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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 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:
- The 1980 Hague Convention on Child Abduction, by way of the Child Abduction and Custody Act 1985 ('the 1980 Convention', '80HC')
- The European Convention on Human Rights, courtesy of the Human Rights Act 1998
- Various EU Council Regulations: Brussels I 44/2001, Brussels II 1347/2000 replaced by Brussels IIa 2201/2003 and most recently the Maintenance Regulation 4/2009, each directly effective in English law.
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:
- Consider what it adds to existing international treaties from the viewpoint of England and Wales
- Compare its provisions to those of Brussels IIa
- Explore the interplay between the 1996 Convention and the 1980 Convention
- Highlight the potential benefits in situations where the only applicable instrument is the 1996 Convention
- Provide links to further information and guidance.
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)
- Age of child: Notably the 1996 Convention specifically provides that it applies to children 'from the moment of their birth until they reach the age of 18 years'. BIIa leaves personal scope to national law. Contrast the 1980 Convention which specifically ceases to apply to children who have attained 16 (Art 4 80HC). Consequently the 1996 Convention could not be used for protective measures for unborn children. It may be useful in international abduction situations where the child is 17 or 18.
- Habitual residence: There is no definition offered of 'habitual residence'. As there is no overarching body like the CJEU in relation to Hague Conventions, each country's courts will have to apply the Convention as best it can. It is an autonomous concept and should be interpreted in light of the objectives of the Convention rather than under domestic law constraints8.
- Continuing jurisdiction: Under Art 5 96HC, there is no corresponding provision to Art 9 BIIa, namely continuing jurisdiction for three months after a move from one country to another: as soon as a child moves (legally i.e. not abducted), the courts of the new place of habitual residence have jurisdiction straightaway.
- Presence: Note the slightly more limited provisions of Art 13 BIIa when it comes to a child's 'presence' in the jurisdiction when comparing to Art 6 96HC: under 96HC there is jurisdiction on the basis of the child's presence if that child has no habitual residence, or the child is 'internationally displaced' or a refugee. However Art 13 BIIa differs in that, rather than requiring a situation of 'no' habitual residence, it only requires that habitual residence 'cannot be established' (albeit that the difference may be slight), and Art 13 additionally requires there to be no jurisdiction under Art 12 (prorogation of jurisdiction) before jurisdiction based on presence can be founded.
- Abduction: The Art 7 96HC retention of jurisdiction over a child wrongfully removed mirrors Art 10 BIIa but notably there is no equivalent to Art 11(6)-(8) BIIa (the so-called 'second bite of the cherry' provision) in the 1996 Convention save that an Art 34 96HC request for information may be seen as a discretionary equivalent to the Art 11(6) BIIa obligation to transmit documentation following a non-return order (see below as to child abduction).
- Transfer: The provisions of Art 8 and Art 9 96HC are more detailed than those of Art 15 BIIa and the wording and mechanisms are different: Art 8 is transfer 'out' and Art 9 is transfer 'in' and there is a specific requirement in Art 9(3) for the requested State to accept the request for transfer, a requirement absent from Art 15 BIIa. See FPR 2010 r12.61–12.67 for the relevant procedure about such transfers.
- Prorogation of jurisdiction (i.e. ongoing divorce/separation proceedings in another Contracting/Member State where jurisdiction is expressly accepted): Art 10 96HC and Art 12 BIIa may seem alike at first blush but Art 10 96HC additionally requires one of the child's parents to be habitually resident in the State where the divorce is taking place (not so required under Art 12(1) BIIa). There is no equivalent in Art 10 96HC of the 'substantial connection' ground of jurisdiction under Art 12(3) BIIa. Furthermore, Art 10 96HC offers a concurrent jurisdiction under which that court 'may' take measures but Art 12 BIIa provides exclusive jurisdiction ('shall' have jurisdiction).
- Urgent protective/provisional measures: Note the subtle distinction between Art 20 BIIa which is for 'provisional, including protective, measures' in urgent cases, whereas, whilst Art 11 96HC permits necessary protective measures in urgent cases, Art 12 96HC provides for measures 'of a provisional character' seemingly not limited to urgent cases. Urgency is not defined in either instrument. Note that Art 11 96HC may be used in cases of abduction, Art 12 96HC may not. Art 20 BIIa does not bear this distinction. In practice it is suggested these differences will make little overall difference. The lack of an urgency requirement in Art 12 96HC is clearly not an invitation to found jurisdiction contrary to the spirit of the 1996 Convention, namely that it should be the State of the child's habitual residence to make decisions relating to the child9.
- Parallel proceedings: whilst the terminology of Art 13 96HC ('corresponding measures', 'must abstain') and Art 19 BIIa ('same cause of action', 'shall stay') may seem different, it is suggested that there will actually likely be little difference in practice.
Applicable Law (Art 15-22)
- General: A new concept for England and Wales is that the 1996 Convention contains rules on applicable law. We need not panic, because the general rule is that when a court exercises its jurisdiction, it shall apply its own law (Art 15(1)) i.e. domestic law. However, under Art 15(2) 96HC States may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection. This might be useful in various situations e.g. in considering how to phrase an order to ensure maximum effect in another Contracting State (such as a contact order following a relocation where different terminology is used) or where a child owns property in a different country, e.g. Ariadne in England owns property in Australia, and Ariadne's guardian wishes to sell the property but Australian law has different legal requirements – England could then apply Australian law to satisfy the legal requirements to bring about the desired sale10. Note that if there are any problems in relation to the applicable law designated under the 1996 Convention and it clashes with public policy, Art 22 96HC provides a public policy 'get out clause' albeit that the decision to refuse to apply the designated law has to be taken with consideration of the best interests of the child. This is important when one considers that the applicable law provisions include the possibility of the law of a non-Contracting State applying (Art 20).
- Parental responsibility: Another interesting part of this Chapter is Art 16 96HC. The attribution or extinction of parental responsibility is governed by the law of the State of the child's habitual residence, including where this is done by an agreement or unilateral act (i.e. without a court decision). Where parental responsibility exists under one country's law, it subsists even if the child changes habitual residence, and cannot be taken away if the child moves yet again. Therefore, if Bob, Grace and Ariadne live in Armenia where Bob does not have parental responsibility and later they go to live in Australia, where Bob gets parental responsibility, if they all then move to England, Bob's parental responsibility from Australia would continue to be recognised in England. The English courts do however have the ability to control the exercise of his parental responsibility (Art 17 96HC).
- Declaration: Any 'interested person' may apply for a declaration as to whether a person has, or does not have, parental responsibility, or as to the extent of a person's parental responsibility, where a question arises by virtue of the application of Art 16 – see FPR 2010 r12.71 (and note this is not the same as an application under Art 24 96HC for a 'decision' – that is as to a 'measure' which does not include parental responsibility which has arisen by operation of law, agreement or unilateral act (as per Art 16(2)) without court intervention).
Recognition and Enforcement (Art 23-28)
- Mandatory/discretionary: Brussels IIa contains a great many more provisions in relation to recognition and enforcement than the 1996 Convention. Per chance, it is Art 23 in both instruments which deals with grounds for refusal of recognition. Notably, Art 23 BIIa sets out when a judgment as to parental responsibility 'shall not' be recognised, whereas Art 23 96HC provides the grounds upon which recognition 'may' be refused. The mandatory/discretionary distinction may explain the absence in the 1996 Convention of an equivalent to Art 33 BIIa in relation to appealing decisions on the application for a declaration of enforceability, although one can always appeal under local law.
- Grounds: There are overlaps in the grounds set out for non-recognition in 96HC/BIIa as follows: b/b, c/d, d/a, e/f, f/g. However there is the additional provision of 'lack of jurisdiction' in Art 23(2)(a) 96HC, not found in BIIa, and Art 23(2)(c) 96HC has an 'urgency exception', which Art 23(d) BIIa does not. There is no specific provision in the 1996 Convention for a decision given 'in default of appearance' as is found in Art 23(c) BIIa11.
- Advance decision: Any 'interested person' may request a decision of a Contracting State as to the recognition or non-recognition of a measure taken in another Contracting State (Art 24). This will hopefully provide a useful and less cumbersome alternative to seeking mirror orders and assist with ensuring the effectiveness of orders in other Contracting States. See FPR 2010 r31.14 (and r31.8-9) and PD31A. Jurisdiction for such decisions lies with the High Court unless it is an incidental question raised in another court, which accordingly may determine the issue12.
- Enforcement: Enforcement provisions are similar as between the two instruments but note that in Art 28 96HC there is an additional 'best interests' consideration which is not found in Brussels IIa. It is not likely that this gives rise to a completely free discretion, but that it may be used to assist where there is no direct equivalent: enforcement is, after all, determined by the national law of the country where enforcement is sought.
- Authenticity: What remains to be seen is how the issue of authenticity will be dealt with: under Brussels IIa there is a certification process, but the 1996 Convention has no equivalent. It is anticipated that questions of interpretation will arise in relation to the meaning and effect of orders made in other Contracting States and vice versa those made in England in other Contracting States. Sensitive drafting may well play an important part in easing the predicted tensions in this area.
Co-operation (Art 29-39)
- Mediation: Art 31(b) 96HC adds a specific requirement for central authorities to facilitate 'by mediation conciliation or similar means' agreed solutions, a requirement not expressly provided for in Brussels IIa. It is uncertain how this will be arranged in practice or funded (particularly given Art 38 96HC – see below).
- Reports: Art 32 96HC also provides for the provision of a report on a child (by the State where the child is present and habitually resident) by another State with a substantial connection, although the provision of the report is not mandatory. If the central authority thinks it appropriate, it may request such a report from the local authority or CAFCASS (Regulation 12 of the Parental Responsibility Regulations 20103). There is no equivalent for a report in the text of Brussels IIa but provision for a report is made in Regulation 11 when a request is made under Art 55(a)(i) BIIa. Note also the provisions in Art 36 and Art 37 96HC where there is an exception to the provision of information if this puts the child in serious danger or constitutes a serious threat to the liberty or life to a member of the child's family. This exception is not found in Brussels IIa.
- Public law proceedings: Art 33 96HC is the direct equivalent of BIIa Art 56 and a specific procedure must be followed for placement of children abroad. Both require prior consultation between authorities but the 1996 Convention additionally requires a report to be sent to the requested State (see Regulation 13). There is also a prerequisite in Art 33(2) 96HC, absent in Art 56 BIIa, for the central authority/other competent authority in the State where the child is to be placed to consent to the placement, taking into account the child's best interests. The procedure for such cases is set out in FPR Part 31. It is notable that the Islamic institution of kafala (similar to, but not quite, adoption) is included in Art 3(e) as part of the public law measures.
- International contact: The provisions of Art 35 96HC provide further measures to strengthen those already found in Art 21 of the 1980 Convention in respect of 'access rights'. Art 35 96HC provides for a parent in a different country from the child effectively to get a head start and be assessed in his/her own country. The information gathered shall be admitted and considered by the State considering the contact with the child (most likely the country of the child's habitual residence). Note also the power to adjourn proceedings whilst the information gathering exercise takes place, albeit that provisional measures may still be taken. This could be quite a useful provision for a parent in another country, e.g. Morocco, wanting to secure contact, perhaps wishing to reassure the authorities in the country where the child is, e.g. England, that his circumstances are appropriate for contact. It is not anticipated that this would alter the proceedings in England, simply add to them by way of additional information.
- Cost: Whilst Art 38 96HC provides that central authorities shall bear their own costs, there is also the possibility of 'imposing reasonable charges', something not found in Art 57(3) BIIa. What these 'reasonable charges' may be, however, is yet to be ascertained – the only clue available is in Regulation 16 of the aforementioned Regulations which precludes a charge for services to make a profit. Will non means tested funding be available to parents as it is under the 1980 Convention?
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:
- Interplay: The 1980 Convention and 1996 Convention complement each other. Art 50 in the 1996 Convention states that it does not affect the operation of the 1980 Convention. Importantly, it adds that nothing precludes the provisions in the 1996 Convention from being invoked to secure a child's return. The 1996 Convention could therefore be used to assist with urgent protective measures (Art 11 96HC) as part of a return order or agreement to return under the 1980 Convention (i.e. in place of undertakings used at present), or to assist with interim contact during 1980 Convention proceedings.
- Jurisdiction: Where there has been a wrongful retention or removal (the same definition for each applying to both Conventions), jurisdiction under the 1996 Convention remains with State A until such time as the child's habitual residence changes to State B and either Art 7(1)(a) 96HC (acquiescence) or Art 7(1)(b) 96HC (settlement) is satisfied. It is interesting to note that the one year period starts from the date the left-behind parent had or should have had knowledge of the child's whereabouts (rather than the date of the wrongful removal or retention as per the 1980 Convention)13.
- 96HC order after 80HC order: So long as State A retains jurisdiction, it may make a return order under the 1996 Convention even following a non-return order made by State B under the 1980 Convention. State A's return order will be recognised and enforceable in State B, in practice amounting to a 'second bite of the cherry' provision, albeit not expressed in explicit terms as in Brussels IIa (Art 11(6)-(8)).
- Recognition of the 96HC order: There are limited grounds for State B to refuse recognition (or enforcement) of State A's order; Art 23(2) gives an exhaustive list of such grounds. If any of these grounds are met, State B still has a discretion to allow State A's order to be recognised.
- Competing proceedings: There appears to be nothing to stop a left-behind parent from initiating 1980 Convention proceedings in State B and 1996 Convention proceedings in State A at the same time. Given the generous legal aid provisions in the 1980 Convention and its emphasis on swift return as a starting point (Art 12 80HC), it is likely that the 1980 Convention will be the first port of call in the majority of cases but see below for consideration of a situation where there is an existing order which could be enforced under the 1996 Convention.
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:
- Existing measures/order: If there is an existing measure which was made in State A, which has been breached by the wrongful removal or retention, the left-behind parent should seek to enforce that order in State B under the 1996 Convention providing that the measure was made by a court exercising jurisdiction under one of the grounds specified in the 1996 Convention. Recognition may be refused in State B if jurisdiction was not founded upon one of these grounds; see Art 23(2)(a).
- Recognition of return order: For as long as State A retains jurisdiction (see Art 7 96HC, discussed above), a left-behind parent can seek a return order in that State which will be recognised and enforceable in State B unless one of the discretionary grounds for non-recognition in Art 23(2) applies.
- Applicable law: To increase the effectiveness in State B of a proposed return order made in State A, it may be advisable to ask the court in State A exceptionally to consider State B's laws so that the order can be phrased in a way that is compatible with the laws and procedures in State B (see Art 15).
- Cooperation/assistance: Under Art 31(c) of the 1996 Convention, one party can ask the central authority in a State to which the child has been abducted to provide assistance in discovering the whereabouts of the child in that State and that central authority has a duty to assist.
- Disadvantages: There is no equivalent of the emphasis on swift return in Art 12 80HC and the generous legal aid provisions of the 1980 Convention in the 1996 Convention.
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:
- Overview of 1996 Convention
- Full text of the 1996 Convention
- Status table of Contracting States
- Revised draft Practical Handbook on the operation of the 1996 Convention (May 2011) containing useful examples and flowcharts
- Advice for Local Authorities from the Department of Education (October 2012)
- Explanatory Report (Paul Lagarde, HCC Publication 1998)
- Annual Report of the Office of the Head of International Family Justice for England and Wales 2012 (forthcoming)
- McEleavy, Luxembourg, Brussels and now the Hague: congestion in the promotion of free movement in parental responsibility, [2010] ICLQ 505
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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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