Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

  • International Issues in Family Law
Thumb confirmation email image

Have You Tried Family Law Online?

Have all of your Family Law resources at your fingertips. Includes PracticePlus - the essential integrated resource

Find Out More
Thumb sponsor 53712896 illustration

Sponsor An Event

Branding opportunities start from as little as £250

Find Out More

International Issues in Family Law

The 1996 Hague Convention on the Protection of Children and Brussels IIa

FROM £65.00

This new book covers international issues in family law

In recent years there has been an increasing recognition of the international dimension of family proceedings before the courts of England and Wales. An international element can give rise to greater complexity, with a corresponding need for practitioners to be equipped to recognise and to properly deal with international issues in family proceedings. A missed step at any stage can lead to difficulties, including the possibility of delay, and potentially to a disadvantageous outcome for the client and for the subject child.

This title aims to provide practitioners and judges of all levels with the information that they need to deal with international issues, in whatever context and whatever form they may arise, in all proceedings concerning children.

Though the book focuses on Brussels IIa and the 1996 Hague Convention on the Protection of Children, it also provides an overview of the legislation and Regulations that support the operation of these two vital international instruments, as well as providing important information and resources to assist in achieving effective cross-border co-operation and communication in family proceedings. The expert team of authors also identify the leading cases that assist in interpreting and applying their respective provisions and explain how practitioners can draw assistance from decided cases in other areas of law that address similar provisions within other international instruments.
Take a brief look at the contents

Background/Glossary/Explanatory Materials
Legislation
Jurisdiction
Commencementof proceedings
Transfers of proceedings
Recognition and Enforcement
Co-Operation  
Public Law
International Child Abduction
Country information
Appendices

-------------------


 Draft contents to be confirmed

  • Background/Glossary/Explanatory Materials
    • Background
    • The 1996 Hague Convention 
    • Brussels IIa 
    • Brussels IIa – a further revision? 
    • The interaction between the 1996 Hague Convention and Brussels IIa 
    • Explanatorymaterials and other resources 
    • KeyConcepts
  • Legislation
    • How are Brussels IIa and the 1996 Hague Convention implemented in England and Wales? An examination of the Family Law Act 1986 
    • Complimentary instruments
      • i)1980 Hague Convention 
      • ii)1980European Convention 
      • iii)FamilyLaw Act 1986 etc. 
      • iv)TheStatutory Instruments Relevant to the 1996 Hague Convention 
      • v)TheFamily Procedure Rules 2010 
    • Supporting Instruments 
  • Jurisdiction
    • Introduction 
    • The general jurisdictional scheme of Brussels IIa and of The1996 Hague Convention 
    • The relevant date for consideration of jurisdiction 
    • Habitual residence (Article 5 of the 1996 Hague 
    • Conventionand Article 8 of Brussels IIa)
      • i.Interpretation 
      • ii.Domestic and European developments 
      • iii.Habitual residence without physicalpresence? 
    • Other grounds of jurisdiction
      • i.Article 9 of Brussels IIa 
      • ii.Article 10 of Brussels IIa/Article 7 ofthe 1996 Hague Convention 
      • iii.Article 12 of Brussels IIa/Article 10 ofthe 1996 Hague Convention
      • iv.Article 13 of Brussels IIa/Article 6 ofthe 1996 Hague Convention 
      • v.Jurisdiction based on presence (Article20 of  Brussels IIa/Articles11 and 12 of the 1996 Hague Convention) 
      • vi.Residual jurisdiction (Article 14 ofBrussels IIa) 
    • The exercise of jurisdiction and theimpact of Owusuv Jackson  
  • Commencementof proceedings
    • Introduction 
    • What must a court consider when seisedof proceedings? Brussels IIa  
      • i.Article 16 
      • ii.Seisin: A digression (I (A Child) (Contact Application: Jurisdiction))
      • iii.Article 17 
      • iv.Article 18 
      • v.Article 19 
      • vi.Articles 16, 18 and 19 – Procedure 
    • The 1996 Hague Convention - Article 13 
  • Transfers of proceedings
    • Introduction 
    • An overview of the transfer provisions
      • i.Brussels IIa 
      • ii.The 1996 Hague Convention 
      • iii.An alternative route – the Family LawAct 1986 
    • Transferring proceedings from England and Wales to another Member orContracting State
      • i.When should the issue of transfer beraised? Article 15 of Brussels IIa 
      • ii.Article 8 of 1996 Hague Convention 
    • How to make an application for transfer
      • i.Article 15 of Brussels IIa 
      • ii.Article 8 of the 1996 Hague Convention 
    • Allocation of proceedings
      • i.Article 15 of Brussels IIa 
      • ii.Article 8 of the 1996 Hague Convention 
    • Determination of an application fortransfer
      • i.Article 15 of Brussels IIa 
      • ii.Article 8 of the 1996 Hague Convention 
    • Requests for transfer followingdetermination of the application  
      • i.Article 15 of Brussels IIa 
      • ii.Article 8 of the 1996 Hague Convention 

    • Incoming transfers (from a Member orContracting State to England and Wales
      • i.Article 15(2)(c) Brussels IIa 
      • ii.Article 9 of the 1996 Hague Convention 
    • Conclusion 
  • Recognition and Enforcement
    • Introduction 
    • The scope of Brussels IIa/the 1996 Hague Convention 
    • The approach taken to recognition and enforcement
      • i.The 1996 Hague Convention 
      • ii.Brussels IIa 
      • iii.The exequaturprocedure – Sections 1 and 2 of
      • ChapterIII 
      • iv.Chapter IV 
    • Applications for recognition,non-recognition and Registration for enforcement  
      • i.Documentation 
      • ii.Consideration by a District Judge 
      • iii.Service 
      • iv.Applications for non-recognition – therespondent’s right to reply 
      • v.Determination of the application by the District Judge 
      • vi.Enforcement of an order once registered 
    • Enforcementof judgments concerning rights of access or thereturn of the child pursuant to Brussels IIa 
    • Applyingfor the relevant certificate to be attached to a Judgment 
    • Theappeal process
      • i.Procedure 
      • ii.The appeal hearing 
    • The‘Article 23 factors’
      • i.Review of jurisdiction 
      • ii.Review of substance 
      • iii.Public Policy (Article 23(a) BrusselsIIa/Article 23(2)(d) 1996 HagueConvention) 
      • iv.Hearing of the child (Article 23(b)Brussels IIa, Article23 (2) (b) 1996 Hague Convention) 
      • v.Service/opportunity to be heard(Articles 23(c) and (d)Brussels IIa, Article 23 (2) (c) 1996 Hague Convention) 
      • vi.Irreconcilable with a later judgment(Article 23 (e) BrusselsIIa, Article 23 (2) (e) 1996 Hague Convention) 
      • vii.Non-compliance with proper procedure(Article 23 (g)Brussels IIa, Article 23 (2) (f) 1996 Hague  Convention) 
    • Enforcement 
  • Co-Operation
    • Introduction 
    • Brussels IIa – Cooperation 
    • The 1996 Hague Convention – Cooperation 
    • Gathering evidence from abroad
      • i.The Taking of Evidence Regulation 
      • ii.The 1970 Hague Taking of EvidenceConvention 
    • Other means of cooperation
      • i.The European Judicial Network 
      • ii.Judicial Liaison 
      • iii.Exchanging criminal records 
    • Service of documents
      • i. The EU Service Regulation 
      • ii.The 1965 Hague Convention on ServiceAbroad 
    • Conclusion 
  • Public Law
    • Overview 
    • Establishing Jurisdiction and Issuing Proceedings 
    • Taking (urgent) protective measures in relation to a child in Public Law Proceedings 
    • Transferring Public Law proceedings 
    • Care Planning for a child with International Connections
      • i.Overview 
      • ii.Placements pursuant to Article 56 BIIa 
      • iii.Kinship Placements 
      • iv.Placements pursuant to Article 33 1996Hague Convention 
    • Nationality and Consular Relations 
  • International Child Abduction
    • Introduction 
    • Definitions of wrongful removal and wrongful retention 
    • Retention of jurisdiction following a wrongful removal orretention
      • i.Article 7 of the 1996 Hague Convention 
      • ii.Article 10 of Brussels IIa 
    • The impact of Brussels IIa on the 1980Hague Convention
      • i.Article 11(7) of Brussels IIa 
    • The making of protective orders tosafeguard the return of the child – Article11 of the 1996 Hague Convention 
    • The EU Protection Regulation 
    • Conclusion 
  • Country information
    • Table of EU Member States that are subject to Brussels IIa
    • Table of Signatories to the 1996 Hague Convention
    • Country-by-country information (including Central Authorities and other competent bodies, declarations/reservations to the 1996 Hague Convention and other useful information)
  • Appendices
    • Appendix 1 – Brussels IIa
    • Appendix 2 – the 1996 Hague Convention
    • Appendix 3 – relevant parts of the Family Procedure Rules 2010
"FOR PRACTITIONERS AND JUDGES DEALING WITH INTERNATIONAL ISSUES IN FAMILY PROCEEDINGS"
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

"As one of the latest titles to be published under Family Law imprint of Jordan Publishing, the arrival of this book is reassuringly timely for the busy family law practitioner dealing with complex issues relating primarily to the protection of children, particularly -- as is increasingly in the case -- across international boundaries.

As family proceedings before the courts of England and Wales have now taken on an increasingly international dimension, practitioners find themselves faced with the need to deal knowledgeably and confidently with the resulting issues in order to ensure the most advantageous outcome for the client and of course, the child in question. Certainly cases of child abduction, especially across international boundaries, have assumed a higher profile in the press of late, which of course makes the publication of this book all the more topical and timely.  

As the title indicates, the book focuses on the 1996 Hague Convention and Brussels IIa. These two pieces of legislation are closely allied and pivotal in matters relating to international issues in family law. We are reminded. however, that although Brussels IIa has been in force in the UK for almost 10 years, the 1996 Hague Convention came into force in the UK in 2012.

The five editors, all experts in their own areas of international law, have also provided commentary on the leading cases on each of these international instruments and also those cases in other areas of law that shed light on their interpretation and application. To this end, readers should find Appendix 4 -- the 'Comparative Table of Like Provisions' very helpful as an at-a-glance summary.

The chapters on recognition and enforcement and on international child abduction are of particular interest. And also note the chapter on country-by-country information on all participating member states. Practitioners under pressure will also appreciate the detailed table of contents, four appendices and handy index, plus tables of cases, statutes, statutory instruments and international legislation.

As Lady Justice Black points out in the foreword, this book is 'indispensable...for the experienced lawyer who deals with international cases week in and week out, and for the newcomer who needs to know what is what, in order to spot and deal with, an international issue.'

Inspired scholarship logically organized, combined with clarity of approach and an impressive array of research resources make this book practical, accessible and up-to-date guide to anyone professionally involved with cross-border family proceedings, from practitioners to judges at all levels."

On 1 August 2004, 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 1347/20001 came into force across the European Union. Certain of its provisions began to apply from that date, though the majority were applicable from 1 March 2005 onwards.2 In many respects Brussels IIa represented a considerable development in the approach taken by courts across the European Union to cases concerning children.

Council Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses,3 which had entered into force on 1 March 2001 and which Brussels IIa replaced, had included some limited jurisdictional provisions relevant to matters of parental responsibility concerning children. Brussels II was, however, only applicable in circumstances where the parents of the child concerned were involved in civil proceedings relating to divorce, separation or marriage annulment. In all other situations the jurisdictional rules applicable to cases concerning children were left to Member States to regulate through national law. Brussels II also provided a mechanism for the recognition and enforcement of judgments between Member States subject to the Brussels Regulations.

Even Brussels II had engendered a degree of controversy, however, and (though it was of direct effect) had necessitated a change to the law by way of amendment to the Family Law Act 1986.4 A number of changes were made to the Family Proceedings Rules 1991 in order to implement various parts of Brussels II – in particular those that enabled the recognition and enforcement of foreign judgments. Though it was no doubt intended that the recognition and enforcement mechanism would be streamlined and straightforward,5 the system (as it operated in the United Kingdom) was instead complicated, perhaps poorly implemented and seemingly difficult to understand.6

It was only shortly after Brussels II came into force across the EU that a proposal was made for its revision and extension. That proposal attracted its share of controversy and has been accused of having been made on an unsound evidential footing, to combat a perceived problem that appeared on analysis of statistical evidence not to exist.7 Through the development of the revised Regulation the scheme imposed by it was extended further and further, until Brussels IIa was formulated, approved, brought into force and thereafter implemented.

Though Brussels IIa has been in force for almost 10 years, it is strongly arguable that the courts of England and Wales are only now beginning to fully understand the nature and ambit of its provisions. An increasing awareness of the international nature of cases concerning children has begun to develop, and the approach adopted by the practitioners, local authorities and the courts has had to change accordingly. This awakening to the truly international nature of many of the cases that come before the courts of England and Wales may have arisen for a number of reasons – perhaps a  greater understanding of England’s place within the European Union as a result of  the recent focus on Britain’s membership, or a recognition of differing cultural attitudes stemming from greater public debate about public law issues (such as the prevalence of adoption as an outcome of public law proceedings) – but the recent wholesale revision of the relevant procedural rules (resulting in the Family Procedure Rules 2010) is likely to have played a significant part. Those rules now provide a real and consistent focus on international issues within a wide variety of areas, which draw a judge’s focus to the need to consider such issues at every stage of court proceedings.

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded 19 October 19968 enjoyed an altogether more difficult birth than the similarly structured European legislation referred to above.

The decision to revise, update and perhaps extend the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors9 was taken at the 17th Session of the Hague Conference on 29 May 1993. Drafting commenced over the course of three meetings, leading to a draft text and report10 being prepared to be considered at the 18th Session of the Hague Conference in September and October 1996. As indicated by its title, the 1996 Hague Convention was concluded on 19 October 1996.

Though the drafting process was completed with relative expedition,11 the process of bringing the 1996 Hague Convention into force was far more complicated. The first signatory of the Convention was Morocco, which signed on 19 October 1996. Other countries followed thereafter,12 but there was no significant take up until 1 April 2003 on which date 16 countries signed. Following signature there were further delays, and the Convention did not come into force in any state until 1 January 2002, on which date it came into force in the Czech Republic, Monaco and Slovakia. It had been intended that the Convention would enter into force across the EU in 2010; however this did not prove possible for a majority of Member States, with most having brought the Convention into force in 2011.

Bringing the 1996 Hague Convention into force in the United Kingdom proved even more difficult, with political13 and administrative difficulties resulting in ratification not taking place until 27 July 2012. In preparation for an earlier commencement the UK Parliament had passed The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010, which made amendments to domestic law intended to enable ratification.14 Following ratification it was announced that the 1996 Hague Convention would come into force in the United Kingdom on 1 November 2012.

With increasing awareness of the international context of proceedings before English courts comes the potential for greater complexity and a corresponding need for practitioners to be aware of the international issues that might arise within proceedings. A missed step at any stage can lead to difficulties further down the line, the possibility of delay and potentially to a disadvantageous outcome for the client. Being able to identify, address and resolve such issues has never been more  important, whether the case concerns contact, leave to remove, child abduction or public law issues.

Whilst Brussels IIa has now been in force in the United Kingdom for almost ten years, the 1996 Hague Convention has only been in force for a short period of time, and there have been few cases concerned with its interpretation and application in this jurisdiction. The parallels between Brussels IIa and the 1996 Hague Convention are obvious, but the question as to whether one can simply transpose the approach taken to one across to the other is less certain. Only time will tell whether consistency of approach can (and should) be achieved between the two closely allied instruments. Though consistency has on occasion been striven for across international instruments,15 the UK continues as a jurisdiction to be willing to forge its own path in matters of international law concerning children.16

Within this book we aim to provide practitioners in all areas with the information that they need to deal with international issues, in whatever context and whatever form they may arise, in all proceedings concerning children. Though the book focuses on Brussels IIa and the 1996 Hague Convention, we also provide an overview of the legislation and Regulations that support the operation of these two vital international instruments. We also identify the leading cases on each that assist in interpreting and applying their respective provisions and, where there are no authorities that deal directly with a particular area, we have identified and explained how and in what way practitioners can draw assistance from decided cases in other areas of law that address similar provisions within other international instruments.

It is our hope that practitioners will find this to be an indispensable handbook that can be used either in the office or in court to find any necessary information about the operation and application of Brussels IIa and the 1996 Hague Convention.

Henry Setright QC
David Williams QC
Dr Ian Curry-Sumner
Michael Gration
Maria Wright
September 2015
These days, no family law practitioner or judge can afford to approach a family law problem from a purely domestic perspective. So many cases involve international issues of some kind, sometimes obvious, sometimes not immediately apparent. It is all too easy to fall into some sort of trap without even realising it has happened. It may be only after several months have gone by and a number of hearings have taken place, for example, that anyone realises that the court has no jurisdiction to entertain the proceedings.

In order to act effectively in family cases, one must have a sound understanding of how the main international instruments work, in particular Brussels IIa and the 1996 Hague Convention. This book takes the reader through those two instruments in a logical, practical and accessible way, but it offers a lot more as well. For example, it explains how Brussels IIa and the 1996 Hague Convention fit with other international instruments such as the 1980 Hague Convention, and with domestic provisions such as the Family Law Act 1986 and the 2010 Parental Responsibility Regulations, it examines the relevant jurisprudence, and it identifies useful additional resources. Whether what is needed is a basic understanding or illumination of a particularly difficult and apparently novel issue, it will be of great assistance.

One of the particular strengths of the book is that it brings together five authors, each of whom individually has a huge amount of experience and expertise, accumulated over years of practice in their own particular area of international family law. By pooling this knowledge and expertise, they have been able to produce a book which will be useful at all stages in the legal process, from the moment that a client walks into the solicitor’s office to the conclusion of any court proceedings. I expect it to prove indispensable both for the experienced lawyer who deals with international cases week in and week out, and for the newcomer who needs to know what is what in order to spot, and deal with, an international issue.

Jill Black
Rt Hon Lady Justice Black
September 2015
Chapter 2

Legislation

Introduction

2.1 
As has been examined in the preceding chapter, the 1996 Hague Convention played a significant part in influencing the approach taken by Brussels IIa in relation to both the regulation of jurisdiction and to the recognition and enforcement of orders in cases concerning children. Brussels IIa undoubtedly carries the DNA of the 1996 Hague Convention. As a result the two instruments cover similar ground, albeit with some notable differences that are examined later in this book. The primary distinction between the two instruments appears to be their respective geographical scopes, with Brussels IIa confined to governing relationships between EU Member States, whilst the 1996 Hague Convention can be more broadly applied between Contracting States (and in certain circumstances, between Contracting and non-Contracting States) around the world.

2.2 The approach that has been taken by the courts of England and Wales to the geographical scope of Brussels IIa has, however, obscured this seemingly clear geographical distinction between the ambits of the two instruments. As such (as discussed in the previous chapter and as is clear from the examination of a number of specific issues undertaken in the later chapters of this book) the demarcation of the two instruments is perhaps not quite so clear.

2.3 Brussels IIa and the 1996 Hague Convention are also similar in that they each fit within a wider scheme of international instruments. Of course each interacts with the other; though the 1996 Hague Convention is certainly dominated by Brussels IIa. The manner in which they interact is identified and briefly explained in Chapter 1, though difficulties in this relationship (and the particular issues that have been considered by the court as a result of those difficulties) appear throughout this book, where they are examined in context. Some, like the 1980 Hague Convention, are supported by the operation of each instrument in a variety of ways. Others serve to support the operation of the two instruments by either providing for matters of procedure (such as service) or assisting in the cooperation between Member or Contracting States (by, for example, allowing for the gathering of evidence in other States).

2.4 If Brussels IIa and the 1996 Hague Convention are to be operated as effectively and efficiently as possible, it is important to keep in mind the existence of any complementary instrument and to be able to invoke any such instrument as and when a case may demand it. An examination of the older authorities concerning Brussels IIa may be said to demonstrate a tendency to consider it in isolation, without consideration or application of other complimentary instruments. This has, on occasion, given rise to difficulties. There is the potential for issues to arise with seisin, the ability of the court to consider an application once made and/or with the later enforcement of orders pursuant to Chapter III of Brussels IIa8 and/or Chapter IV of the 1996 Hague Convention.

2.5 Whilst it is not possible within the scope of this book to examine in detail each instrument that operates alongside Brussels IIa and/or the 1996 Hague Convention, this chapter is intended to identify some of the more important Conventions, Regulations, statutes and statutory instruments and to give some detail about how they work and when they might be invoked.

2.6 The instruments examined come within three broad categories:
  • other international instruments that are complementary to Brussels IIa and/or the 1996 Hague Convention;
  • domestic legislation (whether by statute or statutory instrument) that implement or otherwise place into context Brussels IIa and/or the 1996 Hague Convention; and
  • Other international instruments that assist the operation of Brussels IIa/1996 Hague Convention by providing for matters of procedure or otherwise assisting with the operation of the instruments.

Have a question about this product? Please get in touch by completing the boxes below.

You May Also Like

1996 Hague Convention on the Protection of Children, The

A comprehensive guide to the complexities of the 1996 Convention, including detailed coverage of...

More Info from £55.00
Available in Family Law Online
The New Brussels II Regulation

The New Brussels II Regulation

A Supplement to International Movement of Children

Provides a comprehensive guide to the complexities of the new Brussels II Regulation

Hershman and McFarlane: Children Law and Practice

Hershman and McFarlane: Children Law and Practice

"The practitioner's 'Bible' on all aspects of public and private child law". Sarah Forster,...

Subscribe to our newsletters