HCCH - HCCH International Family Law Briefings, junio de 2010

Hague Conference Update: Permanent Bureau of the Hague Conference on Private

International Law International Conferences The beginning of 2010 has been a busy and fruitful period at the Hague Conference on Private International Law. Two important conferences have taken place, both resulting in a broad consensus reflected in the conclusions and recommendations and declaration referenced below. The period has also seen the first North-African State, Morocco, accede to Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, the ‘1980 Hague Child Abduction Convention’). Furthermore, 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 (hereinafter, the ‘1996 Hague Child Protection Convention’) has entered into force in another two States, namely, Croatia and Uruguay. The year does not look to be slowing down as we move into summer. From 17–25 June 2010 the Third Meeting of the Special Commission 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, will be held in The Hague. It is intended that the Special Commission will provide the opportunity for States Parties to the Convention (as well as States which are considering or preparing for ratification or accession) to exchange information and experiences on the operation of the Convention, to compare practices, and to discuss any difficulties in respect of the implementation and practical operation of the Convention. Please visit our website www.hcch.net for further information on Hague Conference matters. International Child Protection Conferences and Seminars Cross-Frontier Child Protection in the Southern and Eastern African Region: the Role of the Hague Children’s Conventions The Seminar on Cross-Frontier Child Protection in

the Southern and Eastern African Region was held from 22 to 25 February 2010 in Pretoria, South Africa. The Seminar, which was organised by the Hague Conference on Private International Law in co-operation with the Government of the Republic of South Africa and with the support of UNICEF, was attended by high officials, judges, academics, researchers and other experts from Angola, Botswana, Ghana, Kenya, Madagascar, Malawi, Mauritius, Namibia, South Africa, Swaziland, Uganda, Zambia and Zimbabwe, as well as the African Committee on the Rights and Welfare of the Child, UNICEF and the Permanent Bureau of the Hague Conference. Following the Conference, Professor William Duncan, Deputy Secretary General of the Hague Conference, wrote a Post-Conference Opinion: ‘The African child is the Continent’s most precious resource. Many African countries are reforming their national systems of child care and protection. However, because of the increasing movement of families and children across borders, the protection of the child can no longer be secured by national action alone. Concerted action by two or more States, or even on a regional level, may be needed to protect children who are the victims of sale, trafficking or abduction, unaccompanied minors who in large numbers are crossing country borders, children affected by international parental disputes, children who are the subject of unregulated intercountry adoption, Kafalah or similar placements abroad, as well as refugee or internationally displaced children. In all these cases inter-State co-operation is needed to track, find, protect and in some cases repatriate vulnerable children. This need for inter-State co-operation was addressed by the 65 High Officials, Judges, Academics, and other experts from 13 countries who attended the Pretoria Seminar on Cross-Frontier Child Protection in the Southern

and Eastern African Region...T h e recent movement of large numbers of unaccompanied minors between Zimbabwe, South Africa and other States in the Region, with the prospect of further movements around the football world cup, underlined the urgency of the situation. There was a call for co-operation Protocols among the States in the Region which will facilitate, through designated authorities, exchange of information, mutual assistance, collaboration, co-ordination of efforts and sharing of expertise. In the longer term it was recognised that the Hague Convention of 19 October 1996 on the Protection of Children has the potential for providing within the Southern and Eastern African Region a general framework for co-operation between judicial and child protection authorities in the different countries. Africa is becoming the “new frontier” for intercountry adoption with increasing pressures JUNE [2010] IFL 209from other parts of the globe on African countries to make children available for adoption abroad. The situation in Ethiopia where many hundreds of children are the subject of inadequately regulated intercountry adoption rings a warning bell for the rest of the Continent. There is now almost universal recognition that the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which accords with the general principles set out in the African Charter on the Rights and Welfare of the Child, as well as the UN Convention on the Rights of the Child, provides the appropriate legal, administrative and regulatory framework to guarantee the child’s best interests in intercountry adoption. It is a Convention which empowers countries of origin to retain control over the adoption process, as well as the level of intercountry adoption. It also supports the crucial principle of subsidiarity which requires that, before intercountry adoption is contemplated, (in the words chosen by the

African experts) “full and proper consideration has been given to national solutions” for the child’s care. So far 11 African countries have joined the Convention. Many others are now considering implementing the Convention, but it must be emphasised that many of the States require capacity building, and technical and training assistance to help ensure that the Convention works effectively. The Seminar also discussed the potential benefits of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction and the Hague Convention of 2007 on the International Recovery of Child Support and recognised their value for the Region. The Seminar was an important beginning but will need follow-up at the national and regional levels if the spirit of co-operation demonstrated by the participants is to be translated into permanent and workable structures, through the Hague Conventions and by other means, for inter-State co-operation in child protection. Individual States will need assistance in developing central authorities to support co-operation. Technical assistance in implementing the Conventions, and training of the personnel, including Judges, responsible for applying the Conventions will also be essential. It will be important also to seek support for these developments from regional bodies such as the African Union, the East African Community and the Southern African Development Community. The Hague Conference and UNICEF will work together to give support where it is needed.’ The Conclusions and Recommendations of the

Seminar can be found at: http://www.hcch.net/upload/afrsem2010concl.pdf.

International Judicial Conference on Cross-Border Family Relocation The International Judicial Conference on Cross-Border Family Relocation took place in Washington D.C. on 23–25 March 2010. The Conference was co-organised by the Hague Conference on Private International Law and the International Centre for Missing and Exploited

Children (‘ICMEC’), with the support of the United States Department of State. The participants at the Conference were primarily judges with experience in international family law and, in particular, international family relocation. There were also a number of representatives of Central Authorities, academics and experts from the Permanent Bureau of the Hague Conference and ICMEC. The Conference was convened in recognition of the fact that international family relocation has become a focus of concern within the international family law community. The ease of travel and communications in the modern world have increased the international mobility of individuals and families and increased the likelihood of such issues coming before the courts. However, different jurisdictions have adopted a variety of approaches to the issues surrounding relocation and hence custodial parents may be treated differently depending from what State they wish to relocate. As was recognised by the Conference, international relocation is inextricably linked with the issues dealt with in both the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention (see para 7 of the final Washington Declaration). The Declaration urged the States that have not already done so to join these Conventions. The Washington Declaration sets out the agreement reached between participants on issues related to international relocation. The full text of the Declaration is set out below: JUNE [2010] IFL 210JUNE [2010] IFL 211JUNE [2010] IFL 212JUNE [2010] IFL 213JUNE [2010] IFL 214JUNE [2010] IFL 215