  separation from the psychological parent can have lasting traumatic effect. I have recently taken on a case where there  was a  3 month separation of a 4 year old boy from his  psychological  parent (his father). After the boy  was  re-united  with  his father, the effect of  the  separation caused  the boy to wake up crying at night calling  for his father and he suffers from great insecurity and fear of separation from his father, has become withdrawn  and untrusting  of  people in general. The  father  and  his family  have  noticed a great change in  the  boy's  behaviour. These are outward signs of distress. The boy is too young to express how he felt during the 3 months  he was  separated  from  his father. He  was  however  very emphatic  about not wanting to be separated  again  from his father when he saw his father after the 3 months  of separation. Is his view to be ignored because he is only 4 years old and the courts have often said such children are  too young to express reliable opinions ?  The  same dilemma will be faced by a court which has to decide  on cross-border child abduction.

In  countries which have no family courts, it  would  be useful to have a set of guidelines for judges to consider  when deciding the effect of separation from  a  psychological parent. Such guidelines should incorporate  a body  of  established international  research  and  what distress signals to look out for in very young  children who cannot express their views. 

It is hoped that the Commonwealth countries can offer  a Commonwealth approach by laying down guidelines  stating as follows:-

1. That  the child's welfare be decided  by  principles obtaining  in its place of habitual residence  prior  to the abduction.

2. That  principles of the requested State  should  not take  priority over the principles of the child's  place of habitual residence. 

3. That the abducting parent's own rights and state  of mental health, etc must never take precedence over those in (1) above.

4. That child abduction cases be given priority in each country  so  as to expedite them and thus  minimise  the damage that could occur from uprooting a child from its normal and familiar environment.

5. That Commonwealth judges be required to  communicate with each other regarding child abduction cases for  the speedy  and  effective handling and management  of  such cases.

6. That the court should not hesitate to grant an Order permitting  release  of necessary details  to  the  mass media to facilitate early location of the child.

7. That the wronged parent be given legal aid if he  so requests.

8. That the court be given a set of guidelines incorporating a body of international research on the effect of separation of a child from its psychological parent  and how to ascertain a very young child's wishes.