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I. LUXEMBOURG, BRUSSELS AND NOW THE HAGUE: CONGESTION IN THE PROMOTION OF FREE MOVEMENT IN PARENTAL RESPONSIBILITY MATTERS

Published online by Cambridge University Press:  14 May 2010

Peter McEleavy
Peter McEleavy
Affiliation:
University of Dundee.
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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 59 , Issue 2 , April 2010, pp. 505 - 519
Copyright
Copyright © 2010 British Institute of International and Comparative Law

A. Introduction

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, Repealing Regulation (EC) No 1347/2000,Footnote 1 or Brussels IIa as its abbreviation has now finally been settled,Footnote 2 together with the somewhat aged and largely sidelined European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, signed at Luxembourg on 20 May 1980,Footnote 3 are soon to be joined in the service of United Kingdom, and indeed European private international law, by a global instrument, the 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.Footnote 4

B. Communitarization, External Competence and Ratification

A fourteen-year time lapse before entry into force may appear startling in the context of recent European private international law, but the delays inherent in the ratification of a multilateral treaty have been greatly accentuated by the Community and its processes. Pre-dating even the Treaty of Amsterdam, the negotiation of the 1996 Convention involved all the then Member States, albeit under the auspices of the Hague Conference on Private International Law. Had the requisite political will existed it could have been promoted as a common instrument, but France and Spain had other ideas and succeeded in having the Brussels II Convention extended to certain parental responsibility actions.Footnote 5 Subsequently in the new world of Community private international law the Commission was determined to acquire new fields of competence with ‘added value’ as its leitmotif. And so during the negotiation of Council Regulation 2001/2003 the Hague Convention was simply a rival text, albeit one which the Commission was content to use as a platform on which to build a more advanced and rigorous Community regime for the free movement of judgments and intra-EU cases of child abduction. However, once the future of the revised Regulation was secure, and as part of the November 2002 compromise on the issue of child abduction,Footnote 6 a Council Decision was issued authorizing Member States to sign the Convention in the interests of the Community.Footnote 7 This was necessary for in adopting the original Brussels II Regulation the Community had acquired external competence over certain aspects of the 1996 ConventionFootnote 8 and thereby deprived Member States of the authority to ratify or accede to the instrument independently.Footnote 9 Whilst the aspiration may have been for the Convention to enter into force for the Member States contemporaneously with, or shortly after, Council Regulation 2201/2003,Footnote 10 progress was blocked by Spain which fell into dispute with the United Kingdom over the operation of mixed competence conventionsFootnote 11 with regard to Gibraltar.Footnote 12 The impasse was only broken in late 2007Footnote 13 with the creation of a post-box system for communications between the Spanish and Gibraltarian authorities, although not for communications between the authorities of other States and Gibraltar. Thereafter steps were immediately taken to authorise ratification. In this, Council Decision of 5 June 2008Footnote 14 provided that Member States not already party,Footnote 15 should ratify, or accede to, the Hague Convention in the interest of the European Community. Article 3(1) of the Decision specified that the relevant Member States should take the necessary steps to deposit simultaneously their instruments of ratification or accession with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, if possible before 5 June 2010.Footnote 16 In the light of this Community obligation and to facilitate the challenging deadline set in the Council Decision, in the United Kingdom the Convention has been specified as a Community Treaty for the purposes of the European Communities Act 1972,Footnote 17 with the effect that implementation will be achieved via regulations under section 2(2) of that Act.Footnote 18 To this end the Convention was laid before Parliament as a Command Paper on 16 October 2009,Footnote 19 with a draft Order in Council under section1(3) following on 11th NovemberFootnote 20 for approval by affirmative resolution procedure prior to making by The Queen in Privy Council.

C. Too Little Too Late?

Viewed against the background of Brussels IIa and contemporary experience of such innovations as the automatic enforceability of judgments,Footnote 21 prorogation in favour of a Member State with which a child has a substantial connectionFootnote 22 and the absolute supremacy afforded to the Member State of habitual residence in intra-EU abduction cases,Footnote 23 the entry into force of the more orthodox 1996 Convention might, superficially, be regarded as somewhat underwhelming. Such an assessment would however fail to appreciate its potential to establish a complete, global regime for the treatment of private international law measures impacting upon children. Some of the Brussels IIa extras may be missing, but for its time the Convention was, per se, groundbreaking. Moreover, it has features which remain notable and are absent from the Council Regulation, including rules on choice of law and cooperation. At the time of the Hague drafting process the only relevant instrument within Europe which had hitherto attracted support from both common law and civil law jurisdictions was the 1980 Luxembourg Convention, and this had been undermined by the high uptake of far reaching reservations. Additionally, the very achievement of elaborating a coherent, integrated, quadruple convention dealing with jurisdiction, applicable law, recognition and enforcement as well as cooperation, all within a worldwide forum, must not be underestimated.

D. Scope

Unlike the Council Regulation, where the personal scope is left to national law, the Convention is explicit in identifying those children to which it applies, namely from the moment of birth until eighteen years of age.Footnote 24 For practical purposes as regards the issues covered by their jurisdiction and recognition and enforcement regimes, the material scope of the two instruments is identical. The construction of the primary clauses may differ, but the Regulation's use of ‘civil matters’ relating to ‘the attribution, exercise, delegation, restriction or termination of parental responsibility’Footnote 25 which is a subordinate, albeit re-ordered, definitionFootnote 26 of the Convention's focus on ‘measures directed to the protection of the person or property of the child’,Footnote 27 would suggest that there is no meaningful distinction to be drawn. There are slight variations in the identification of issues specifically included and excluded, but these are either addressed in the Regulation's Recitals,Footnote 28 or can be explained within the wider context of the Convention.Footnote 29 The novelty thrown up by the Convention is the fact it deals with associated issues of applicable lawFootnote 30 as well as having a general choice of law rule for parental responsibility.Footnote 31 Whilst recourse to foreign law may be regarded with suspicion, the primary complication generated by the Convention, one inevitably shared with Brussels IIa, is that the aspects of parental responsibility covered do not mirror domestic categorizations. In this context the main United Kingdom statute, the much maligned Family Law Act 1986, is focused on private law proceedings and so does not extend to the public law issues encompassed within the international instruments. Conversely not all potential Part I ordersFootnote 32 fall within the Convention/Regulations frameworks; the exclusion on ‘name and forenames’Footnote 33 means that in the United Kingdom, jurisdiction for a specific issue order as to a child's name must fall under residual, national law rules.Footnote 34 The geographical scope of the Convention rules varies depending on the Chapter under consideration.Footnote 35

The jurisdiction provisions, in contrast to Brussels IIa, do not seek to have universal effect.Footnote 36 Article 46 makes clear that there is no requirement to apply the rules of the Convention to internal conflicts. It is only where there is an international dimension and a child is habitually resident in a Contracting State,Footnote 37 or, is present in such a State, and, has no habitual residence at all or is a refugee or is internationally displacedFootnote 38 that articles 5–10 must be applied and then to the exclusion of all others.Footnote 39 In contrast to Brussels IIa,Footnote 40 the measuresFootnote 41 which fall within the scope of the Convention's recognition regime are solely those made in a Contracting State under the bases of jurisdiction provided for in Chapter II.Footnote 42 The applicable law rule in article 15 is similarly restricted, however, the rule on parental responsibility is of general application.Footnote 43 The provisions on cooperation operate within the context of the protective measures the Convention seeks to regulate, but individual Articles vary as to whether a mandatory obligation is created or an invitation to act is simply articulated.Footnote 44

E. Characteristics

To undertake an effective evaluation of the Hague Convention, the European reader must first break free from the conditioning engendered by Community private international law. There may indeed be clear similarities between the two texts in their scope and in their creation of direct grounds of jurisdiction,Footnote 45 as well as the recognition and enforcement of judgments, but many of the more onerous strictures of the Community free movement regime are either absent or greatly weakened in the 1996 instrument. Moreover, as might be anticipated from an instrument open to worldwide ratification or accession, the Hague Convention is more internationalist in its perspective and cognisant of situations not governed by its rules or where a non-Contracting State has greater claim to competence.

1. Jurisdiction

The control and certainty so redolent of the Brussels model is found in the Hague Convention, but only in part. As previously acknowledged the exclusivity of the jurisdiction framework is imposed only where a child is habitually resident in a Contracting State,Footnote 46 or where a child is present and is a refugee or is internationally displaced,Footnote 47 or where a child is present and has no habitual residence at all.Footnote 48 Article 5 is subject to only one jurisdictional rule, that preserving the competence of the original Contracting State of habitual residence where the child has been wrongfully removed to or retained in another Contracting State.Footnote 49 But unlike article 10, Brussels IIa, article 7 of the Convention is in essence only a delaying mechanism, for it does not have the potential to guarantee the jurisdiction of the State of origin permanently.Footnote 50 Again, in contrast to Brussels IIa, articles 5 and 6 of the Convention are not subject to the instrument's single ground of prorogation.Footnote 51 Article 10 of the Hague Convention is simply an alternative basis,Footnote 52 and whilst the terms of its operation are specified, it is not a direct ground either since it is dependent on there being an actual basis of jurisdiction under the lex fori.Footnote 53

Like Brussels IIa the possibility for a transfer of jurisdiction to a State better placed is limited to States within the jurisdictional regime.Footnote 54 However, there is greater breadth in the potential recipients, as article 8(2)(d) extends this possibility to the open category of ‘a State with which the child has a substantial connection.’Footnote 55 Of greater significance, practical as well as symbolic, is the understanding that the Hague jurisdictional framework does not preclude the possibility of jurisdiction being declined under residual rules, such as the doctrine of forum non conveniens,Footnote 56 an outcome which is excluded from Brussels IIa if the rationale of the Owusu judgment is taken as extending to the family law context.Footnote 57

The Convention does mirror the Regulation in seeking to deal with potential concurrency of jurisdictionFootnote 58 as between participating States, and notably as regards articles 5 and 10, by virtue of a lis pendens provision in favour of the court first seised.Footnote 59 However, the impact of this jurisdictional rule, so rigorously upheld in the European Union in civil and commercial matters,Footnote 60 is tempered by the incorporation of an ancillary clause which acknowledges that the lis pendens rule shall not apply if the authorities before which the request for measures was initially introduced have declined jurisdiction.Footnote 61 And in this there is added flexibility, for such an action is not restricted to the procedure set down in articles 8 and 9.Footnote 62 Furthermore, at the recognition stage under the Convention the verification of the exercise of jurisdiction by the court of origin is permitted,Footnote 63 the court in the Contracting State of recognition only being bound by findings of fact.Footnote 64

The Convention and Regulation depart as regards the temporal implications of a valid exercise of jurisdiction, for whilst the latter abides by the principle of perpetuatio fori Footnote 65 the former expressly does not.Footnote 66 Whilst this could be said to promote greater accuracy in the determination of the most appropriate forum with which the child is connected, it creates, and leaves unresolved, the problem as to precisely when jurisdiction is lost once proceedings are underway.Footnote 67 The limited scope of application of the Convention jurisdiction framework in the light if its disconnection with Brussels IIa means that this is not an issue which will significantly detain the United Kingdom or other European Union courts.Footnote 68

2. Choice of Law

Participation in a common, choice of law regime is a first for the United Kingdom which, in contrast to many continental, civilian jurisdictions,Footnote 69 eschewed the Hague Convention's 1961 predecessor.Footnote 70 Hitherto it has only been indirectly, in the context of the 1980 Hague Child Abduction Convention, that reference has been made to foreign law as regards parental responsibility matters.Footnote 71 Domestically it is the lex fori alone which is applied in England and Wales,Footnote 72 whilst in Scotland the introduction of a choice of rule in respect of parental responsibility has yet to generate significant case law.Footnote 73 The new rules, which might best be characterized as pragmatism laced with fairness, will not lead to a radical adjustment in practice, even in international cases. This is because when exercising their jurisdiction under the Chapter II basesFootnote 74 the authorities of Contracting States shall continue to apply their own law.Footnote 75 It is only in exceptional casesFootnote 76 that the law of another State,Footnote 77 with which the situation has a substantial connection, may be applied or taken into consideration.Footnote 78 The door to the application of foreign law is opened much wider by article 16. This choice of law rule as regards the attribution or extinction of parental responsibility is not restricted to situations where jurisdiction has been taken to protect the person or property of the child, but is of general application where there is an international element.Footnote 79 In this it seeks to promote the acquisition or retention of parental responsibility, whilst focussing on the law of the child's current State of habitual residence.Footnote 80 Therefore where a change in habitual residence leads to a person acquiring parental responsibility where previously he had none, so be it. But, in the converse situation, where a change in habitual residence could lead to a loss of parental responsibility attributed by operation of law, the parental responsibility existing under the law of the former State of habitual residence will subsist.Footnote 81 In a similar vein, parental responsibility arising (or extinguished) by an agreement or a unilateral act without judicial intervention,Footnote 82 is to be governed by the law of the child's State of habitual residence at the time the agreement was made.

Notwithstanding these generous rules, which will be of particular benefit to unmarried fathers who are unable to satisfy the requirements of the law of the new Contracting State of habitual residence, certain protective controls are still applied. Most notably the exercise of parental responsibility is governed by the law of the child's actual State of habitual residence, therefore where rights are held by virtue of article 16(2) or (3) regard must be paid to any effects imposed by the primary governing law, which will often, but will not necessarily be the lex fori. But, as a last resort, the application of the law designated can be refused if it would be manifestly contrary to public policy, taking into account the best interests of the child.Footnote 83

3. Recognition and Enforcement

The similarities between the Convention and Regulation recognition chapters are as obvious as are the differences with the Council of Europe text, with its cumbersome grounds of non-recognition.Footnote 84 Chapter IV draws a distinction between recognition, which in itself does not require any proceedings for it is by ‘operation of law’,Footnote 85 although it may be challenged on set grounds,Footnote 86 and enforcement, which first requires the judgment to be registered in a procedure regulated by national law,Footnote 87 before any necessary coercive measures are sought, again under national law.Footnote 88 In adopting such a system the Lagarde Report freely acknowledges that the Hague Convention was inspired by the 1968 Brussels Convention,Footnote 89 but whilst it was adapted for a diverse global membership, much of its subject specific drafting was in turn replicated in the more advanced Brussels IIa. In this reference may in particular be made to two rights focussed bases for non-recognition, which arise, other than in cases of urgency, where no opportunity to be heard is given to the child,Footnote 90 or indeed to a person whose parental responsibility has allegedly been infringed.Footnote 91 Perhaps surprisingly, but in keeping with the emphasis placed on personal rights elsewhere in the instrument,Footnote 92 these and all other grounds of non-recognition are mandatory under the Regulation,Footnote 93 but simply give rise to a discretion in the Convention context. The Regulation has equally aped the Convention as regards having grounds for non-recognition where a judgment concerns the child having been placed in care in another State Party and the correct procedure has not been respected;Footnote 94 or notably where the judgment is irreconcilable with a later order rendered in the non-Contracting State of the child's habitual residence which is capable of recognition in the requested State.Footnote 95 In contrast to the Regulation, the latter situation is the only occasion where reference is made to irreconcilable judgments within the Convention,Footnote 96 but this is explained by the drafters having included what is in essence a substantive provision as to the circumstances in which a measure will remain in force, even if a change of circumstances has eliminated the basis upon which jurisdiction was founded.Footnote 97 The Convention also omits a ground of non-recognition with regard to procedural fairness where the judgment was given in default of appearance;Footnote 98 in this it may be noted in general that whilst the instrument follows the Brussels formula with regard to recognition, enforceability and enforcement, it does not engage with procedural issues.

Both instruments include a public policy exception, and also specify that a breach must be manifest, but article 23(2)(d) provides that regard must be paid to the best interests of the child. This addition cannot of itself be regarded as weakening the applicable standard within the Convention, for the best interests of the child cannot simply be disregarded when evaluating public policy issues under Brussels IIa, for to do so would undoubtedly be in breach of the ECHR. But it is equally the case that the Convention network of jurisdictions is politically, culturally and legally more diverse than the Member States of the European Union, so the same degree of mutual trust cannot be expected, nor can it be imposed. Moreover there can be no expectation that the very strict interpretation of public policy hitherto adopted by the ECJFootnote 99 can simply be transposed to the Convention, not least since a consideration of jurisdiction issues in this context is not prohibited. The exercise of jurisdiction is of course subject to general reviewFootnote 100 and this is the most marked difference from Brussels IIa,Footnote 101 which contributes in turn to the qualification of the prohibition of any review of the merits of the measure taken.Footnote 102

4. Cooperation

A review of Chapter V shows how the drafters of the Convention were torn between a desire to create a meaningful framework of cooperative measures so children would be protected and litigants assisted, and a more pragmatic realism which cautioned against imposing onerous, binding commitments on States, which could in turn deter ratifications.Footnote 103 So whilst Contracting States are required to designate a Central Authority,Footnote 104 the primary duties attributed to such bodies are expressed in very general terms.Footnote 105 Moreover, where detailed procedures for the transfer of information have been laid out, these have often been left in a discretionary form.Footnote 106 In this the discretion may ultimately be regarded as applying to the very application of the provision, and not merely its application on a case by case basis, a reality reflected in the Australian implementation of the instrument.Footnote 107 Clearly if States were simply to deny the operation of significant Articles, for example Article 35 which seeks to assist parents seeking to obtain or maintain access to their child, the spirit of the Convention would be undermined. A means to prevent such an outcome is facilitated by Article 38, which allows for the possibility of reasonable changes to be imposed for the provision of services. Reliance on such a power would of course, from a United Kingdom perspective, set the Convention apart from its 1980 sister instrument on child abduction in relation to which assistance and legal aid provision is most generous,Footnote 108 but outside such a specific area one can validly question whether the mere fact of a dispute being internationalised should of itself necessitate the support provided being free of charge.Footnote 109 Within Brussels IIa European Union Member States eschewed such delicate policy issues by adhering to the more traditional position of private international law instruments by limiting the scope of the cooperation obligationsFootnote 110 and making Central Authority assistance free of charge.Footnote 111

F. Disconnection

From a British or European Union perspective the status and impact of the Convention ultimately depends, as a matter of international law, on its relationship with existing regional and international instruments, namely Brussels IIa, the Luxembourg Convention and the 1980 Hague Convention. In this, the often overlooked disconnection clauses take centre stage, and careful consideration must be given as to how these provisions correlate with each other.

1. Brussels IIa

Traditionally Community instruments have embodied a policy of euro-centric legal imperialism vis-à-vis competing multilateral conventions.Footnote 112 This politico-legal approach, which at least has the advantage of certainty, is reflected in the simple pronouncement that the Regulation shall ‘take precedence’ over certain instruments, including the Luxembourg and Child AbductionFootnote 113 Conventions, in so far as they concern matters governed by the Regulation.Footnote 114 The 1996 Convention is subjected however to a quite distinct regime, one in which the domination of the Regulation is not absolute, so that in certain areas doubt surrounds the inter-relationship of the texts and a measure of competition is almost inevitable. The explanation for this situation may be traced to the somewhat difficult negotiations which took place at the Eighteenth Session of the Hague Conference in respect of the Hague Convention's future disconnection from the putative Brussels II Convention.Footnote 115 At that time an instrument approaching the scope of what became Council Regulation 2201/2003 would have been beyond the countenance of even the most fervent European, indeed the Brussels II Convention when completed in 1998 was quite modest in its treatment of parental responsibility matters. Moreover it may, not unrealistically, have been anticipated that any European instrument, being in the form of a Convention, would enter into force after the 1996 Hague text.

Against this background the drafters at the Hague first adopted a traditional clause preserving the application of any existing instruments, although it was added that States Parties to such instrument(s) could make a contrary declaration.Footnote 116 Secondly, a compromise was brokered between the Member States of the Hague Conference who were and were not Member States of the European Community, to provide freedom for Contracting States to conclude parallel instruments, yet at the same time protect the integrity of the Hague Convention as regards Contracting States who would not be parties to such a new arrangement. This strategy and resultant framework, quite reasonable from a 1996 perspective, is not however entirely adapted to the contemporary situation whereby States that participated in the Hague negotiations declined the opportunity to ratify the Protection of Children Convention in favour of first concluding a regional agreement on the same subject matter. Brussels IIa therefore falls between two stools; it is not a prior instrument to the Hague Convention,Footnote 117 but nor was it concluded by States who were at that time parties to the 1996 Convention.Footnote 118 By not being Contracting States at the time of the adoption of Brussels IIa the limitations imposed by article 52(2) cannot be imposed on the Council Regulation. Nevertheless, Article 61 Brussels IIa does follow the core restriction within article 52(2),Footnote 119 affirming that in relations between the two instruments it is where the child concerned has his habitual residence on the territory of a EU Member State that the Regulation shall apply. This will cover the vast majority of instances but does not secure precedence for the Regulation in every possible situation where the jurisdiction of a Member State might be implicated. It is not clear however whether in all other situations, such as presence in or prorogation in favour of a EU Member State, jurisdiction must be governed by the Convention. Such a view is possible, but there is merit in leaving the matter open, so that the appropriate jurisdictional framework can be chosen on a case by case basis. This would not cause paralysis for it would only arise in those limited number of instances where a child is without any habitual residence but is present in the United Kingdom.Footnote 120 It is moreover slightly more than a mere question of jurisdictional formality, for the regime chosen will impact not only on the scope of the bases available, but also their organisation in respect of competing proceedings and declining jurisdiction.Footnote 121

The construction of article 61(a) carries a further, but possibly unintended consequence for by mandating the application of the Convention where a child is habitually resident in a Member State it ostensibly excludes the application of Article 7 of the Hague Convention, and thereby any jurisdictional protection where a child habitually resident within the European Union is wrongfully removed to or retained in another Contracting State.Footnote 122 This cannot have been intended and serves no meaningful purpose. Either an exception is needed to Article 61, or, non-Member State abductions should be regarded as falling outwith the material scope of the Regulation and therefore not bound by the provision.

A further oversight surrounds the operation of the Convention's applicable law rules within the European Union. Article 62 Brussels IIa notes, inter alia, that the 1996 Convention shall continue to have effect in relation to matters not governed by the Regulation. It might be imagined that the door is therefore completely open to the rules of Chapter III having effect, but unlike the provision on parental responsibility in article 16,Footnote 123 article 15(1) provides that the general rule applies where authorities are exercising jurisdiction ‘under the provisions of Chapter II’. Whilst this is quite understandable within the context of the integrated 1996 regime, it creates a technical difficulty within the inter-related Regulation–Convention regimes, according to which jurisdiction will be regulated most often under the former jurisdictional framework, since there is not an absolute parallelism between the two; jurisdiction may be taken under the Regulation on a ground which has no equivalent in the 1996 Convention. In this, reference may be made most obviously to article 12(3), but to a lesser extent article 9 and possibly article 10. Member States should therefore consider giving general application to the article 15 rule so all proceedings falling within the Regulation jurisdiction regime are covered and can benefit from the article 15(2) exception.Footnote 124

No specific reference is made to measures of co-operation within the disconnection rules. As previously noted the provisions within the Convention have the potential to be much further reaching than those in the Regulation and so could provide ‘added value’ for Europeans. But the very presence of some rules in Brussels IIa could be interpreted strictly as meaning co-operation is a matter ‘governed by this Regulation’. Consequently, in accordance with Articles 62(1) and 62(a), Chapter V of the Convention could be construed as not being applicable where a child was habitually resident in a Member State.

All doubt is though absent insofar as the recognition and enforcement of judgments is concerned, given the broad terms of Article 61(b). In contrast to paragraph (a) of Article 61, in this field the drafters have not sought to defer to the rationale underpinning Article 52(2) of the Convention, for their disconnection clause provides that wherever a judgment is given in a Member State court and recognition is sought in another Member State then the Regulation applies. And, to avoid any doubt, Article 61(b) adds that this is also the case where the child is habitually resident in a Hague Contracting State.

2. Luxembourg Convention

The potential for competition as between the Hague and Luxembourg Conventions, albeit small, does exist for Ukraine and Switzerland are parties to both. Where a custody or access orderFootnote 125 from either State is to be recognized in the United Kingdom, or another EU Member State, regard will have to be paid as to which instrument to apply. The approach of these instruments to disconnection is of an altogether different nature to that found in Brussels IIa. As previously noted article 52(1) of the Convention defers to prior instruments, but Article 19 of the Council of Europe text would allow an applicant to opt for the more rigorous Hague regime, for it provides that the Convention does not ‘exclude the possibility of relying on any other international instrument in force between the State of origin and the State addressed or on any other law of the State addressed not derived from an international agreement for the purpose of obtaining recognition or enforcement of a decision’.Footnote 126

3. 1980 Hague Convention

As might be expected, the 1996 Convention dovetails neatly with the child abduction Convention.Footnote 127 The former provides in article 50 that it shall not affect the application of the latter as between parties to both, although there is no prohibition in using the 1996 Convention as the primary remedy. However, any expectation that recourse might be had to the collaborative co-operation provisions of the more recent instrument in abduction cases as between States in which both instruments applied, would be mis-placed. This is because the reporting mechanism in article 32 is limited to Contracting States in which the child is both habitually resident and present, whilst article 34 may not be used by the authorities in the State of refuge to seek information as to the child's previous life as the power of request rests with the authorities competent under the 1996 Convention.

G. Conclusion

The 1996 Hague Convention has undoubtedly suffered from the vagaries of European politics during its short life, but it is at last to derive some benefit from the communitarization of private international law as it is able to enter into force simultaneously for eighteen of the nineteen outstanding Member States not already States Party. At a stroke the 1996 network will be doubled, and in turn the instrument will become far more attractive a prospect for jurisdictions in Africa, the Americas and Asia. As it stands at the cusp of real success, the Hague Conference must capitolise on the momentum generated by the common ratification by the European Union States to ensure that key States come on board in every continent, for it is as a global framework that the Convention stands to have most significant and lasting impact. Even if it only comes close to mirroring the ratifications and accessions of the 1980 and 1993 Hague Conventions, the 1996 Convention will have repaid the faith and ambition of the Conference in elaborating such an ambitious instrument, as well as serving as a useful reminder of what can be achieved in a global forum.

Footnotes

ibid

References

1 [2003] OJ L338/1–29.

2 Case C-195/08 PPU Inga Rinau [2008] ECR I-5271; Case C-523/07 A [2009] 2 FLR 1.

3 ETS No 105. As of 24 February 2010 the Convention had 36 States Parties, these include all EU members (except Slovenia) and Iceland, Liechtenstein, Moldova, Montenegro, Norway, Serbia, Switzerland, Macedonia, Turkey and Ukraine.

4 UNTS I-31922. As of 24 February 2010 the Convention had 18 States Parties: Albania, Armenia, Australia, Bulgaria, Croatia, Czech Republic, Ecuador, Estonia, Hungary, Latvia, Lithuania, Monaco, Morocco, Slovakia, Slovenia, Switzerland, Ukraine and Uruguay. The accession of the Dominican Republic is pending (1 October 2010).

5 McEleavy, P ‘The Brussels II Regulation: How the European Community has Moved Into Family Law [2002] ICLQ 883, 892CrossRefGoogle Scholar.

6 McEleavy, P ‘The New Child Abduction Regime In The European Union: Symbiotic Relationship or Forced Partnership? [2005] J Priv Int L 5CrossRefGoogle Scholar.

7 [2003] OJ L048/1-2. The then Member States signed the Convention on 1 April 2003, except for the Netherlands, which had already signed on 1 September 1997.

8 As regards the evolution in external competence see: Case 22/70 Commission v Council (ERTA) [1971] ECR 263; Opinion 1/03, Lugano Convention [2006] ECR I-1145; and Council Regulation (EC) No 664/2009 of 7 July 2009 Establishing a Procedure for the Negotiation and Conclusion of Agreements Between Member States and Third Countries Concerning Jurisdiction, Recognition and Enforcement of Judgments and Decisions in Matrimonial Matters, Matters of Parental Responsibility and Matters Relating to Maintenance Obligations, and the Law Applicable to Matters Relating to Maintenance Obligations [2009] OJ L200/46-51.

9 Both the Netherlands and Ireland were restrained from completing their ratification process. In the latter Member State the implementing legislation had indeed been completed, see: Protection of Children (Hague Convention) Act, 2000, No 37 of 2000. More recent Member States have been treated differently, both Hungary and Slovenia ratifying the instrument following their accession to the Community, although by this time Council Regulation 2201/2003 had been concluded, and so their Contracting State status would not give rise to problems for the purpose of art 52(2) of the Convention, see below.

10 A Proposal for a Council Decision authorizing the Member States to ratify, or accede to the Convention was issued shortly thereafter: COM (2003) 348 final.

11 The other being the UNIDROIT Convention on International Interests in Mobile Equipment, 2001, UNTS I-41143.

12 Spain was of the view that any designation of the Gibraltar government as a ‘competent body’ would undermine its claim to sovereignty: House of Commons—Foreign Affairs Committee, HC 147-I, Seventh Report of Session 2007–08—Volume I, para. 412.

13 ‘Agreed Arrangements Relating to Gibraltar Authorities in the Context of Mixed Agreements’, Written Ministerial Statement, Official Report, HC Deb, 8 January 2008, col 6WS.

14 [2008] O.J. L 151/36–38.

15 Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and Slovenia.

16 If this date is met entry into force would follow on 1 October 2010, see Art 61.

17 s 1(3).

18 It must be noted however that pursuant to ECJ case law where an agreement has been concluded by the Community with non-member countries its provisions may be directly applicable where they embody a clear and precise obligation which is not subject, in their implementation or effects, to the adoption of any subsequent measure: (Case 12/86) Demirel v Stadt Schwabisch Gmund [1987] ECR 3719, para. 14.

19 Command Paper (Cm 7727).

20 The European Communities (Definition of Treaties) (1996) Hague Convention on Protection of Children Etc) Order 2009: www.opsi.gov.uk/si/si2009/draft/ukdsi_9780111487563_en_1 And Explanatory Memorandum.

21 Arts 40–42.

22 Art 12(3).

23 Art 10.

24 Art 2; this is not however a substantive rule so fixing the age of majority in all Contracting States, see Lagarde Report, para. 16. In fixing the outer limit at eighteen the 1996 Convention is aligned with the associated Hague Convention on the International Protection of Adults, 2000, see art 2(1), and also the integrating clause in art 2(2).

25 Art 1(1)(b).

26 cf art 3(a) of the Convention.

27 Art 1(1)(a).

28 Recital 10 articulates what is understood from the European concept of ‘civil matters’, that social security or public matters of a general nature in matters of education or health are excluded from the scope of the Regulation (cf Art 4(g) &(h) of the Convention).

29 Art 3(e) of the Convention refers to Kafala which is an institution of Islamic law, see Lagarde Report at para 23. The Regulation does not replicate the reference in art 3(f) of the Convention that general supervision of a child by a public authority whilst he is in the care of a person is included with the instrument's scope, but such situations would already appear to be covered in both instruments, cf Minutes, No 3, Proceedings of the Eighteenth Session of the Hague Conference on Private International Law, Volume I, 316 ff.

30 Art 15.

31 Art 16.

32 Family Law Act 1986, s 1.

33 Art 1(3)(c) Brussels IIa; art 4(c) Hague Convention.

34 Family Law Act 1986, Part I, Chapter II (England & Wales); Chapter III (Scotland); Chapter IV (N. Ireland).

35 Lagarde Report at para. 17. cf art 13, Hague Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants.

36 cf Re I. (A Child)(Contact Application: Jurisdiction) [2009] UKSC 10, [2009] 3 WLR 1299; Dicey, Morris & Collins on the Conflict of Laws, 14th edn. 3rd Cumulative Supplement para. 19-035.

37 Art 5.

38 Art 6.

39 Lagarde Report at para. 84.

40 cf Art 21(1) which simply refers to ‘judgment’, which is specified in art 2(4) as one pronounced by a court of a Member State. The judgment may be made on a residual basis of jurisdiction as well as under the Regulation rules.

41 The use of the term ‘measures’, rather than ‘judgment as in Brussels IIa, reflects the terminology used throughout the instrument to describe decisions of judicial or administrative authorities which are designed to have legal effect, see E Clive ‘The New Hague Convention on Children’ 1998 Juridical Review 169, 171.

42 ibid para 84 and para. 122.

43 Art 16, Lagarde Report para. 17.

44 See below.

45 cf Luxembourg Convention.

46 Art 5.

47 Art 6(1).

48 Art 6(2). The complete absence of habitual residence is confirmed by the Lagarde Report at para. 45. Exclusivity of the Convention jurisdictional regime is not therefore triggered where a child is present in a Contracting State but habitually resident in a third State. The flexibility this provides may be interpreted as affording respect for the child's non-Convention ties. No such clarity extends to Art. 13 of Brussels IIa. Whilst the latter is modelled on Article 6, the Euro-centricity of the ECJ is such that one could not predict with confidence that the presence (no habitual residence) jurisdiction would only be extended to children without any habitual residence at all, rather than simply no habitual residence in a Member State.

49 Art 7. There is no need for art 7 to take precedence over art 6, as in the absence of a habitual residence a wrongful removal or retention cannot occur.

50 For example if return proceedings conclude without an order to send the child back, the child has been in the new State for more than 12 months since the left behind parent has had or should have had knowledge of his whereabouts, and the child has become habitually resident and settled there, then the courts of that place will have jurisdiction. Under Brussels IIa a transfer can only occur in such situations where a left behind parent has acquiesced in the abduction or has lost or given up in proceedings in the original State of habitual residence; the passage of time combined with a non-return order in Convention proceedings will not bring about a transfer.

51 Art 10. There is no prorogation in favour of a Contracting State with which the child has a substantial connection, cf art 12(3), Brussels IIa.

52 cf. ‘Without prejudice to Articles 5 to 9 …’.

53 Authorities ‘… may, if the law of their State so provides, take measures …’. Unlike art 12(1), Brussels IIa, the divorce jurisdiction does not have to be founded upon art 3, Brussels IIa, and could arise under the residual rules, see: Domicile and Matrimonial Proceedings Act 1973, s 5(2)(b) England & Wales; s 7 Scotland.

54 Arts 8 & 9; Lagarde Report, para 53 art 9 mistakenly fails to refer to the State of presence, see Lagarde Report, para. 58.

55 cf art 15(3), Brussels IIa.

56 Minutes, No 7, Proceedings of the Eighteenth Session of the Hague Conference on Private International Law, Volume I, 339 ff. cf art 13(2).

57 Case C-281/02, Owusu v Jackson [2005] ECR I-1383.

58 The Convention does not however contain an express provision as to examination of jurisdiction, cf art 17, Brussels IIa.

59 Art 13(1). cf art 19 Brussels IIa. The lis pendens clause does not apply to the direct, but non-exclusive grounds of the jurisdiction established under the Convention (cf art 20 Brussels IIa) to take protective measures in cases of urgency (art 11) or which have a provisional character (Art. 12).

60 Case C-116/02, Gasser GmbH v MISAT Srl [2003] ECR I-14693.

61 Art 13(2).

62 Lagarde Report, para 80. The matter in question may already have been determined in another jurisdiction, s 5(1) Family Law Act 1986, or, another forum may be more appropriate: s 5(2)(b).

63 Art 23(2)(a). cf art 24 Brussels IIa, which further provides that the test of public policy may not be applied to the rules relating to jurisdiction.

64 Art 25.

65 Practice Guide for the application of the new Brussels II Regulation, 12 http://ec.europa.eu/civiljustice/parental_resp/parental_resp_ec_en.htm; see also HA v MB (Brussels II Revised: Article (11)7 Application) [2007] EWHC 2016 (Fam); [2008] 1 FLR 289.

66 Art 5(2), Lagarde Report para 41; cf Leon v Leon [1967] 275.

67 See discussion by Professor Clive, head of the UK delegation during the negotiations, in ‘The New Hague Convention on Children’ (1998) JR 169, 173. The late Professor Nygh suggested that the jurisdiction of the original court seised would be preserved following a change of habitual residence by virtue of the lis pendens clause: P Nygh ‘The Hague Convention on the Protection of Children’ [1998] NILR 1.

68 See below.

69 Eleven of the fourteen States Parties: Austria; France; Germany; Italy; Latvia; Lithuania; Luxembourg; Netherlands; Poland; Portugal; Spain.

70 Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, UNTS, 1969, 145.

71 See for example: Re K (Children) (Rights of Custody: Spain) [2009] EWCA Civ 986, [2010] 1 FLR 782.

72 In Re J (A Child) (Custody Rights: Jurisdiction)[2005] UKHL 40, [2006] 1 AC 80 Baroness Hale affirmed: ‘If our courts have jurisdiction, then the welfare principle applies, unless it is excluded, and our law has no concept of the “proper law of the child”'.

73 Children (Scotland) Act 1995, s 14(3).

74 cf discussion below.

75 Art 15(1).

76 The exception is not to be utilised too easily: Lagarde Report, para 89.

77 The omission of ‘contracting’ clearly indicates that this might be the law of any State, an outcome expressly permitted by art 20.

78 Art 15(2).

79 Lagarde Report, para. 17.

80 Art 16(1).

81 Art 16(3). The consequence of this provision is that where proceedings are brought in accordance with the prorogation clause in art 10, recourse may have to be paid to two foreign laws, that of the child's current State of habitual residence as well as of his immediately previous habitual residence. It would appear from the drafting of art 16(3) that an attribution of parental responsibility by operation of law will only subsist after one move and would not survive a move to a third State under whose law parental responsibility is also not attributed by operation of law.

82 Art 16(2).

83 Art 22.

84 Part II. See Child Abduction and Custody Act 1985, Sch 2, arts 9 & 10.

85 Art 23(1).

86 Art 23(2).

87 Art 26.

88 Art 28.

89 Lagarde Report, para. 118.

90 Art 23(2)(d).

91 Art 23(2)(c).

92 cf art 11(2) & (5).

93 Art 23 of Brussels IIa affirms that a judgment ‘shall not be recognised’ if …. Whereas Art 23(2) of the Convention provides that ‘recognition may however be refused’ if ….

94 Art 23(2)(f). cf art 23(g) Brussels IIa.

95 Art 23(e). cf art 23(f) Brussels IIa.

96 cf art 23(e) Brussels IIa.

97 Art 14.

98 cf art 23(c) Brussels IIa.

99 Case C-7/98 Krombach v. Bamberski [2000] ECR I-1935.

100 Art 23(2)(a). Only findings of fact are binding on the requested State, art 25. Under the Council of Europe Convention recognition can equally be refused if by reason of a change in the circumstances the effects of the original decision are found to be manifestly no longer in accordance with the welfare of the child, art 10(1)(b).

101 cf art 24 Brussels IIa.

102 Art 27. cf art 26 Brussels IIa.

103 Lagarde Report paras 136, 137. The power of Central Authorities to issue certificates attesting to the rights held by an individual pursuant to art 40, is also discretionary.

104 Art 29(1). States composed of more than one legal unit may appoint more that than one Central Authority, art 29(2).

105 This is seen clearly in art 30 which affirms that Central Authorities shall co-operate and provide information, whilst art 31 provides that Central Authorities shall facilitate communications, agreed solutions and assist in locating children. The Lagarde Report notes in this context, at para 137, that there is ‘no obligation to take an initiative, no obligation to give information or to co-ordinate in advance the taking of measures …’.

106 This includes the possibility of providing a report on the situation of a child (art 32); requesting information from another Contracting State where a measure of protection is contemplated (art 34); and seeking or providing assistance with regard to transfrontier contact (art 35). Consultation is though obligatory where the placement of a child in some form of care in another Contracting States is envisaged (art 33), whilst where a report is provided pursuant to art 35(2) and proceedings are brought under the Convention in another Member State, the latter shall be considered (art 35(2); and where a child is exposed to serious danger and changes his residence, the authorities formerly competent are to advise those which have acquired jurisdiction, (art 36).

107 Family Law Act 1975, Part XIIIAA, s 111CU ff.

108 Civil Legal Aid (General) Regulations 1989/339, r 14.

109 cf Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.

110 Art 55. An equivalent, albeit more detailed provision to art 33 of the Convention where an overseas placement is contemplated is included, see art 56.

111 Art 57(3). See also 1980 Council of Europe Convention, art 5.

112 A phenomenon which is of course complemented by the acquisition and exercise of external competence in respect of future initiatives in the same field concerning third States, see above. Cf. Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L7/1-78, art 15, where in an example of inverse subsidiarity the law applicable to maintenance obligations is to be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations. See: Beaumont, P ‘International Family Law in Europe—the Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity’ [2009] The Rabel Journal of Comparative and International Private Law, 509–546Google Scholar.

113 This declaration of precedence over the 1980 Convention is somewhat anomalous, cf art 62, Recital 17 and McEleavy [2005] J Priv Int L 5.

114 Art 60. It is confirmed in art 62(1) that all such Conventions do continue to have effect in relation to matters not governed by the Regulation. cf art 52(1) of the 1996 Hague Convention which provides that the Convention shall not affect any international instrument to which Contracting States are Parties and which covers matters governed by the Convention, unless a contrary declaration is made by the State Parties to such instrument.

115 Lagarde Report para. 170.

116 Art 52(1).

117 cf art 52(1) and Lagarde Report para 171.

118 cf art 52(2).

119 Parallel agreements may be concluded ‘in respect of children habitually resident in any of the States Parties to such agreements’.

120 In this situation both the Convention (art 6) and Brussels IIa (art 13) seek to claim jurisdiction over the child. Where a child is habitually resident in a third State there is no such conflict as the Convention does not seek to exercise exclusive jurisdiction. In such cases jurisdiction will fall to be decided under Brussels IIa and depend on whether the child is present or there is a prorogation agreement (art 12). It must be recalled that where a child is not habitually resident in a Member State but is habitually resident in a Hague Contracting State then the Convention alone must apply.

121 See above.

122 Art 10 Brussels IIa is of no assistance as it is restricted to intra-EU abductions.

123 Art 16 is different being a general choice of law rule which is not tied to there being jurisdiction to take measures of protection.

124 This extension could also usefully be applied to the very small number of cases coming within the residual Family Law Act 1986 rules, as well as internal United Kingdom cases.

125 The Luxembourg Convention only applies to such orders: arts 7 & 11.

126 A declaration could be made whereby only the Hague Convention would be applied, see art 20(2), but as this would arguably trespass on the Community's external competence, permission would have to be sought.

127 As regards art 7 see Lowe, N ‘The 1996 Hague Convention on the Protection of Children—a Fresh Appraisal’ [2002] CFLQ 191–206Google Scholar.