United Kingdom signs up to the 1996 Hague Child Protection Convention: What Family Lawyers Need to Know

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1 United Kingdom signs up to the 1996 Hague Child Protection Convention: What Family Lawyers Need to Know David Truex Barrister and Solicitor (Australia) Solicitor (England and Wales) Taylor Hampton Solicitors London What s Changed? In the first half of 2012, perhaps by May-June according to the Ministry of Justice, the 1996 Hague Child Protection Convention will come into force in the United Kingdom (England and Wales, Scotland and Northern Ireland). Professor Nigel Lowe has described the Convention as a sleeping giant that fundamentally changes the international aspects of the law relating to parental responsibility, jurisdiction over children and the domestic laws to be applied in the determination of disputes concerning custody/residence and access/contact 1. The inter-relationship between the 1996 Convention, the 1980 Hague Abduction Convention and the Brussels II Revised Regulation (BIIR) is complex. The 1996 Convention is not just about protection of children; its full title refers to jurisdiction, applicable law, recognition, enforcement and parental responsibility as well as protection. It includes public law (for example, when a child in care moves to another country), guardianship and management of a child s property. This short article leaves those and other difficult issues to more specialist commentators and focuses on just some of the main questions in the field of private children law which will confront every family lawyer under the new regime. A Further Reading list is provided at the end of this article for those who wish to take up the difficult challenge of understanding all the practical implications of the changes. Also, the government has promised to publish an official Guide which will, no doubt, be an essential addition to every family lawyer s library. What Countries are affected? 1 Attributions in this article to Professor Nigel Lowe s work in this field are taken from his article The Applicable Laws Provisions of the 1996 Hague Convention on the Protection of Children and the Impact of the Convention on International Child Abduction in March [2010] International Family Law 51 and Chapter 24 of International Movement of Children by Lowe N, Everall M and Nicholls M (Family Law,2004)

2 As at 1 January 2012 the following 33 countries had implemented the Convention (those marked with an asterisk * are also parties to BIIR): Albania Armenia Australia Austria* Bulgaria* Croatia Cyprus* Czech Republic* Denmark Dominican Republic Ecuador Estonia* Finland* France* Germany* Hungary* Ireland* Latvia* Lithuania* Luxembourg* Malta* Monaco Morocco Netherlands* Poland* Portugal* Romania* Slovakia* Slovenia* Spain* Switzerland Ukraine Uruguay Several other countries have signed, but not yet implemented, the Convention. They include Belgium*, Greece*, Italy*, Sweden* and the United States of America. New Zealand is expected to join shortly. The Contracting States can be checked in the Status Table at the Hague Conference website When considering a particular case it will be important to check the fine print in the Declarations and Reservations by each country at the end of the Status Table. For example, Spain has reserved its position over Gibraltar which is subject to a decolonisation process in accordance with the relevant decisions and resolutions of the General Assembly of the United Nations. The full text of the Convention, and the Explanatory Report by Professor Paul Lagarde, can also be found on the website. Which Jurisdiction? The general rule is that jurisdiction over children is determined by their habitual residence (Art 5). It is expected that 1980 Hague Abduction Convention jurisprudence will be applied to define this. Subsidiary provisions confer jurisdiction, in some exceptional circumstances, on the basis of presence within the relevant country (Arts 6 and 12 - refugees, uncertain habitual residence, emergency situations). A state with primary jurisdiction may surrender its decision making powers to another state which may be better placed to decide what is best for the child (Art 8). Where a court is seised with matrimonial jurisdiction, that court may exercise powers over a child if the parties agree, but jurisdiction reverts to the child s habitual residence once the divorce proceedings are finalised (Art 10). When a child s habitual residence changes Art 5(2) provides that the primary jurisdiction follows the child. There are subsidiary provisions dealing with exceptions in the case of abduction or concurrent proceedings in two or more states. English lawyers should have little difficulty in deciding the appropriate jurisdiction in most cases as the rules are similar to those we are used to under BIIR.

3 Which Law? As with jurisdiction, English lawyers will be comforted to read that the Convention provides in Art 15(1) that the applicable law will usually be that of the state which decides the issues (lex fori). If the access/contact dispute is before the English court then English law will apply. If the case is being heard in Spain then Spanish law will apply. For civil law jurisdictions, such as those in most of Europe, this is a significant change because traditionally they have applied the law of the nationality of the disputing parents: an English couple disputing contact in Spain (or Germany, or France, etc) would previously find the local judge asking what the English law would provide. Applicable law based on nationality is now (for most purposes) swept away. However, complications can arise when the child, or the parents, move(s) from one country to another. This is especially so with the concept of parental responsibility. Acquiring Parental Responsibility (PR) by Moving English lawyers will need to take great care when advising clients about the implications of moving to another jurisdiction, particularly if the client is an unmarried mother with sole PR. If she moves to a country which grants all fathers automatic PR, such as Australia, the move will result in the father acquiring PR under Australian law. This is so even if the father does not move to Australia but remains living in England. This follows from the provisions which confer jurisdiction and applicable law on the basis of the child s habitual residence (see above). The main relevant provisions are Arts (but see also Arts 22 and 55). The PR laws of the child s original habitual residence continue to apply after a move but the law of the new habitual residence will prevail. As Professor Lowe has put it: the 1996 Convention gives a preference for a substantive rule imposing parental responsibility whenever possible. This policy has the effect of attributing PR following a move to a country where it is granted automatically. But PR is not automatically terminated by a move away from such a country. Taking the above Australian example in reverse, if an unmarried couple move from Australia to England with their child, the father who acquired automatic PR under Australian law would retain such PR in England even if, under English law, he would not be entitled to it unless he re-registered a pre-1 st December 2003 birth to add his name to the birth certificate. The implications of these provisions may be profound. Awkward situations may arise in abduction cases. Same-sex couples with children may find that some countries will invoke the Art 22 manifestly contrary to public policy loophole to deny them and their children rights which they have under English law. The judges and family lawyers of the UK will, no doubt, be tested with some hard cases making hard law as the practical effect of the 1996 Convention are worked out through the courts. Of

4 special significance will be its impact on abduction cases under the 1980 Convention and any potential conflicts between the two Hague Conventions and BIIR. Recognition and Enforcement A fundamental principle of the Convention is that Contracting States must recognise and enforce each other s orders (Art 23). There are provisions for refusal to do so which are very similar to those in BIIR (most importantly, those which mandate rights to be heard for children and parties) but they are intended to be exceptional. It is anticipated that the manifestly contrary to public policy taking into account the best interests of the child loophole will be narrowly construed in accordance with existing European Court jurisprudence in abduction and BIIR jurisdiction disputes. It will be interesting to see how this law develops in the context of non-biir cases. Although I have not looked closely at the Australian experience, it would be worthwhile for an eager international lawyer to research because Australia implemented the Convention in 2003 and must have something to teach Europeans who have come so late to the party. If Australia s robust approach to abduction cases is taken as a guide, it can be assumed that speedy recognition and enforcement of UK children orders will be routine. Mirror orders in Anglo-Australian children cases may soon be consigned to history. In 2008 International Social Services (Australia) published a Research Report on the operation of the Convention in Australia, including some case studies. Their recommendations included that there should be government funding for international mediation in Convention cases, similar to that provided already for abduction cases. The ISS Research Report can be read at Effect of the 1996 Convention on Child Abduction and BIIR Cases Art 50 of the 1996 Convention says that it shall not affect the 1980 Child Abduction Convention. Nevertheless, it is apparent that some questions will arise. Professor Lowe points to the problem of defining rights of custody when jurisdiction shifts with the child s habitual residence, or when new PR rights are acquired by a father as a result of the child s move. He says that the right to make an application for recognition and enforcement under the 1996 Convention may clash with a determination to return under the 1980 Convention. Art 37 of BIIR provides that the Council Regulation takes precedence over the 1996 Convention. Professor Lowe says that the inter-relationship between the two is likely to be complicated. Homework! Older readers will recall the panic among family lawyers when the original Brussels II Regulation suddenly appeared on the statute books of the UK (and throughout the EU, except Denmark) in That unfortunate experience should not be repeated in 2012 with the 1996 Hague Child Protection Convention. It will be essential to make time to read the Convention, the Lagarde

5 Explanatory Report and at least some of the secondary material listed below before our clients start asking us questions about this new law. Further Reading 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 Explanatory Report on the 1996 Convention by Professor Paul Lagarde Lowe N, Everall M and Nicholls M, International Movement of Children Chapter 24 (Family Law, 2004) Lowe, N The Applicable Law Provisions of the 1996 Hague Convention on the Protection of Children and the Impact of the Convention on International Child Abduction March [2010] International Family Law 51 Note in June [2010] International Family Law Hague Convention on the Protection of Children Note in November [2011] International Family Law 265 The 1996 Hague Convention on the Protection of Children