Hague Child Support Convention and Protocol on the Law Applicable to Maintenance Obligations MANILA, THE PHILIPPINES October 2011 Philippe Lortie, First Secretary Hague Conference on Private International Law 4th Asia Pacific Regional Conference

2 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD Article States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

3 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD Article 27 (cont.) 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD Article 27 (cont.) 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

5 UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

6 CASE EXAMPLE - 1 A and B have a small child C born during their marriage A, B and C live in Country Z which is a State Party to the 2007 Child Support Convention A and B get divorced and B obtains a child support decision in favour of C A moves to Country Y which is a State Party to the 2007 Child Support Convention B would like to have the child support decision concerning C recognised and enforced in Country Y B will make an application under Article 10(1)a) of the Convention Whether A and B were married has no impact

7 CASE EXAMPLE - 2 A and B have a small child C born during their common law relationship A, B and C live in Country Z which is a State Party to the 2007 Child Support Convention A leaves B and moves to Country Y which is a State Party to the 2007 Child Support Convention B would like to establish in Country Y a child support decision against A in favour of C B will make an application under Article 10(1)c) of the Convention The decision in favour of C is not enforced against A B will make an application under Article 10(1)b) of the Convention

8 CASE EXAMPLE - 3 After a few years, as a result of the global financial crisis, A’s revenues have decreased substantially. He would like to seek a modification of the child support decision in favour of C In example No 1, A would make an application under Article 10(2)b) to modify a decision made in the requested State (see also Article 18) In example No 2, A would make an application under his own domestic system Over time C has additional needs In example No 1, C would make an application under his own domestic system In example No 2, C would make an application under Article 10(1)e) to modify a decision made in the requested State

9 POSSIBLE BARRIERS TO THE RECOVERY OF MAINTENANCE Child support recovery / enforcement system: may be very expensive (court based, no legal assistance) may not be user-friendly (may require a lawyer) may not exist or is not publicised properly may be very slow may not protect confidential and personal information properly

10 STATES INVOLVED IN THE NEGOTIATIONS FROM 2003 UNTIL 2007

11 KEY FEATURES OF NEW INSTRUMENTS Universality Accessibility Simplicity & Flexibility Speed & Efficiency Cost-effectiveness Responsive and fair Non-discrimination Co-operation and compliance

12 PRINCIPAL COMPONENTS OF NEW CONVENTION AND PROTOCOL System of administrative co-operation (efficient, responsive, flexible, accessible) Procedures available in States for establishment, recognition and enforcement, modification of decisions and recovery of arrears Effective access to procedures Recognition and enforcement of foreign decisions / orders (maximum recognition, simple procedures) Swift and effective enforcement Compliance – Monitoring and review Direct requests to competent authorities Applicable law rules – set out in an optional Protocol

13 SCOPE OF APPLICATION OF CONVENTION Entire Convention applies on a mandatory basis to maintenance cases of persons under the age of 21 (possible to reserve for persons under the age of 18) Convention also covers spousal support but its provision on administrative co-operation will only apply to spousal support where States have made a declaration Application of any part of the Convention could be extended by way of declaration (with reciprocal effect) to other maintenance obligations arising from a family relationship, parentage, marriage or affinity Application of the Convention could be extended to vulnerable adults Convention applies to children regardless of the marital status of the parents

14 ADMINISTRATIVE CO-OPERATION Administrative co-operation implemented using Central Authorities (CAs) CAs focal point in relation to specific functions: –Transmitting and receiving applications –Initiating or facilitating proceedings Convention will provide for specific applications using recommended forms:

15 ADMINISTRATIVE CO-OPERATION (cont.) –Recognition and enforcement of Contracting States decisions –Enforcement of requested State decision –Establishment of decision in requested State when no existing decision or when enforcement of existing decision impossible –Modification of decisions either by creditor or debtor –Recovery of arrears Time lines and responsiveness Means of communication

16 Help locate debtor / creditor Help obtain information about financial circumstances Encourage amicable solutions Facilitate enforcement Facilitate transfer of payments Facilitate obtaining of documentary and other evidence and service of documents Assistance in establishing parentage Help in obtaining provisional measures Requests for specific measures (limited service requests) OTHER CENTRAL AUTHORITY FUNCTIONS

17 RECOGNITION AND ENFORCEMENT Convention applies to judicial and administrative decisions, settlements, “maintenance agreements” (authentic instruments) Main bases for recognition and enforcement (indirect jurisdiction) Respondent habitually resident in the State of origin Respondent submitted to the jurisdiction Creditor habitually resident in the State of origin (reservation possible) Child resident in the State of origin when proceedings instituted and respondent lived with the child there or resided there and provided support for the child there Agreement to the jurisdiction by the parties except in the case of child support (reservation possible) Authority exercising jurisdiction on a matter of personal status or parental responsibility (reservation possible)

18 RECOGNITION AND ENFORCEMENT (cont.) Grounds for refusing recognition and enforcement Decision manifestly incompatible with public policy Decision obtained by fraud relating to procedure Competition between pending case and foreign decision Conflicting decisions (res judicata) No proper notice or opportunity to be heard Debtor exceeded limits on proceedings (Article 18)

19 PROCEDURES FOR RECOGNITION AND ENFORCEMENT Registration for enforcement grounds for refusal are limited no submissions from the parties Challenge or appeal within limited time and on limited grounds Further appeal if permitted by law of State addressed, without staying the enforcement of the decision Alternative procedure Linkage with national enforcement procedures

20 ENFORCEMENT MEASURES Weakness under existing child support systems has been a lack of effective enforcement mechanisms While choice of specific enforcement measures are left to the requested State, States are required to make available effective enforcement measures Convention provides a list of possible measures that a State might, at its option, use, including Wage withholding Garnishment Deductions from social security payments Lien on or forced sale of property Tax refund withholding License denial or suspension

21 EFFECTIVE ACCESS TO PROCEDURES All Contracting States obliged to provide effective access to procedures, including enforcement and appeal procedures, by providing: Simple procedures with the assistance of CAs allowing the applicant to proceed without further assistance Free legal assistance for applications for establishment and for recognition and enforcement of child support decisions (with some exceptions) A State may, as an alternative, declare that it will apply a “child-centred” means test, in cases involving establishment of child support For all other applications processed through CAs under the Convention legal assistance may be subject to a means or merits test

22 FUTURE COMING INTO FORCE United States of America signed the Convention on 23-XI-2007 and will ratify soon (advice and consent given by the Senate in October 2010). Burkina Faso signed the Convention on 7-I-2009 Ukraine signed the Convention on 7-VII-2010 EU approved the Protocol on 8-IV-2010 and signed the Convention on 6-IV-2011 Norway ratified the Convention on 6-IV-2011 Albania signed the Convention on 21-X-2011 Other Members to join soon: Australia, Brazil, Canada

23 PROTOCOL ON APPLICABLE LAW Scope of application Determines the law applicable to maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child regardless of the marital status of the parents Decisions rendered in application of the Protocol are without prejudice to the existence of any of the relationships referred to above Protocol is of universal application In the Protocol the term “law” means the law in force in a State other than its choice of law rules

24 PROTOCOL ON APPLICABLE LAW Scope of the applicable law (inter alia) Whether, to what extent and from whom the creditor may claim maintenance Extent to which the creditor may claim retroactive maintenance Basis for calculation of the amount of maintenance, and indexation Who is entitled to institute maintenance proceedings (except procedural capacity and representation issues) Prescriptions and limitation periods Extent of the obligation of a debtor where a public body seeks reimbursement

25 PROTOCOL ON APPLICABLE LAW General rule Maintenance obligations governed by the law of the State of the habitual residence of the creditor Law of the State of the new habitual residence applies at the moment the change occurs Special rules favouring certain creditors Parents towards their children Persons, other than parents, towards persons who have not attained the age of 21 years Children towards their parents

26 PROTOCOL ON APPLICABLE LAW Special rules favouring certain creditors (cont.) If creditor unable by virtue of the law of its habitual residence to obtain maintenance, the law of the forum shall apply If creditor seizes the competent authority of the State where the debtor has its habitual residence, the law of the forum shall apply If creditor unable by virtue of the laws referred above to obtain maintenance, the law of the common nationality, if there is one, shall apply

27 PROTOCOL ON APPLICABLE LAW Special rule with respect to spouses and ex-spouses The law of the State of the habitual residence of the creditor shall not apply if one of the parties objects and the law of another State (e.g. State of their last common habitual residence) has a closer connection with the marriage Special rule on defence In the case of maintenance obligations other than those arising from a parent-child relationship towards a child and spouses and ex-spouses, debtor may contest a claim on the ground that there is no such obligation under its law and the law of the State of common nationality

28 PROTOCOL ON APPLICABLE LAW Other special features Rules concerning the designation of the law applicable for the purpose of a particular proceeding Rules concerning the designation at any time of specific laws as applicable to a maintenance obligation (not applicable to maintenance obligations in respect of a person under the age of 18 years or a vulnerable adult) Possibility to replace the concept of “nationality” by the one of “domicile” Provision on “public bodies” Compensation awarded to the creditor taken into account in determining the amount of maintenance

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