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Family Law

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Court of Protection Practice and Procedure Conference 2016

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31 AUG 2016

USA signs Hague 2007 Maintenance Convention

David Hodson OBE

Family lawyer


USA signs Hague 2007 Maintenance Convention
On 30 August 2016, Barack Obama, President of the United States of America, signed the instrument of ratification of the USA to the 2007 Hague Child Support and Maintenance Convention. This had been eagerly awaited for several years and follows much hard work by US family lawyers, by the Hague Convention on Private International Law, and by many others.

This has been perceived as the breakthrough for this very important international law for the recognition and enforcement around the world of maintenance, needs-based, family court orders. At the moment, the only signatory countries are EU Members States, Norway, Albania, Ukraine and Bosnia-Herzagovina. It is understood that many other countries are actively considering joining, but were waiting for the USA. There is a lot of global child support traffic with the USA so recognition and enforcement is crucially important. It has been estimated that there are 1 million cases of unpaid child support orders globally. The losers are the children.

Curiously, the USA was the first to sign the Convention several years ago and had given the lead for its creation under president George Bush in order to assist foreign recoveries in child support. But some US states had not been fully cooperative in early ratification.

This step has several consequences and implications.

First, it will inevitably encourage other countries around the world to enter into this Convention. Two months ago, the Hague Conference on Private International Law wrote to many governments around the world encouraging them to join. They are now more likely with this US endorsement.

Secondly, governments themselves will now encourage other governments to join. Some countries have significantly more incoming maintenance orders for enforcement than outgoing. I understand England and Wales has 10 times more incoming maintenance orders from the EU than English orders going out to other EU Member States for recognition and enforcement. Countries which are net recipients of child support and other family maintenance will want easier forms of recovery which are found in this Convention and therefore encourage other countries to join.

Thirdly, within the EU the EU Maintenance Regulation takes priority between Member States. This Regulation is similar to the Hague Convention but also has additional problematic aspects with applicable law, restrictions on jurisdiction of sole domicile and other problems in practice. When the UK leaves the EU, it will no longer be bound by the Maintenance Regulation and the Hague 2007 Convention will take priority. So future relations between the UK and the EU in respect of maintenance obligations will be governed by the 2007 Convention.

Fourth, the EU will not permit Member States to enter into bilateral or multilateral treaties with non-EU Member States unless the EU either gives permission or does so itself en masse. So new ratifications of the 2007 Convention will not be effective for Member States unless the EU joins. This previously has been the subject of delays. Hopefully it will not be with this Convention, but in any event the UK will not be restricted in joining in with new signatory countries in respect of this Convention once it leaves the EU.

Fifth, and perhaps most crucial of all, the beneficiaries of this international law is not big money, very wealthy, globetrotting families - although they will use this law. It is modest families where one party or the child is desperately in need of support, maintenance, and yet the party which is liable to pay the maintenance and support is in another country, thereby in practice putting themselves out of reach of enforcement. The cost of international enforcement of family court orders are very high with long delays and often make enforcement practically impossible. The losers are the vulnerable and needy family members. This international law hugely simplifies, speeds up and facilitates cross-border cooperation on recognition and enforcement of family maintenance. It is vitally needed and it is to be hoped this breakthrough will encourage many more countries to sign up.

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