1. © Hague Conference on Private International Law THE 1996 HAGUE CONVENTION ON INTERNATIONAL CHILD PROTECTION & THE BRUSSELS IIa REGULATION The Right to Judicial Protection: Administration of Justice in Cross-border Disputes Belgrade, 19 November 2010 Philippe LORTIE, First Secretary Hague Conference on Private International Law

2. © Hague Conference on Private International Law HAGUE BACKGROUND TO 1996 CONVENTION 1902 Convention - Law applicable to the guardianship => nationality 1961 Convention - Competing jurisdiction => habitual residence (HR), national authorities (NA), authorities based on presence of the child or property - Predominance of national authorities * Problem 1 – NA decisions not accepted by HR * Problem 2 – Dual nationality * Problem 3 – Recognition and enforcement rules lacking * Problem 4 – Poor co-operation system 1996 Convention - Provides for a comprehensive private international law system, with HR as a fundamental principle, which covers both private and public measures with strong cooperation mechanisms. In line with 1989 UN CRC.

3. © Hague Conference on Private International Law 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 Concluded on 19 October 1996 Entered into force on 1 January 2002 25 Contracting States per 11 October 2010 12 Signatory States per 11 October 2010 Successor to the Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors

4. © Hague Conference on Private International Law CONTRACTING STATES + STATES PARTIES

5. © Hague Conference on Private International Law STATUS OF 1996 CONVENTION Contracting States (25): Albania, Armenia, Australia, Bulgaria, Croatia, Cyprus, Czech Republic, Dominican Republic, Ecuador, Estonia, Germany, Hungary, Latvia, Lithuania, Luxembourg, Monaco, Morocco, Poland, Romania, Slovakia, Slovenia, Spain, Switzerland, Ukraine, Uruguay. Signatory States (12): Austria, Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Netherlands, Portugal, Sweden, United Kingdom of Great Britain and Northern Ireland. States considering Ratification / Accession: Argentina, Canada, Colombia, India, New Zealand, South Africa, United States of America. Regional Developments: Europe – Latin America

6. © Hague Conference on Private International Law 1996 CONVENTION OBJECTIVES  To provide for the better protection of children in cross-border situations – under civil, not criminal, law.  To improve inter-State co-operation for the protection of vulnerable children.  To avoid conflicts between legal systems in decisions concerning child protection.

7. © Hague Conference on Private International Law THE MEANS OF THE 1996 CONVENTION  Common rules on jurisdiction which avoid conflict.  Universal rules on the law applicable to parental responsibility and measures of child protection.  The recognition and enforcement in all Contracting States of protective orders made in one Contracting State.  A practical but flexible system of inter-State co- operation using Central Authorities and other established channels.

8. © Hague Conference on Private International Law 1996 CONVENTION v. BRUSSELS IIa Overview: Main provisions of 1996 Convention included in Regulation Regulation applies between EU Member States 1996 Convention in force for extra-community child protection issues 1996 Convention continue to have effect for matters not covered by Regulation (e.g. Law Applicable) 1996 Convention covers both public and private measures – a comprehensive system to avoid legal and administrative conflicts Interpretation of “civil matters” and “court” may reduce scope of Regulation

9. © Hague Conference on Private International Law 1996 CONVENTION v. BRUSSELS IIa Jurisdiction rules are similar No competing jurisdictions (except for the divorce court) Habitual residence of the child (main jurisdiction) Exception – when change of residence Exception – when lack of habitual residence Cooperation to change jurisdiction Autonomous local jurisdiction for provisional measures with a local effect

10. © Hague Conference on Private International Law 1996 CONVENTION v. BRUSSELS IIa Regulation does not include applicable law rules 1996 Convention continue to have effect for matters not covered by Regulation Measures of protection => authorities apply their own internal law Attribution, exercise or extinction of parental responsibility => conflict of laws rules designated by the law of the State of the habitual residence Special rules for the protection of third parties, renvoi, exception of public policy, etc.

11. © Hague Conference on Private International Law 1996 CONVENTION v. BRUSSELS IIa Rules for recognition and enforcement under both instruments are similar Exception: the Regulation dispenses with exequatur procedure or any other procedure for the recognition and enforcement of access rights and of return orders following child abduction The grounds for refusal are the same in both instruments for the balance of the scope System of declaration of enforceability, or registration for purposes of enforcement in both instruments 1996 Convention decisions rendered in EU regarding child in third State to be recognised and enforced in EU under Regulation

12. © Hague Conference on Private International Law 1996 CONVENTION v. BRUSSELS IIa Co-operation – Both instruments institute Central Authorities Under both instruments, on a request made by the Central Authority or competent authority of any Contracting State with which the child has a connection, the Central Authority of the State in which the child is habitually resident may provide information on the child or co-ordinate the taking of measures of protection Exception: a competent authority with jurisdiction under Articles 5-10 can carry consultation procedures for the placement of a child in another Contracting State 1996 Convention allows direct communications and requests with regard to securing the implementation of effective exercise of access and contact rights and to ensure that a child is kept out of danger New EJN may have a role under the Regulation

13. © Hague Conference on Private International Law BROAD SCOPE (ARTICLES 2 AND 3)  Children up to the age of 18 (Regulation leaves the issue of age to national law)  “Measures of protection” deal in particular with –  Questions of parental responsibility;  Guardianship, custody and access / contact;  Public measures of protection or care;  Placement of a child in foster or institutional care;  Provision of care by Kafala;  Protection of the child’s person or property;  Aspects of representation for a child.

14. © Hague Conference on Private International Law ISSUES ADDRESSED BY 1996 CONVENTION (1) Parental disputes over custody or contact (2) Reinforcement of the 1980 Child Abduction Convention (3) Unaccompanied minors, displaced children and children who are the subjects of trafficking or abduction (4) Cross-frontier placements of children (5) Conflicting claims to exercise parental responsibility (6) Capacity and powers of persons acting on behalf of children

15. © Hague Conference on Private International Law PRACTICAL APPLICATIONS OF THE CONVENTION (1) Parental disputes over custody and contact: Avoids competition over the exercise of jurisdiction (Chap. II). Ensures that the authorities / courts of the country of the child’s habitual residence have primary jurisdiction (Art. 5). Avoids wasteful, expensive and time-consuming litigation or re-litigation. Ensures that decisions concerning custody and contact made in one country are respected in others, thereby reducing the incentives to abduction, facilitating decisions on relocation and giving parents confidence to permit visitation abroad (Chap. IV). Provides for any necessary exchange of information between authorities in different countries (Chap. V). Offers an international structure through which, by mediation or other means, agreed solutions may be found (Art. 31 b)).

16. © Hague Conference on Private International Law PRACTICAL APPLICATIONS OF THE CONVENTION (2) Reinforcement of the 1980 Child Abduction Convention: Underpins primary role played by the authorities of the child’s habitual residence (Art. 7). Allows court dealing with the return application to take urgent / provisional protective measures (e.g. contact orders and orders which help to ensure a safe return) (Art. 11). Provides for the recognition of such measures in the country to which the child is returned (Art. 23).

17. © Hague Conference on Private International Law PRACTICAL APPLICATIONS OF THE CONVENTION (3) Unaccompanied minors, displaced children and children who are the subjects of trafficking or abduction: Co-operation in locating the child (Art. 31 c)). Determining which country’s authorities have responsibility to take protective measures (Arts 5, 6 and 7). Inter-State co-operation in the exchange of information and in instituting necessary protective measures (Arts 31, 32, 34, 35, 36 and 37).

18. © Hague Conference on Private International Law PRACTICAL APPLICATIONS OF THE CONVENTION (4) Cross-frontier placements of children: Provides for inter-State co-operation in regulating cross-border alternative care arrangements (other than adoption), e.g.: - foster-care placements; - extended “holiday” or “recuperation” arrangements; - placements by way of Kafala (see Arts 3 e) and 33)

19. © Hague Conference on Private International Law PRACTICAL APPLICATIONS OF THE CONVENTION (5) Conflicting claims to exercise parental responsibility: Attribution of parental responsibility determined under the law of the child’s habitual residence. Parental responsibility, once established, survives any change in the child’s habitual residence.

20. © Hague Conference on Private International Law PRACTICAL APPLICATIONS OF THE CONVENTION (6) Capacity and powers of persons acting on behalf of a child: The authorities of the State of the child’s habitual residence may issue a certificate concerning capacity and power. Gives rise to presumption that such capacity and powers are vested in the person indicated.

21. © Hague Conference on Private International Law OTHER ASPECTS OF THE CONVENTION  An integrated system;  An inclusive system;  Post-Convention services: - Monitoring and review; - Development of Guides to Good Practice on implementation and the practical application of the Convention.

22. © Hague Conference on Private International Law SUMMARY OF DIFFRENCES BETWEEN 1996 CONVENTION & BRUSSELS IIa The Regulation is geographically limited to States within the EU (excluding Denmark); the Convention is open for ratification by all States. The Regulation does not include any rules on applicable law; the Convention does. The Regulation provides for additional rules in cases of child abduction; the Convention is designed to operate alongside the Child Abduction Convention but does not alter its application. The Convention contains a specific provision on co- operation in contact cases (Art. 35); the Regulation provides for automatic recognition in contact cases.

23. © Hague Conference on Private International Law Secretariat at the Permanent Bureau of The Hague Conference on Private International Law Scheveningseweg 6 2517 KT The Hague The Netherlands Tel: +31 (70) 363 3303 or Fax: +31 (70) 360 4867 e-mail: secretariat@hcch.net http://www.hcch.net INFORMATION