HCCH - Boletín de los Jueces sobre la Protección Internacional del Niño - Tomo III - Otoño 2001

INTERNATIONAL CHILD PROTECTION

THE JUDGES’ NEWSLETTER

VOLUME III / AUTUMN 2001

A PUBLICATION OF THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

I. THE HAGUE CONVENTIONS AND CONFERENCE – AN UPDATE

Child Abduction Convention of 1980 Currently there are 69 Contracting States to the 1980 Convention, including 32 ratifications and 37 accessions. The most recent accessions came from El Salvador (e.i.f. 1 May 2001), Estonia (e.i.f. 1 July 2001), Nicaragua (e.i.f. 1 March 2001), Peru (e.i.f. 1 August 2001) an d Sri Lanka (e.i.f. 1 December 2001). Ratification by Slovakia occurred on 7 September 2000, with the Convention entering into force on 1 February

2001. The Government of Canada has now extended the Convention to all Canadian territorial units; the Convent ion entered into force for the territorial unit of Nunavut on 1

January 2001. During the Fourth Special Commission Meeting to review the practical operation of the 1980 Child Abduction Convention held at The Hague 22 – 28 March 2001 (see infra), an expert from Morocco noted that his State had started to take steps to accede to the Convention and that the internal legislative steps required would be completed in the near future. On 26 April 2001 the Federal Republic of Yugoslavia, one of the successor States to the former Socialist Republic of Yugoslavia which became a Party to the Convention on 1 December 1991, declared itself to be bound by the Convention. The depository (the Netherlands Ministry of Foreign Affairs) considered this a notification of continu ity and held that the Convention had remained in force between the Contracting States and the Federal Republic of Yugoslavia from 1 December 1991 onward. Intercountry Adoption Convention of 1993 Currently there are 42 States Parties to the Convention of 19 93, including 31 by

held that the Convention had remained in force between the Contracting States and the Federal Republic of Yugoslavia from 1 December 1991 onward. Intercountry Adoption Convention of 1993 Currently there are 42 States Parties to the Convention of 19 93, including 31 by ratification and 11 by accession, and there are 15 signatures. The most recent States to become Parties are Albania (ratification; e.i.f. 1 January 2001) and Slovakia (ratification; e.i.f. 1 October 2001). The Government of Canada has extended the Convention to the territorial unit of Nunavut, where it entered into force on 1 September 2001. States that have recently signed the Convention are: Bolivia (10 November 2000), Bulgaria (27 February 2001) and the Russian Federation (7 September 2000). In the course of the Special Commission to review the practical operation of the Convention, held at The Hague 28 November – 1 December 2000 ( see infra), the Ambassador of the People’sRepublic of China, His Excellency Mr Hua Liming, informed the m eeting that he had signed the Convention on behalf of his Government on 30 November 2000. During the Special Commission experts from Germany, Greece, Hungary and Ireland indicated that their States intend to ratify the Convention in the course of 2001. To this end, a Swiss expert noted that legislation is in its final stages in the Swiss Parliament and it is expected that ratification will occur in 2002. It was indicated that the United Kingdom hopes to ratify the Convention in 2001, with a view to implemen tation throughout the United Kingdom by 1 January 2002. Legislation to enable ratification by the United States was signed by President Clinton on 6 October 2000 and ratification is expected to occur within 24 to 36 months from the date of signature. Protection of Children Convention of 1996 The 1996 Convention currently has signatures from the following 3 States: Morocco, the

the United States was signed by President Clinton on 6 October 2000 and ratification is expected to occur within 24 to 36 months from the date of signature. Protection of Children Convention of 1996 The 1996 Convention currently has signatures from the following 3 States: Morocco, the Netherlands and Poland. The Convention has 3 ratifications, by Monaco, the Czech Republic and the Slovak Republic. The 1996 Convention will enter into force on 1 January 2002. It has already been approved by Ecuador, which has approached the depository with a view to acceding to the Convention. Legislation to implement the 1996 Convention has been introduced in Australia and implementing legislation has been passed by the Irish Parliament (Oireachtas). In Canada steps are being taken to prepare the necessary uniform Federal legislation. Delegates expressed strong support for the 1996 Convention during the March Special Commission on Ch ild Abduction. In its Conclusions and Recommendations ( accessible at http://www.hcch.net/doc/reports28e.html), the Special Commission recognised the potential advantages of the Convention as an adjunct to the 1980 Convention, and recommended that Contracti ng States should consider ratification or accession. ( See infra para. 7.1 of the Conclusions and Recommendations). During the November 2000 Special Commission on Intercountry Adoption there was discussion of the need to regulate international placements of children which fall short of adoption and therefore fall outside the scope of the 1993 Convention. The Special Commission recognised the valuable role which Article 33 of the 1996 Convention would play in this context. There is general support for the Con vention among the 15 Member States of the European Union, and a discussion is continuing concerning appropriate procedures for ratification, given that the Community and its Member States appear to have mixed competence in relation to the matters covered by the Convention. Complete status reports on the three Conventions addressing international child protection are available on the web site of the Hague Conference (http://www.hcch.net). New Member States of the Hague Conference

competence in relation to the matters covered by the Convention. Complete status reports on the three Conventions addressing international child protection are available on the web site of the Hague Conference (http://www.hcch.net). New Member States of the Hague Conference The Hague Conference on Priv ate International Law now has 55 Member States. The following States have recently been admitted as Members of the Conference and have accepted the Statute: Belarus (12 July 2001), Bosnia -Herzegovina (7 June 2001), Brazil(23 February 2001), Georgia (28 Ma y 2001), Hashemite Kingdom of Jordan (13 June 2001), Peru (29 January 2001) and Sri Lanka (27 September 2001). On 1 June 2001 it was established that the Federal Republic of Yugoslavia is a Member of the Conference with retroactive effect as from 26 April 2001. Several other countries – namely Lithuania, New Zealand, Panama and South Africa – are presently involved in the membership procedure. Two other countries, Albania and Ukraine, have applied for membership. Another important development in this respec t is the announcement of the Swedish Presidency of the European Union that the European Community’s accession to membership of the Hague Conference is considered desirable and that it has requested discussions be opened on the way to achieving this.

II. SPECIAL COMMISSIONS Special Commission Meeting on the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption A Special Commission met at The Hague from 28 November to 1 December 2000 to review the practical operation of the Hague Convention of 29 May 1993 on Protection of Children and Co -operation in respect of Intercountry Adoption . Although a Special Commission meeting had been held in 1994 on implementation of the Convention, this was the first meeting of a Special Commission to review the operation of the Convention in practice. The Convention has attracted unprecedented interest and support; it is now in force among 42 States and has been signed by a further 15 States. The signing of the

Commission meeting had been held in 1994 on implementation of the Convention, this was the first meeting of a Special Commission to review the operation of the Convention in practice. The Convention has attracted unprecedented interest and support; it is now in force among 42 States and has been signed by a further 15 States. The signing of the Convention on beh alf of China occurred dramatically during the Special Commission (see supra). The meeting, chaired by Professor Alegría Borrás of Spain, was attended by 150 experts from 58 States and 13 international organisations. The Commission adopted a model form for a medical report on the adopted child which is intended to serve as an aid in improving the quality and consistency of such records. The importance of the Model Form for the Statement of Consent which had been approved by the Special Commission of 1994 was re -emphasised, as was the recommended Model Form for the Certificate of Conformity on Intercountry Adoption which was approved at the Special Commission of October 1994 and published in March

1995. For a detailed account of the Special Commission’s recommendations please consult the Special Commission’s Report (published in April 2001) available on the web site of the Hague Conference at: http://www.hcch.net/e/conventions/adospec_e.html Several of the recommendations involved clarification regarding the de signation, roles and resources of the Central Authorities. It was agreed that each Contracting State should provide a description of the manner in which the various responsibilities and tasks under the Convention are divided between different bodies in order that the entities responsible to act under particular articles of the Convention are clearly identified.

Intense discussions took place regarding the legal and ethical questions of improper financial gains, as well as the costs and expenses associated with intercountry adoption. The Special Commission drew up a series of guidelines which should govern these delicate matters. It was recommended for example that accreditation requirements foragencies providing intercountry adoption services should include evidence of a sound financial basis and that prospective adopters should be provided in advance with an itemised list of expenses arising from the process. It was further recommended that fees

delicate matters. It was recommended for example that accreditation requirements foragencies providing intercountry adoption services should include evidence of a sound financial basis and that prospective adopters should be provided in advance with an itemised list of expenses arising from the process. It was further recommended that fees charged by different agencies should be made available to the public and that donations by prospective adopters must not be made, offered, or sought. The Special Commission throughout its discussions emphasised the principle that States Parties must ensure that intercountry adoptions are made in the best interests o f the child with respect for his or her fundamental rights, and only when a suitable family cannot be found in the child’s State of Origin. To this end, the Special Commission encouraged Parties to apply the standards of the Convention to non -contracting States as far as practicable, and to encourage other States to take those steps necessary for implementation of the Convention. Discussion in the Special Commission also revealed a trend in favour of automatically according the adopted child the nationality of the receiving State. The value of Article 33 of 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 was rec ognised in the regulation of international placements falling outside the scope of the 1993 Convention. The Fourth Special Commission Meeting to review the practical operation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction From 22 to 28 March 2001 the Fourth Special Commission met at The Hague to review the practical operation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The event attracted overwhelming interest and a record number of 200 participants, from 54 States and 14 international organisations. Because of the important role played by the Courts in the functioning of the Convention, a large number of judges were invited to participate in the Special Commission by their national delegations. Judicial attendance and participation contributed greatly to the success of the Special Commission, and will add additional weight to its Conclusions and Recommendations.

of the important role played by the Courts in the functioning of the Convention, a large number of judges were invited to participate in the Special Commission by their national delegations. Judicial attendance and participation contributed greatly to the success of the Special Commission, and will add additional weight to its Conclusions and Recommendations. The practical problems surrounding implementation of the Convention wer e considered at various levels: co -operation between Central Authorities, the practical application of the Convention and its interpretation by judges. The objective of the Special Commission was, inter alia , to arrive at recommendations for best practices and strategic recommendations in further support of the Convention. Prior to the Special Commission, the Central Authorities designated by the now almost seventy States Parties had been asked to provide statistics and to reply to a Questionnaire. The responses received from the Central Authorities provided a wealth of information upon which solid recommendations could be built. The meeting was novel in that it had a double focus: it started with an examination of the co -operation among Central Authorities and then centred discussions on the role of the Courts and on international co-operation among Courts. The first part of the Commission was chaired by Mr Peter Pfund, Special Adviser, Office of Children’s Issues / Bureau of ConsularAffairs at the United S tates Department of State. The second part of the Commission was chaired by The Honourable Mrs Justice Catherine McGuinness, Member of the Supreme Court of Ireland. The Special Commission adopted fifty -eight Conclusions and Recommendations to further impro ve the practical operation of the Convention. Several of these Recommendations encourage the Permanent Bureau to continue with initiatives taken by it, such as the International Child Abduction Database (INCADAT), and to start new projects such as the esta blishment of a Good Practice Guide. Subject to obtaining additional funding, the setting up of a database with statistical information on the Child Abduction Convention is planned (appropriately to be named INCASTAT). During the meeting of Commission I on General Affairs and Policy of the Nineteenth Session, held 21 -22 June 2001, Member States representatives were unanimous in

additional funding, the setting up of a database with statistical information on the Child Abduction Convention is planned (appropriately to be named INCASTAT). During the meeting of Commission I on General Affairs and Policy of the Nineteenth Session, held 21 -22 June 2001, Member States representatives were unanimous in confirming their highly positive evaluation of the Special Commission meeting. The following selected Recommendations and Conclusion s adopted by the Fourth Special Commission focus on the role of the Courts and on international co -operation among Courts:

PART III – JUDICIAL PROCEEDINGS, INCLUDING APPEALS AND ENFORCEMENT ISSUES,

AND QUESTIONS OF INTERPRETATION COURTS ORGANISATION 3.1 The Special Commission calls upon Contracting States to bear in mind the considerable advantages to be gained by a concentration of jurisdiction to deal with Hague Convention cases within a limited number of courts. 3.2 The progress already made in certain Contracting States, as well as the consideration now being given to this matter in others, is welcomed. Where a concentration of jurisdiction is not possible, it is particularly important that judges concerned in proceedings be offered appropriate training or briefing. SPEED OF HAGUE PROCEDURES, INCLUDING APPEALS 3.3 The Special Commission underscores the obligation (Article 11) of Contracting States to process return applications expeditiously, and that this obligation extends also to appeal procedures. 3.4 The Special Commission calls upon trial and appellate courts to set and adhere to timetables that ensure the speedy determination of return applications. 3.5 The Special Commission calls for firm management by judges, both at trial and appellate levels, of the progress of return proceedings. THE PROVISION OF LEGAL AID AND ADVICE 3.6 In States where an applicant for a return order is in effect unable to bring his/her application promptly before the courts in the requested State, this constitutes a ser ious hindrance to the rapid and efficient operation of the

THE PROVISION OF LEGAL AID AND ADVICE 3.6 In States where an applicant for a return order is in effect unable to bring his/her application promptly before the courts in the requested State, this constitutes a ser ious hindrance to the rapid and efficient operation of the Convention. The Special Commission encourages such States to intensify theirefforts to obtain legal counsel or advisers in order to avoid serious prejudice to the interests of the children involved. MANNER OF TAKING EVIDENCE 3.7 Rules and practices concerning the taking and admission of evidence, including the evidence of experts, should be applied in return proceedings with regard to the necessity for speed and the importance of limiting the enquiry to the matters in dispute which are directly relevant to the issue of return. PROCEDURES FOR HEARIN G THE CHILD , AND DETERMINING WHET HER THE CHILD OBJECTS TO RETURN 3.8 There are considerable differences of approach to the question of interviewing the child concerned. Some States have strong reservations about the appropriateness of interviewing young children in connection with return applications. Where it is appropriate and necessary to do so, it is desirable that the person interviewing the child sh ould be properly trained or experienced and should shield the child from the burden of decision-making. METHODS AND SPEED OF ENFORCEMENT 3.9 Delays in enforcement of return orders, or their non -enforcement, in certain Contracting States are matters of serious concern. The Special Commission calls upon Contracting States to enforce return orders promptly and effectively. 3.10 It should be made possible for courts, when making return orders, to include provisions to ensure that the order leads to the prompt and effective return of the child. 3.11 Efforts should be made by Central Authorities, or by other competent authorities, to track the outcome of return orders and to determine in each case whether enforcement is delayed or not achieved. PART IV – INTERPRETATION OF KEY CONCEPTS APPROACH TO INTERPRETATION 4.1 The Convention should be interpreted having regard to its autonomous

authorities, to track the outcome of return orders and to determine in each case whether enforcement is delayed or not achieved. PART IV – INTERPRETATION OF KEY CONCEPTS APPROACH TO INTERPRETATION 4.1 The Convention should be interpreted having regard to its autonomous nature and in the light of its objects. 4.2 The Special Commission emphasises the continuing importance as an aid to the interpretation and understanding of the Convention of the Explanatory Report by Elisa Pérez-Vera, and notes the value of a recent translation of the Report into Spanish. ARTICLE 13, PARAGRAPH 1 B) 4.3 The Article 13, paragraph 1 b), “grave risk” defence has gener ally been narrowly construed by courts in the Contracting States, and this is confirmed by the relatively small number of return applications which were refused on thisbasis according to the Statistical Analysis of Applications made in 1999 (Prel. Doc. No 3, March 2001). It is in keeping with the objectives of the Convention, as confirmed in the Explanatory Report by Elisa Pérez -Vera (at paragraph 34), to interpret this defence in a restrictive fashion. CONSENT AND ACQUIESCENCE (ARTICLE 13, PARAGRAPH 1 A)) 4.4 Efforts to achieve an amicable resolution of the issues should not be construed as giving rise to acquiescence or consent. ARTICLE 20 4.5 The Special Commission notes that there have been very few reported cases in which a return order has been refu sed on the basis of Article 20, and that no such cases were reported in the Statistical Analysis of Applications made in 1999 (Prel. Doc. No 3, March 2001).

PART V – ISSUES SURROUNDING THE SAFE AND PROMPT RETURN OF THE CHILD (AND

THE CUSTODIAL PARENT, WHERE RELEVANT) SAFE RETURN ORDERS 5.1 Contracting States should consider the provision of procedures for obtaining,

PART V – ISSUES SURROUNDING THE SAFE AND PROMPT RETURN OF THE CHILD (AND

THE CUSTODIAL PARENT, WHERE RELEVANT) SAFE RETURN ORDERS 5.1 Contracting States should consider the provision of procedures for obtaining, in the jurisdiction to which the child is to be returned, any necessary provisional protective measures prior to the return of the child. CRIMINAL PROCEEDINGS 5.2 The impact of a criminal prosecution for child abduction on the possibility of achieving a return of the child is a matter which should be capable of being taken into account in the exercise of any discretion which the prosecuting aut horities have to initiate, suspend or withdraw charges. IMMIGRATION MATTERS 5.3 Contracting States should, as far as possible, take measures to ensure that, save in exceptional cases, the abducting parent will be permitted to enter the Country to which th e child is returned for the purpose of taking part in legal proceedings concerning custody or protection of the child. THE PROVISION OF LEGAL AID AND ADVICE 5.4 Contracting States should take measures to ensure that parents who participate in custody proc eedings after a child’s return are given adequate access to a country’s legal system to adequately present their case.1 DIRECT JUDICIAL COMMUNICATIONS 5.5 Contracting States are encouraged to consider identifying a judge or judges or other persons or auth orities able to facilitate at the international level communications between judges or between a judge and another authority. 5.6 Contracting States should actively encourage international judicial cooperation. This takes the form of attendance of judges at judicial conferences byexchanging ideas/communications with foreign judges or by explaining the possibilities of direct communication on specific cases. In Contracting States in which direct judicial communications are practised, the following are commonly accepted safeguards: - communications to be limited to logistical issues and the exchange of information; - parties to be notified in advance of the nature of proposed communication; - record to be kept of communications; - confirmation of any agreement reached in writing;

following are commonly accepted safeguards: - communications to be limited to logistical issues and the exchange of information; - parties to be notified in advance of the nature of proposed communication; - record to be kept of communications; - confirmation of any agreement reached in writing; - parties or their representatives to be present in certain cases, for example via conference call facilities. 5.7 The Permanent Bureau should continue to explore the practical mechanisms for facilitating direct international judicial communications. ( . . . ) PART VII – MATTERS OF A GENERAL NATURE ( . . . ) DECISIONS ON RELOCATION 7.3 Courts take significantly different approaches to relocation cases, which are occurring with a frequency not contemplated in 1980 when the Conventio n was drafted. It is recognised that a highly restrictive approach to relocation applications may have an adverse effect on the operation of the 1980 Convention. PART VIII – INCADAT, RESEARCH AND THE JUDGES’ NEWSLETTER ( . . . ) THE JUDGES’ NEWSLETTER ON INTERNATIONAL CHILD PROTECTION 8.3 The Special Commission supports the publication and circulation by the Permanent Bureau of the Judges’ Newsletter on International Child Protection. GENERAL CONCLUSION The Special Commission recognises that the Convention in general continues to work well in the interests of children and broadly meets the needs for which it was drafted. The complete text of the Conclusions and Recommendations of the Fourth Meeting of the Special Commission may be accessed at http://www.hcch.net/e/conventions/reports28e.html.

III. LIAISON JUDGES Background and developmentsThe creation of an international network of liaison judges was first proposed at the 1998

De Ruwenberg Seminar for Judges on the international protection of children by The Right Hon Lord Justice Thorpe (Judge of the Court of Appeal, England). It was recommended that relevant authorities in the different jurisdictions designate members of the judiciary to act as a channel of communication with Central Authorities and with other judges. Following the judicial conference, a number of Member States have

Right Hon Lord Justice Thorpe (Judge of the Court of Appeal, England). It was recommended that relevant authorities in the different jurisdictions designate members of the judiciary to act as a channel of communication with Central Authorities and with other judges. Following the judicial conference, a number of Member States have nominated individual liaison judges. The idea received further support at the International Judicial Conference held at De Ruwenberg in June 2000 and at the Common Law Judicial Conference on International Parental Child Abduction, hosted by the United States Department of State at Washington, D.C. in September 2000. The International Network of Liaison Judges currently includes The Right Honourable Lord Justice Mathew Thorpe, The Honourable Justice Joseph Kay (Judge of the Appeal Division of the Family Court of Australia), His Honour Judge Patrick Mahony (Principal Judge of the Family Court of New Zealand), The Honourable James Garbolino (Presiding Judge of the Superior Court of California, United States), The Honourable Jacques Chamberland (Judge of the Court of Appeal of Québec, Canada), The Honourable Justice Robyn Diamond (Judge of the Court of Queen’s Bench of Manitoba, Canada), H.E. Justice Antonio Boggiano (Judge and former President of the Supreme Court of Argentina) and Dr George A. Serghides (President of the Family Court of Limassol-Paphos, Cyprus). During the March Special Commission on Child Abduction, the issue of the feasibility and limitations of direct judicial com munications and the development of a network of liaison judges was addressed in the context of issues surrounding the safe and prompt return of the child, and the child’s primary caretaker, where relevant. The Special Commission stated in its Conclusions a nd Recommendations that “(5.5) Contracting States are encouraged to consider identifying a judge or judges or other persons or authorities able to facilitate at the international level communications between judges or between a judge and other authority ”. The Commission further stated that Contracting States should actively encourage international judicial co -operation. This takes the form

States are encouraged to consider identifying a judge or judges or other persons or authorities able to facilitate at the international level communications between judges or between a judge and other authority ”. The Commission further stated that Contracting States should actively encourage international judicial co -operation. This takes the form of attendance of judges at judicial conferences, by exchanging ideas/communications with foreign judges or by explaini ng the possibilities of direct communication on specific cases. It was recommended that the Permanent Bureau should continue to explore the practical mechanisms for facilitating direct international judicial communications. “International Liaison Judges fo r Family Proceedings” Submitted by The Right Hon Lord Justice Thorpe: Speech from the March 2001 Special Commission on Child Abduction: The Right Hon Lord Justice Thorpe: My audience is the specialist family judges of the world but most especially of the jurisdictions that are signatories to the 1980 Hague Abduction Convention. My argument is for the extension of the international network of liaison judges. I begin with a brief history. The idea for the creation of such a network, complementaryto the netw ork of central authorities, was launched at the 1998 De Ruwenberg judicial conference hosted by the Permanent Bureau. Despite the novelty of the notion and the practical difficulties that it poses for some jurisdictions, in the interim at least seven jurisdictions have nominated their liaison judge. Furthermore at the De Ruwenberg judicial conference attended by Germany, France, Italy and the Netherlands in June 2000, the forty odd judges there assembled endorsed their support in principle for the extension of the network. Similarly the delegates of the seven common law jurisdictions attending the Washington conference in September 2000 passed the same resolution. On the other hand during the same period other jurisdictions have pointed out practical difficulties (such as the autonomy of the states or the provinces administering the Convention) or have expressed misgivings as to the capacity for direct international judicial communication to breach the rules of natural justice. As to the first, the difficulty , whilst in some instances great, is not insoluble. Just as a telephone directory offers city

Convention) or have expressed misgivings as to the capacity for direct internatio