HCCH - El Boletín de los Jueces sobre la Protección Internacional del Niño - Tomo XVIII - Primavera-Verano 2012

1on Int ernational Child Protection Table of contents Special Focus The Sixth Meeting of the Special Commission on the practical operation of the 1980 Hague Child Abduction Convention and 1996 Hague Child Protection Convention, Part I, 1-10 June 2011 1 – Introduction 2 2 – Statistical analysis, report by Prof. Nigel Lowe 2 3 – Domestic violence and family violence allegations and return proceedings 4 4 – Draft Practical Handbook under the 1996 Hague Convention 6 5 – Judicial networking and direct judicial communications 6 6 – Draft Guide to Good Practice on Mediation under the 1980 Hague Convention 10 7 – Conclusions and Recommendations 11 Case Comments and Perspectives • A Bri ef Comment on Neulinger and Shuruk v. Switzerland (2010), European Court of d Human Rights, Professor Linda Silberman 18 Judicial Communications • Report on the Trainin g of Moroccan judges on the 1980 Hague Child Abduction Convention, Catherine Gaudet 20 • Report of the Dutch O ffi ce of the Liaison Judge International Child Protection (BLIK) 20 Other Regional Perspectives • Battered Mothers Seeking Sa fety Across International Borders: Examining Hague Convention Cases involving Domestic Violence, Professor Jeff rey Edleson and Professor Taryn Lindhorst 22 International Child Protection Conferences and Seminars • Mexico Inter-American Meetin g of International Hague Network Judges and Central Authorities on International Child Abduction (23-25 February 2011) 25 • Finnish-Russian Expert Conference on International Child and Famil y Law (23 March 2011) 31 • First Gul f Judicial Seminar on Cross-Frontier Legal Co-operation in Civil and Commercial Matters (20-22 June 2011) 31 • Fourth Asia Paci fi c Regional Conference (26-28 October 2011) 33 Hague Conference Update • The Intercountr y Adoption Technical Assistance Program (ICATAP): An Update 34 Hague Children’s Conventions Status 36 Members of the International Hague Network of Judges 37 Personal Note 412 The Jud ges’ Newslette r

Hague Conference Update • The Intercountr y Adoption Technical Assistance Program (ICATAP): An Update 34 Hague Children’s Conventions Status 36 Members of the International Hague Network of Judges 37 Personal Note 412 The Jud ges’ Newslette r Convention and the processing of applications for return by Central Authorities – App lications concerning access/contact under the 1980 and 1996 Conventions – Domestic vio lence allegations and return proceedings1 – Judicial Networking and Direct Judicial Communications – Consideration of the revised Draft Practical Handbook on the operation of the 1996 Convention – Consideration of the Draft Guide to Good Practice on Mediation under the 1980 Convention The Permanent Bureau provided an update as to the status of the 1 980 and 1 996 Conventions. There were nine new Contracting States to the 1980 Convention since 2006,2 bringing the total to 85. There were 19 new Contracting States to the 1996 Convention,3 bringing the total to 32, with a further seven signatory States (the remaining six European Union Member States and the United States of America). Several States had indicated in the replies to Questionnaire No 1 that they were considering implementation of the 1996 Convention.4 Experts from Russia, Japan and Korea reported on the steps taken with regard to the 1980 Convention in their respective States and the signifi cant progress made towards becoming Contracting States. Part II o f the S pecial Commission will take place in The Hague from 25 January to 31 January 2012. It will consider the desirability and feasibility of specifi c areas of further work in connection with the 1980 and 1996 Conventions. It will also consider international family relocation, the future of the “Malta Process” and the role of the Permanent Bureau in supporting an d monitoring t he 1980 an d 1996 Hague Conventions.

2. Statistical survey of 2008 cases under the 1980

Hague Convention

also consider international family relocation, the future of the “Malta Process” and the role of the Permanent Bureau in supporting an d monitoring t he 1980 an d 1996 Hague Conventions.

2. Statistical survey of 2008 cases under the 1980

Hague Convention The followin g is taken from the “Statistical anal ysis of applications made in 2008 under the 1980 Hague Convention: Part I – Global Report”, drawn up by Professor Nigel Lowe of the Cardiff University Law School and which was presented at the Special Commission.5 N otes 1 Including the endorsement of the Emerging rules regarding the development of the International Ha gue Network o f Judges and draft general principles for judicial communications, includin g commonly accepted safeguards for direct judicial communications in specifi c cases, within the context o f the International Ha gue Network of Judges. 2 Albania, Andorra, Armenia, Gabon, Morocco, San Marino, Seychelles and Singapore. 3 Armenia, Austria, Croatia, Cyprus, Dominican Republic, Finland, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Poland, Portu gal, Romania, Spain, Switzerland, Ukraine and Uruguay. 4 See the responses to Question 14.2 of Questionnaire No 1. State responses to Questionnaire No 1 are compiled in Prel. Doc. No 10. The response of South Africa to Questionnaire No 1 was received after the compilation was prepared, and is available separately on the website of the Hague Conference. 5 The full report is available on the website of the Hague Conference at www.hcch.net under “Child Abduction Section” then “Special Commissions”, Preliminary Document Nos 8A, 8B and 8C. Special Focus Report of Part I of the Sixth Meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, 1-10 June 2011 drawn up by the Permanent Bureau

Special Focus Report of Part I of the Sixth Meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, 1-10 June 2011 drawn up by the Permanent Bureau

1. Introduction Part I of the Sixth Meeting of the Special Commission on the Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the 1980

Convention) and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention) took place in The Hague from 1 to 10 June 2011. In preparation for the Special Commission, it was decided that the subjects to be covered were too extensive for one meeting. The exceptional decision was made for the fi rst time to hold the Special Commission in two separate parts, with the second part taking place seven months after the fi rst part, from 25 to 31 January 2012. The 2011 Special Commission (Part I), one o f the larges t ever, included more than 300 experts and observers from 69 States and 19 organisations. 58 of the States were Contracting States to the 1980 Convention and 2 7 of the States were Contracting States to the 1996 Convention. Five States were invited to participate in the meetin g as observers, namel y Indonesia, Nami bia, Oman, Sau di Ara bia an d Zam bia. Representatives of three inter-governmental organisations and 16 non-governmental organisations also participated as observers. Among the participants were 55 judges from 30 States, including 25 members of the International Ha gue Network of Judges from 21 States. Ten Preliminary Documents drawn up b y the Permanent Bureau were prepared for the S pecial Commission. Si x Information D ocuments were also m ade available t o participants of the Special Commission. These documents are all available on the Hague Conference website at < www.

Network of Judges from 21 States. Ten Preliminary Documents drawn up b y the Permanent Bureau were prepared for the S pecial Commission. Si x Information D ocuments were also m ade available t o participants of the Special Commission. These documents are all available on the Hague Conference website at < www. hcch.net > under “Work in Progress” then “Child Abduction”. The agenda of the Special Commission followed a number of specifi c themes which stimulated a detailed discussion on a range of current issues. The highlights of those discussions are mentioned in t his Re port. T he Special Commission themes were: – Statistical survey of 2008 cases under the 1980 Hague Convention – Co-operation among Central Authorities under the 19803on Int ernational Child Protection A total of 2,705 children were involved in the 1 ,961 return applications, making an average of 1.38 children per application. A large majority of applications (69%) involved a single child and there were close to equal numbers of boys and girls with 51% of children being male and 49% female. The average age of a child involved in a return application was 6.4 years, but 6.0 years if taken by a mother and 7.2 years if by a father. The overa ll return rate was 46%, 10 lower t han t he 51 % recorded in 2003 an d 50% in 1999, an d comprise d 19% voluntary returns and 27% judicial returns. A further 3% of applications concluded with access being agreed or ordered, the same proportion as in 2003. The report shows that 15% of applications ended in a judicial refusal (higher than 13% in 2003 an d 11% in 1999 ), 18% were wit hdrawn (15% in 2003 and 14% in 1999) and the number of applications still pending at the cut off date of 30th June 2010 was 8%, lower than the 9% in 2003 and 1999. There was a decrease in the

2003 and 14% in 1999) and the number of applications still pending at the cut off date of 30th June 2010 was 8%, lower than the 9% in 2003 and 1999. There was a decrease in the rate of rejection by the Central Authorities under Article 27 with 5% of applications ending in this way in 2008 compared with 6% in 2003 and 11% in 1999. In 2008, 44% of applications were decided in court (44% in 2003 and 43% in 1999). 61% of court decisions resulted in a judicial return order being made compared with 66% in 2003 and 74% in 1999. In 2008, 286 judicial refusals were recorded with reasons available in 262 of these applications. A further 7 applications involved a judicial refusal (4 applications ending with diff erent outcomes for diff erent children and 3 in m ore than one outcome) giving a total of 269 applications with reasons for refusal. The fi gures are complicated because 18% o f the applications were refused for more than one reason. If all the reasons relied upon are combined then, followin g the pattern in previous surve ys, the most frequentl y cited reason for refusal was Article 13 (1) b) (27%). 17% o f the applications were refused following the child’s objections, 15% because the child was not found to be habitually resident in the Requesting State and 13% citing Article 12. In 2008, app lications genera lly too k longer to reac h a conclusion. The avera ge time taken to reach a decision o f judicial return was 166 da ys (125 days in 2003 and 107 in 1999) and a judicial refusal took an avera ge of 286 days to conclude (233 in 2003 an d 147 in 1999 ). For app lications resulting in a voluntary return the average time taken was

1. and a judicial refusal took an avera ge of 286 days to conclude (233 in 2003 an d 147 in 1999 ). For app lications resulting in a voluntary return the average time taken was 121 days (98 days in 2003 and 84 days in 1999). 11% of all applications in 2008 involved an appeal (24% of all applications that went to court). Looking only at the applications that did not involve an a ppeal and the fi rst instance decisions of those that did, the average time taken to reach a decision was 168 days. By contrast, applications that went on appeal took an average of 324 days to conclude.

The 2008 survey also inquired for the fi rst time into how the Note 10 Calculated excluding applications where the outcome was missing. a. Background and rationale of the project This is the third statistical survey into the operation o f the Convention o f 25 October 1980 on the Civil Aspects o f International Child Abduction (hereinafter, “the Convention”) conducted by the Centre of International Family Law Studies at Cardiff University Law School (under the Directorship of Professor Nigel Lowe) in collaboration with the Permanent Bureau of the Hague Conference on Private International Law. The majority of funding for this project was generously provided b y the International Centre for Missin g and Exploited Children (ICMEC) with contributions from the Permanent Bureau and Cardiff Law School. This survey concerns applications made in 2008. Previous surveys concerned those made in 1999 an d 2003. As wit h the previous surveys, accuracy was sought by approaching each Contracting State for their own data. b. Executive Summary Replies have been received from 606 of the 81 States part y

to the Convention in 2008.7 Detailed information has been provided on a total of 2,321 incoming applications, comprising 1,961 return an d 360 access app lications. Compare d with the 2003 surve y, there has been a 45% increase in return applications and a 40% increase in access applications.

1. Return Applications The report shows that 69% of taking persons were mothers, a fi gure that has stayed virtually constant throughout pas t surveys at 68% in 2003 and 69% in 1999. In 2008, 28% of the taking persons were fathers and the remaining 3% comprised grandparents, institutions or other relatives.

Where the information was available (in 17% of the applications which constituted a sample size o f 335 applications), the large majority (72%) of taking persons were the “primary carer” of the child.8 Where the taking person was the mother, this fi gure was 88% but onl y 36% where the taking person was the father. 60% of taking persons had the same nationality as the requested State.9 Proportionately more taking fathers (64%) had the same nationality as the requested State compared with 59% of mothers. Note s 6 Albania, Ar gentina, Armenia, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, China - Hong Kong and Macau, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Georgia, Germany, Greece, Guatemala, Hungary, Honduras, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, Monaco, Montene gro, Netherlands, New Zealand, Nicara gua, Norwa y, Panama, Paraguay, Poland, Portugal, Romania, Serbia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, UK (England and Wales, Northern Ireland, Scotland, Isle of Man, Bermuda, Cayman Islands, Falkland Islands), Ukraine, Uruguay and USA. 7 There are now 87 Contractin g States followin g the accession o f

South Africa, Spain, Sweden, Switzerland, Turkey, UK (England and Wales, Northern Ireland, Scotland, Isle of Man, Bermuda, Cayman Islands, Falkland Islands), Ukraine, Uruguay and USA. 7 There are now 87 Contractin g States followin g the accession o f Andorra, Morocco, Gabon, Guinea, Sin gapore and the Russian Federation. 8 40% were the sole primar y carer of the child and 33% were a joint primary carer. These fi gures have been rounded up. 9 Either their sole nationalit y was the same as the requested State or they held dual or triple citizenship, one of which was the nationality of the requested State.4 The Jud ges’ Newslette r The discussion on domestic violence within the context of the Article 13 “grave risk” exception was divided into three parts. The initial part focused on the existing research and case law, the evidentiary aspects and the defi nition of domestic violence within the context o f Article 13(1) b). The second part considered issues of protection, including protective measures for the safe return of the child and accompanying parent. The last part considered potential further actions and means to promote consistency. a. Existing research and evidentiary aspects The Permanent Bureau re ferred experts to some relevant fi gures from the Lowe statistical survey of 2008 cases. Fifteen percent of return applications resulted in judicial refusal of return. Of those cases, 27% were based on the grave risk exception, while 17% were based on the child’s objections. The research in Preliminary Document No 9 also indicated that those were the two most common exceptions raised in cases of famil y or domestic violence. However, domestic violence was also sometimes alleged or present when other exceptions were satisfi ed. The Permanent Bureau indicated that its research presented in Pre liminar y Document No 9 was limite d, given t he length of the document. Also, it was reported that there is general statistical uncertaint y as to the number of global Hague proceedings which involve domestic violence issues,

The Permanent Bureau indicated that its research presented in Pre liminar y Document No 9 was limite d, given t he length of the document. Also, it was reported that there is general statistical uncertaint y as to the number of global Hague proceedings which involve domestic violence issues, due to the lack of focused research in this area. However, States’ responses to Questionnaire I provided some useful information.13 Sixteen States noted that the issue of domestic violence or abuse was “often raised” under Article 13(1) b) as an exception to the return of the child. Two States noted that allegations were raised “very often” and three States reported that such allegations were raised “quite often”. A further three States speci fi ed that such alle gations were regularly raised, but constituted a minority of cases, or that the seriousness of the allegations varied. Five States reported that such alle gations were raised on occasion, sometimes or “sporadically”, a further fi ve States reported that such allegations were not often raised, and six reported having no cases of this type to date. Some States gave specifi c fi gures of cases where such allegations were raised: the United Kingdom (England and Wales) reported that these alle gations were present in less than 20% of return cases, while German y noted that academic studies of the applications handled by the Central Authority showed that between 10% and 14% of its Article 13(1) b) cases had involved allegations of domestic violence or child abuse. The Permanent Bureau highlighted some key issues raised by the study, which included: the desirability of involving experts on the dynamics of family violence in developing appropriate policy; the manner in which harm towards a taking parent is addressed under the 1980 Convention; the potential eff ect of certain narrow inter pretations of Article 13(1) b) in cases of family violence; and the question of how, in practice, to ensure a balance between ex peditious N ote 13 See responses to Question 5.1 .

potential eff ect of certain narrow inter pretations of Article 13(1) b) in cases of family violence; and the question of how, in practice, to ensure a balance between ex peditious N ote 13 See responses to Question 5.1 . time taken to reach a decision was split between the Central Authorities and the courts. On average, a Central Authority held the case for 76 days before sending it to court and the court then took 153 days to dispose of it. ii. Access Applications In the 360 access applications made under Article 21 in 2008,11 79% involved a mother as the respondent (79% in 2003 and 86% in 1999). 50% of respondents had the same nationality as the requested State as against 53% in 2003 an d 40% in

1999. As in 2003, 72% of applications concerned a single child and a total o f 477 children were involved making an average of 1.33 children per application. The overall average age of a child involved was 7.8 years (7.9 years in 2003), 7.5 years if the respondent was the mother and 9.1 years if it was the father of the child. As with previous studies there was an even distribution of boys and girls with 49% being female and 51% male.

The overall rate at which access was agreed or ordered fell to 21% from 33% in 2003 and 43% in 1999. 31% of applications were withdrawn (22% in 2003 and 26% in 1999), 17% pending and 14% ending in reasons described as ‘other’. 13% were rejected and 3% refused. Access applications took much longer to resolve than return applications and the average time taken to reach a fi nal

outcome was 309 days if there was a voluntary agreemen t for access, 357 days if access was judicially ordered and 276 days if access was refused. 73% of applications that were judicially determined and 74% of voluntary settlements took over 6 months to resolve.

3. Domestic and family violence allegations and return proceedings

The Special Commission considered Preliminary Document No 9 concerning domestic and family violence in the context of return proceedin gs. Domestic violence issues have increasingly been raised as an area of concern in case law, in The Judges’ Newsletter on International Child Protectionandn academic literature.12 While the subject had been discussed at previous Special Commission meetings, discussion had focused only on the issue of securing safe return. The Permanent Bureau noted that the subject of domestic violence could present diffi cult challenges in the operation of the 1980 Convention. For example, how should a balance be achieved between the need to maintain ex peditious procedures and to avoid examination of the merits of the underlying custody dispute while also allowing prope r consideration of a defence under Article 13(1) b)? Note s 11 Not includin g return applications where the outcome was tha t access was agreed or judicially granted. 12 At the meeting of the Council on General Aff airs and Policy in 2011, the topic of the recognition of foreign civil protection orders made, for example, in the context of domestic violence cases, was added to the Agenda of the Conference: see para. 23 of the Conclusions and Recommendations adopted by the Council.5on Int ernational Child Protection Additionally, many experts hi ghlighted the importance o f training judges and Central Authority personne l in order to increase awareness o f issues related to family violence dynamics within the operation of the 1980 Convention. Several experts expressed the concern that some taking parents may raise domestic violence allegations as a way to circumvent the international relocation procedures which should take place in the State o f habitual residence o f the child. b. Protective measures to enable safe return of the child and accompanying parent The Permanent Bureau explained that the case law sample

parents may raise domestic violence allegations as a way to circumvent the international relocation procedures which should take place in the State o f habitual residence o f the child. b. Protective measures to enable safe return of the child and accompanying parent The Permanent Bureau explained that the case law sample showed a number of a pproaches to this issue. Questions included who had the burden o f proving the ability of the home State to provide protection, how that question was investigated and by whom and whether the existence of laws or more concrete measures was relevant. The Permanent Bureau hi ghlighted the important role o f Central Authorities (Art. 7(2) h) of the 1980 Convention), the International Hague Network of Judges and the information in the completed Country Profi les14 in organising protective measures to enable safe return under the 1980 Convention. The Permanent Bureau also drew attention to some of the key issues in this area. First, in relation to voluntary undertakings, research to date showed that undertakings were commonly not respected where they were not enforceable or where there was no monitoring or follow-up after return. It suggested discussion on how undertakings should be employed and how undertakings and / or conditions to return could be made enforceable. Second, it noted access to justice issues that could arise after the return of the taking parent, relating to fair custody proceedings and fi nancial resources to participate in custody proceedings.15 Third, the Permanent Bureau raised the issue of follow-up and information exchange after return: that is, what follow-up should be pursued after return, and whether Central Authorities, judges, or other authorities in the requested or requesting State should be responsible. Finally, in relation to the 1996 Convention, the Permanent Bureau explained that there was nothing to prevent judges from considering harm to parents when determining whether, and if so which, necessar y protective measures should be made in respect of a child in “cases of ur gency” (see Art. 11).16 Other provisions in the 1996 Convention could also

Bureau explained that there was nothing to prevent judges from considering harm to parents when determining whether, and if so which, necessar y protective measures should be made in respect of a child in “cases of ur gency” (see Art. 11).16 Other provisions in the 1996 Convention could also be helpful, for example Articles 30 (2) and 34 with respect to information exchange. Several experts raised the issue of the need for a proper legal framework for the recognition and enforcement of protective measures in international cross-border situations so that a N otes 14 See Quest ion 11.2. 15 See also the discussion below at paras 136-141 on access to justice following return. 16 Art. 1 of the 1996 Convention makes clear that an y protective measures taken must be measures “directed to the protection of the person or property of the child”. proceedings and adequate attention to the sa fety and well being of an aff ected parent and child. The Permanent Bureau also emphasised the need to give consideration to the cross-border nature and the importance of expeditious proceedings in Hague abduction cases. In that context, a number of evidentiary issues were present, including the types o f evidence used in determining domestic violence claims ( e.g., police or medical reports), the role of the International Hague Network of Judges and Central Authorities in sharing information or evidence, the evidentiary standard to be applied and the role o f exper t evidence. The experts agreed that domestic violence is a complex issue that requires a focused approach. Many confi rmed that there was an increase in the number o f cases alleging domestic violence as an exception to return under Article 13(1) b) and that domestic violence claims were always or should always

be taken very seriously. Recognising that the overall goal of the Convention was to protect the child, the experts a greed with the need to balance expeditious proceedings with the investigation into allegations of domestic violence. Some experts noted tha t the Article 13(1) b) exception should not stand in the way of speedy resolution. Others distinguished between “speed” and “haste”, and explained that the integrity of the proceedings should not give way to expedience: taking slightly more time to gather evidence to make a proper decision in such cases was not considered a problem if it avoided exposing the child to further harm. Many experts o ff ered examples o f good practices an d practica l solutions w hereby the goals of expedition and appropriate investigation into allegations were balanced. In the case of a return application where alle gations o f domestic violence have been raised, a number o f experts indicated that the role of the court of the requested State is to assess, in light of the availability and effi cacy of measures of protection in the requestin g State and the evidence on fi le, the risk that the return of the child would expose him or her (and the accompanying parent, most often the primary care-giver) to physical or psychological harm or otherwise place the child in an intolerable situation. Recognising that a mere allegation of domestic violence was insu ffi cient to justify the application of the Article 13(1) b) exception, experts indicated that the level of proof required should be substantial and appropriate in order to determine that the alle gations are well-founded. A number of experts emphasised the mutual trust between States and shared the view that the courts of the requesting State should be the best placed to determine whether domestic violence occurre d, as t hey wou ld be in t he best position to appreciate all the circumstances and in particular the evidence. Several experts reaffi rmed in this regard that the courts of the State of habitual residence of the child are the most competent to make long-term decisions concerning the protection of the child and the primary care-giver, including

to appreciate all the circumstances and in particular the evidence. Several experts reaffi rmed in this regard that the courts of the State of habitual residence of the child are the most competent to make long-term decisions concerning the protection of the child and the primary care-giver, including relocation.6 The Jud ges’ Newslette r return order under the 1980 Convention would not give rise to a new fl ight.17 A number of experts noted that the 1996 Convention may provide some useful tools in this respect. The importance of securing legal e ff ect for the measures of protection in all the States concerned was em phasised. The importance of mutual trust and support between the authorities concerned was also underscored in relation to the availability and effi cacy of the measures of protection put in place to protect t he child and the accompanying parent upon return. Several experts noted that the safe return of the child was the joint responsibility of both the requested State and the requesting State. Where domestic violence is concerned, it is important that States do all in their power to ensure that the child does not suff er harm. c. Promoting consistency in judicial pr