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International Movement of Children

Law, Practice and Procedure

FROM £125.00

Deals with both lawful movement and abduction of children into and out of the UK.

Facing a children's case with an international element can be daunting. There is so much to think about: how are the proceedings going to be served abroad; will there be a dispute about which court has power to deal with; what law will be applied; will the final order be recognised and enforced in another country? These and other issues concerned with cross-border disputes concerning children are comprehensively discussed in this, the second edition of a much respected work.

The book deals with both lawful and unlawful movement of children including coverage of criminal law. Drawing on information and case-law from across the globe, it provides extensive discussion of the revised Brussels II Regulation, the 1980 Hague Abduction Convention and the 1996 Hague Protection of Children Convention and of the inter relationship between these instruments. In the UK context it discusses the application of the inherent jurisdiction. Two new chapters deal with international aspects of adoption and with international aspects of surrogacy. Also included are chapters on international relocation, international access, tracing a child, preventing abduction and on the role of children in abduction proceedings.

This new edition will be invaluable for family law practitioners, the judiciary, legal academics, the police, local authorities, non-Government agencies and government officers working in this area.
  • Introduction and summary of the major international instruments involved when dealing with cross-border issues concerning children
  • Jurisdiction and applicable law
  • The Revised Brussels II Regulation: Introduction, background, scope and interpretation
  • Jurisdiction in matters of maternal responsibility governed by the Revised Brussels II Regulation
  • Jurisdiction and the applicable law in cases governed by the Hague Protection Convention
  • Jurisdiction under the Family Law Act 1986
  • The application of wardship and the inherent jurisdiction of the high court
  • Recognition and enforcement of judgements under the Revised Brussels II Regulation
  • Recognition and enforcement of judgements under the Hague Protection Convention
  • Recognition and enforcement of judgements under the European Custody Convention
  • Recognition and enforcement of orders under the Family Law Act 1986
  • International Child Custody Jurisdiction in the United States
  • International relocation of children
  • Placing children abroad - the Application of Article 56 of the Revised Brussels II Regulation and Article 33 of the Hague Protection Convention
  • Preventing child abduction
  • Tracing an abducted child
  • The Hague Abduction Convention: Introduction and history
  • The Hague Abduction Convention: Central authorities
  • The Hague Abduction Convention: Convention concepts
  • The Hague Abduction Convention: Declaratory relief
  • The Hague Abduction Convention: The obligation to return a child
  • The Hague Abduction Convention: Exceptions to the obligation to return a child - the Article 12 Exception
  • The Hague Abduction Convention: Exceptions to the obligation to return a child - the Article 13(a) Exceptions
  • The Hague Abduction Convention: Exceptions to the obligation to return a child - the Article 13(b) Exception
  • The Hague Abduction Convention: Exceptions to the obligation to return a child - the Child's Objection Exception
  • The Hague Abduction Convention: Exceptions to the obligation to return a child - the Article 20 Exception Enforcement 
  • The application of the Revised Brussels II Regulation to international child abduction
  • The application of the Hague Protection Convention to international child abduction
  • Recovering children brought to England and Wales from a Non-Convention country
  • Recovering children taken from England and Wales to a Non-Convention country
  • The role of Children in abduction proceedings
  • International abduction - Practice and procedure in England and Wales
  • International access
  • International aspects of adoption
  • International aspects of surrogacy
Reviews of previous edition.
 
"It has all the hallmarks of a book destined to become a practitioners Bible. Highly recommended"
 
New Law Journal
"an essential reference guide for all family law practitioners"
 ChildRIGHT
Shortly after the bulk of the manuscript had been delivered to the publishers two events of significance occurred. First, on 23 June 2016 the United Kingdom voted to leave the European Union (the ‘Brexit’ vote) and, second, a week later, the European Commission finally presented their proposals to reform the already revised Brussels II Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003). At first sight the Brexit vote has, from the United Kingdom’s perspective (though not of course from that of other member states) rendered the reform proposals less significant than they might otherwise have been. However, even from the United Kingdom’s perspective the
reform proposals are not irrelevant. In the first place it is not yet clear when the
United Kingdom will withdraw from the Union, nor on what terms. Until it
does, it will remain a full member of the EU with all the rights and obligations
of EU membership, including the ability to participate in the proposal to recast
the Regulation. If it does decide to participate and if the recast Regulation came
into force before the United Kingdom’s formal exit, it would be bound by the
new Regulation until its withdrawal took effect. In any event, upon exit, the
United Kingdom might seek to enter into a bilateral arrangement with the EU
to continue to operate the recast Regulation. If the United Kingdom does not
participate in the proposal, the Regulation in its current form will continue to
apply until the United Kingdom leaves the EU, unless the European Council
decides to invoke Article 4a of Protocol 21 of TFEU on the basis that the
application of the current Regulation to the United Kingdom is inoperable if
other Member States are bound by the recast Regulation. In that event, unless
the United Kingdom ‘opted in’ within two months, the Regulation would cease
to apply even while the United Kingdom remained within the EU.

In any event, the recast Regulation will alter practice in other EU member
states and that in turn might affect how, for example, the Hague Abduction
Convention operates even in cases not governed by the Regulation. In other
words, the United Kingdom has a real interest in the proposed reforms
notwithstanding Brexit. In fact the United Kingdom has to decide by October
2016 whether or not to opt into the negotiations on the reform proposals.
Although opting in keeps all options open and seems the obvious ploy at this
stage, politically, it may seem counter intuitive to ‘opt in’ to the negotiations
when the country has just voted to leave the Union. At the time of writing it is
not known what position the United Kingdom will take.

In view of this basic uncertainty the strategy adopted for this edition is to refer
to the EU Commission’s reform proposals mainly at the end of the relevant
chapters but to confine discussion of the possible implications of Brexit to the
preface.

It is worth emphasising that neither of these developments will have an
immediate impact on the application of the current revised Brussels II
Regulation. Withdrawal from the European Union can only be triggered by
notification of withdrawal to the European Council in accordance with Art 50
of the Treaty of the European Union. No time limit on giving notice is provided
for by Art 50 and at the time of writing no firm indication of when the United
Kingdom intends to trigger Art 50 has been given, although it seems unlikely to
take place before the end of 2016. Even when Art 50 is triggered, Art 50(2)
allows up to two years to negotiate the terms of withdrawal and it is generally
anticipated that the full period will be required. It seems unlikely, therefore,
that formal withdrawal will take place before early 2019.

Likewise the proposed recast Regulation, which will replace the current
Regulation, will not come into force quickly. It is uncertain how long
negotiations will last but it seems reasonable to suppose that they will take at
least a year and then there will need to be a lead-in time before the recast
Regulation can enter into force. Again, therefore, it seems unlikely that the
recast Regulation will be in force before late 2018 at the earliest.

As already said, an immediate choice for the United Kingdom is whether to opt
into the negotiations on reforming the Revised Brussels II Regulation and,
eventually, to seek to be bound by the recast Regulation. What then are the
attractions of being so bound? The revised Brussels II Regulation has been in
force since March 2005 and is therefore tried and tested. So far as children are
concerned, it provides a common set of jurisdictional rules, including those for
prorogation and transfer, and for the consequential recognition and
enforcement of decisions relating to parental responsibility. It provides for a
‘fast-track’ enforcement of access orders. The Regulation provides rules on
how to apply the Hague Abduction Convention and governs in particular the
time within which applications should be disposed of and what is to happen if
a return order is refused. The Regulation also provides rules inter alia for
seeking information about children living in another member state and on
placing children in institutional or foster care in another such state. Overseeing
the interpretation of the Regulation is the Court of Justice of the European
Union (CJEU) to which a reference can be made by any court of any member
state. The Court has an efficient urgent procedure (for which abduction cases
commonly qualify) such that decisions are generally delivered within two
months of the receipt of the reference. The advantage of the CJEU is that it
provides for a binding interpretation of the Regulation throughout member
states.

The reform proposals would provide useful amendments to the Regulation. In
particular they would provide for more realistic time limits for the disposal of return
applications under the Hague Abduction Convention, allowing six
weeks for the requested central authority to get the application before the
court; a further six weeks for the case to be determined at first instance and a
further six weeks to dispose of the one appeal that will be permitted. In
addition, there is a stated expectation that return orders should actually be
enforced within six weeks. As these are more realistic targets, the hope is that
the disposal rates of return applications will generally speed up within member
states. At the same time, more emphasis will be paid to mediation. The most
radical proposed reform is to abolish the exequatur stage in the enforcement of
any decision relating to parental responsibility. This will save time and costs
but would be without prejudice to the existing possibility of seeking a refusal
of recognition or enforcement.

Among other useful proposed reforms are: providing that orders made in cases
of urgency based upon the child’s presence will have extra-territorial effect;
clarifying who can ask for what assistance and information, from whom, and
under what conditions about a child living in another member state, and
tightening up the procedure for placing a child in institutional or foster care in
another member state.

Of course, not all of the proposed changes will be universally welcomed. Some
will baulk at the proposal to allow only one appeal in child abduction cases
and some might think that it goes beyond the EU’s brief to provide (see the
proposed Art 61) that Member States ensure that central authorities have
adequate financial and human resources to enable them to carry out their
obligations under the recast Regulation. There can be legitimate objection to
inclusion of some points in the Recitals that are not embodied in the main text
and there may be some consternation at the wholesale renumbering of the
recast Regulation (albeit it is generally more logically structured). But overall
the proposed changes provide for real improvement and, in any event, are not
yet written in stone being subject to ongoing negotiations (although the
proposal that the Regulation be ‘recast’ means that neither the European
Council nor the European Parliament make any proposals on articles that the
Commission has decided not to change).

If the United Kingdom elects to abandon the Regulation (or fails to reach an
agreement with EU about it) then reliance can (subject to what is said below)
still be placed upon the Hague Protection Convention. This instrument, upon
which the Revised Brussels II Regulation is essentially based, also provides for
a common set of jurisdictional rules and for the consequent recognition and
enforcement of measures of protection of children and their property taken in
another contracting state. It also deals with the placement of children in
institutional or foster care in another contracting state. It currently must be
used in cases involving non-EU Member States that are parties to the
Convention. But within EU Member States the disadvantage of having to rely
upon the Convention rather than the Regulation is that it is not so tried and
tested and advantage cannot be taken of the proposed improvements to the
Regulation. In particular there are no special rules of enforcement, nor does the
Convention deal with abduction and therefore the timing of such applications.
In short, the protection of children and their families will be inferior to the
position that would obtain if United Kingdom elects and is able to continue to
be bound by the Regulation as recast.

The legal position with regard to the Hague Protection Convention is not
straightforward under Brexit. This is because the United Kingdom chose to
deem the Convention an EU treaty as defined by s 1(2) of the European
Communities Act 1972 so as to be able to ratify it without primary legislation.
Were the 1972 Act simply to be repealed, the internal status of the Protection
Convention would be in legal limbo and would probably require primary
legislation to clarify. This would not be the only primary legislation required.
For example, if the Regulation no longer applied within the United Kingdom,
then the already tortuous Family Law Act 1986 would require amending.
As we say in Chapter 1, given the array of international and national rules and
regulations, facing a cross-border children case can be daunting. To steer the
reader through this maze we have restructured this edition so as to deal first (in
Chapters 2–7) with jurisdiction and applicable law. Attention is then focused
upon recognition and enforcement (Chapters 8–11). Chapter 12 examines
issues of jurisdiction in the United States. Chapter 13 discusses the thorny
problem of international relocation. Chapter 14 looks at placing children
abroad. We then turn attention to international parental child abduction
beginning with preventing abduction in the first place (Chapter 15) and then
tracing an abducted child (Chapter 16). Chapters 17–26 discuss in detail the
Hague Abduction Convention (with separate chapters on each of the
exceptions to the obligation to order the child’s return). Chapter 27 deals with
the critical issue of enforcement. Chapters 28 and 29 discuss the impact
respectively of the revised Brussels II Regulation and the Hague Protection
Convention upon international child abduction. Chapters 30 and 31 look at
non-convention abductions. We have added a new chapter (Chapter 32) on the
role of children in abduction proceedings. Chapter 33 comprises a detailed
account of practice and procedure in England and Wales. Chapter 34 examines
the difficult issue of international access. The final two chapters are new. They
examine international aspects of adoption (Chapter 35) and of surrogacy
(Chapter 36).

We owe a debt of gratitude for the help that have received from a number of
people in writing this second edition. In particular, we would like to thank
Professor Robert Spector, Glen R Watson, Centennial Professor of Law,
University of Oklahoma Law Center, who wrote the first draft of Chapter 12
and kept us informed of the major developments in the United States; Helen
Clift, Senior Lawyer for the Official Solicitor in London, for her comments on
Chapter 14; Dorothea van Iterson, former Counsellor of Legislation, Ministry
of Justice of the Netherlands for her insights into the history and working of
the revised Brussels II Regulation; the Honourable Justice Victoria Bennett of
the Family Court of Australia and judge of the International Hague Judicial
Network for Australia; Debbie Taylor, barrister, of Francis Burt Chambers in
Perth, Western Australia; Luise Crisafulli and Janet Emmett, also of Francis
Burt Chambers, and to Joy Druce.

We are grateful, too, to the Honourable Diana Bryant AO, Chief Justice of the
Family Court of Australia, for writing the Foreword to this edition.

We also owe a debt of thanks to our publishers, first for waiting so long for the
manuscript and then having to cope with last-minute changes to take account
of the events of June.

In so far as this book is dedicated to anyone, it is dedicated to everyone who
ever wondered what an exequatur was.

We have endeavoured to state the law as we understand it to be as at 31 July
2016.

Nigel Lowe, Emeritus Professor, Cardiff University, Wales
Michael Nicholls QC, Perth, Western Australia.
1 August 2016.
For those who practise in the area of international family law, the first edition
of International Movement of Children by Nigel Lowe, Mark Everall QC and
Michael Nicholls QC has become somewhat of a ‘bible’, especially for those
practising in the United Kingdom. In the foreword to the first edition, Hans
van Loon, then Secretary General of the Hague Conference on Private
International Law noted that with ‘globalisation and regional integration on
the rise, ever more children and their parents are likely to be caught in the
intricacies of conflicts of jurisdiction and judgments relating to the long term
welfare of children, and of different laws applicable to parental responsibility’.

What has emerged over the last few decades is that while once the practice of
family law across international borders was confined to wealthy individuals
with assets in different countries or who were able to live in different places,
the landscape has now changed. The advent of the internet, social media, and
ease of travel means that many relationships are now cross-border or
transnational relationships between parties from different cultures and
countries. In the last decade since the publication of the first edition, the
growth of social media in particular, and the opportunity to form relationships
over the internet, has become a feature of our lives.

The breakdown of these relationships means that many more cases presenting
to family lawyers and courts involve transnational issues. This is no longer a
subset of family law, it is mainstream. The recent added complexity of
international surrogacy arrangements arising from advances in technology is
but one example. The Convention on International Adoption is another. This is
recognised by the continuing efforts by the Permanent Bureau of the Hague
Conference on Private International Law to encourage more member states to
join existing conventions and to assist in their consistent implementation. All
this involves knowing and understanding these instruments, and other relevant
instruments that operate alongside them. It also provides a wealth of emerging
jurisprudence.

Since the publication of the first edition in 2004, the Hague Convention on the
Protection of Children has been ratified by a number of countries including the
European Union Members and there is emerging jurisprudence especially from
Australia. The UK Supreme Court has been especially active in Abduction
Convention cases. Brussels IIA entered into force in August 2004 and is now
being revised again.

Hence the second edition of this book is a most welcome addition to our
knowledge and a contemporary repository of all the relevant information in
relation to the international movement of children. The first edition was
ambitious and very successful. The second was inevitable and reflects the
authors’ commitment to this important area of law.

Diana Bryant AO
Chief Justice, Family Court of Australia
October 2016
His Honour Judge Mark Everall QC

Introduction


1.1 Facing a children’s case with an international element can be daunting.
There seems to be so much to think about: how are the proceedings going to be
served abroad; will there be a dispute about which court has got the power to
deal with it; what law will be applied; will the final order be recognised and
enforced in another country? It is not as if there are no answers to these
questions – the problem is where to find them and how to apply them.

1.2 Over the last few years there have been a number of international
instruments brought into force intended to help children in international
situations. The difficulty is that they are not of universal application and when
they do apply, one or more of them may well overlap. To take the United
Kingdom as an example, the revised Brussels II Regulation, which emanates
from the European Union and deals with jurisdiction, recognition and
enforcement of orders relating to matrimonial matters and matters relating to
parental responsibility within the European Union, takes precedence over other
international instruments covering broadly the same subject matter when a case
involves another Member State of the European Union – but not if that
Member State is Denmark. So an abduction case between the United Kingdom
and Germany (another Member State of the European Union) will involve the
application of the Hague Abduction Convention and the Regulation. But an
abduction case between the United Kingdom and Denmark, which is not
affected by the Regulation, will involve the Hague Abduction Convention and
the Hague Protection Convention – unless the aggrieved parent elects to enforce
a previous custody order under the European Custody Convention, an
instrument over which the Regulation has priority as between all the other
Member States.

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