Stephen Halladay Croll v. Mei Yee Croll , 229 F.3d 133 ( 2000 )

Judge SOTOMAYOR dissents in a separate opinion.

JACOBS, Circuit Judge:

Petitioner-appellee Stephen Halladay Croll seeks an order compelling his wife, respondent-appellant Mei Yee Croll, to return their minor child, Christina Croll, to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction, done Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (1986) (“Hague Convention” or “Convention”), implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (1995). A custody decree issued in Hong Kong (a) confers the sole “custody, care and control” of Christina Croll on her mother, (b) confers “rights of access” on her father, and (c) bars the removal of the child from Hong Kong without the consent of the other parent or the court. The United States District Court for the Southern District of New York (Stein, /.) granted Mr. Croll’s petition for an order of return subject to certain conditions, finding that Mrs. Croll had wrongfully removed Christina from Hong Kong in violation of the Convention. See Croll v. Croll, 66 F.Supp.2d 554, 562-63 (S.D.N.Y.1999).

We hold that rights of access do not constitute rights of custody within the meaning of the Hague Convention, even when coupled with a ne exeat clause. Because courts in the United States have jurisdiction to enforce the Convention by ordering a child’s return to her habitual residence only if the child has been removed in breach of a petitioning parent’s custodial rights, the district court lacked jurisdiction to order return in this case.

BACKGROUND

A. Facts

Stephen and Mei Yee Croll, both United States citizens, were married in Hong Kong in 1982. Their daughter Christina was born in Hong Kong in 1990 and lived with both of her parents until they separated in 1998. While the separated couple remained in Hong Kong, Christina lived with her mother, and was regularly visited by her father.

At some point in 1998, Mr. Croll commenced divorce proceedings in the District Court of the Hong Kong Special Administrative Region, Matrimonial Causes. The custody order issued by the Hong Kong court — the only custody order applicable to this case — grants Mrs. Croll sole “custody, care and control” of Chistina and grants Mr. Croll a right of “reasonable access.” Croll v. Chiu, No. 7211 of 1998, Order at 1 (Dist.Ct.H.K.Spec.Admin.Reg., Feb. 23, 1999). To aid the parties’ rights under the Custody Order (Mrs. Croll’s custody and Mr. Croll’s access), a separate paragraph directs that Christina “not be removed from Hong Kong until she attains the age of 18 years” without leave of court or consent of the other parent. Mr. Croll contends that this ne exeat clause (set out in full in the margin¹), which grants a veto power over any place of residence outside Hong Kong, gives him rights of custody within the meaning of the Convention.

Mrs. Croll brought Christina to New York on April 2, 1999, intending (she says) that Christina would interview at schools in New York City, attend school for a few weeks, and then return to Hong Kong for the summer. But (Mrs. Croll admits) “[i]n the back of her mind” she intended to remain in the United States permanently. On April 8, 1999, Mrs. Croll filed an action in Family Court in New York County seeking custody, child support, and an order of protection. Those proceedings have been stayed pending the outcome of this federal action.

When Mr. Croll returned to Hong Kong from a business trip on April 7, 1999, he learned that his wife had gone with Christina to the United States. On April 22, 1999, Mr. Croll filed a missing persons report with the police in Hong Kong, and on May 14, 1999, he filed this petition in the Southern District of New York seeking Christina’s return to Hong Kong pursuant to the Hague Convention.

B. Prior Proceedings

Mr. and Mrs. Croll do not dispute that Christina, who lived in Hong Kong from her birth until arriving in New York in 1999, was “habitually resident” in Hong Kong within the meaning of Article 3 of the Convention. In addition, Mrs. Croll does not claim on appeal that any of the Convention’s recognized exceptions to the petitioning parent’s right of return apply here. The question in this case therefore is whether Mr. Croll held and actively exercised “rights of custody” — within the meaning of the Convention — when Christina was taken from Hong Kong.

Mrs. Croll moved in the Southern District to dismiss the petition on the ground that Mr. Croll could not claim “custody” of Christina and that therefore (a) the court lacked subject matter jurisdiction and (b) the petition failed to state a claim upon which relief could be granted. The court denied the motion to dismiss, granted Mr. Croll’s petition, and ordered that Christina be returned to Hong Kong. The court reasoned that

the Hong Kong order dated February 23, 1999 provides that Christina may not be removed from Hong Kong before her 18th birthday without either leave of court or both parents’ consent. Accordingly, ... Mr. Croll had a right, along with respondent, to determine Christina’s place of residence and he had a corresponding right of custody within the meaning of the Convention. Christina’s removal from Hong Kong— her habitual residence — was in violation of her father’s right of custody and was, therefore, wrongful pursuant to the Convention.

Croll, 66 F.Supp.2d at 559. The court granted Mrs. Croll’s motion to stay its order of return pending expedited appeal to this Court. See Croll v. Croll, No. 99-3566 (S.D.N.Y. Oct.29,1999).

DISCUSSION

At issue on this appeal are two sets of rights recognized in the Convention to be distinct: rights of custody and rights of access. If Mr. Croll has custody rights, courts in the United States have jurisdiction to order return of Christina to Hong Kong, as the district court has done, and the duty to do so. If, however, Mr. Croll has the lesser rights of access, jurisdiction is lacking and Mr. Croll must rely on other remedies.

The proper interpretation of the Hague Convention is an issue of law, which we review de novo. See Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir.1997).

“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (citing Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), and Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 11, 57 S.Ct. 100, 81 L.Ed. 5 (1936)); see also Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir.1999) (“Treaties are construed in much the same manner as statutes.”) (citing Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188). The text of the treaty must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, done May 23, 1969, art. 31.1, 1155 U.N.T.S. 331 (emphasis added). Where the text' — read in the context of its structure and purpose — is ambiguous, we may resort to extraneous tools of interpretation such as a treaty’s ratification history and subsequent operation. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.”) (internal quotation marks and citations omitted); cf. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 n. 5, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) (“Even if the text were less clear, its most natural reading could properly be contradicted only by clear drafting history.”).

So far as we can tell, we and the district court in this case are the only courts in the United States to consider whether rights of access coupled with a ne exeat clause confer “custodial rights” on a non-custodial parent within the meaning of the Hague Convention. We therefore start from scratch, and consult (A) the purpose and design of the Convention, (B) its wording, (C) the intent of its drafters, and (D) case-law in other signatory states.

A. Purpose and Framework of the Convention

The Hague Convention, to which the United States and Hong Kong are signatories,² "was adopted as an effort “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Hague Convention, Preamble, 51 Fed.Reg. at 10,-498. The Convention rests on the principle that a child’s country of “habitual residence” is “best placed to decide upon questions of custody and access.” Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, 434-35, ¶ 34 (1980) (“Pérez-Vera Report”).³

In order to “preserve the status quo and to deter parents from crossing international boundaries” to secure a more favorable forum for the adjudication of custody rights, Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir.1999) (internal quotation marks omitted), the Convention provides for the return of children “wrongfully removed to or retained in any Contracting State.” Hague Convention, art. 1, 51 Fed.Reg. at 10,498. A removal or retention is to be considered “wrongful” where:

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, ei- . ther jointly or alone, or would have been so exercised but for the removal or retention.

Id. art. 3, 51 Fed.Reg. at 10,498 (emphasis added). Rights of custody “may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Id.

Thus an order of return is available as a remedy only for wrongful removals or retentions, and removals or retentions are wrongful only if they are “in breach of rights of custody.” The Convention defines rights of custody as “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Id. art. 5, 51 Fed.Reg. at 10,498.

Rights of custody are distinguished from rights of access, which are defined in the Convention as “the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Id. The Convention provides recourse in the event a child is removed from an habitual residence in breach of access rights, but those remedies do not include an order of return to the place of habitual residence. See id. art. 21, 51 Fed.Reg. at 10,500. To vindicate the breach of access rights, the Convention authorizes signatory nations to use one or more remedies (short of return) to “promote the peaceful enjoyment of access rights,” and to “take steps to remove, as far as possible, all obstacles to the exercise of such rights.” Id. One such remedy is a writ ordering the custodial parent who has removed the child from the habitual residence to permit, and to pay for, periodic visitation by the non-custodial parent with access rights. See id. art. 26, 51 Fed.Reg. at 10,500; Viragh v. Foldes, 415 Mass. 96, 612 N.E.2d 241, 246-50 (1993) (ordering a custodial parent who brought a child to the United States in frustration of a Hungarian access decree to pay the travel costs of visitation). The Convention makqs plain that unless the petitioner has rights of custody, a court has no authority to order return.

In the United States, a petitioner claiming wrongful removal under the Convention may bring a petition for an order of return in a United States district court or in a court of any state. See 42 U.S.C. § 11603(a), (b). The court has the authority only to determine whether the child’s removal was “wrongful” within the meaning of the Convention, i.e., whether the removal “was in breach of custody rights” held by the petitioner. See id. § 11603(e)(1)(A). The petitioner bears the burden of proving “wrongful removal” by a preponderance of the evidence. See id. § 11603(e)(1). If the petitioner shows that the child was wrongfully removed, the court must order the child’s return to the country of habitual residence unless the respondent demonstrates that one of four narrow exceptions apply. See id. § 11601(a)(4); Blondin, 189 F.3d at 245-46 (discussing enumerated exceptions). The court is not permitted to consider the merits of underlying custody disputes. See id. § 11601(b)(4).

B. Wording of the Convention

We open the dictionary to find the ordinary meaning or meanings of “custody.” See Chan, 490 U.S. at 128, 109 S.Ct. 1676 (looking first to Webster’s Second International Dictionary to construe “irregularity” under the Warsaw Convention). Dictionaries support the idea that custody entails care, and in any event confirm the intuition that custody is something other and more than a negative right or veto.

Black’s Law Dictionary defines cústody generally as “[t]he care and control of a thing or person for inspection, preservation or security”; parental custody as “[t]he care, control, and maintenance of a child awarded by a court”; sole custody as “[a]n arrangement by which one parent has full control and responsibility to the exclusion of the other”; and joint (or shared) custody as “[a]n arrangement by which both parents share the responsibility for and authority over the child at all times.” Black’s Law Dictionary 390 (7th ed.1999); see, e.g., Joyner v. Dumpson, 712 F.2d 770, 778 (2d Cir.1983) (“[Ljegal custody is concerned with the rights and duties of the person (usually the parent) having custody to provide for the child’s daily needs — to feed him, clothe him, provide shelter, put him to bed, send him to school, see that he washes his face and brushes his teeth.” (quoting Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 827 n. 17, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (internal quotation marks omitted))).

Webster’s Third defines custody as a “duty of guardianship and preservation ... protection, care, maintenance, and tuition.” Webster’s Third New International Dictionary Unabridged 597 (1986). The Random House dictionary defines custody as “keeping; guarding; care: in the care of her father.” Random House Dictionary of the English Language 357 (2d ed.1987) (emphasis in original).

Taking these definitions together, custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things. The dissent characterizes this as a “parochial definition” that reflects only “traditional American notions of custody rights,” because it is distilled from American lexical sources. Post at 145. But this definition reflects none of the peculiar practices of American child-rearing; it includes an open-ended “etc.”; and the dissent identifies no feature of custody that is missing except for the dubious addition of a ne exeat clause.

Nothing in the Hague Convention suggests that the drafters intended anything other than this ordinary understanding of custody. Article 5 of the Convention defines “rights of custody” generally as “rights relating to the care of the person of the child.” Hague Convention, art. 5, 51 Fed. Reg. at 10,498 (emphasis added). The plural “rights” references a bundle of rights exercised by one or more persons having custody, and is in some tension with the idea (critical to the district court’s opinion in this case) that one can have custody by holding a single power such as the veto conferred by a ne exeat clause.

Mr. Croll emphasizes that the Convention’s definitional phrase “rights relating to the care of the person of the child” continues immediately to offer as an example, “in particular, the right to determine a child’s place of residence.” Hague Convention, art. 5, 51 Fed. Reg. at 10,498. Mr. Croll reasons that a ne exeat clause gives an otherwise non-custodial parent a power that amounts to a “right to determine the child’s place of residence” and thereby creates a “right of custody” that is protected by the Convention’s return remedy.

We disagree. The right to determine the “place of residence” is an apt example of a right of custody because it is indicative: the parent who decides where the child dwells is very likely to be the parent who exercises care and control, and therefore has custody. It is unhelpful and insufficient to think about the custodial right to designate a child’s “place of residence” in terms of the power to pick her home country or territory. Such a power protects rights of custody and access alike, and is no clue as to who has custody. Every roof is in some country, territory or jurisdiction. A child may be profoundly affected by the ambient culture and regime of a particular country, but “place of residence,” as a signal example of parental control over care and upbringing, necessarily entails more specific choices. A custodial parent cannot discharge the responsibility of deciding a child’s “place of residence” by picking a country or territory. Depending on many considerations, the custodial parent must place the child in a city, suburb, or countryside; in a particular dwelling unit at some address; at home, or in a boarding school, finishing school, military academy, or institution. These choices are unavoidable for a parent who exercises the custodial right to fix the residence of a child.

The wording of the “place of residence” example buttresses our interpretation of Article 5. The right specified is the “right to determine ” a child’s place of residence, thereby implying an active power to choose (and change) the residential address, at will, as a matter of parental and personal judgment. See Webster’s Third at 617 (defining “determine” as “to settle or decide by choice of alternative possibilities; to direct or control the end or course of’); Random House at 393 (defining “determine” as “to cause, affect or control; to fix or decide causally; to settle or decide by an authoritative or conclusive decision”).

The ne exeat clause limits Mrs. Croll’s custodial power to expatriate Christina, but it does not suggest that the power to “determine” Christina’s “place of residence” (in Hong Kong, New York, or anywhere else) is also Mr. Croll’s. The Custody Order gives Mr. Croll a veto power only — and only over Christina’s expatriation — but gives him no say over any other custodial issue, including Christina’s “place of residence” within Hong Kong. That single veto power, even if leveraged, falls short of conferring a joint right to determine the child’s residence, particularly since an earlier clause in the custody order awards “custody care and control” solely to the mother.⁴

Just as important, Article 3’s definition of “wrongful removal” requires that for a child’s removal to be “wrongful” (and a return remedy available) the removal must be in breach of custodial rights of the petitioning parent that “were actually exercised ... or would have been so exercised but for the removal.” Hague Convention, art. 3, 51 F. Reg. at 10,498 (emphasis added); see also Department of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. at 10,507 (to invoke a return remedy applicants must “provide some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child.” (emphasis added)); Pérez-Vera Report ¶ 73, at 448 (same). The right conferred by the ne exeat clause is not one that Mr. Croll “actually exercised,” and it is circular to say that he would have exercised it but for Christina’s removal, because the right itself concerns nothing but removal itself, and would never have been exercised had Mrs. Croll been content to stay in Hong Kong during Christina’s minority.⁵

Therefore, we find the power to determine the child’s place of residence, considered in context as part of a definition of custody rights, to be an example of the powers, choices and arrangements entailed by the care of the child. A ne exeat clause, by contrast, confers only a veto, a power in reserve, which gives the noncustodial parent no say (except by leverage) about any child-rearing issue other than the child’s geographical location in the broadest sense.

If we were to enforce rights held pursuant to a ne exeat clause by the remedy of mandatory return, the Convention would become unworkable. A foundational assumption in the Convention is that the remedy of return will deliver the child to a custodial parent who (by definition) will receive and care for the child. It does not contemplate return of a child to a parent whose sole right — to visit or veto — imposes no duty to give care.

In this case, for example, the custody order places all the burdens of care and custody on Mrs. Croll, and none of them on Mr. Croll. If return were ordered, perhaps Mrs. Croll (an American citizen) would expatriate herself to the People’s Republic of China in order to care for her daughter; and if she does not, Mr. Croll probably will arrange for his daughter’s care. But an order of return does not require Mrs. Croll to return with Christina; the Hong Kong custody decree does not require Mr. Croll to take care of the child day-to-day; we lack discretion to withhold return of a child who has been wrongfully removed; and the Convention does not allow us to alter the custodial arrangements ordered by the court in Hong Kong. Given those mandated strictures, we cannot plausibly read the Convention to compel the removal of a child from a parent who exercises all rights of care to a country in which no one has that affirmative power or duty.

The dissent points out that the Convention undoubtedly compels return of a child (accompanied or not by the parent who took her abroad) even (i) to a parent with joint custody who may receive the child upon repatriation at a time of year when custody would ordinarily be exercised by the parent who may remain abroad, or (ii) to a parent who exercises custody rights by decisional power without day-to-day care. See post at 148-49. In the first case, the child is returned to a parent who gives day-to-day care in season and who can be expected to have the facilities, resources, fitness, and inclination to give care out of season as well; in the latter case, the decision-making parent can decide in what school or in whose care the child can be placed. The dissent’s analysis, however, would compel the return of the child to a parent who lacks the right or responsibility to give care or to decide who should give it, or even to a parent with access who has been found unfit to have custody.

The custodial parent who expatriates the child in violation of a court order may elect to stay abroad, if only to avoid contempt proceedings; yet the dissent construes the Convention to compel return of the child to a country in which the only parent has no duty to give care and no power except to compel the return and enjoy occasional access. The dissent offers the reassurance, however, that such a child would not be neglected because “a parent’s duty to care for a child” may be imposed by “the law of the country of habitual residence.” Post at 148. No doubt, family courts in the United States would impose that obligation as a matter of family law — though of course a court cannot confer competence or fitness — but on this point the dissent is generalizing from local American law; and even if we assume that courts anywhere can in a pinch confer custodial rights and duties on the local parent if the custodial parent remains abroad, the effect of compelling return on that assumption would be to alter custody rights rather than to enforce them.

Every textual and structural feature of the Convention suggests that a parent who furnishes no custodial care cannot establish “wrongful removal,” and therefore cannot prevail on a petition to a foreign court for an order of return. Mr. Croll bears the burden of showing that the Hong Kong custody decree affirmatively granted him shared or partial custody in some normal sense of the word. That he cannot do on this record.

C. Intent of the Drafters

If the stated intent of those who drafted the Convention “suffice[s] to establish that the result the text produces is not necessarily absurd, and hence cannot be dismissed as obvious drafting error,” our inquiry is at an end. Chan, 490 U.S. at 134, 109 S.Ct. 1676; see also id. at 135 n. 5, 109 S.Ct. 1676 (“Even if the text were less clear, its most natural meaning could properly be contradicted only by clear drafting history.”). The Convention’s ratification history is entirely consistent with our interpretation of “rights of custody” as defined in the Convention.

1. The chair of the Hague Conference Commission that drafted the Convention (while allowing that the issue is not altogether clear) has written that the sole power to bar exit does not amount to the custodial bundle of rights:

[Bjreach of a right simply to give or to withhold consent to changes in a child’s place of residence is not to be construed as a breach of rights of custody in the sense of Article 3. A suggestion that the definition of “abduction” should be widened to cover this case was not pursued.

A. E. Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L.Q. 537, 546 (1981). It thus appears that suggestions to broaden the availability of the return remedy — to give an “access only” parent the right to compel return — were raised when the Convention was in draft, and were in turn rejected.

2. The official reporter of the Hague Conference recounts that “[a]lthough the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised ... the majority view was that such situations could not be put in the same category as the wrongful removals which [the Convention] is sought to prevent.” Pérez-Vera Report ¶ 65, at 444-45.

3. In submitting the Convention to President Reagan, Secretary of State George P. Schultz reported that “[t]he remedies for breach of the ‘access rights’ of the non-custodial parent do not include the return remedy....” Letter of Sub-mittal of the Hague Convention on the Civil Aspects of International Child Abduction, by the Secretary of State to the President, Oct. 4, 1985, in 51 Fed.Reg. at 10,-496; see also Letter of Transmittal from the White House to the Senate, Oct. 30, 1985, in 51 Fed.Reg. at 10,495 (discussing congressional finding that “[p]ersons should not be able to obtain custody of children by virtue of this wrongful removal or retention”) (emphasis added). The Secretary’s view of the matter is entitled to “great weight.” Sumitomo Shoji America, 457 U.S. at 184-85, 102 S.Ct. 2374. See generally El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.” (citing Sumitomo Shoji America, 457 U.S. at 184-85, 102 S.Ct. 2374)).

4. The Convention’s official reporter has explained why the Convention provides separate remedies to secure access rights versus custodial rights, and limits the return remedy to the breach of custody:

A questionable result would [be] attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other.

Pérez-Vera Report f 65, at 445 (emphasis added).

Mr. Croll asks us to draw a distinction between: (i) a bare right of access, recognized as such; and (ii) the same bare right of access enforced by a ne exeat clause. The rationale for this distinction is that a parent who removes a child in violation of access rights and a ne exeat clause would otherwise succeed in frustrating the ne exeat clause altogether, so that a return remedy is needed to achieve the Convention’s goal of preventing parents from unilaterally circumventing the home country’s courts in search of a more sympathetic forum. But the frustration of judicial power is not the touchstone for a return remedy under the Convention. A court order that confers a right of access (without more) on a non-custodial parent of a middle-class means is utterly frustrated if a custodial parent then permanently moves the child so far away that neither parent can afford to finance court-ordered access. Yet it is undisputed that the remedy of return is unavailable in such a case.

A ne exeat provision protects parental rights of access or custody alike; it does not transmute one right into the other. Thus, to grant the remedy of return where the petitioning parent has no right but access (whether or not that right is aided by a ne exeat clause) would effect a “substitution” of rights, something that the Convention expressly forbids. See Pérez-Vera Report ¶ 65, at 445. Overlooking the stated intentions of the drafters and amending judicially the Convention’s explicit textual distinction between rights of custody and rights of access “would be to make and not construe a treaty.” See Chan, 490 U.S. at 135, 109 S.Ct. 1676 (internal quotation marks omitted). That is something we cannot do. See id. (“[t]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial would be on our part an usurpation of power, and not an exercise of judicial function.” (quoting The Amiable Isabella, 19 U.S. (6 Wheat) 1, 71, 5 L.Ed. 191 (1821)) (alteration in original; internal quotation marks omitted)).

D. Foreign Caselaw

No consensus view emerges from the opinions issued by the courts of the signatory nations. Though the “opinions of our sister signatories [are] entitled to considerable weight,” Air France v. Saks, 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), we are aware of no doctrine requiring our deference to a series of conflicting cases from foreign signatories.

Foreign courts are split on the issue presented in this case. Compare In re Resina, (1991) Appeal No. 52 (Austl.Fam.) (violations of court orders generally trigger return); C.A. 5271/92, Foxman v. Foxman (Isrl.H.C.1992) (finding that both parents hold “rights of custody” where neither parent can remove the child without the other’s consent or without consulting a rabbi), with D.S. v. V.W. [1996] 134 D.L.R.4th 481, 501-04 (Can.) (finding no jurisdiction to order return though removal was in violation of an implicit provision in the custody decree); Thompson v. Thompson [1994] 119 D.L.R.4th 253 (Can.) (noting that a ne exeat clause in a permanent custody order was intended to ensure access and “was not intended to be given the same level of protection by the Convention as custody”); Ministere Public v. Mme Y, T.G.I. Periguez, Mar. 17, 1992, D.S. Jur.l992(Fr.) (holding violation of a ne exeat provision to be “secondary” and not a violation of custody rights). Moreover, most of the cases rest on distinguishable facts, such as (a) orders of temporary custody awarded in the course of an ongoing custody battle, see B v. B, [1992] 3 W.L.R. 865, [1993] Fam. 32 (U.K.Ct.App.1992) (return available where no custody order is in place and temporary custody is expressly conditioned on non-removal of the child pending further proceedings), or (b) consent decrees expressly granting custody rights to both parents, see C v. C, [1989] 1 W.L.R. 654 (U.K.App.Ct.1988) (consent order granting “joint guardianship” to both parents).

Although the dissent claims “strong support” in caselaw for its point of view, see post at 151, the dissent itself confirms that no consensus is available: the cases worldwide are few, scattered, conflicting, and sometimes conclusory and unreasoned.⁶ One further problem with the cases relied on by the dissent (and a problem with the dissent itself) is that in effect the rights of access are vindicated by the same remedy (compulsory return) as rights of custody; and while that seems to be a good idea as a matter of child development, it is incompatible with the terms of the Convention.

CONCLUSION

For the reasons stated we hold that a ne exeat clause does not transmute access rights into rights of custody under the Convention. Ne exeat or not, Mr. Croll’s rights include none of the powers (or burdens) of a custodial parent, and therefore are properly classified as rights of access. The Convention affords him several remedies for trespass on those rights, but return of the child to Hong Kong is not one of them. The district court’s order returning Christina to Hong Kong is accordingly reversed and the case is remanded for dismissal of the petition for an order of return.

1 . The custody order’s ne exeat clause provides that Christina be not removed from Hong Kong without leave until she attains the age of 18 years but provided that if either parent to give a general undertaking to the Court to return the said child to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent that parent, may remove the said child from Hong Kong for any period specified in such written consent.

2 . The Convention, remains in effect in Hong Kong following Hong Kong's absorption into the People's Republic of China in 1997. See Joint Declaration on the Question of Hong Kong, Dec. 19, 1984, U.K.-P.R.C., U.K.T.S. No. 26 (1985) ("Joint Declaration”). The Joint Declaration provides that "[(International agreements to which the People’s Republic of China is not a party but which are implemented in Hong Kong may remain implemented in the Hong Kong Special Administrative Region.” Id. Annex I, pt. XI. The People’s Republic of China is not a signatory to the Hague Convention, but on June 13, 1997, that country informed the Ministry of Foreign Affairs of the Kingdom of the Netherlands at the Hague that, in accordance with the Joint Declaration, the Convention would continue to apply to Hong Kong after July 1, 1997.

3 . The Pérez-Vera Report is recognized by the Hague Conference as "the official history and commentary on the Convention,” and we have previously said that it is an authoritative source for interpreting the Convention’s provisions. Blondin v. Dubois, 189 F.3d 240, 246 n. 5 (2d Cir.1999).

4 . The dissent calls this veto a “significant decisionmaking power” tantamount to custody, post at 145, but that characterization proves too much: if Mr. Croll has custody by virtue of that veto, so does the Hong Kong court. Although the Convention recognizes that an "institution or other body” may hold custody rights, nothing suggests that this child, with two living parents, is a ward of the court.

• The dissent discusses with seeming approval the view of an English court that whenever a court enters a custody order, the court itself may be taking on rights of custody. See post at 150-51. That approach would of course require that every violation of the home court’s decree, including expatriation in derogation solely of parental rights of access, would be deemed a violation of custody rights (of the court) and compel the child’s return. Not a bad idea, perhaps, but this idea is not found in the Convention, which expressly distinguishes between custodial rights and access rights, and affords the remedy of mandatory return to enforce the former but not the latter.

5 . We reach this issue — which bears on subject-matter jurisdiction — sua sponte.

6 . The lack of uniform interpretation (or application) of the Convention can be illustrated another way. The rate of return for children wrongfully removed to the United States from other countries is approximately 90 percent. See Mary A. Ryan, Assistant Sec. for Consular Affairs, U.S. Dep't of State, Prepared Statement Before the House Committee on International Relations (Oct. 14, 1999) available in 1999 WL 909860 (F.D.C.H.) at 3. The rate of return for American children wrongfully removed from the United States to a foreign country, however, is less than 30 percent. See Thomas A. Johnson, Prepared Statement Before the House Committee on International relations (Oct. 14, 1999) available in 1999 WL 909869 (F.D.H.C.) at 30. See, e.g., Concurrent Resolution urging compliance with the Hague Convention on the Civil Aspects of International Child Abduction, S. Con. Res. 293, 106th Cong., 146 Cong. Rec. H5089-07 (2000) (enacted).