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The 1996 Hague Convention came into force in the United Kingdom on 1 November 2012 and is intended to improve the protection of children in international situations.
It provides for the recognition and enforcement of orders and other measures intended to protect a child or a child’s property in all the Contracting States, and the co-operation between them necessary to achieve its purposes. The Convention covers a wide range of orders about children, including parental responsibility orders, the appointment of guardians and special guardians, residence, contact, specific issue and prohibited steps orders and injunctions, as well as care and supervision orders.
This book provides a comprehensive guide to the complexities of the 1996 Convention, including detailed coverage of the relationship with other international instruments such as the 1980 Hague Abduction Convention and the revised Brussels II Regulation. The Appendices contain all relevant source material including the full text of the Convention.
Chapter 1 - INTRODUCTION, HISTORY AND OVERVIEW
- Introduction
- Origins of the Convention
- Objectives and Framework of the Convention
- Interpreting the Convention
- The application of the Vienna Convention on the Law of Treaties
- Important aids to interpretation
- Travaux préparatoires and the explanatory report
- Handbook
- The Contracting States
- The distinction between ratifications and accessions
- Lack of competence of individual EU States to ratify/accede
- The position in the United Kingdom
- The position in Australia
- Implementing legislation
- The Australian experience of the 1996 Convention
- Reservations
- Denunciations
- Convention not retrospective
- The Relationship of the 1996 Convention to Other International Instruments
- The application of the revised Brussels II Regulation
- Applicable law
- Jurisdiction
Chapter 2 - THE SCOPE OF THE CONVENTION
- The children to whom the Convention applies
- Non application to unborn children
- Application to children up to the age of 18
- No requirement that children be habitually resident in a Contracting State
- The measures of protection covered by the Convention
- The meaning of ‘measures’
- The matters covered by the Convention
- The attribution, exercise, termination, restriction and delegation of parental responsibility
- Rights of custody and access
- Guardianship, curatorship and analogous institutions
- The designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child
- Placing a child in foster or institutional care or the provision of care by Kafala or analogous institution
- Public authority supervision of the care of a child by any person having charge of the child
- The administration, conservation or disposal of the child’s property
- The matters not covered by the Convention
- Establishing or contesting a parent-child relationship
- Decisions on adoption, measures preparatory to adoption or the annulment or revocation of adoption
- Names and forenames of the child
- Emancipation
- Maintenance obligations
- Trusts or succession
- Social security
- General public measures on education or health
- Measures taken as a result of penal offences committed by children
- Decisions on the right of asylum and immigration
- The application of the Convention in the United Kingdom
Chapter 3 - THE JURISDICTIONAL RULES
- Introduction
- Pre-eminence accorded to courts of the child’s habitual residence
- The meaning of ‘habitual residence’
- The position where the child’s habitual residence changes
- Commentary
- Jurisdictions based on presence
- Refugee and displaced children etc
- Jurisdiction to take measures in cases of urgency
- The general power
- Meaning of ‘urgency’
- What measures of protection may be taken
- Jurisdiction to take provisional measures
- The interplay between Articles 11 and 12
- The position in the UK where time for appealing has not expired etc
- Transferring Jurisdiction
- The general power of transfer
- The procedure in England and Wales
- Some practical issues
- Commentary
- Jurisdiction of authority seised of matrimonial proceedings
- Duration of Measures
Chapter 4 - APPLICABLE LAW
- The general position
- The position with regard to parental responsibility
- The Convention scheme
- Attribution and extinction of parental responsibility
- The basic position
- The position upon a change of habitual residence
- The exercise of parental responsibility
- Termination and modification
- The application of public policy
- Protecting third parties
- The application of private international law
- Illustrative examples of applying the parental responsibility provisions
- Application of Articles 16-18 in the UK context
- Commentary
Chapter 5 - RECOGNITION AND ENFORCEMENT
- The basic scheme
- Recognition or enforcement
- Recognition
- Advance recognition
- Enforcement
- The Convention scheme
- Commentary
- Refusing recognition or enforcement
- The position in England and Wales
- Applications for recognition, non recognition and enforcement
- Court orders
- Appeals
Chapter 6 - CO-OPERATION
- Central Authorities
- Designation and establishment
- Mandatory duties of co-operation and provision of information
- Contemplating placement of a child abroad
- Provision of information where a child is in serious danger
- Discretionary duties
- Requests for reports and information
- Safeguarding rights of access
- Personal data
- Costs
- The position in the United Kingdom
- The designated Central Authorities
- Requests for information received under Article 31(c)
- Power to request a report on a child’s situation
- Requirement to provide a report
- Power to respond to an Article 34 request
- Power of court in Northern Ireland to authorise disclosure
- Services under Article 35
Chapter 7 - THE IMPACT OF THE 1996 CONVENTION ON INTERNATIONAL CHILD ABDUCTION
- Introduction
- The application of the 1996 Convention where no other international instrument applies
- The inter-relationship with the 1980 Hague Abduction Convention
- The impact in the context of return applications
- The applicable law provisions
- The impact of Articles 7 and 13 of the 1996 Convention
- The use of protective orders
- The pros and cons on invoking the 1996 Convention rather then the 1980 Convention
- The impact in the context of access applications
- The inter-relationship with the revised Brussels II Regulation
Chapter 8 - OVERALL CONCLUSION
This book is much needed and very timely. As Nigel Lowe and Michael Nicholls QC point out in this valuable resource, the 1996 Hague Convention on the Protection of Children (the Protection
Convention) has been a long time in gestation.
It came into force in January 2002 when Slovakia provided the third ratification required for entry into force. However it is only recently that a significant number of member states have ratified it. Complications arose with the member states of the EU (including the United Kingdom) being able to independently ratify, but all those issues have been resolved and now almost all of the EU states, including the United Kingdom, where it comes into force on 1 November 2012, have ratified the Convention.
Australia was one of the earlier countries to ratify and, as it did with the Abduction Convention, it has enshrined the Convention in legislation in Part VIIIAA of the Family Law Act 1975 and in the Family Law (Child Protection Convention) Regulations 2003.
This legislation is helpfully set out by the authors in Appendix 3 and there are references to Australian cases which provide some early jurisprudence.
Until a critical mass of countries ratified however, the application of the Convention has been limited. All that is about to change. The authors are extremely well qualified and this book contains everything it is necessary to know about the Convention. It will be an essential part of the library of anyone involved in international family law.
I congratulate the authors on this fine work and commend it highly.
The Honourable Diana Bryant AO
Chief Justice Family Court of Australia
The 1996 Hague Convention on the Protection of Children is the last of a trilogy of Hague Conventions (the others being the 1980 Hague Abduction Convention and 1993 Hague Convention on Intercountry Adoption) designed to improve the legal position of children involved in cross border disputes. It has taken some time for this Convention to be accepted by the international community but, with 39 Contracting States, including with effect from 1 November 2012 the United Kingdom, at the time of going to press, as well as a number of other States in which implementation is being actively considered, it is clear that there is now real momentum in its take up.
As the introductory passages make clear, the sheer scope of the 1996 Convention is enough to suggest that many lives will be significantly affected by its wider implementation. On the one hand families will be able to move from one country to another secure in the knowledge that their legal relationships with their children will be recognised and, if necessary, can be enforced. On the other, courts and administrators will be faced, not necessarily for the first time, but on a much wider scale, with orders made by foreign courts which they must take into account and which define the structure of the family. Although, given the increasing variety of family forms, the implications of the 1996 Convention and its relationship with other international instruments are yet to be fully explored, we hope that this short book will be a real help to anyone and everyone dealing with international child law.
The publication is timed to coincide with the UK’s implementation of the Convention but it also draws on the Australian experience as one of the first States to ratify the instrument.
We have sought to state the position as of 1 October 2012.
Nigel Lowe, Cardiff, Wales
Michael Nicholls QC, Perth, Western Australia.
1 October 2012
1.1 Although commonly referred to as the 1996 Hague Convention on the Protection of Children, its full title is 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 (‘the 1996 Convention’). In fact, certain delegations had wanted a shorter and more elegant title, namely ‘a Convention on the Protection of Children’, but this view did not prevail, in part because ‘Protection of Children’ was already part of the official title of the 1993 Intercountry Adoption Convention, and in part because, to quote the Explanatory Report on the 1996 Convention by Paul Lagarde (‘the Lagarde Report,’) "it would have been ambiguous in that it might have left the impression that the Convention dealt with questions of substantive law". Accordingly, delegates approved the long title which simply repeats the titles of the four principal Chapters of the Convention and which, according to the Lagarde Report, "does not lend itself to any confusion".
1.2 The 1996 Convention came into force on January 2002 when Slovakia’s ratification took effect, thus providing the third ratification (Monaco and the Czech Republic having already ratified in May 1997 and March 2000 respectively) required for the Convention’s entry into force pursuant to Art 61(1).
1.3 In broad terms, the 1996 Convention aims to provide a global system for improving the protection of children in international situations. To this end it provides for a common set of rules for the exercise of jurisdiction, applicable law and for the consequential recognition and enforcement within Contracting States of measures directed to the protection of children’s person and property and to establish the necessary cooperation between the authorities of Contracting States in order to achieve this basic purpose.
1.4 At first sight, the use of the word ‘protection’ in the title might suggest that the scope of the 1996 Convention is limited to orders intended to provide physical protection, but in fact it is far wider than that. The ‘measures directed to the protection of person or property of the child’ referred to in Art 1 cover a very wide range of orders, including orders relating to the attribution, exercise, termination or restriction of parental responsibility, orders relating to rights of custody (including rights relating to the care of the child’s person and determination of his place of residence), rights of access, guardianship, and supervision or placement in care or with foster parents, as well as orders relating to the administration, conservation or disposal of a child’s property (Art 3). So, included amongst the ‘measures directed to the protection of person or property of the child’, would be parental responsibility orders made under ss 4 and 4A of the Children Act 1989 in favour of fathers or step-parents, appointments of guardians and special guardians under ss 5 and 14A of the Children Act 1989, residence, contact, specific issue and prohibited steps orders (save where they deal with names) made under s 8 of the Children Act 1989, as well as care and supervision orders. In Australia, it would include a parenting order (including an order allocating parental responsibility for a child) made under Division 5 of Part VII of the Family Law Act 1975 (Cth), and an injunction for the personal protection of a child made under Division 9 of Part VII of the Family Law Act 1975 (Cth).
"Recently published by Jordans as part of their Family Law series, this is a comprehensive guide to the 1996 Hague Convention which came into force in the UK as at 1 November 2012. It has now been ratified by almost all EU states, the UK included.
Designed to improve the legal position of children (up to age 18) involved in cross border disputes, the 1996 Hague Convention is the last of three conventions which include respectively, the 1980 Hague Abduction Convention and the 1993 Hague Convention on Intercountry Adoption.
Writing in the Foreword, Diana Bryant, Chief Justice Family Court of Australia mentions that Australia was one of the earlier counties to ratify. The authors have therefore set out the legislation in Appendix 3 and there are references to Australian cases which -- quite importantly for the practitioner -- provide some early jurisprudence.
The full implications of the 1996 Convention are yet to be seen. But broadly, families will feel more secure knowing that their legal rights with respect to their children can now be enforced and also, as the authors point out, ‘courts and administrators will be faced…with orders made by foreign courts which they must take into account and which define the structure of the family.’
An extremely positive result of the 1996 Convention is that it has also been ratified by Australia, Croatia, Morocco, Russian Federation, Switzerland, Ukraine, Uruguay and the US, with Canada and New Zealand seriously considering it. It has therefore developed, say the authors, as ‘an important international instrument dealing with issues of increasing global relevance.’
Beginning with a history and overview of the Convention, the book deals with such matters, for example, as jurisdictional rules, applicable law, recognition and enforcement. Chapter 7, dealing with a difficult issue, focuses on the impact of the 1996 Convention on International Child Abduction.
For the hard pressed family law practitioner dealing with children in international situations, the book is timely -- and fortunately, clearly written and easy to use. Each chapter is prefaced with its own individual table of contents and there’s a detailed table of contents at the front. There are extensive tables of cases, statutes, statutory instruments and three appendices containing the full text of the Convention as well as all relevant source material.
As a work of reference, this book truly excels. Every family lawyer dealing with children in an international context should acquire a copy. The law is stated as at 1 October 2012."
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
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