The Special Commissions Concerning the 1980 Abduction Convention

• Author: Mathew Thorpe
• DOI: http://doi.org/10.1111/fcre.12411
• Published date: 01 April 2019
• Date: 01 April 2019

THE SPECIAL COMMISSIONS CONCERNING THE 1980

ABDUCTION CONVENTION

Sir Mathew Thorpe

Within the Final Act of the Sixteenth Session of the Hague Conference on Private International

Law is to be found the instruction to the Secretary General to convene a Special Commission on the

operation of the 1980 Convention on the Civil Aspects of International Child Abduction. This Special

Commission convened in October 1989. It provided for quinquennial succession. The second was

held in 1993, the third in 1997, the fourth effectively in two stages in 2001 and 2002, the fifth in

2006, the sixth a marathon spread over the winter of 2011 and 2012, and the seventh in October 2017.

These Special Commissions perform a vital function. Unlike an Act of Parliament or a European

Regulation, a Hague Convention is practically impossible to amend or modify, particularly if, like the

1980 Convention, it has attracted so many States party to it. A Convention is only created by consen-

sus. Theoretically, it can be modified by a later protocol. But the protocol binds only those States who

adopt it. So there is always the specter of some States operating the original Convention and some

operating the modified Convention. Thus, the Special Commissions allow the identification of opera-

tional difficulties and discussion and decisions as to remedies. Perhaps discussion will lead to the

creation of an expert group whose report will enlighten decisions at a future Special Commission.

The function of the Special Commission and its importance are not widely known or recognized.

This is because comparatively few attend, and the proceedings are not reported. Although the con-

clusions and recommendations are in the public domain, they are not much, if at all, reported or

judged. Invitations to attend a Special Commission are sent by the Permanent Bureau to the diplo-

matic representatives of the States who are members of The Hague Conference (whether or not

party to the 1980 Convention) and to a selected list of intergovernmental and nongovernmental

organizations (IGOs and NGOs). The composition of the delegation of a Member State is then

within the discretion of its Executive, with considerable resulting divergence. Almost universal

would be the inclusion of a representative of the Central Authority, for the communication and

administration of the Central Authority are essential to the function of the Convention. Equally

expected would be one or more government officials responsible for the operation of the Convention.

Less predictable is both the presence of one or more judges within the delegation and also the part that

they then play in the proceedings. I would hazard that at the first Special Commission in 1989 there

were few, if any, judges seen or heard. But the creation of the International Hague Network of Judges

in 1998 introduced a great change and resulting divergence of practice among the Member States. But

it must be indisputable that the quality of the contributions at Special Commissions has been much

enriched by the inclusion of the specialist international judiciary. This is clearly recognized by the

decision of The Hague Conference to invite the Association of International Family Judges to a place

among the NGOs in the hall. Equally unpredictable are the presence and role of the academic expert

within the delegation of a Member State. In the fledgling years of the Convention, their role was much

more prominent than it has now become, perhaps because their specialist legal expertise is now also

available from the judges.

I have attended all of the seven Special Commissions bar the first. Although I was a Family

Division judge in October 1989, I had only sat since that Easter and would never have been consid-

ered for The Hague. Thereafter, during the presidency of Sir Stephan Brown, I received his

Corresponding: thorpe@1hc.com

FAMILY COURT REVIEW, Vol. 57 No. 2, April 2019 186–190

© 2019 Association of Family and Conciliation Courts