The 1996 Hague Child Protection Convention

Prof. Louise Ellen Teitz Professor of Law

Roger Williams University School of LawBristol, RI 02809

lteitz@rwu.edu

20 June 2014

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The 1996 Hague Child Protection Convention- States Parties (1/3) -

• Full title:

Hague 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

• Concluded on 19 October 1996

• Entered into force on 1 January 2002

• As of 15 June 2014: 40 Contracting States and a further 3 States in the process of ratification

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• Newest accessions: Georgia, the Russian Federation

• Countries considering joining the 1996 Convention:

Canada, New Zealand, Norway, Israel and several Latin American countries

The 1996 Hague Child Protection Convention- States Parties (2/3) -

440 Contracting States and 3 Signatory States

to the 1996 Hague Convention

The 1996 Hague Child Protection Convention- States Parties (3/3) -

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Overall objectives:

• To provide for the better protection of children in cross-border situations – under civil, not criminal, law

• To improve co-operation among States for the protection of vulnerable children

• To avoid conflicts between legal systems in decisions concerning child protection

The 1996 Hague Child Protection Convention- Overview (1/5) -

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The 1996 Convention may be applicable in:

• Cross-border parental disputes over custody or contact

• Situations in which refugee or internationally displaced children are in need of protection

• Cross-frontier placements of children

• Cases of international child abduction

The 1996 Hague Child Protection Convention- Overview (2/5) -

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Scope of the Convention:

• Applies to children up to the age of 18 (Art. 2)

• “Measures of protection” include any judicial or administrative decision affecting or safeguarding the child or the child’s property, such as measures dealing with

• custody and access,

• guardianship,

• placement and foster care, kafala

(A non-exhaustive list is provided in Art. 3)

The 1996 Hague Child Protection Convention- Overview (3/5) -

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Scope of the Convention (cont’d):

• The Convention does not apply to all cross-border situations, such as:

• Procedures for establishing or contesting parent-child relationship (parentage)

• Maintenance obligations

• Decisions on adoption

• Decisions on rights of asylum or immigration

(Art. 4 includes a list of matters that are not covered bythe Convention)

The 1996 Hague Child Protection Convention- Overview (4/5) -

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Scope of the Convention (cont’d) – Art. 1:

• Common rules on jurisdiction to avoid conflicts

• Universal rules on the law applicable to parental responsibilities and child protection measures

• Recognition and enforcement mechanisms in all Contracting States for protective measures made in one Contracting State

• A practical but flexible system of inter-State cooperation through Central Authorities and other channels

The 1996 Hague Child Protection Convention- Overview (5/5) -

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General Rule:

• Primary jurisdiction to make decisions about the child is with the authorities of the State of the habitual residence of the child (Art. 5 (1)).

• In case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction (Art. 5 (2)).

This does not apply in the case of international child abduction.

Exceptions:

Arts 6 and 10 set out the exceptions to the general rule, i.e., the instances in which jurisdiction may lie with the authorities of a Contracting State in which the child is not habitually resident.

The 1996 Hague Child Protection Convention- Basic Rules: Jurisdiction (1/4) -

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• Jurisdiction in cases of refugee children or children internationally displaced due to disturbances occurring in their country is based on the presence of the children in a Contracting State (Art. 6).

• When the habitual residence of a child cannot be established, jurisdiction is based on the presence of the child in the territory of a Contracting State (Art. 6).

• Transfer of Jurisdiction: The authority having jurisdiction under Arts 5 or 6 can transfer jurisdiction to authorities of another Contracting State. Jurisdiction will only be transferred where certain conditions are satisfied and only to authorities in another Contracting State with which the child has a particular connection (Arts 8 and 9).

The 1996 Hague Child Protection Convention- Basic Rules: Jurisdiction (2/4) -

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• It is possible for the authorities of a Contracting State exercising jurisdiction in an application for divorce, legal separation or an annulment of the marriage of the parents of a child habitually resident in another Contracting State to take measures directed to the person and property of such a child if certain conditions are met (Art. 10).

• In cases of international child abduction, the authorities of the Contracting State of the habitual residence of the child immediately before the wrongful removal or retention retain jurisdiction for measures aimed at the protection of the person and the property of the child until a number of conditions have been met (Art. 7).

This is to deter international child abduction by denying any jurisdictional benefit to the abducting party.

The 1996 Hague Child Protection Convention- Basic Rules: Jurisdiction (3/4) -

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• Any Contracting State where a child is present may take any necessary measures of protection in all cases of urgency (Art. 11).

• Any Contracting State where a child is present may take provisional measures (Art. 12). This does not apply to abduction cases.

• Rule on parallel proceedings: As there may be cases where the authorities of more than one Contracting State have jurisdiction, Art. 13 provides for the resolution of possible conflicts of jurisdiction.

The 1996 Hague Child Protection Convention- Basic Rules: Jurisdiction (4/4) -

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The 1996 Hague Child Protection ConventionMeasures of protection in cases of urgency (1/2) -

• In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.

• No definition of “cases of urgency”.

• A situation of urgency may be said to exist where, if measures of protection were only sought through the normal channels of Articles 5 to 10 (the general bases of jurisdiction), irreparable harm might be caused to the child, or the protection of the child or interests of the child might be compromised.

• The concept of “urgency” should be interpreted rather strictly.

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The 1996 Hague Child Protection ConventionMeasures of protection in cases of urgency (2/2) -

• Jurisdiction based on urgency is a concurrent jurisdiction with the State having general jurisdiction, and it is strictly subordinate to the latter jurisdiction.

• Necessary measures of protection taken under Article 11 are temporally limited.

• If the child is habitually resident in a Contracting State, the necessary measures taken under Article 11 will lapse once the authorities of the Contracting State which has general jurisdiction have taken the measures required by the situation.

• If the child is habitually resident in a non-Contracting State, the necessary measures taken under Article 11 will lapse as soon as the measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.

• It should be noted that if proceedings have started for measures of protection in a case of urgency in one Contracting State, the competent authorities seised in another Contracting State having general jurisdiction do not have to stay proceedings until a measure is taken.

• Measures of protection taken in cases of urgency are entitled to recognition and enforcement in accordance with Chapter IV of the Convention. The grounds of non-recognition in cases of urgency are specifically limited (see Art. 23(2) b) and c)).

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The 1996 Hague Child Protection ConventionProvisional measures (1/2) -

• The authorities of a Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take measures of a provisional character for the protection of the person or property of the child.

• No definition as to what may constitute measures of a “provisional character”.

• Need to ensure the protection of children present in a foreign State as a result of a stay of limited duration (e.g., on vacation, for short periods of schooling or for harvest, etc.).

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The 1996 Hague Child Protection ConventionProvisional measures (2/2) -

• Article 12 is a concurrent, but subordinate ground of jurisdiction to the general grounds of jurisdiction. Therefore, Article 12 has similar provisions regarding the lapsing of any provisional measures taken by a Contracting State.

• The effect of provisional measures taken under Article 12 is limited to the territory of the Contracting State whose authorities take these measures.

• The authorities of a Contracting State can only take measures under Article 12 that are not incompatible with measures that have already been taken by the authorities which have general jurisdiction.

• In international child abduction cases, a provisional measure cannot be taken by the Contracting State to which the child has been wrongfully removed, or in which the child has been wrongfully retained, unless the child has acquired a habitual residence in that State and the conditions set out in Article 7(1) a) and b) are met.

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• When measures of protection have to be taken, the general rule is that the country where the child is present applies its own law to decide what measures can be taken (Art. 15 (1)).

• Exception: In so far as the protection of the person or the property of the child requires, the authorities may, exceptionally, apply, or take into consideration, the law of another State with which the situation has a substantial connection (Art. 15 (2)).

The 1996 Hague Child Protection Convention- Basic Rules: Applicable Law (1/1) -

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• Measures of protection taken in one Contracting State are automatically recognised in all other Contracting States, with limited exceptions (Art. 23).

• They are enforceable in accordance with the procedure of the law of the requested Contracting State (Art. 26 (1)).

• A simple and rapid procedure must be applied to the declaration of enforceability or registration (Art. 26 (2)).

• Enforcement is to take place in accordance with the law of the requested Contracting State and to the extent provided by such a law, taking into consideration the best interests of the child (Art. 28).

The 1996 Hague Child Protection Convention- Basic Rules: Recognition and Enforcement (1/2) -

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• “Advance recognition”: A person can apply to the competent authority of a Contracting State for a decision regarding the recognition of measures taken in another Contracting State (Art. 24).

This is a useful mechanism in particular if:

• there is any doubt about whether a measure of protection taken in one Contracting State will be recognised by operation of law in another Contracting State

• a child is relocating to another Contracting State

• a child is travelling for a short period to another Contracting State with the other parent

The 1996 Hague Child Protection Convention- Basic Rules: Recognition and Enforcement (2/2) -

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• Central Authorities play an important role in the practical operation of the 1996 Convention.

• In particular, the co-operation provisions of the Convention, which are essential to the successful operation of the Convention rely on Central Authorities either directly to put them into effective practice, or to assist and facilitate the direct co-operation of other Convention actors.

• One of the main functions of Central Authorities is to ensure communication and co-operation between the competent authorities in their respective Contracting States.

• They also play an important role in transmitting requests and information to the appropriate competent authority(ies) in their State or another, as well as in transmitting requests and information to other Central Authorities.

The 1996 Hague Child Protection Convention- Basic Rules: Central Authorities

and Cooperation (1/5) -

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• Central Authorities have two duties under the Convention which cannot be performed through other bodies (Art. 30):

• To co-operate with each other and promote co-operation among the competent authorities in their States to achieve the purposes of the Convention; and

• In connection with the application of the Convention, to provide information as to the laws of, and services available in, their States relating to the protection of children.

The 1996 Hague Child Protection Convention- Basic Rules: Central Authorities

and Cooperation (2/5) -

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• Furthermore, Central Authorities must, either directly or through public authorities or other bodies, take all appropriate steps to (Art. 31):

• Facilitate the communications and offer assistance in relation to transfer of jurisdiction and co-operation.

• Facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies.

• Provide assistance, on the request of a competent authority of another Contracting State, to discover the whereabouts of a child when it appears that the child may be present and in need of protection.

The 1996 Hague Child Protection Convention- Basic Rules: Central Authorities

and Cooperation (3/5) -

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• In two specific situations, an obligation to co-operate / communicate is placed on the authorities (not specifically Central Authorities) of Contracting States:

• Obligatory consultation when an authority is contemplating the placement of a child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, where such a placement or provision of care is to take place in another Contracting State (Art. 33).

• When the child is exposed to a serious danger, the competent authorities of the Contracting State where measures for the protection of the child have been taken or are under consideration, if they are informed that the child’s residence has changed to, or that the child is present in, another State, shall inform the authorities of that other State about the danger (Art. 36).

The 1996 Hague Child Protection Convention- Basic Rules: Central Authorities

and Cooperation (4/5) -

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• Other specific instances of cooperation:

• Requesting another Contracting State to provide a report on the situation of a child, or to take measures of protection in respect of a child (Art. 32)

• Requesting information relevant to the protection of a child when contemplating taking a measure of protection (Art. 34)

• Requesting assistance to implement measures of protection abroad (Art. 35)

• Seeking / providing assistance in international contact / access cases (Art. 35)

The 1996 Hague Child Protection Convention- Basic Rules: Central Authorities

and Cooperation (5/5) -

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The 1996 Hague Child Protection Conventionand the 1980 Convention (1/3)

• The 1996 Convention supplements and strengthens the 1980 Hague Child Abduction Convention

• It confirms the primary role of the authorities in the State of the child’s habitual residence (Art. 7)

• It may assist with the return of a child under the 1980 Convention

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The 1996 Hague Child Protection ConventionThe relationship between the 1996 and 1980 Hague

Conventions (2/3) -

• The 1996 Convention does not amend or substitute the mechanism established by the 1980 Convention for dealing with situations of international child abduction.

• The 1996 Convention supplements and strengthens the 1980 Convention and may also be a useful stand-alone source of remedies for international child abduction.

• Special jurisdictional rule for cases of international child abduction (art. 7):

• the authorities of the Contracting State of the habitual residence of the child immediately before the wrongful removal or retention retain jurisdiction for measures aimed at the protection of the person and the property of the child until a number of conditions have been met

• the authorities of the Contracting State to which the child has been wrongfully removed or in which he or she has been wrongfully retained can only take necessary measures of protection in cases of urgency (art. 11), not provisional measures (Art. 12).

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The 1996 Hague Child Protection ConventionThe relationship between the 1996 and 1980 Hague

Conventions (3/3) -

• The 1996 Convention strengthens the cooperation between Central Authorities in order to (Art. 31):

• facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child, including in cases of child abduction;

• provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested State

• The 1996 Convention reinforces the possibilities of communication of information and assistance between Central Authorities:

• Where a measure of protection is contemplated, the competent authorities, if the situation of the child so requires, may request any authority of another Contracting State which has information relevant to the protection of the child to communicate such information.

• The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of measures of protection, especially in securing the effective exercise of rights of access as well as of the right to maintain direct contacts on a regular basis.

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• The material scope of the Brussels IIa Regulation and the 1996 Convention is very similar, but there are a few differences, e.g.

• Brussels IIa does not include any rules on applicable law; the 1996 Convention does

• Brussels IIa provides for additional rules in cases of international child abduction; the 1996 Convention is designed to operate alongside the 1980 Child Abduction Convention but does not alter its application

The 1996 Hague Child Protection Conventionand the Brussels IIa Regulation (1/1)

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• Post-Convention Services of the HCCH in relation to the 1996 Hague Child Protection Convention:

• Implementation Checklist

• Implementation Listserv

• Practical Handbook on the operation of the 1996 Hague Child Protection Convention

Services of the Hague Conference

• In relation to the 1980 Hague Child Abduction Convention:

• Mentoring Program

• Country Profile

• Monitoring of jurisprudence/INCADAT