The Hague Conference on International Private Law (hereinafter called Hague Conference or HCCH) is a global inter-governmental organization, composed of 83 member States (82 States and the European Union), to develop and service “multilateral legal instruments, which respond to global needs”, by the “adoption of special rules known as ‘private international law’ rules”. ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 2017).

The statutory mission of the Conference is to work for the progressive unification of these rules. This involves finding internationally-agreed approaches to issues such as jurisdiction of the courts, applicable law, and the recognition and enforcement of judgments in a wide range of areas, from commercial law and banking law to international civil procedure and from child protection to matters of marriage and personal status ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 2017, online).

Only almost two decades after the United Nations Declaration of the Rights of the Child (1959), the Hague Conference included the subject “legal kidnapping” in its agenda in 1976. It is mentioned that:

During the 1970s, a committee of experts at the Council of Europe began the preparation of an European convention to ensure enforcement of custody orders across transnational borders, culminating in the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children in 1980. During the same period, a group of experts at the Hague Conference [of International Private Law] also decided to put the problem of ´legal kidnapping´ on the agenda for future work ( SILBERMAN, 2006, p. 301).

The 1961 Hague Protection of Minors Convention – subsequently revised as the 1996 Hague Convention on Protection of Children– was in effect since 1969, “but it offered little prospect of reducing wrongful removals and retentions.” ( SILBERMAN, 2006, p. 301).

The analysis of previous efforts to reach the agreement help to illustrate the rules and standards methodology adopted in this essay. As a cornerstone of the negotiations, in the Fall of 1978, Ms. Adair Dyer, First Secretary of the Permanent Bureau of the Hague Conference, sent a questionnaire to all Member States, accompanied by an elaborated sociological study and report about international child abduction. 10

Governments analyzed the Dyer Report in August 1978, after countries’ reactions to the referred questionnaire. It was recalled, firstly, that the Thirteenth Session of the Conference, in 1976,

Warmly supported the Recommendation that the Conference undertake this topic, which has become intercontinental in its scope with a pattern of abduction routes cross-hatched across the globe, from Australia to Austria, from Canada to France (and back, through the secondary abduction), from Berlin to Israel, England to Holland, Holland to Morocco and so on in a seemingly endless flow ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 12).

The Dyer Report stressed the difficulties in defining the problem, as well as finding suitable terminology for it. It also mentioned the work performed by a Committee of Experts, under the auspices of the Council of Europe, in the European context ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 14). 11 The report mitigated worries about overlapping work, “because of the worldwide scope of the problem, since abductions by air on an intercontinental basis are becoming more frequent”. It also mentioned that the work of the Hague Conference should not interfere with the work performed at the Council of Europe, “but the Conference can gain some insight in a few avenues which possibly might be followed from the work of the Committee of Experts on the Custody of Children of the Council of Europe.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 15). 12

The interaction between the Council of Europe and the Hague Conference, which was translated to the rule and standards debate, served to reduce specification costs on the elaboration of the legal provisions of the Hague Convention. Most countries engaged at the negotiation stage of the Hague Convention were also Member States to the Council of Europe. 13

On the other hand, negotiators had poor statistics available on the number of abductions of children by their parents not only around the globe, but also within the countries engaged on the negotiation exercise. The sense was that “a rapid increase in such occurrences has come about within recent years” especially due to “improved transport facilities and unimpeded crossing of borders.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 18-19).

A questionnaire very similar to the one sent to countries by the Secretary General of the Hague Conference was also transmitted by the International Social Service (ISS) to its branches. The ISS is “an international federation of interconnected NGOs and partners that works towards re-establishing links within a family separated by borders.” ( THE INTERNATIONAL SOCIAL SERVICE, 2016, online). In total, ISS regional branches reported 99 different cases occurred from 1974-1979, involving only 11 countries: Australia, France, Germany, United Kingdom, Greece, Italy, Japan, the Netherlands, Switzerland, United States of America and Venezuela. The study recognized that “one should bear in mind that the data given does not constitute a representative sample of all the occurring child abductions by a parent. The findings of this Report are based on a limited number of cases in which the International Social Service was involved.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 132).

Those circumstances, we believe, increased the specification costs, because of the difficulty of regulating a conduct to which information seemed to encompass only a partial fragment of the phenomena.

As the negotiations advanced, the difficulties in reaching consensus became evident. A key question concerned the recognition and enforcement of foreign custody judgment. After several debates and a study prepared by the Secretariat of the Conference, negotiators reached a compromise. The draft rejected “any attempt to lay down rules of recognition and enforcement of foreign custody decisions.” ( BODENHEIMER, 1980, p. 102). Then, a less ambitious formula, calling only for prompt restoration of the custody situation that existed prior to the abduction, loomed. This is another example found on the records of the Hague Convention to illustrate the specification difficulties – and, on the law and economics jargon, the specification costs – involved on its negotiation, and its effects on the final outcome.

The specification of the grave risk exception also faced difficulties. Once the return of the child to the country of its habitual residence was, and continues to be, the raison d´être of the treaty, exceptions to this straightforward message had to be adequately constructed, without underscoring the object and purpose of the treaty.

The Explanatory Report of the Hague Convention mentioned that each of the words about the grave risk exception were carefully chosen, in order to achieve a “fragile compromise” ( PÉREZ-VERA, 1982, p. 461), at that point, among 25 drafting countries. 14

The Dyer Report suggested that its scope was not to decide on the rigorousness and the manner of application of the legal norms necessary for protecting the stability of children, since

It should be noted here that some feedback from professionals in the field of international social work suggests the possibility that not all ‘kidnappings’ are bad for the child, that in some cases of deteriorating situations or ambivalent feelings on the part of the parent having custody or possession of the child the abduction may have a positive effect on the child, precisely by removing it from an unstable or uncertain environment. Whether these kidnappings may be viewed as being analogous to a husband’s desertion of his wife, ‘the poor man’s divorce’, or whether it simply relieves the custodial parent from having to admit publicly his/her inability to cope and the fact that the child will be better off, at least temporarily, with the other parent, the ultimate effects on the child’s stability in some cases may be positive ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 22).

The “interests of the child” – another term used by the convention – are considered vague and “more closely to a sociological paradigm than a concrete juridical standard” ( PEREZ-VERA, 1982, p. 431). The Dyer Report points out that the Council of Europe found similar patterns of standards in the field of conflict of laws. It reminds the “elusive modern concept which has gained some headway in recent years as an approach to the solution of conflict-of-laws questions: the reference to the law having the ‘most significant relationship’ or the ‘closest connection.’” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 22). This is another example of the vague nature of the language adopted by the Conference, indicating that the use of standards on the construction of the legal provision had an important role.

The Dyer Report also considered that, when dealing with treaty terms, “unless a legislative effort is made to set out the specific elements for establishing these standards in particular cases, one ultimately falls back on more nebulous methods of fleshing out the bones, such as ‘choice-influencing considerations’ or ‘principles of preference.’” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 23). We consider the rapporteur´s remarks of “legislative exercise” and “nebulous methods” as an exteriorization of high specification costs at the moment and the likely outcome of a standard.

Another alternative would be to postpone the fulfilling of the standard content on case-by-case for adjudicators. That would represent an increase on the costs of adjudication (and compliance), but could be an efficient alternative, when specification costs at negotiation are burdensome. Indeed, negotiators had in mind the creation of an international court to adjudicate transnational child abduction cases. However, the idea was considered “more unwieldy in the context of the Hague Conference than [it was] within the regional framework of the Council of Europe, for the obvious reason that the worldwide scope of the [Hague] Conference involves greater differences and more diverse cultural patterns.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 47). The Dyer Report admitted that “the global village is not with us quite yet and one hesitates to predict results which would inspire confidence emanating from ‘ad hoc’ courts accepting members from widely scattered parts of the globe” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 47).

In March 1979, the “Special Commission on International Child Abduction by One Parent” 15 met to discuss the text of the convention. 16 According to Shapira (1989, p. 190- 192), the Special Commission advised that the targeted convention “might contain rules forbidding or limiting the exercise of judicial jurisdiction to determine child custody on the merits in a contracting State to which the child had been brought following an abduction”, and considered that “such prohibition or limitation is indeed a necessary corollary to the obligation of the latter State´s authorities to return promptly an abducted child to its country of habitual residence”. Regarding the equivalent of Article 13(1)b, the Special Commission indicated that “the prompt return of an abducted child could only be declined […] if such return was likely to be gravely prejudicial to the interests of the child.” ( SHAPIRA, 1989, p. 191).

In November 1979, the Special Commission adopted the preliminary draft Convention. The draft encompassed the grave risk exception, as such:

[…] the judicial or administrative authority of the requested State is not bound to order the return of the child if the person who has removed or retained the child establishes that […] b) there is a substantial risk that the return would expose to child to physical and psychological harm or otherwise place the child in an intolerable situation ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 168).

The Special Commission Report posited that, at that time, negotiators knew that the terms substantial risk, psychological harm and intolerable situation were vague enough to allow interpretation discretion in “entirely different ways” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 203). The discussions during the Special Commission, accordingly to Ms. Pérez-Vera, recorded the attempts to reduce flexibility:

The substantial risk designates a serious risk which may be objectively verified, but it does not comprise the idea of ‘immediate’ risk; this latter interpretation was discarded in the end. As to the psychological harm, the Special Commission intended it to cover both the mental harm and a certain aspect of the moral harm, but it has knowingly avoided the latter expression, which is too vague and which could even be interpreted as encompassing religious convictions. With regards to what must be understood by an intolerable situation, the special Commission had in mind an objective case; a proposal to replace the word ‘intolerable’ by ‘unacceptable’ was rejected because this latter word comprises an element of subjective evaluation which had to be avoided. Moreover, the Special Commission thought that the exception would not apply if the child’s return was thought to be prejudicial to its economic or educational future ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 203).

The discussion sounds like a play on words. Whilst trying to enlighten, to some extent, the content of the provision, negotiators could only agree to vague expressions. The changes of expressions considered less vague – for example, between intolerable and unacceptable – kept the imprecision and the difficulties for ordinary people to comply, ex ante, its exact content. This scenario, we believe, while potentially reducing the specification costs, would actually maintain the costs of adjudication and compliance substantially high.

Less than one year after that, the Fourteenth Quadrennial Session of the Hague Conference (Fourteenth Session) 17 “entrusted the task of preparing the [final version] Convention to its First Commission” 18, which was performed and completed during that Fourteenth Session, from 6 to 25 October 1980, in the course of thirteen sessions, in which “the First Commission [composed of 24 representatives] analyzed the Preliminary Draft drawn up by the Special Commission.” ( PÉREZ-VERA, 1982, p. 426). Representatives of 24 States worked in the preparation of this document ( BODENHEIMER, 1980, p. 99). 19 The draft stated that it “seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 2016, online).

In parallel to the work of the First Commission, a Drafting Committee was also nominated ( PÉREZ-VERA, 1982, p. 426) and held seven meetings. The Drafting Committee worked under the chairmanship of Mr. Leal (also Vice President of the Special Commission) and included representatives from Finland, France, United Kingdom and the Reporter, Mr. Dyer, among which “several secretaries provided the Committee with extremely valuable assistance.” ( PÉREZ-VERA, 1982, p. 427).

Accordingly to Shapira (1989, p. 192), all 23 member countries of the Hague Conference and 16 nations with observer status 20 presented at the Fourteenth Session unanimously agreed with the final text. At the end, 23 States 21 adopted the Hague Convention on October 24th, 1980 ( PÉREZ-VERA, 1982, p. 426).

As mentioned, while drafting, negotiators believed 22 that “child abductions, mostly by divorced or divorcing parents, had become a worldwide problem.” ( BODENHEIMER, 1980, p. 100). The increasing number of children removed from their place of habitual residence, unilaterally by one of his/her parents, was a concerning point, though global data about the number of abductions was not available. Whether the breakup of such transnational families occurs, “one of the partners may take the child to his or her country of origin [or to a third State], or may retain the child in that country after a visit.” ( BODENHEIMER, 1980, p. 100).

The most comprehensive documental source to understand the negotiating procedures of the Hague Convention is the Actes et document de la Quatorzième session, au 6 au 25 Octobre 1980 – Tome III Enlèvement d’enfants edited by the General Secretary of the Hague Conference on Private International Law, and printed by the Imprimerie National of the Hague, in 1982, hereinafter mentioned as Actes et documents of the Hague Conference ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 1-482).

This document contains a) a questionnaire on international child abduction by one parent; b) a Report on the same subject drawn up by Mr. Adair Dyer (the Dyer Report, see note below); c) the replies of the governments; d) the conclusion on the discussion held by the Special Commission of March 1979; e) the preliminary draft Convention prepared by the Special Commission of November 1979; f) the Explanatory Report of Miss Elisa Pérez-Vera ( PÉREZ-VERA, 1982); g) the comments of the governments on this preliminary draft; h) minutes and working documents of the First Commission, which dealt with this subject at the Fourteenth Session; i) minutes of the final session which approved the draft convention; j) the text of the Convention as it was adopted.

It is mentioned that the Explanatory Report “is not limited to supplementing the Special Commission’s Report, but rather constitutes an autonomous commentary on the Convention.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 5). Other documents were also included, as a Summary of the findings on a Questionnaire studied by International Social Service (preliminary Document no. 3 of February 1979), Observations by the Secretariat of the Council of Europe relating to the Questionnaire prepared by the Permanent Bureau of the Hague Conference on private international, including a draft European convention on recognition and enforcement of decision concerning custody and on restoration of custody of children (Preliminary Document no 4 of march 1979).

The drafters under the First Commission´s sessions also invited countries to discuss the proposal. The next section analyzes the oral interventions of Germany, Austria, Belgium, Canada, United States and United Kingdom, and relate them to the analysis framework.

As to the delegations’ comments, this section reveals similar pattern of costs as before. For instance, the delegation of Germany suggested a narrow wording for the grave risk provision, “with more objective criteria” that could “restrict the danger of a too large scope of discretion”, such as: “an itemization of the general wording, breaking it down to individual concrete dangerous situations, such as neglect, maltreatment, abuse, etc. This way, the competent courts would be compelled more precisely to consider and state the reasons for their decision.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 217).

Although the German government did not use the expression cost – and no cost- like wording exists along the text –, we can relate the comment with concerns of higher adjudication and compliance costs of vague provisions.

The Austrian remarks referred to delay perils (adjudication costs), stating that the provision “includes the risk that the prompt return of the child – as it is one of the objects of the Preliminary Draft (Article 1, paragraph a) – might be thwarted or at least delayed.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 219) It also mentions that for that risk, the Council of Europe rejected the grave risk exception as a ground for denying the return of the abducted child. The Austrian government, while not offering any alternative wording for the provision, hoped that “none or only very little use will be made of the possibility” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 219).

With criticism, Belgium’s comments suggested an amendment to the provision to clarify that (only) the judicial authorities of the country of habitual residence of the child are in a position to determine whether there is a grave risk for the child. We understand that this comment intended to limit the power of judicial authorities, which would reduce adjudications costs; specially by reducing the scope of analysis of the authorities of the country where the child was removed to. It was mentioned that

« de l’avis des autorités belges, le projet de Convention devrait être sérieusement amendé. [...] on peut envisage un aménagement de l’article 12 et plus particulièrement de l’article 12b. Il est certain que cette disposition, qui peut se comprendre à première vue, va être utilisée par le ravisseur pour s’opposer ou retarder le retour de l’enfant. [...] si la lettre b devait être rédigée de telle sorte que le retour de l’enfant ne sera pas ordoné si le ravisseur établit que selon les autorités judiciaires du pays d’où l’enfant a été enlevé, il y a un risque grave pour ce dernier » ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 220).

Canada, in turn, recognized that the grave risk exception was the “main ground of defense”. Trying to clarify its content, the Canadian representatives illustrated that physical harm could encompass physical violence, beating or maltreatment; psychological harm could mean mental cruelty; intolerable situation, although considered “somewhat vague”, was also “undoubtedly justified”, as aimed to protect the child, nor the abductor”. Representatives also emphasized adjudication costs due to vagueness of standards and discretion of judges:

The commission did not adopt certain proposals aimed either at restricting the scope of the provision even further, for example through the use of the term ‘immediate risk’, or at broadening it, for example, in the case where the child has become integrated into its new social environment. Neither is there any mention of ‘moral danger’ (incest or drug addiction, for example), even though this might, in certain cases, form part of the ‘intolerable situations’ referred to in the provision. Finally, a proposal that the expression ‘unacceptable situation’ is used instead of ‘intolerable situation’ was rejected 23 on the ground that it allowed the judge too much discretion ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 234).

The United States’ delegates were also very critical about the provision. They ascertained that if it were kept as such, it could endanger the objectives of the Hague Convention. They considered the exception excessively broad. The subtle difference between intolerable and unacceptable was considered of minor importance. An important point of the United States was the need to disregard educational or economic disadvantages under this exception, which emerged later in the oral discussions ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 242-243).

The United Kingdom delegation commented that the effectiveness of any convention on the international abduction of children will depend very largely upon the number of States that ratify it and upon the courts of those States giving it a fair effect. As other States, 24 it abstained from presenting specific comments on the grave risk exception.

This scenario does not seem to have changed much during the Fourteenth Session of the Hague Conference. The records of the oral discussions show that the major concerns of the Contracting Parties related to the unclear wording of the grave risk exception; especially the difficulties to reduce the high level of vagueness and the broad discretionary powers allowed to the judiciary authorities. In terms of cost language, these concerns correspond to high adjudication and compliance costs.

Therefore, States carried on the discussion on the grave risk exception elements. Belgium gave up on the substitution of the wording “physical or psychological harm” for “grave harm”. Negotiators from many parties, including Israel and Greece, regarded the United States proposal, which excluded “economic or educational disadvantages” as grounds for the refusal of the return of the child, too narrow. The United Kingdom delegation suggested the inclusion of “or otherwise place the child in an intolerable situation”, which was incorporated latter into the adopted text. The justification came from the situation “where one spouse was subject to threats and violence at the hands of the other and forced to flee the matrimonial home, it could be argued that the child suffered no physical or psychological harm although it was clearly exposed to an intolerable situation.” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 302). The adopted text of the Hague Convention did not include any specific text related to domestic violence. It seems that this comment was, at that time, an isolated concern of the UK delegation. The discussions on domestic violence and its impacts on transnational child adductions were resumed only some years after the treaty entered into force.

The United States presented a narrower formulation of the allowable exceptions at Working Document 12, “which sought to make the provisions of Article 12(1)b 25 as clear and as narrow as possible, so as to deter abductions.” This working document contained the following proposal, regarding Article 12(1)b:

Amend sub-paragraph 1b to read: there is a substantial risk, supported by the evidence which is supplied by the Central Authority of the State of origin or other competent authorities or persons of that State, that the return would subject the child to severe neglect conditions, maltreatment, or abuse, other than economic or educational disadvantages ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 263).

They also mentioned that this was an attempt to discourage the courts to engage on the merits of a custody dispute while deciding on the transnational abduction ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 301-302). These records show how intermingled, on our opinion, the discussions on adjudication, compliance and specification costs might be – although the States’ delegates have not used this language or approach, at least not directly. Specification costs appear on the first level, followed closely by adjudication costs concerns – at least at the discussions on the vagueness of the grave risk exception. At this stage, negotiators seemed to have left compliance costs and frequency issues – raised by doctrine – to a lower level of importance.

Further, the Chairman pointed out that the objective was “to draft a Convention which could be signed by as many States as possible. The present formulation in Article 12(1)b was in the nature of a compromise”. “[…] He urged delegates to direct their attention to considering provisions which would be acceptable to most States” ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 302). The Chairman’s mediation pointed out to the probable formulation of a standard and matches Posner’s observation ( 2007, p. 586) that the reduction on the agreement costs can be achieved by agreeing on less, leaving future resolution of the judicial authorities and compliance on the subjectivity of the individuals.

At voting, negotiators rejected the proposal contained in the Working Document no. 12 (by 12 against, 10 in favor, with 4 abstentions). The rejected text proposed an alteration of Article 12(1)b and the deletion of the words supported by the evidence that is supplied by the Central Authority of the State of origin or other competent authority or persons of that State, and the wording or abuse. Pérez-Vera ( 1982, p. 33) mentions that those rejections should not create the idea that the exceptions could receive a wide interpretation – the rejected proposals should not mean that more circumstances would be included as legitimate reasons for denying the return of internationally abducted children to their State of habitual residence.

The Drafting Commission worked in parallel to the delegation’s meetings, as mentioned. It tried to adjust the text. On 22 October 1980, The Commission distributed a new draft of the Hague Convention (Working Document no. 75). Article 13 encompassed the grave risk exception with the following wording:

[…] the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body that opposes its return established that: […] b) there is a substantial risk that the return would expose the child to physical and psychological harm or otherwi- se place the child in an intolerable situation ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 349-350).

Thus, it was only at the very end of the negotiation that the efforts changed the word substantial for grave, after a brief discussion in which most of the negotiators seemed to have understood that the latter wording was stronger than the former. One can see the discussion as a last attempt to reduce the vagueness of the terms contained on the grave risk provision that would reduce overall costs. In practical term, we see both provisions as equally vague.

Our first point is that the grave risk provision efficiently arose as a standard – especially for the impossibility (due to higher costs) of an ex ante definition of its terms. Thus, its content depended on ex post assignments: the judicial authority would have to decide whether the risk on the return of the child is grave, physically or psychologically, or it will, otherwise, put the child in an intolerable situation. The potential abductors would not know, ex ante and precisely, whether his/her behavior will be considered by courts and/or administrative authorities as a legitimated conduct.

From the document analysis, we could identify the attempt between negotiators to make at the end, as a member of the United Kingdom delegation referred to, a more saleable treaty. 26 Negotiators tried to compromise on the provisions that were, supposedly, easily acceptable by the highest number of countries. This happened by eventually reducing the efforts to find more objective criteria for the grave risk exception.

Although the negotiators may seem to have taken into consideration the specification and, to some extent, the adjudication costs, the analysis has shown that delegations almost ignore compliance costs (although, at the practical operation of the Hague Convention they play a major role). The frequency of the grave risk exception seemed, to the negotiators, also low at the time of the drafting of the agreement. At least since 1999, some researches have been demonstrating that the nature of international child abductions has changed dramatically: 27 at the time of negotiations, the highest number of abductions was perpetrated by fathers who were not entitled with custodial rights regarding the child ( HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 1982, p. 130-144).

More than that, the reasons for the abduction seemed to be, in the past, not the existence of a grave risk of physical or psychological harm, or an intolerable situation, but the opposition of this father against a decision of custody of the child in favor of the mother. Nowadays it has been discussed that most of the abductions are perpetrated by mothers, returning to their countries of origin, even when they are the custodial parent of the child. The number of allegations regarding the grave risk exception has increased dramatically. Although the new scenario of international child abduction may change the conclusions about the efficiency of the grave risk exception as a standard, the limits of this essay do not allow us to engage on this analysis.

As mentioned, we believe that neither adjudication nor compliance costs were adequately calculated (or even considered) by the drafters of the grave risk exception.

Without precise information on the nature (and numbers) of the transnational child abductions, the theoretical framework related to the specification costs of the provision recommended the use of a standard. Due to the high costs of negotiating the exception and the objective of selling the treaty to the highest number of countries as possible, specification costs have been considered more relevant, leaving the compliance and the adjudication costs on a lower level of importance.

The next section discusses that the adoption of a code of conduct among parties is yet a result of elevated specification costs associated with a rule-like form, but provides an alternative efficient design on the implementation of the grave risk exception.