A conventional approach

 

David Williams QC provides an introduction to the 1996 Hague Convention

The Hague Convention on Parental Responsibility and Protection of Children (1996 Hague Convention) came into effect on 1 November 2012 after a very long gestation period. Its entry into force represents another step towards a common approach in the international family law community on issues such as jurisdiction, reciprocal enforcement and co-operation. Like its half-sibling, EC Regulation 2201/2003 (BIIR), with which it shares much of its genetic make-up, it covers public and private law cases, abduction situations and placement of children abroad. Although much of its content is already covered in the EU by BIIR there are significant members of the international legal community outside the EU who are now covered and in some narrow areas the 1996 Hague Convention covers issues that BIIR does not. 

Origins

The 1996 Hague Convention, is the third in a line of Conventions set up with the same fundamental purpose of ensuring the protection of children in international situations. It replaces the 1961 Convention which gave rise to problems in respect of the foundation of jurisdiction, in particular in giving ultimate priority to nationality rather than habitual residence. 

It is intended to provide practical mechanisms for co-operation between contracting states in implementing child protection measures. It is not intended to change the substantive law on child protection of any signatory state (see Explanatory Report by Paul Lagarde, para 7). This is also consistent with the way the Court of Justice of the European Union (CJEU) has interpreted the effect of BIIR: See JMCB-v-LE [2011] 1 FLR 518.

Aims/purpose

The full title, the Convention of 19th October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, repeats the titles of the four principal chapters of the Convention so as to “not lend itself to any confusion” (Lagarde). It does what it says on the tin.

The 1996 Convention does not aim to create a uniform international law of child protection. Instead, the Convention’s function is to improve the protection of children in international situations by providing the mechanics for an integrated system of co-operation, recognition and enforcement. It aims to avoid legal and administrative conflicts and to build the structure for effective international co-operation in child protection matters between the different systems (Outline).

It is intended to have a broader scope than the 1980 Hague Convention and the 1993 Hague Convention on adoption.

The objects of the Convention are defined in Art 1:

"The objects of the present Convention are: 

a.    to determine the state whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
b.    to determine which law is to be applied by such authorities in exercising their jurisdiction;
c.    to determine the law applicable to parental responsibility (PR);
d.    to provide for the recognition and enforcement of such measures of protection in all contracting states;
e.    to establish such co-operation between the authorities of the contracting states as may be necessary in order to achieve the purposes of this convention."

By Art 2, the Convention applies to children from birth until their 18th birthday.

The draft Practical Operation Handbook 2011 envisages that the children who could benefit from an implementation of the 1996 Convention include, among others: 

a.    Those who are the subject of international parental disputes over custody or contact; 
b.    Those who are the subject of international abduction (including in those states which are not able to join the 1980 Hague Child Abduction Convention);
c.    Those who are placed abroad in alternative care arrangements which do not come within the definition of adoption and are therefore outside the scope of the 1993 Hague Inter-country Adoption Convention;
d.    Those who are the subject of cross-border trafficking and other forms of exploitation, including sexual abuse;
e.    Those who are refugees or unaccompanied minors.

Practical information

Signatories/entry into force

The Convention took effect on 1 January 2002 when ratified by a third country (Monaco, Czech Republic and Slovakia). However its take-up was then very limited until 2010 when the EU member states began to ratify. The Convention has entered into effect (or is soon to do so) in 36 states. Signatory states where it has not yet entered into effect are Belgium, Italy, Sweden and the US. New Zealand is also considering adopting the Convention. Morocco was one of the first to ratify. This was of great significance given that the Moroccan legal system is set in Islamic Law. An example of the attempt to engage with Islamic systems within the Convention is the inclusion of the Islamic institution of Kafala, an equivalent to adoption, when making provisions for cross-frontier placements of children in institutional care.

Interface with BIIR

The EU recognised the potential benefits of the 1996 Convention and as a result incorporated much of the Convention into BIIR. Article 61 of BIIR gives the Regulation primacy over the Convention where they cover the same subject matter. The 1996 Convention will continue to have effect in matters which are not governed by BIIR, Art 62.

The correlation between the 1996 and BIIR is illustrated below:

There are some significant differences between BIIR and the Convention. BIIR has no equivalent of the applicable law provisions but there are also differences in respect of provisional measures based on presence, on defences to recognition and on enforcement of protective measures made in 1980 Hague Abduction cases which are recognised under the 1996 Convention but not under BIIR: Purrucker-v-Perez: C-256/09 [CJEU]. Conversely, the 1996 Convention does not contain divorce/separation jurisdictional provisions and has no equivalent of BIIR Art 11, in particular the “second bite of the cherry” provisions or the fast-track enforcement for contact or the certification provisions. 

The majority of members of the EU and thus to whom BIIR applies have also ratified the 1996 Hague Convention. However this is not so for all.

The status table detailing the progress of the signatory states can be found here.

Sources of Information

In addition to Paul Lagarde’s Explanatory Report, there is also a draft Practical Operation Handbook which is currently still under revision.

Implementation in England and Wales

The FPR 2010 rr 12 and 31 contain the procedural requirements in respect of applications under the 1996 Convention. The practical issues of making an application may be the subject of a separate article. The central authority for England and Wales is the International Child Abduction and Contact Unit (ICACU). 

The practical application of the 1996 Convention

So far there is only one reported decision on the application (Re Y, Court of Appeal, 22.1.13) of the Convention and the responses to Hague Conference questionnaire to central authorities on the operation of Convention showed there was little experience in practice of how it worked. The draft Practical Operation Handbook contains many examples of how it might apply and in the next article we will consider these.

Analysis & discussion of the Convention itself

The Convention comprises seven chapters of which four contain the substance and which make up the Title of the Convention:

(a)    Jurisdiction, (Chapter II)
(b)    Applicable Law (Chapter III)
(c)    Recognition and Enforcement (Chapter IV)
(d)    Co-operation. (Chapter V)

Some other miscellaneous items of interest are found in the scope, general provisions and final clauses.

Jurisdiction: Chapter II 

Habitual residence

The basic jurisdictional foundation for a court considering an application in respect of a child is found in Art 5 and is the habitual residence of the child. Where habitual residence changes jurisdiction will follow. The big question is what meaning will be ascribed to habitual residence? 

Presence of the child

Art 6 provides the jurisdiction based on presence of the child—relevant both when the child has been displaced from their country of habitual residence or where their habitual residence cannot be established.

Abduction cases

In abduction cases the jurisdiction of the country of habitual residence immediately prior to the abduction is retained by Art 7. This in large part mirrors Art 10 of BIIR although there are some slight differences as to the circumstances in which jurisdiction is lost (arising largely from the absence of the Art 11(6-8) equivalent in the Convention). The Art makes explicit reference to the fact that the courts of the requested state can make protective orders under Art 11.

Transfer of jurisdiction

Articles 8 and 9 taken together provide a forum conveniens route to the transfer of jurisdiction similar to Art 15 of BIIR.

Prorogation in divorce or legal separation

Article 10 permits a court dealing with divorce or separation to take jurisdiction over matters of PR as Art 12 of BIIR does.

Urgent measures

Article 11 provides for situations where protective measures are urgently needed in relation to a child present in the territory of the contracting state. It is the equivalent of BIIR Art 20. It can be used in abduction situations (Explanatory Report, para 71-2). Because of the terms of Art 23 and automatic recognition these measures would be recognised in the country of habitual residence. In Re Y the Court of Appeal concluded that undertakings fell within the definition of “protective measures” and were capable of recognition and enforcement. A significant issue remains whether they can be made enforceable in those civil law countries which do not have undertakings as part of their domestic legal framework. 

Provisional measures

Article 12 provides a jurisdiction by which provisional measures may be taken in respect of a child present in the state even where there is no urgency. Those measures must not be incompatible with measures taken in the state of primary jurisdiction and lapse as soon as the authorities of that state have taken a decision on protection. Article 12 cannot be used in abduction situations (Art 7(3)).

Court first seised/Lis Pendens

Article 13 prevents a court to whom an application has been made (and which might have jurisdiction under Arts 5–10) from exercising jurisdiction if at the time of commencement of those proceedings similar measures have been requested from another court having jurisdiction under Arts 5–10 and which are still pending. 

Orders of continuing effect notwithstanding loss of jurisdiction

Article 14 seeks to ensure that an order made in one country remains valid notwithstanding that the jurisdiction of that court has been lost, for instance following a lawful move. The Art makes clear that such an order may be superceded by a subsequent order of the court with the later jurisdiction which modifies, replaces or terminates the original measure. 

Applicable law: Chapter III

This part of the Convention aims to bring some clarity to the circumstances in which the laws of one country may be exercised in the courts of another or where they may be relevant to the operation of the laws of another country by reason of a move across borders. 

Law applicable to measures of protection

Article 15(1) provides that in exercising their jurisdiction under Pt II (Arts 5-14) courts shall apply their own law. For English lawyers this is self-evident but for jurisdictions which might have applied the law relating to the nationality of the parties and the child (ie Spain) it is important. 

By Art 15(3) where protective measures have been taken in state A and the child moves to state B the law of state B governs the operation of those measures. So for instance where PR is granted by the courts of state A and the family moves to state B the laws of state B will thereafter govern the exercise of PR. Thus state A’s law might require a guardian to obtain court authority for certain acts but the law of state B would not then the measure may not operate in the way originally intended. Shared residence orders which define how parental authority is exercised may also create interesting issues.

Attribution or extinction of PR

The provision is not easy to follow but in essence provides that the attribution or extinction of PR is governed by the law of the state of the child’s habitual residence. Article 16(3) provides that PR acquired in state A will continue to exist in state B even if it would not have been acquired in state B on the same facts. Article 16(4) then provides the converse that if a person had not acquired PR by operation of law in state A they may acquire it in state B if habitual residence moves to that state. How this would work for instance in relation to unmarried fathers who are registered on a birth certificate in state A (but did not acquire PR) and moved to England is unclear as the Act sets out clear requirements as to the way registration is effected.

Exercise of PR

The exercise of PR is governed by the law of the state of the child’s habitual residence. If the child's habitual residence changes, it is governed by the law of the state of the new habitual residence. Its relevance may arise where for instance under the law of state A the holder of PR could act alone whereas under the law of state B he must act in conjunction with another.

Termination or modification of PR

Article 18 confirms that measures may be taken to extinguish or modify PR created by operation of law, agreement or unilateral act and might be particularly relevant where following a number of moves too many individuals or authorities had acquired PR.

Protection of third parties

Article 19 protects third parties who have entered a transaction with a child via their legal representative. 

Applicable law rules apply to laws of non-member states, renvoi & public policy

Articles 20–22 contain some hard to decipher provisions on these topics. Careful perusal of them with a cold towel wrapped around ones head is necessary to begin to understand them. Their impact is beyond the scope of this article and the understanding of the author.

Recognition & enforcement: Chapter IV

Chapter IV contains six Articles—in contrast to Chapter III of BIIR which contains 31. Part of this is explained by the greater detail given in BIIR to the procedure to be followed and part by the certification provisions in BIIR and the separate treatment of enforcement of access rights and Art 11(6-8) return orders.

Article 23 contains the basic principle that a measure taken one contracting state shall be recognised by operation of law in other contracting states.

Recognition by operation of law means simply that no proceedings are required to obtain recognition–however if a party seeks to enforce then this will require proceedings and within these another party may challenge recognition. Article 43 provides that documents (including orders) are exempt from legalisation or other formality. The grounds on which recognition (and therefore enforcement) may be refused are very similar to those found in Article 23 (a)–(g) of BIIR—although not identical, including manifest incompatibility, child not heard and default judgments. 

Article 24 provides the procedure for seeking recognition or non-recognition of a “measure” (hence not including PR acquired by operation of law). Thus, a left-behind parent on a relocation case may seek to have the order which permits the custodial parent to live in England recognised so as to prevent a further move on.

Article 25 prevents the enforcing court questioning the jurisdictional basis on which the order was made. Article 27 provides that the enforcing court cannot review the merits of the decision.

If recognition alone is insufficient and enforcement/registration for enforcement is required, Art 26 provides that such shall take place by a simple and rapid procedure as determined by the laws of the requested state. This is now found in the FPR. Enforcement may be refused on the grounds set out in Art 23. 

Article 28 confirms that in enforcement applications the measure to be enforced is treated as a domestic order. If the measure is one which has no equivalent in the law of the requested state—the Explanatory Report gives an example of a public law measure—then the requested state may adapt it to fit what it can achieve or may need to exercise its own substantive jurisdiction (assuming a change of habitual residence). 

Co-operation: Chapter V

In support of the implementation and effectiveness of Chapters II, III and IV the Convention aims to improve the exchange of information between jurisdictions. Two lines of communication are envisaged. One is via the creation of central authorities and the other is by direct communication between competent authorities. This it seems may include courts as well as relevant public bodies. 

Article 30 creates a general obligation to co-operate. Article 31 contains the core obligations; an obligation to facilitate communications in relation to applications for the transfer of jurisdiction, to facilitate by mediation, conciliation or similar means agreed solutions for the protection of the child and to provide assistance on discovering the whereabouts of a child where it appears the child may be present and in need of protection in the requested state. 

A central authority (or other competent authority) may make a request to another central authority in respect of a child who has a substantial connection with the requesting state but who is habitually resident and present in another state for a report on the situation of the child and request that protective measures are taken. The requested state is not obliged to provide the report. This would certainly cover relocation cases where the left behind parent continues to reside in the requesting state but has lost contact or who has concerns over the situation of the child.

Article 33 is the direct equivalent of BIIR Art 56 and imposes a mandatory requirement on the placing authority to consult with the CA or other competent authority of the requested state. The consent of the CA or other competent authority is also mandatory before placement can occur. In HSE-v-SC & AC C-92/12 PPU in the CJEU the ICACU confirmed they were not “the competent authority” within Art 56. The CJEU confirmed that the phrase must mean an authority governed by public law. The CJEU also confirmed that the placement order would have to be declared enforceable before placement occurred and that any appeal against such a declaration should not have a suspensive effect. See also: HSE Ireland v SF (A Minor) [2012] EWHC 1640 (Fam), [2012] 2 FLR 1131.

The FPR have been amended from 1 July 2012 to take account of this decision. In particular this contemplates that the arrangements for the placement, the immigration situation and the costs consequences will be the subject of consultation.

Article 34 formalises and facilitates the exchange of information about children the subject or potential subjects of protective measures. The first part of Article 35 is an attempt to “beef up” Art 21 of the 1980 Abduction Convention in respect of access rights. The second part enables a left behind parent who seeks access to his child (who is habitually resident in another contracting state) to ask the authorities of his country to carry out an assessment of him for use in proceedings in the other country. That report may both gather information and evidence but also assess the left-behind parent’s suitability to have access and under what conditions. 

Article 36 deals with the situation Thorpe LJ was recently highlighting of children the subject of, particularly public law proceedings being moved across a border to avoid the authorities. The Article imposes an obligation to inform the authorities of the other state.

General Provisions: Chapter VI

This chapter covers a miscellany of items including the provision of a certificate to a parent/guardian confirming their authority to act, confirmation that the Convention does not affect the operation of the 1980 Hague Convention and that the 1996 Convention may be invoked to secure the return of the child and that the Convention only applies to measures if they are taken in a state after the Convention has entered into force for that state. So, old orders are not covered. For recognition and enforcement, the measure has to have been taken after the Convention entered into force for the state taking the original measure and for the country in which the recognition is sought. So for England any order which predates the entry into force will not be covered even if the 1996 Convention was in force in the country of origin.

Conclusion

Given the limited number of states (outside the EU) where the Convention has entered into force the use of it will perhaps be limited. However as the membership expands, and in particular if the US is able to get the Convention into effect this latest in the line of Hague Conventions should develop a growing impact