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The 1996 Hague Convention: The Fourth Dimension

Eleri Jones barrister at 1 Garden Court, and Anne-Marie Hutchinson OBE and Richard Kwan both of Dawson Cornwell solicitors consider the impact of the 1996 Hague Convention in England and Wales.

Eleri Jones, barrister, 1 Garden Court, Anne-Marie Hutchinson OBE, Dawson Cornwell and Richard Kwan, Dawson Cornwell

 















Eleri Jones barrister at 1 Garden Court, and Anne-Marie Hutchinson OBE and Richard Kwan both of Dawson Cornwell solicitors

Introduction

International considerations play an increasingly large part in the work of a family lawyer. Significant developments over the last 35 years have included:

On 1 November 2012 the 1996 Hague Convention on Parental Responsibility ('the 1996 Convention', '96HC') came into force1  and might therefore be considered the 'fourth dimension' for practitioners in this field.

This article does not seek to rehearse the provisions of the 1996 Convention but to:

In various parts of the article, a hypothetical family will be used by way of examples to assist: Bob (father), Grace (mother) and Ariadne (child).

What's New for Practitioners in England and Wales?

A principal aim of the 1996 Convention is to 'improve the protection of children in international situations'. It does not attempt to create a uniform international law of child protection2, but to build a structure for effective international co-operation between the various different legal systems and avoid administrative and legal conflicts. The opportunity this creates is potentially great when one considers the prospect of bringing together legal systems with differing cultural and/or religious backgrounds. An example of this is Morocco, one of the first states to ratify the 1996 Convention and of particular interest when one considers the influence of Islamic law there.

As its title suggests, the 1996 Convention deals with jurisdiction, applicable law (a first for England!), recognition and enforcement, and co-operation, not only in respect of parental responsibility but also 'measures' for the protection of children. 'Measure' is not exhaustively defined but Art 3 96HC does give some examples. The 1996 Convention covers public law measures as well as private law measures in relation to residence, custody and notably also the administration, conservation or disposal of the child's property.

(a) EU Member States
The 1996 Convention was concluded in October 1996 but not in force internationally until 2002. The EU Member States were permitted by the EU to sign it in 2003 but there was a significant delay in the EU authorising the Member States to ratify it due to a dispute between Spain and the UK in relation to the operation of the 1996 Convention and other treaties in Gibraltar. The EU Member States were finally authorised to ratify in 2008 with the aim of it coming into force in 2010. There were further delays and the UK did not ratify until July 2012. It came into force on 1 November 20123. As of 25 November 2012, the 1996 Convention is in force in all EU Member States4, save Belgium, Italy and Sweden. It will enter into force in Sweden on 1 January 2013 but at present there is no date for Belgium and Italy as they have not yet ratified it. 

The advent of Brussels II, superseded by Brussels IIa5, overtook the ratification of the 1996 Convention in EU Member States but the formation of Brussels II (and IIa) is heavily based on the 1996 Convention. Now that they are both in force, practitioners should note that Article 61 BIIa specifies that the provisions of Brussels IIa shall apply where (a) the child concerned is habitually resident in a Member State, or (b) the recognition or enforcement of a Member State judgment in another Member State is concerned, regardless of the habitual residence of the child. Art 62(1) BIIa then makes clear that, as between EU Member States, the 1996 Convention will continue to apply in matters outside the scope of Brussels IIa. Given that the material scope of both instruments is very similar6, only in very limited circumstances will the provisions of the 1996 Convention be applicable. An example might be proceedings concerning the property of a child7.

As a result of the combination of Art 61 and Art 62(1) BIIa, it is suggested that this means that provisions of the 1996 Convention cannot be 'cherry-picked' to suit the situation between two Brussels IIa Member States, perhaps unfortunately so as an Art 24 96HC advance decision might be quite useful in certain circumstances (see below). Conversely one might argue that such a decision would not be necessary given the comprehensive provisions for recognition and enforcement set out in Brussels IIa.

(b) UK and other 1996 Convention States (non-BIIa States)
As at 25 November 2012, there are only a handful of non-BIIa countries who are 1996 Convention Contracting States. These are: Albania, Armenia, Australia*, Croatia*, Denmark*, Dominican Republic, Ecuador*, Monaco*, Morocco, Switzerland*, Ukraine* and Uruguay*. On 1 January 2013 these will be joined by Lesotho, Montenegro* and the Russian Federation. Those marked with an asterisk are countries with whom the 1980 Convention is in force with the UK (see below for considerations as to child abduction cases). It is hoped that with the application of the 1996 Convention in the majority of EU States, other countries worldwide will follow and accede to the 1996 Convention and increase the network of countries between whom the protection of children in international situations can be improved.

The provisions of the 1996 Convention, upon which much of Brussels IIa was based, contain subtle and important differences from those with which we are now familiar. There can be no substitute for reading the text of the 1996 Conversation itself for the purposes of familiarisation and the draft guide is very helpful LINK but set out below is a list of the key points of the 1996 Convention to note when considering how it differs from Brussels IIa:

Jurisdiction (Art 5-14 96HC)

Applicable Law (Art 15-22)

Recognition and Enforcement (Art 23-28)

Co-operation (Art 29-39)

Child abduction

(i) Between EU Member States
In view of the exploration above as to the application of Brussels IIa over the 1996 Convention as between EU Member States (save Denmark of course) by virtue of Art 61 and 62(1) BIIa, it is suggested that the provisions of Brussels IIa in relation to the 1980 Convention will be unaffected, as confirmed by Art 61(2) BIIa. The only opportunity to use the 1996 Convention will be in matters outside of the scope of Brussels IIa.

(ii) Outside the EU – Hague 1980 and Hague 1996
Where there has been an abduction of a child from one State ('State A') to another State ('State B') and both States are parties to the 1996 and 1980 Conventions:

Example
Imagine that Ariadne's mother, Grace, wrongfully removes Ariadne from Australia by flying to England on 30 November 2012. Ariadne's father, Bob, commences 1980 Convention proceedings and Grace raises a defence under Art 13(b) 80HC (grave risk of harm). While considering her defence, the English court decides to take urgent measures preventing any contact between Ariadne and her father under Art 11 of the 1996 Convention, as it is viewed as necessary for Ariadne's protection14. The result of the proceedings is that a non-return order is made in England under the 1980 Convention.

It is now 15 March 2013. Bob wishes to apply for a measure ordering Ariadne's return, which he does in Australia as it retains jurisdiction under Art 7 of the 1996 Convention: one year has not passed since he knew or ought to have known about Ariadne's whereabouts and he has clearly not acquiesced to the removal. The Australian court decides to request information from the English authorities under Art 34 of the 1996 Convention. They decide that Bob does not in fact pose a risk to Ariadne and he succeeds in attaining a return order in Australia under the 1996 Convention. 

Which order prevails?
Unlike Brussels IIa, there is no explicit provision that a return order made under the 1996 Convention in the country from which the child was abducted should trump the non-return order made under the 1980 Convention in the country to which the child was abducted. However, it is worth noting that a non-return order made under the 1980 Convention is not based on an established jurisdiction within that Convention which makes the order recognisable and enforceable in the State from which the child is abducted. Whilst Art 50 of the 1996 Convention preserves the effect of the 1980 Convention, it also states that nothing prevents a party from invoking the 1996 Convention in securing a child's return.

In the hypothetical example, the Australian court could choose to recognise the non-return order made in England since it is not bound to refuse the recognition of a measure made in another Contracting State which is not founded upon the jurisdictional provisions in the 1996 Convention (see Art 23(2)(a) 96HC): in the example, the only jurisdiction the English court had under the 1996 Convention was to make urgent protective measures. However, where the Australian court makes a return order under the 1996 Convention, this would in effect trump the non-return order made in England as the Australian order will be recognisable and enforceable in England under Art 23 and Art 26 respectively unless recognition is refused (see below). In terms of the urgent measure made by the English court under Art 11 of the 1996 Convention (preventing Bob from having any contact with Ariadne), these measures will lapse as soon as the Australian authorities take measures required by the situation (Art 11(2)).

Denied recognition?
It is important however to remember that, while the measure made in Australia under the 1996 Convention shall be recognised in England by virtue of Art 23(1) 96HC, there is a discretion not to recognise the measure if one of the grounds in Art 23(2) is satisfied. A wide interpretation of any of the grounds would contradict the Convention's aims, but it is still worth considering some of the possible grounds.

There is an argument that the return order made in Australia should not be recognised in England on the basis that it may be considered manifestly contrary to English public policy (Art 23(2)(d) 96HC): a decision of non-return has already been made by a competent authority under a Convention to which both States are parties and there is the compelling need, as with all litigation, to provide finality to disputes that come before the court. However, as the threshold for a public policy argument in private international law is set very high, there is no certainty that this discretionary ground of non-recognition will apply.

In addition, it could be argued that England is familiar with the notion that subsequent return orders made in the State from which the child is abducted should trump a non-return order made in the State to which the child is abducted (Art 11(6)-(8) BIIa): might it therefore be possible to argue that this notion presents an affront to public policy only in non-EU cases? It could also be argued that, given the courts in England are not permitted to undergo a full and exhaustive investigation of the facts when dealing with 1980 Convention cases15, it could not be considered manifestly contrary to public policy to recognise that a State from which a child was abducted is better placed to deal with that child's long term welfare needs.

Alternatively, there may be some weight in the argument that the return order should not be recognised in England as neither Ariadne nor her mother, being both present in England, were given an opportunity to be heard in the Australian proceedings (Art 23(2)(b) and (c) 96HC respectively), although this is subject to an 'urgency' exception. In terms of Ariadne's mother: since Art 23(2)(c) only gives rise to a discretion to refuse recognition where she has not been provided the opportunity to be heard, it may be that effective service of the document instituting the proceedings inviting her, as the Respondent, to defend her case will be sufficient (even if she subsequently doesn't take part in the proceedings) as she may be represented and therefore 'heard'. In terms of Ariadne: it is interesting to note the inclusion of the phrase 'in violation of fundamental principles of procedure of the requested State' in Art 23(2)(b). If Ariadne was not heard at all, and she is only 4 years old, it may be that the Australian order would still be recognised in England on the basis that the fact that she was not heard may be deemed not to be a violation of the English court's fundamental principles of procedure, given her age.

Acquiescence
Had Grace instead been successful in obtaining a non-return order under the 1980 Convention based on Bob's acquiescence (Art 13(a)), this would not automatically transfer jurisdiction for the purposes of the 1996 Convention by virtue of Bob's acquiescence pursuant to Art 7(1)(a) 96HC. Were Bob to commence proceedings in Australia for Ariadne's return following the non-return order made in England under the 1980 Convention, Grace might be well advised to raise as a preliminary issue the argument that Australia no longer has jurisdiction due to Bob's acquiescence, adducing as evidence the 1980 Convention proceedings. Given the Conventions' complementary natures, the Australian courts may decide to adopt the English court's finding, but they are not bound to as Art 25 96HC is limited to facts found in relation to establishing jurisdiction. Conversely, had Bob tried to commence proceedings in Australia under the 1996 Convention before the issue of whether or not he has acquiesced is determined in England, the Australian courts are free to decide that Bob has in fact acquiesced and that they no longer have jurisdiction under the 1996 Convention. Of course for the purposes of Art 7(1) 96HC, it would have to be shown first that Ariadne's habitual residence has changed to England (which they may be hesitant to conclude given the alleged abduction).

(iii) When the only applicable instrument is the 1996 Convention
Where the 1980 Convention is not in force between two 1996 Convention States, the 1996 Convention imports important and far-reaching provisions which may assist in child abduction cases. A good example is where a child is abducted from England to Morocco16. The 1996 Convention will also continue to assist parents in abduction cases where the two States involved are party to both the 1980 Convention and the 1996 Convention and the child turns 17 since, as noted above, the 1980 Convention does not deal with children over the age of 16.  

Some important points are as follows:

Going back to the hypothetical family: what would be the situation if Ariadne were to be wrongfully removed by her mother, Grace, from England to Morocco?  Ariadne's father could call upon the Moroccan Central Authority to assist in finding Ariadne under Art 31(c) 96HC.

If there is an existing English order, for example a shared residence order, it is suggested that Ariadne's father's first port of call should be to seek enforcement of that order in Morocco similar to the approach as with Brussels IIa cases17.  Providing one of the grounds for non-recognition does not exist (and even if a ground was established, providing that the Moroccan court decides not to exercise its discretion to refuse recognition), Bob will be able to enforce the English order in Morocco under Art 26 96HC.  The Moroccan authorities ought to apply 'a simple and rapid procedure' in regards to the father's application for a declaration of enforceability (which may be refused under the same grounds for non-recognition; see Art 26(3) 96HC).  No review of the merits should be taken other than in reaching the decision (if raised as an issue) as to whether or not one of the grounds for non-recognition exists (Art 27 96HC).  If the English order is declared enforceable, it will be enforceable in Morocco as if that order had been made by the Moroccan authorities (Art 28 96HC). 

Ariadne's father, Bob, may apply to the English courts for a return order providing that jurisdiction has not shifted to Morocco under Art 7 of the 1996 Convention (see above). From a tactical point of view, Bob may be well advised to issue proceedings within a year of the date he knew (or ought to have known) of the wrongful removal/retention to prevent the English court losing jurisdiction by virtue of Ariadne having settled in Morocco for over a year (see Art 7(1)(b) 96HC). Art 31 of the 1996 Convention may be of particular assistance to Bob as it imposes a duty on the central authority in Morocco to take all appropriate steps to assist in locating Ariadne (Art 31(c) 96HC).

Throughout the proceedings, England must apply its own law (Art 15(1)); that is of course hardly controversial in this jurisdiction. However, it may decide, under exceptional circumstances, to consider Moroccan law (permitted by virtue of Art 15(2) 96HC) so that any return order can be phrased in such a way as to increase its effectiveness in Morocco. To facilitate this, the English authorities may rely on the Moroccan authorities' duty to take appropriate steps to provide information as to its laws and services as per Art 30(2) 96HC.

Conclusion

There is as yet no reported case law arising out of the English courts available to assist in considering how the 1996 Convention will be utilised and applied in practice. As mentioned above there is no equivalent to the CJEU for interpretation of the 1996 Convention, but countries will have to do their best, as they have with the 1980 Convention. There is a draft practical handbook issued by the Hague Conference (LINK) to assist and in time, further material will become available. If a country does not comply with its obligations under the 1996 Convention, there is no official sanction, but countries will often seek to show their ability to comply when they ratify and so existing Contracting States will have to trust – as per the spirit of the convention – that it will be appropriately applied. There is always the possibility of raising an objection under Art 58 96HC to a country's accession and as long as that procedure is complied with, the 1996 Convention would then not be applicable as between those two countries until the objection is removed18. However, it is hoped that with international co-operation and in line with the principle of comity, such objections will not be necessary and the provisions of the 1996 Convention can be used to assist and promote the best interests of children in international situations.

Further Information 

For all but the last source, click on the item:

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Footnotes:

[1] Full name: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996.
[2] Indeed the United Nations Convention on the Rights of the Child ('UNCRC') already contains such elements. This does not have the force of law in England and Wales but as a signatory, the UK is expected to respect the principles contained within the UNCRC.
[3] Ratification has been facilitated by the Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010, SI 2010/1898. 
[4] The complete list of the EU Member States as at 25 November 2012 is: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.
[5] Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, in force as of 1 March 2005 and directly effective in all EU Member States save Denmark who opted out.
[6] Art 3 96HC sets out a non-exhaustive list of 'measures' under the 1996 Convention. As to what each instrument does not apply to, see also Art 1(3) BIIa and Art 4 96HC. Both exclude, for example, the establishment or contesting of the parent-child relationship, adoption and the name and forenames of the child. 
[7] See Art 3(g) 96HC
[8] It is interesting to consider at this juncture the difference between the more rigid EU approach (under which a child may only have one habitual residence) and the domestic approach (a child may have more than one). Brussels IIa, and hence CJEU jurisprudence, will apply as between EU Member States (save Denmark) so the opportunities to explore this question may be limited.
[9] See Explanatory Report, paragraph 74 (link to Report set out above in 'Further Information'). An example given in the Report is a child in a foreign country for a limited duration e.g. holiday/schooling – not enough to found a habitual residence – where there may need to be provisional measures to assist the child without the situation necessarily being urgent. Such measures are 'time limited' in any event – see Art 12(2) and (3) 96HC.
[10] If the difficulty between the Contracting States relates to the status of the person conducting the sale, it may be that a certificate under Art 40 96HC would suffice. However, there is no obligation to provide such certificates. 
[11] A further question of interest which arises is whether the very high threshold for a public policy objection as exists under Brussels IIa will apply to 1996 Convention cases. 
[12] See Parental Responsibility Regulations 2010, regulation 8.
[13] Due to the disparity in when the one year period begins, it is conceivable that a State from which a child is abducted retains jurisdiction under the 1996 Convention even after a non-return order based on the child's settlement is made under the 1980 Convention in the State to which the child is abducted. This is because knowledge (or imputed knowledge) of the wrongful retention/removal may either coincide or follow the wrongful removal/retention, perhaps in some cases by a significant amount of time. Interesting case law may develop as a result of how the left-behind parent's knowledge should be imputed in difficult cases. 
[14] Note however that they are not permitted to take 'provisional measures' under Art 12 of the 1996 Convention; see Art 7(3). 
[15] Although see the Strasbourg approach in the ECtHR in Neulinger and Shuruk v. Switzerland, No 41615/07 and X v Latvia, No 27853/09 (soon to go to the Grand Chamber) as contrasted with Re E (Abduction: Custody Appeal) [2011] UKSC 27 and Re S (Abduction: Art 13 Defence) [2012] UKSC 10. 
[16] Morocco is a ratifying State for the purposes of the 1996 Convention but an acceding State in respect of the 1980 Convention. Since the UK has not accepted Morocco's accession, only the 1996 Convention applies between them.
[17] See for example the approach of Mostyn J in JRG v EB [2012] EWHC 1863 (Fam) where Mostyn J declined to adjudicate upon the 1980 Convention application made in England, considering that the appropriate route was to seek enforcement of the French residence order.  Note that this case involved the precedence of Brussels IIa over the 1980 Convention.  There is no equivalent precedence between the 1996 and 1980 Conventions, although see discussion re Art 50 96HC and considerations as to legal aid availability above.  
[18] Compare to the 1980 Abduction Convention and Art 58 thereof – that requires express acceptance of accession of new countries. The 1996 Convention is therefore 'opt out' rather than 'opt in'. At the time of writing, there is no indication available that the UK has raised an objection to any of the other 1996 Convention States.
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