Defining “Wrongful Retention” Under the HCCAICA

by Roger Alford

The Eleventh Circuit recently rendered one of the most unusual cases involving international child abduction I have ever read. In Pielage v. McConnell, the question centers on whether a state court order constitutes a wrongful retention within the meaning of the Hague Convention on Civil Aspects of International Child Abduction (HCCAICA). The Eleventh Circuit ruled that since the child is in the possession of the petitioner mother (who is claiming a right to return with her child to the Netherlands), there has been no retention. In other words, since the baby is with the mother, it doesn’t matter that the mother thinks they should be living in the Netherlands. The “state of habitual residence” is conflated with the physical location of the custodial parent. This interpretation of the HCCAICA finds no right of return if the petitioner is resident in this country with child by virtue of court order. For the treaty to have effect, she apparently must move back to the Netherlands without her child and then pursue a claim of wrongful retention.


Pielage contends that the Alabama state court’s ne exeat order constitutes a wrongful retention of Josha under the Hague Convention, as implemented by ICARA, because it amounts to an interference with her custodial right to return the child to his habitual residence in the Netherlands. The district court assumed that the Netherlands was the child’s habitual residence, and although McConnell disputes that, we will make the same assumption.

This is an unusual Hague Convention and ICARA case. Most of them involve the non-custodial parent removing the child from the custodial parent or retaining the child after a permitted visitation period has ended. Here we have the unique claim that the order of a state court prohibiting one parent from removing the child from its jurisdiction pending a custody determination is a wrongful retention under the Hague Convention.

Neither the Hague Convention nor ICARA actually defines the term “retention.” Pielage, however, points us to Article V of the Hague Convention, which defines a parent’s “rights of custody” over a child as including “the right to determine the child’s place of residence.” Using that definition, Pielage contends that the state court ne exeat order is interfering with one of her rights of custody by preventing her from removing Josha from the state court’s jurisdiction to take him to her desired place of residence-the Netherlands. According to her, that is all she needs to show to state a valid claim under the Hague Convention.

We are not persuaded to define “retention” to include every breach of a parent’s rights of custody. Doing that would render the treaty’s definition of “wrongful” superfluous. After all, the treaty provides that a retention is wrongful only where “it is in breach of rights of custody attributed to a person, an institution or any other body.” Hague Convention art. 3. That necessarily means that there are some retentions that are not wrongful. Under Pielage’s construction, however, none would be. Any breach of the rights of custody would be a retention and it would be wrongful. There would be no retention unless there were a wrongful one.

We have said, however, that “[t]reaties, like statutes, should be construed so that no words are treated as being meaningless, redundant, or mere surplusage.” If every breach of a right of custody is a retention, as Pielage insists, then the key term “wrongful retention” is redundant. The proper interpretation of the Convention’s phrase “wrongful retention” must give “retention” meaning apart from “wrongful.”

According to one dictionary, the primary definition of the term “retain” is “to keep possession of.” This meaning of the term “retention” is supported by the Pérez-Vera Report, which states that the Hague Convention was meant to remedy situations where a “child is taken out of the family and social environment in which [he] has developed.” Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, in 3 Acts and Documents of the Fourteenth Session, Child Abduction ¶ 12 (1982). This indicates that the term “retention” is meant to cover the circumstances where a child has been prevented from returning to his usual family and social environment. See also id. ¶ 110 (“In fact, we must not forget that it is the right of children not to be removed from a particular environment which sometimes is a basically family one, which the fight against international child abductions seeks to protect.”).

At the time the ne exeat order was issued Josha was just under a year old. His mother had carried him back and forth between the Netherlands and this country. In order to avoid deciding where Josha habitually resided, we have assumed that his habitual residence was in the Netherlands, as Pielage contends. But we cannot assume away the statements in Pielage’s own complaint. Taking what she has alleged as true, as we must, Josha spent ten of his first twelve months on this earth in Baldwin County, Alabama, and only two months in the Netherlands. His social environment, to the extent he had one apart from his mother, was in this country. His family environment was with his mother. The state ne exeat order changed none of that. Under that order Josha remained with his mother in the same family and social environment where he had been for ten of the twelve months (and all of the last five months) of his life. Because the order did not disrupt or otherwise alter the “family and social environment in which [he] has developed,” it is not the type of “retention” that the Hague Convention was intended to remedy.

Pielage argues in her brief that “[i]f the Hague Convention means anything, it means that a child may not be retained away from the place where (s)he habitually resides, against the wishes and needs of his or her custodian.” This is not entirely accurate. According to the Pérez-Vera Report, the treaty’s “reference to children ‘wrongfully retained’ is meant to cover those cases where the child, with the consent of the person who normally has custody, is in a place other than its place of habitual residence and is not returned by the person with whom [he] was staying.” Id. ¶ 57 (emphasis added). In other words, the Hague Convention was meant to cover the situation where a child has been kept by another person away from the petitioner claiming rights under the Convention, not where the petitioner still retains the child but is prevented from removing him from the jurisdiction.

Although the preamble to the Hague Convention does state that one of its purposes is the return of the child to its state of habitual residence, see Hague Convention preamble, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98, the substantive provisions of the treaty are silent on where the child is to be returned. This silence, according to the Pérez-Vera Report, was intentional and must be “understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter’s present place of residence.”Pérez-Vera, supra, ¶ 110.In cases such as this one, where the child remains in the physical care of the petitioner, it is impossible “to return the child directly to the applicant.” Id. That is so because there has been no “retention” within the meaning of the Convention. There having been no retention, there can have been no “wrongful retention.”

http://opiniojuris.org/2008/03/14/defining-%e2%80%9cwrongful-retention%e2%80%9d-under-the-hccaica/

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