Before the Flood? The 1996 Hague Convention in the English Courts
Duncan Ranton, Solicitor and Consultant with Bishop & Sewell LLP, considers the impact of the 1996 Hague Convention and the first judgment in the English courts to consider the treaty.
Duncan Ranton, Solicitor, Bishop & Sewell LLP
This is the first of what I hope will be, over the course of time, several bulletins about the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ("the Hague PR Convention"). In it and future editions, I will look at emerging jurisprudence relating to that Convention, following on from its recent entry into force here and elsewhere in the European Union. How Contracting States practically operate the Convention can be taken into account when resolving questions about its application and interpretation (see Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties). So, future bulletins will also try to identify any developing consensus between Contracting States as to the Hague PR Convention's practical operation.
There is currently a dearth of reported decisions about the Hague PR Convention. Writing about the Australian experience (where the Convention has been in force since September 2003), Michael Nicholls QC and Professor Nigel Lowe recount:
"There has been little resort to the 1996 Convention in Australia, possibly because until recently there have been few other Contracting States – as recently as June 2010, for example, there were only [fourteen]."
(Lowe N and Nicholls M, "The 1996 Hague Convention on the Protection of Children", Jordans Family Law, 2012 at p. 13)
Nicholls and Lowe refer to a couple of Australian judgments where the Convention was used as an interpretative aid or mentioned in passing. They were unable to find a decision more substantive.
The first case to emerge (at least as far as I am aware) to begin redressing the deficit in jurisprudence is the English and Welsh Court of Appeal decision of Re Y (A Child)  EWCA Civ 129. The judgment was given on 22 January 2013, and has recently been published.
The facts match the paradigm modern parental child abduction. A mother wrongfully removed her four-year-old daughter from the Republic of Cyprus to England. The child's father sought her return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Abduction Convention"). In response, the mother deployed a defence under Article 13(b), alleging domestic violence. Her case was that there was a risk the child would be abused by the father if returned.
The Trial and Beyond
At trial, Mrs Justice Parker found the mother's allegations would be better investigated in Cyprus. She ordered the child's return, subject to protective measures intended to hold the ring until the Cypriot authorities were able to deal effectively with the alleged risk and steps needed to ameliorate it.
Those protective measures came in the form of undertakings from the father. The mother's legal team asked that the father, in advance of the return, should obtain from the Cypriot court a decision under Article 24 of the Hague PR Convention. They said the mother needed confirmation that the English order – incorporating the father's undertakings – would be recognised there. Parker J was unpersuaded that that was necessary.
The mother sought permission to appeal on this point. Between trial and the appeal hearing, there were a number of peripheral developments which the mother said cast doubt on whether and how the Cypriot authorities would hold the father to the terms of his undertakings.
On appeal, the mother's case in a nutshell was that undertakings were not "measures" within the meaning of that expression in the Hague PR Convention.
Measure for Measure
So, what is a "measure"?
Article 1 of the Hague PR Convention defines its objects thus:
"(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;
(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."
You will see that "measures" feature in two of the five fundamental aims of the Convention.
We then move to Article 3. This gives examples of the themes and topics with which a measure may deal. These include:
"(a) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
(b) rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence;
(c) guardianship, curatorship and analogous institutions;
(d) the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;
(e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
(f) the supervision by a public authority of the care of a child by any person having charge of the child;
(g) the administration, conservation or disposal of the child's property."
Article 4 identifies subjects that are not within the scope of the Hague PR Convention, and includes matters like maintenance obligations, adoption, trusts and succession. Measures that deal with these matters do not therefore come within the operation of the Convention.
The Appeal Court Decides…
So it was that the mother's legal team appeared before the Court of Appeal set to argue their case. Her position was that the undertakings would only be recognised and enforced in Cyprus if transmogrified into a concrete court order.
That submission met what can fairly be described as a brusque reception. The Appeal Court, comprising Lord Justices Thorpe and Longmore and Mr Justice McCombe, rejected it unequivocally.
Said Thorpe LJ:
"9. … the terms of these Articles, Articles 23, 24, 26 and 28, are identically 'The measures.' In my judgment, 'measures' is plainly to be construed broadly rather than narrowly. For a common law jurisdiction such as England and Wales, to say that undertakings are not to be classed as measures would be erroneous and devoid of practical sense. Those who negotiated this Convention would by the date of its arrival have been very familiar with the wide use of undertakings amongst the 40 or perhaps 50 jurisdictions that were then operating the 1980 Convention.
"10. My second reason for rejecting the submission is the obvious one, that the whole purpose of the 1996 Convention was to support and supplement the effective operation of its parent; the 1980 Convention, insofar as undertakings were widely used for the expression of protective measures in the early years of the development of the 1980 Convention. It is simply unthinkable that an intention or an effect of the 1996 Convention was to diminish rather than to fortify the effect of undertakings and their use, as one of a number of mechanisms available to provide protection for the returning abductor and child."
McCombe J was equally unimpressed:
"13. … [I find] the use of the word 'measures' in Article 23 and following, and indeed in the earlier Articles of the Convention, telling. I cannot conceive that the order, for example, of Parker J in these proceedings should not be taken to be measures as a 'package' to achieve an end, for the purposes that her order was designed to achieve."
By unanimous decision, the court granted permission to appeal – not on the basis that the application revealed any reasonable prospects of success, and instead because it was the first case to come to the Court of Appeal under the Hague PR Convention – but dismissed the appeal itself.
The Import of Re Y
The Appeal Court's decision is entirely unsurprising. The terms of Article 3, and the Hague PR Convention overall, make it clear that measures may include those applied through court order, through administrative decision or through operation of law. Where the expression appears in the Convention, therefore, it has a potentially very broad application.
The Court of Appeal judgment recognises this. It stands as authority for the specific point that an undertaking – offered by a party, accepted by the court and recorded on the face of an order – is a measure as far as the Hague PR Convention is concerned.
What the Hague?!?
Whilst undoubtedly right on this discrete point, the Court of Appeal's decision is, in my view, flawed at a much more fundamental level. The court ought not to have been concerned with the Hague PR Convention at all.
Why? Because this was a case between England (as a constituent country of the United Kingdom of Great Britain and Northern Ireland) on the one hand, and the Republic of Cyprus on the other. Both are Member States of the European Union. As such, the Hague PR Convention does not govern questions of recognition and enforcement of a decision taken in one Member State in another. Recognition and enforcement issues between Member States instead come under the auspices of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("BIIr").
That this is so could not be clearer: the inter-relationship between BIIr and the Hague PR Convention is addressed head-on in the former instrument. Article 61 of BIIr – and I've included the title for full effect – reads as follows:
"Relation with the [Hague PR Convention]
"As concerns the relation with the [Hague PR Convention], this Regulation shall apply:
(a) where the child concerned has his or her habitual residence on the territory of a Member State;
(b) as concerns the recognition and enforcement of a judgment given in a court of a Member State on the territory of another Member State, even if the child concerned has his or her habitual residence on the territory of a third State which is a contracting Party to the said Convention."
Cyprus's ratification of the Hague PR Convention hammers the point home, where it says:
"Articles 23, 26 and 52 of the Convention allow Contracting Parties a degree of flexibility in order to apply a simple and rapid regime for the recognition and enforcement of judgments. The Community rules provide for a system of recognition and enforcement which is at least as favourable as the rules laid down in the Convention. Accordingly, a judgment given in a court of a Member State of the European Union, in respect of a matter relating to the Convention, shall be recognised and enforced in the Republic of Cyprus by application of the relevant internal rules of Community law."
The UK's ratification is in identical terms (save, of course, for the reference to the Republic of Cyprus).
In other words, as between two Member States, the Hague PR Convention is not engaged on recognition and enforcement issues. The Appeal Court should instead have been considering the provisions of Chapter III of BIIr.
Would it have made a huge difference if the decision had correctly identified BIIr as the vehicle by which the English order would be recognised and enforced in Cyprus? In the grand scheme of things, probably not. The provisions on recognition and enforcement in BIIr and the Hague PR Convention are not identical, but bear more than a passing resemblance. This is hardly surprising: as one commentator put it, the latter "was the undisputed source of inspiration" for the former (Pirrung, "Improvements to international child protection as a result of the 1996 Hague Child Protection Convention"  IFL 70 at 72).
One key difference is noun usage: the recognition and enforcement provisions of the Hague PR Convention use "measures", whilst the corresponding provisions in BIIr prefer "judgments". Article 2(4) of BIIr tells us that:
"the term 'judgment' shall mean a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision."
And this at Recital 22 to BIIr:
"Authentic instruments and agreements between parties that are enforceable in one Member State should be treated as equivalent to 'judgments' for the purpose of the application of the rules on recognition and enforcement."
In Re Y, the Court of Appeal interpreted "measures" in the Hague PR Convention broadly and purposively. I cannot really conceive that they would have steered a different course if interpreting "judgments" in BIIr. Paragraphs 9 and 10 of the judgment of Thorpe LJ make just as much practical sense if one reads the references to "measures" as "judgments" and to the Hague PR Convention as BIIr.
It is easy to see from where the confusion developed as to which instrument applied. Although mentioned on behalf of the mother at trial, the real mischief seems to have occurred between trial and appeal. During that interregnum, the English child abduction order was sent to Cyprus for recognition. The relevant Cypriot court ordered:
"… the registration and / or recognition and / or execution of the Judgement … issued in London from the High Court of Justice, Family Division of the United Kingdom"
The Cypriot order was headed up with reference to both the Hague PR Convention and BIIr. This error then seems to have coloured the way that the rest of the proceedings in this jurisdiction were run.
It is helpful to have a Court of Appeal Judgment about the Hague PR Convention so early in its lifetime here. It's just a pity the court hit the wrong target for the right reasons. Let's chalk this one up to a bedding-in wobble…
Further decisions will surely follow with increasing frequency, which will show and tell us how issues under the Convention ought to be managed. It ought to be possible to pick up most High Court and Court of Appeal decisions by the usual mathods. However, the Hague PR Convention does not concentrate work in the High Court in the same way as the Hague Child Abduction Convention does. For example, the Family Procedure Rules 2010, Rule 31.3(3) allows another court to deal with recognition issues where those arise as an incidental question in proceedings. Therefore, I'd welcome hearing from practitioners with their experiences about how the Convention is operating practically – both here and abroad – which I will look to collate and share in future bulletins (of course giving credit to contributors). You can e-mail me at firstname.lastname@example.org.