THE 1980 HAGUE CONVENTION ON CHILD ABDUCTION & THE BRUSSELS IIa REGULATION The Right to Judicial Protection: Administration of Justice in Cross-border Disputes Belgrade, 19 November 2010 Philippe LORTIE, First Secretary Hague Conference on Private International Law
INTERNATIONAL RESPONSIBILITIES (1) UN Convention on the Rights of the Child Article 9(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 2
INTERNATIONAL RESPONSIBILITIES (2) UN Convention on the Rights of the Child Article 10(2) A child whose parents reside in different States should have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. 3
INTERNATIONAL RESPONSIBILITIES (3) UN Convention on the Rights of the Child Article 11 1. States Parties shall take measures to combat the illicit transfer and nonreturn of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. 4
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Concluded 25 October 1980 Entered into Force 1 December 1983 82 States Parties 14 September 2010 5
82 Contracting States to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 6
82 States Parties to the 1980 Convention Albania Argentina Armenia Australia Austria Bahamas Belarus Belgium Belize Bosnia & Herzegovina Brazil Bulgaria Burkina Faso Canada Chile China (Hong Kong Georgia & Macau SAR’s) Germany Colombia Greece Costa Rica Croatia Cyprus Czech Republic Denmark Dominican Republic Ecuador El Salvador Estonia Fiji Finland Former Yugoslav Republic of Macedonia France Monaco Montenegro Morocco Guatemala Netherlands Honduras New Zealand Hungary Nicaragua Iceland Norway Ireland Panama Israel Paraguay Italy Peru Latvia Poland Lithuania Portugal Luxembourg Romania Malta Saint Kitts & Nevis Mauritius San Marino Mexico Seychelles Moldova Serbia Slovakia Slovenia South Africa Spain Sri Lanka Sweden Switzerland Thailand Trinidad and Tobago Turkey Turkmenistan Ukraine United Kingdom United States of America Uruguay Uzbekistan Venezuela Zimbabwe 7
Objectives of the Child Abduction Convention § To protect children from the harmful effects of their wrongful removal or retention across international boundaries. § To ensure their prompt return to the State of their habitual residence. § To secure protection for rights of access. 8
Principle of prompt return of the child § Protects the child's right to continuing contact with both parents. § Supports continuity in the child's life. § Helps to ensure that decisions concerning custody / access are made by the appropriate court. § Deprives the wrongful parent of procedural advantages that might otherwise result from the abduction. § Incidentally, serves as a deterrent to abductions and wrongful retentions. 9
Some of the strengths / advantages of the Convention § A firm structure – parents know where they stand. § A fair and balanced structure: – gender neutral; – neutrality as between legal systems. § A structure which respects and supports fundamental rights. § A rapid procedure – minimising the damage resulting from a rupture in a parent / child relationship. § A structure which promotes agreed solutions. § A system which removes burdens from consular authorities. 10
Scope issues § This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States (Art. 35) § The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights (Art. 4) § The Convention shall cease to apply when the child attains the age of 16 years. (Art. 4) 11
Basic framework and process: § Following a removal or retention of a child from one Contracting State to another, the left -behind person may apply for the return of the child. § Application may be via Central Authorities. § Central Authority in requested State (where the child is present) will assist in locating the child, and will facilitate the institution of return proceedings before the authorities of that State. 12
In front of the requested authority the left-behind parent must establish: (1) that the child was habitually residing in a Contracting State immediately before the removal or retention (Article 3 a)); (2) that the removal or retention of the child constituted a breach of custody rights under the law of that State (Article 3 b)); and (3) that the applicant was actually exercising those custody rights at the time of, or would have exercised those rights but for, the removal or retention (Article 3 b)). 13
Habitual residence § “Habitual residence” is not defined by the Convention. § Courts have tended to treat habitual residence as a factual concept, having regard to matters such as, inter alia: § Schooling § School Life § Family Situation § Which country was the focal point of the child’s life prior to removal or retention? See cases on <http: //www. incadat. com> 14
Wrongful removal / retention § The removal or retention of a child may be considered wrongful if 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 (Article 3 a)). See cases on <http: //www. incadat. com> 15
Rights of custody § Rights relating to the care of the person of the child, and, in particular; § The right to determine the child’s place of residence (Article 5); § Rights may arise by operation of law, a judicial or administrative decision or by a legal agreement (Article 3). § See cases on <http: //www. incadat. com> 16
Convention obligations A court must return a wrongfully removed or retained child below the age of 16 if application is made within one year from the date of the removal or retention UNLESS it is demonstrated that: 17
Exceptions to return (1) § The abandoned parent gave permission for the child to be removed or retained (by consent or subsequent acquiescence) (Article 13(1) a)); or § There is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13(1) b)); or 18
Exceptions to return (2) § The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views (Article 13(2)); or § The return would violate the fundamental principles of the protection of human rights and freedoms of the country where the child is being held (Article 20). 19
Proceedings commenced after one year § Return must be ordered, unless it is demonstrated that the child is now settled in its new environment (Art. 12(2)). § Even then return may be ordered (Art. 18). § A return order is not a determination on the merits of any custody issue (Art. 19) 20
The Convention has become embedded in National legal systems § In many States it is viewed as a means by which the State fulfills its obligations to preserve family relationships. See, for example, the case law under Article 8 of the European Convention on Human Rights. § The Convention has been judged to be in accordance with national Constitutions or Charters of Rights in: Argentina, Belgium, Canada, Czech Republic, Germany, Ireland, South Africa, Switzerland, United States of America. 21
Key implementation factors § Establishment of an efficient and responsive Central Authority (Arts 6 & 7). § Applying expeditious procedures (Arts 2 & 11). § Ensuring access to procedures (Arts 22, 25 & 26). § Providing for efficient enforcement of orders. * § Familiarising / training all actors in the Convention processes – Central Authority personnel, judges, lawyers, enforcement officers, etc. § If possible, concentrating jurisdiction to hear return applications in a limited number of judges. * § Consideration of preventive measures. § Structures for promoting agreement between parents. * § Raising public awareness. 22
How to deal with enforcement of return orders (1) Object § To avoid coercive measures as far as possible. Means § Take measures to prevent the removal or concealment of the child during the Hague proceedings. § Preparation of the child for return. § Consider the wishes and feelings of the child. § All proceedings – first instance, appeal and enforcement – to be conducted expeditiously. § Return orders to be as detailed as possible on the practical arrangements for return and usually not to allow for delays. 23
How to deal with enforcement of return orders (2) • Promote voluntary compliance at all stages. • Involve relevant professionals where coercive measures are necessary. • Train all actors. See further: Draft Guide to Good Practice under the 1980 Hague Convention – Part IV Enforcement 24
Dealing with allegations of domestic violence or child abuse • The role of Article 13 • Measures to ensure that the return of the child (and, where appropriate, accompanying parent) is effected in safe and secure conditions: § Undertakings § Mirror orders § The 1996 Hague Convention § The role of the Central Authority 25
Legal Systems in which jurisdiction to hear return application has been concentrated in a relatively small number of courts / judges Australia France Cyprus Germany Czech Republic Ireland England Wales Netherlands Nicaragua Northern Ireland Romania Sweden Switzerland 26
Why are agreed solutions important? § The primary responsibility for securing a child’s protection lies with the child’s parents. § Arrangements which are agreed between the parents are in the long-term interests of the child because: • they should provide a basis for ongoing cooperation between the parents; • they should help to avoid continuing parental conflict and litigation; • they are more likely to be adhered to; • they can be tailored to suit the particular circumstances of the family; • they can take account of a wide range of inter-connected issues. 27
Some Statistics • Approximately 1300 return applications per annum are processed globally through Central Authorities (68% abductors are mothers) • Of the return applications which are proceeded with: 45% - voluntary return (agreement or consent order) => 98 days average 30% - court ordered return => 143 days average 20% - return order refused by the court => 233 days average 5% - other (including access/contact order) Unknown - number of applications for return made directly to competent authorities • [Return applications represent 84% of Central Authority business – other applications are for access under Article 21] 28
1980 CONVENTION v. BRUSSELS IIa Overview: • • 1980 Convention remains in force between all the Member States of the EU Regulation insures intra and extra-community application of the 1980 Convention Regulation supplements the 1980 Convention with a view to achieving closer co-operation and more integration New rules are in conformity with the 1980 Convention and in some cases in harmony with already existing rules or practice
1980 CONVENTION v. BRUSSELS IIa Overview: • • • The definition of “wrongful removal or retention” The opportunity to be heard The decision must be rendered within a sixweek period The protection of the child after her or his return must be arranged in advance The order of non-return is subject to the custody decision of the court of the habitual residence of the child
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children • Entered into force: 1 January 2002 • 25 Contracting States (as at 11 October 2010) • Remaining EU Member States expected to ratify imminently. • USA, Canada and New Zealand also considering ratification. 31
1996 Hague Child Protection Convention: Reinforcement of the 1980 Hague Child Abduction Convention • Underpins primary role played by the authorities of the child’s habitual residence (Art. 7). • Allows court dealing with the return application to take urgent / provisional protective measures (e. g. contact orders and orders which help to ensure a safe return) (Art. 11). • Provides for the recognition of such measures in the country to which the child is returned (Art. 23). • Reinforces Art. 21 of the 1980 Convention concerning rights of access (Arts 23 and 35). 32
Why is participation in a multilateral Convention important? § Securing the rights of children wrongfully removed from the State of habitual residence. § Guaranteeing assistance abroad for left-behind parents in the State of habitual residence. § Supporting visitation rights for parents. § Securing international co-operation (judicial and administrative) on the basis of a shared legal framework. § Benefitting from and contributing to the shared experience of a multiplicity of legal systems. § Fulfilling international legal obligations. 33
Hague Conference Resources: International Child Abduction Database INCADAT also provides information on legal developments in respect of international child abduction in States not party to the Convention • Makes accessible leading decisions in respect of the Hague Convention • Currently contains summaries of over 800 decisions • Available in English, French and Spanish • Used by judges, practitioners, Central Authorities, researchers and others www. incadat. com 34
Hague Conference Resources The Hague Conference Homepage http: //www. hcch. net • Child Abduction Section • Latest information on the status of the 1980 Convention • Contact details of Central Authorities • Judges’ Newsletter • Bibliography (including Explanatory Report) Guides to Good Practice Part I – Central Authority Practice Part II – Implementing Measures Part III – Preventive Measures Part IV - Enforcement 35
Special Commission to review the practical operation of the 1980 Child Abduction Convention • Who: Members, Contracting States, States with an interest, invited organisations • What: to discuss Guide to Good Practice on Mediation, Statistical Survey, Draft Principles on Judicial Communications, issues of family relocation, possible Protocol, etc. • When: tentatively June 2011, early 2012 • Where: The Hague • Why: to review the practical operation of the Convention (every 4 to 5 years) 36
Information Secretariat at the Permanent Bureau of the Hague Conference on Private International Law Scheveningseweg 6 2517 KT The Hague The Netherlands Tel: +31 (70) 363 3303 or Fax: +31 (70) 360 4867 e-mail: secretariat@hcch. net http: //www. hcch. net 37
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