I would like to begin my presentation on the subject of international cross-jurisdictional cooperation in the area of wrongful displacement of children and adolescents by pointing out that this relates to private relationships issues in the global field.

As a judge from a Latin American country, I intend to share with you that region's experience regarding such subject.

I must emphasize that the situation of children of both sexes in Latin America is a sensitive issue, and that the answer to these conflicts should be found in a new approach to private international law, that is, international cooperation among authorities with jurisdiction on the matter.

When dealing with children, in our countries such authorities are the judges, and there is a number of international conventions that are in force in most South American countries.

The starting point for any approach to this subject must be found in the regulations provided by the Convention on the Rights of the Child, as cross-jurisdictional cooperation in these matters is never neutral, but it rather seeks a greater protection of the fundamental rights of children. It is then pertinent to quote the first paragraph of Article 9 of the Convention on the Rights of the Child, which establishes that States Parties shall respect the rights of children separated from one or both parents to maintain personal relations and direct contact with both parents, unless such separation is necessary for the best interests of the child.

The problem of unlawful displacements across international borders has been observed since the early 1970s, and, curiously, Canada was the first country to put this forward in an international forum, which was the Hague Conference on Private International Law, during the drafting of what later became known as the 1961 Hague Convention on the International Protection of Children. Although back then the subject was not dealt with because it was not a widespread phenomenon, years later it was presented again at the Hague Conference.

Thus, the Member States of the Hague Conference deliberated on this subject, until it was embodied in the first multilateral agreement related to this, on October 25th, 1980 : The Hague Convention on the Civil Aspects of International Child Abduction. This convention was developed at the same time as another, which the same delegates of the States were preparing together with other States´ delegates within the Human Rights Commission of the Economic and Social Council in Geneva , and several years later it became known as the Convention on the Rights of the Child. Therefore, the spirit of taking the best interest of the child as the fundamental configuration, which appears so clearly expressed by Article 3 of the Convention on the Rights of the Child, is a principle that inspires and utterly pervades the Hague Convention on the Civil Aspects of International Child Abduction.

Article 9 of the Convention on the Rights of the Child must be taken as starting point because the phenomenon begins with the temptation of one of the parents or very close relatives of the child, who exercise what may be called, in a general way, right of custody. This happens when one of the parents is tempted to exclude the other parent from the life of the child, that is, to uproot the child from their nurturing bonds and their life center and take them to a foreign country with the fundamental purpose of severing the relationship with the other parent. The cause of affliction emerges from the need to respect the right of the child to develop their personality through regular nurturing bonds with both parents. Thus, the focus of the Convention does not lie upon the adults; there is no qualification of the wrongful conduct of the adult with the purpose of punishing the conduct of the adult, but rather the focus lies upon the child's outlook. The child needs a speedy end to this unexpected conduct in their life, and the child must be returned to their life center, their family ties and social bonds, so that a judge with jurisdiction should solve the substantive right related to the custody of the child.

The problem occurs because the conduct in question is always presented in a way that is emotionally violent for the child, breaking off their regular way of life, and the regular and continuous bond with both parents. For this reason, the starting point is the human right of the child to enjoy, recompose and rebuild their relationship with both parents.

Art. 10 paragraph 2 of the Convention on the Rights of the Child also reinforces this issue when it provides that the States Parties shall respect the right of the child and their parents to leave any country, even their own, and to be in other places in order to enjoy continuity in personal relationships. Also, Article 11 of the Convention on the Rights of the Child provides for the obligation of the States Parties of the Convention to adopt measures to prevent unlawful displacement and abduction, and to promote the execution of bilateral or multilateral agreements, or the adoption of existing agreements to solve this problem.

In view of this situation, the 1980 Hague Convention on the Civil Aspects of International Child Abduction was a great innovation.

This is an autonomous procedure, independent from the substantive right. I must add that this is not a self-satisfying measure to be taken ex parte; neither is it a procedure to acknowledge a foreign court decision in the country where the child physically is, but it is a limited proceeding. Autonomy refers to the admissibility of the child's return to their previous State of residence.

Evidently, in this proceeding the right of defense of the adults must be respected, offering the possibility to prove whatever is relevant to assess the configuration of the unlawful conduct and whether the return is admissible or not. On the other hand, it is important to highlight how important it is to hear the child, as jurisprudence has held of late.

In order to achieve the purpose of setting the situation back to its initial status without delay and so that the child does not suffer an additional impact due to the settlement in a new place, certain speedy conditions in decision-making must be respected: in the execution of the return order or, if the return of the child is denied, in the assumption of jurisdiction on the substantive right and in solving the right to custody of the child.

My country, Argentina, is bound by three international conventions: the 1980 Hague Convention, in force since June 1st, 1991, the 1989 Inter-American Convention on the International Return of Children, binding for 14 countries, in force since March 15th, 2001, and the Bilateral Agreement with Uruguay, the first agreement to be enforced, since December 1982.

Among these conventions there are compatibility clauses. For example, the Inter-American Convention includes a clause pursuant to which its application prevails among the States that also share the Hague Convention. As regards Uruguay , the compatibility clause is open and provides that whatever convention is the most beneficial to the child is the one that should prevail; in practice this would be the Inter-American Convention. In the case of relations with Bolivia , the Inter-American Convention is the only one in force, whereas with Chile , the only convention in force is the Hague Convention. With the other countries of the region, the abovementioned compatibility clause will dictate which convention shall prevail.

This is important because, according to statistics, 844 cases have been decided pursuant to the Hague Convention from 1999 to 2007 and, in the latter year, 117 cases have been dealt with.

Currently pending cases are fundamentally connected with Spain , Chile and Peru , and, in the case of the Inter-American Convention, with Paraguay , Bolivia and Uruguay .

Regarding the reasons for the enforcement of such conventions, as it happens with every treaty, this has a personal, territorial and material field of application.

Regarding the field of personal application, for instance, for the Inter-American Convention the child must not have reached the age of 16 years old at the time the claim is filed, whereas, if they reach that age during the proceeding, the Convention is still applicable. On the other hand, the Hague Convention no longer applies when the child reaches their 16th birthday, in which case the claim will be decided pursuant to the national laws, instead of international law.

Regarding territory, the Convention must be in force both in the State where the child resides habitually and in the State the child is taken to.

Regarding subject matter, it is necessary to ascertain the existence of unlawful conduct, which is similarly defined both by the Hague Convention and the Inter-American Convention. There is a factual element according to which the person who claims the right of custody does not need to have given their consent to modify the usual place of residence of the child, or to exhibit afterwards behaviors that signal consent. Moreover, there is a legal element in the fact that there must have been a violation of the right of custody from the point of view of the legal order that the child had as life center before the fact. Regarding the latter aspect, it is necessary that the judge with jurisdiction in the State the child has been taken to, who has final decision power over whether the return of the child is appropriate or not, should consult the law of the foreign State where the child resides habitually.

Regarding this, a debate has taken place about the concept of "habitual residence" of the child. International treaties are construed pursuant to the Vienna Convention on the Law of Treaties, especially Art. 31 of this Convention, about good faith interpretation taking into account context, accounts and reports approved by reason of the treaty and also the jurisprudence. In such sense, both from the negotiation debates prior to the approval and further jurisprudence interpretation reports from the different countries that signed the convention, it appears that habitual residence is not a legal element, but a factual concept, as the life center of the child, the place where the child has their social, educational and nurturing bonds.

The determination of unlawful conduct constitutes a challenge to the judges, because it is necessary to consult the foreign law, to understand regulations about custody in the country where the child had their life center and to elucidate if there has been an unlawful displacement through borders.

The right of custody comprises the right to care for the child and, in particular, to make decisions about their place of residence, pursuant to the provisions of paragraph one of article three of the Inter-American Convention and article five of the Hague Convention.

This has brought about some difficulties in practical application, at least in Argentina, because some judges have interpreted that, as the case is subsumed upon the enforcement of such agreements, then the right of custody comprises the possibility to make decisions about the place of residence of the child beyond frontiers, when in fact, the solution must be found in the law of the State where the child has their life center and to elucidate if such foreign law provides that. This is a sensitive issue, as judges are not comfortable with the interpretation of foreign laws, and for such reason, the Inter-American Children's Institute has worked intensely in the last years in order to solve to such challenges. In the action plan of the Institute for years 2007 - 2011, in result “C” it was provided to create a network with the member countries of the OAS for the implementation, enforcement and compliance of the Inter-American Convention on the International Return of Children and the Hague Convention on the Civil Aspects of International Child Abduction.

Likewise, it is necessary the promotion of all the media of information and knowledge of jurisprudence in order to promote the transformation of the rights of the child, so that they are not theoretical abstractions, but rather, effective rules that can be executed in practice.

Following this action plan, in 2007 the Inter-American Children's Institute has promoted the drafting of a model law of consistent procedure, for the speedy application in our countries of both international conventions. To such purpose, a team of experts was assembled and in 2008 in Buenos Aires a Model Law on Rules of Procedure for the Application of Conventions on International Abduction of Children was introduced, and it was offered to the national States for each of them to adapt it to their laws.

This model law has attempted to remedy the interpretation difficulties that arise in Convention enforcement. We may quote the article one of the abovementioned law, which provides that “… It is even considered that there is joint custody when, by virtue of a legal decision or by operation of law, one of the holders of parental responsibility may not decide about the place of residence of the child without the consent of the other holder…” .

What used to be a matter of interpretation is now incorporated in the model law, to facilitate interpretation.

Note must be taken of some progress in South American countries regarding this: the model law has been used as a source of inspiration in an agreed ruling issued by the Supreme Court of Chile, a procedural rule of Panama and, in Argentina, there is a legislative bill under study regarding this matter.

The fundamental structure of these agreements is similar in both conventions. The first phase is voluntary and this is where the appointed Central Authority attempts to achieve the return of the child to their life center, as well as ensure the safe return of the child. In Argentina , the Central Authority is the Direction of International Judicial Cooperation, a division of the Ministry of Foreign Affairs. The legal procedure takes place in the State where the child is, the adult who has taken the child is contacted and it is attempted to persuade them to desist from such conduct and to return the child voluntarily to their life center, and to discuss with the Judge with jurisdiction all matters related to the right of custody.

On the other part, the traditional aspect is litigious. This is a limited proceeding, where the right of defense must be guaranteed, so that the adult may bring evidence that this is one of the exceptional situations that the Convention provides for to prevent the return of the child to their previous place of residence - the so-called causes of opposition - and also, the child must be heard.

Gradually, jurisprudence has favored the direct contact between the Judge and the child. The return of the child is the general rule, and for an exception to that rule to exist it is not enough that the child should state their preference as regards with which parent they prefer to live; rather, the child must be vehemently opposed to the return. Hearings must take place before a multi-disciplinarian body, in order to detect situations in which children may be exaggeratedly influenced by the parent they live with, as a means to punish the other parent.

Both the Hague Convention and the Inter-American Convention proceedings block or suspend the treatment of the substantive issue of the right of custody.

The causes to oppose the return are: i) lack of exercise of the right of custody by the claimant; ii) consent or acceptance of the displacement or new residence by the claimant; iii) a serious risk that the return may expose the child to physical or psychological danger, or to an intolerable situation; iv) vehement opposition of the child or adolescent; and, v) if the return violates fundamental principles of the State that receives the claims in the area of human rights and fundamental freedoms (art. 20 of the Hague Convention).

In my country, in the case of a little girl whose life center was in Canada , for the first time it was brought before the National Supreme Court of Justice the collision between the international obligation to return the child, incorporated by the Hague Convention and the principle of the protection of the best interest of the child. The case was decided in June 1995; by that time the Convention on the Rights of the Child had already been incorporated into the Constitution. The Argentinian Supreme Court upheld the concept that the best interest of the child is not an abstract issue, but such interest must be determined in each specific case, being this a task attributed to the judges. In this particular case, it was considered that the rights of the child were not being violated.

Ten years later, a Supreme Court of Justice with new members dealt with the issue again, regarding one case of enforcement of the Inter-American Convention. This was the case of a child taken by her mother from Paraguay to the Argentinian province of Córdoba . The Supreme Court was forced to issue a ruling to furnish additional evidence, as, although the case was more than two years old, an expert opinion about the girl had not been provided. Previously, there had only been examinations by experts about the adults, displacing the reasoning of the limited decision about the return to the substantive issue of which of the parents was more fit to hold the child's custody. In this case, the girl had a good relationship with both her father and with her mother, who she lived with. The father promised before the Superior Court of Córdoba that if they returned to Asunción he would not separate the child from her mother until a Paraguayan Judge solved the custody right issue. Finally, the Supreme Court granted the return of the child to Paraguay , with the follow-up and preparation of a social worker, as it was considered that there were no causes of opposition, and, as there was a good relationship with both parents, an abrupt breakup with the father was not justified.

This case reveals the weakness of the system, as the case had to be brought to court three times and a long time was taken to reach a decision. The unlawful conduct had taken place in 2001 when the child was three years old, whereas the return only took place in December 2005. For such reason, these limited autonomous proceedings cannot take such a long time.

It is challenging for the judges to seek that the cases should be solved voluntarily, in order to achieve a speedy decision, for which reason there should be an adequate procedure law that ensures an appeal, but not all the legal instances because in these return cases, time is against the child.

On the other hand, if a return is decided, the Judge must make accurate decisions about the practical aspects of the return order: who fetches the child, who pays for the trip, to whom the child will be delivered so that they travel with a companion. In some cases, it has been ordered to start with a phone communication with the parent the child doesn't live with in order to facilitate the rebuilding of the bond for the child. Likewise, it is desirable that the parent who displaced the child should be the one that accompanies them, and be submitted to the judges of the country of original jurisdiction. This is particularly important because in some cases, in the place of the life center of the child it so happens that the parent, feeling desperate about the child's disappearance, files charges in criminal court. On the one hand, this has the advantage that if a criminal case is filed the child is found faster, but in general, the possible location of the child is already known, because there are grandparents in another country or because of some eventual phone call. Therefore, the location of the child is not usually the fundamental problem and, instead, the criminal case has the disadvantage that once it is filed it cannot be stopped, as it would be a crime outside the private sphere and this may become an obstacle for the return of the child to their country.

Regarding practical problems that judges may have at the time they issue a return order, it may happen that the parent who must submit to the order has material limitations, for instance, being homeless or lacking the advise of a lawyer. In Argentina an executive order was issued in 1995, pursuant to which the President, and afterwards the Ministry of Social Action, grants a subsidy to cover the essential needs of the parent who must travel abroad to fight in court the child's custody or visitation rights.

Sometimes the parent who claims the child does not have the economic resources to pay for an air ticket or does not carry out any formalities to cross borders. In such cases, the legal authorities must seek creative solutions through the Central Authority and attempt to contact the children's protection entity of the country the child will travel to or with jurisdiction regarding children in that country, who will have jurisdiction to solve the custody issue.

In order to give an institutional framework to these legal communications between judges in a cooperative network there is the initiative of the drafting of a model law for the enforcement of the Hague Convention and the Inter-American Convention, which provides for a liaison judge to act as contact between the judges or, if there are no judges, through the Central Authority of the States.

The Model Law seeks some advantages. On the one hand, it contains a regulation that is very interesting as interpretation criterion and rule when it provides that the proceeding shall be ruled by the National Constitution, the International Treaties on child abduction ratified by the State, the abovementioned procedure model law, the national laws for the protection of children and, finally, ordinary procedure laws. At the same time, it provides that, during the whole procedure, a method must be implemented so that the child maintains direct contact with the parent who does not live with them, and gives an institutional framework to the liaison judge, who acts to generate trust among the intervening judges and also to clarify matters of logistics, without a voice in the solution of cases, for instance, to coordinate the date of arrival of the child, the setting-up of a teleconference between the judges and the parties, etc.

Finally, I would like to quote the following from the Judge's Newsletter, Spring-Summer of 2007: “… In our decisions, us, judges, must incorporate the concept that the children of the world are everybody's responsibility and that they must be protected from the harm caused by abduction by authorities with jurisdiction working in a coordinated and cooperative manner”

To conclude, the challenge of the judges is to promote this cooperation network, be cooperative, make an effort to understand the right to custody according to foreign laws, with special regard to the child, respecting the situation and harmonizing it with the principle that dictates that all decisions that involve children must be taken with the best interest of the child as essential consideration.