return of the child is not to be taken as a determination on the merits of any custody issue.
13.19There has been a failure in the past by the common law courts to develop a consistent approach to the handling of international child abduction cases. One of the reasons for this is that such cases are “fact-sensitive”. It is difficult to elicit principles from these cases.1310 The Convention only applies to wrongful removal or retention occurring after its entry into force in a contracting state. Thus, wrongful removals or retentions occurring prior to 1 September 1997 do not come within the protection of the Hague Convention.
13.20McClean found that there are some qualifications to the primacy of the welfare principle:
(1) If two parents who are separated or divorced live in different continents, then the reality is that the “custody decision must often mean complete and final loss of the child to one of the parties, for access may be impracticable and wholly unsatisfactory”,1311
(2) the welfare principle is not some international standard but instead a set of values of a particular legal system. Appealing to the welfare principle may encourage a court to deal with the merits of the case instead of accepting the foreign court’s decision,1312 and
(3) there is a dilemma for the court. If the court is going to fully examine all the factors contained in the welfare principle,1313 it will have to gather evidence from the country of habitual residence, whose social work agencies may not have the necessary resources to investigate. Thus there will be delay which may prejudice the welfare of the child.
13.21There was a third meeting of the Special Commission in March 1997 to review the operation of the Hague Convention. The Commission noted that the majority of the cases under the Hague Convention were children removed by their mothers from their own country of habitual residence. This was based on allegations of hardship and domestic violence by the father of the child. In response, the contracting states and their Central Authorities expressed a general willingness to accept responsibility for the safety of children returned under the convention and “to increase cooperation between courts and Central Authorities to ensure the protection of returning children and parents”.1314
13.22The Commission noted the increase in shared arrangements for children so that there may be no difference, in reality, between a joint custody order and liberal access arrangements. Yet the former would lead to a remedy for breach of
1310 McClean, “International Abduction of Children - towards an effective legal response”, Conference Papers of the Ninth Commonwealth Law Conference, (1990) at 301.
1311 Ibid at 302 (1990).
1313 McClean refers to the list in section 3 of the Children Act 1989.
1314 Report on the third meeting of the Special Commission to discuss the operation of the Hague Convention on the Civil Aspects of International Child Abduction, Hague, 17 - 21 March 1997.