HCCH - International Judicial Conference on Cross-Border Family Relocation, 23-25 March 2010

INTERNATIONAL CHILD PROTECTION PROTECTION INTERNATIONALE DE L’ENFANT The Judges’ Newsletter La Lettre des juges Special Edition (English version/Version anglaise) No 1 Publication of the Hague Conference on Private International Law

SPECIAL EDITION

International Judicial Conference On Cross-Border Family Relocation 23-25 March 2010, Washington, D.C. United States of America co-organised by Hague Conference on Private International Law International Centre for Missing and Exploited Children with the support of United States Department of StateInternational Child Protection The Judges’ NewsletterSpecial Edition No 1 2  H.E. Justice Antonio Boggiano; former President of the Supreme Court o f Argentina / S.E. le juge Antonio Boggiano ; ancien Président de la Cour suprême d‘Argentine  The Honourable Jud ge Peter Boshier; Principal Family Court Judge, New Zealand / M. le juge Peter Boshier ; Juge principal du Tribunal des affaires familiales (Family Court), Nouvelle-Zélandett  The Honourable Judge Eberhard Carl, Judge at the Regional Superior Court at Frankfurt/Main, Germany / M. le juge Eberhard Carl ; juge à la Cour régionale supérieure de Francfort-sur-le Main, Allemagne  The Honourable Justice Jacques Chamberland; Court of Appeal of Quebec, Canada / M. le juge Jacques Chamberland ; Cour d’appel du Québec, Canada  The Honourable Justice James Garbolino; former Presiding Judge of the Superior Court of California, United States / M. le juge James Garbolino ; ancien Juge président de la Cour supérieure de Californie, États-Unis  Ms Cat herine Gaudet Bossard; Conseiller to the Court of Appeal of Bourges, France / Mme Catherine Gaudetr

Bossard ; Conseiller à la Cour d’appel de Bourges, France  The Honourable Mrs Justice Catherine McGuinness; former Judge o f the Supreme Court o f Ireland / Mme le juge Catherine McGuinness ; Juge honoraire à la Cour suprême d’Irlande  The Honourable Dr Katalin Murányi; Chairperson of the Civil College, Budapest, Hungary / Dr Katalin Murányi ; Présidente du Collège civil, Budapest, Hongrie  The Honourable Elisa Pérez-Vera; Constitutional Court o f Spain / Mme le juge Elisa Pérez-Vera ; Cour constitutionnelle d’Espagne  The Honourable Judge Adel Omar Sheri f; Deputy Chief Justice, Supreme Constitutional Court, Cairo, Egypt / M. le juge Adel Omar Sherif ; Chief Justice adjoint de la Cour suprême constitutionnelle, Le Caire, Égypte  The Right Honourable Lord Justice Mathew Thorpe; Head of International Family Justice, England and Wales / Lord Justice Mathew Thorpe ; Head of International Family Justice, Angleterre et Pays de Galles

INTERNATIONAL BOARD OF JUDICIAL ADVISERS

COMITÉ INTERNATIONAL DE CONSULTANTS JURIDIQUESInternational Child Protection The Judges’ Newsletter 2010 3

TABLE OF CONTENTS p.

ACKNOWLEDGEMENT .................................................................................................................................. 4

THE WASHINGTON DECLARATION ..............................................................................................................5

LIST OF PARTICIPANTS .................................................................................................................................. 6

1. AN INTR ODUCTION: THE OPENING PLENARY SESSION .............................................................................8  Mr Ernie ALLEN ......................................................................................................................................N 8  Mr Hans VAN LOON...............................................................................................................................N 9  The Honorable Patrick KENNEDY........................................................................................................Y 10  Ms Michele BOND .................................................................................................................................11  Professor William DUNCAN..................................................................................................................N 12

2. INTERNATI ONAL RESEARCH EVIDENCE ON RELOCATION ........................................................................ 14  International Research Evidence on Relocation: Past , Present and Future, Dr Nicola TAYLOR and Professor Marilyn FREEMAN..........................................................................N 14

 Professor William DUNCAN..................................................................................................................N 12

2. INTERNATI ONAL RESEARCH EVIDENCE ON RELOCATION ........................................................................ 14  International Research Evidence on Relocation: Past , Present and Future, Dr Nicola TAYLOR and Professor Marilyn FREEMAN..........................................................................N 14

3. JUDICIAL PERSPECTIVES ON RELOCATION .................................................................................................26  The USA , The Honorable Peter J. MESSITTE........................................................................................E 26  T he UK, The Right Honourable Lord Justice Mathew THORPE.........................................................E 33  Brazil, The Honourable Ms Mônica J. SIFUENTES PACHECO DE MEDEIROS.....................................S 35  Australia , The Honourable Chief Justice Diana BRYANT....................................................................TT 36  Canada, The Honourable Judge Jacques CHAMBERLAND .................................................................39  E gypt, The Honourable Justice Adel Omar SHERIF.............................................................................F 43  Spain, The Honourable Judge Francisco JAVIER FORCADA MIRANDA .............................................45  New Zealand, The Honourable Judge Peter BOSHIER .......................................................................47  Germany, The Honourable Martina ERB-KLÜNEMANN.....................................................................N 49  In dia, The Honourable Mr Justice Vikramajit SEN..............................................................................N 51  Pakistan, The Honourable Mr Justice Tassaduq HUSSAIN JILLANI.....................................................I 52

4. CENTRAL AUTHORITY PERSPECTIVES ON RELOCATION ...........................................................................56  USA , Ms Michele BOND ........................................................................................................................ 56  Mexico , Mr Johannes JÁCOME CID ......................................................................................................60  Ar gentina, Ms Afe Sabrina FARAONE.................................................................................................E 61

5. LEGAL INSTRUMENTS RELATED TO RELOCATION ..................................................................................... 62  UCCJEA , Professor Robert SPECTOR ....................................................................................................62  Brussels IIa Re gulation, Professor Nigel LOWE...................................................................................E 69  Montevideo Convention, The Honourable Ms Mônica J. SIFUENTES PACHECO DE MEDEIROS......S 73

 UCCJEA , Professor Robert SPECTOR ....................................................................................................62  Brussels IIa Re gulation, Professor Nigel LOWE...................................................................................E 69  Montevideo Convention, The Honourable Ms Mônica J. SIFUENTES PACHECO DE MEDEIROS......S 73  1980 and 1996 Ha gue Conventions, Professor William DUNCAN.....................................................N 76

6. MEDIATI ON AND RELOCATION ...................................................................................................................78  Ms Denise CARTER ................................................................................................................................78  Ms Nina MEIERDING .............................................................................................................................79

7. CASE STUDIES ON RELOCATIO N ................................................................................................................. 83  Th e Case Studies ....................................................................................................................................83  Group 1 - Rapporteur: Professor Linda SILBERMAN...........................................................................N 85  Group 2 - Rapporteur: Professor Nigel LOWE.....................................................................................E 87  Group 3 - Rapporteur: Professor Robert SPECTOR ............................................................................. 88

8. JUDICIAL NETWORKING AND DIRECT JUDICIAL COMMUNICATIONS .....................................................90  Mr Philippe LORTIE...............................................................................................................................E 90

9. NOTE FROM THE PERMANENT BUREA U .................................................................................................... 92  Parental authorit y and relocation in French law,Mr Nicolas SAUVAGE...........................................E 92International Child Protection

The Judges’ NewsletterSpecial Edition No 1 4

INTERNATIONAL JUDICIAL CONFERENCE

ON CROSS-BORDER FAMIL Y RELOCATION, 23-25 MARCH 2010,

WASHINGTON, D.C., UNITED STATES OF AMERICA Acknowledgement The Hague Conference on Private International Law wishes to express its sincere gratitude to the co-organiser of this Conference, the International Centre for Missing and Exploited Children. ICMEC has provided both expert practical assistance and essential fi nancial support, without which this

Conference could not have taken place. Furthermore, publication of this Special Edition of the Judges’ Newsletter would not have been possible without the generous fi nancial support of ICMEC. The Hague Conference also wishes to thank the United States Department of State for their support of the Conference and, in particular, for hosting the Conference.International Child Protection The Judges’ Newsletter 2010 5 WASHINGTON DECLARATION ON INTERNATIONAL FAMIL Y RELOCATION On 23-25 March 2010, more than 50 judges and other experts from Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the United States of America, including experts from the Ha gue Conference on Private International Law and the International Centre for Missing and Exploited Children, met in Washington, D.C. to discuss cross-border family relocation. They agreed on the following: Availability of Legal Procedures Concerning International Relocation

1. States should ensure that le gal procedures are available to appl y to the competent authorit y for the ri ght to relocate with the child. Parties should be strongly encouraged to use the legal procedures and not to act unilaterally.

Reasonable Notice of International Relocation

2. The person who intends to apply for international relocation with the child should, in the best interests of the child, provide reasonable notice of his or her intention before commencing proceedings or, where proceedings are unnecessary, before relocation occurs.

Factors Relevant to Decisions on International Relocation

3. In all applications concerning international relocation the best interests of the child should be the paramount

(primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.

4. In order to identi fy more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case: i) the ri ght of the child separated from one parent to maintain personal relations and direct contact with

more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case: i) the ri ght of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest; ii) the views o f the child having regard to the child’s age and maturity; iii) the parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment; iv) where relevant to the determination o f the outcome, the reasons for seeking or opposing the relocation; v) any history o f family violence or abuse, whether physical or psychological; vi) the histor y of the family and particularly the continuity and quality of past and current care and contact arrangements; vii) pre-existin g custody and access determinations; viii) the impact of grant or refusal on the child, in the context of his or her extended famil y, education and social life, and on the parties; ix) the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation; x) whether the parties’ proposals for contact after relocation are realistic, havin g particular regard to the cost to the family and the burden to the child; xi) the enforceabilit y of contact provisions ordered as a condition of relocation in the State of destination; xii) issues of mobilit y for family members; and xiii) any other circumstances deemed to be relevant by the judge.

5. While these factors ma y have application to domestic relocation they are primarily directed to international

relocation and thus generally involve considerations of international family law.

6. The factors refl ect research fi ndings concerning children’s needs and development in the context of relocation.

The Hague Conventions of 1980 on International Child Abduction and 1996 on International Child Protection

7. It is reco gnised that the Hague Conventions of 1980 and 1996 provide a global framework for international cooperation in respect of cross-border family relocations. The 1980 Convention provides the principal remedy (the order for the return of the child) for unlawful relocations. The 1996 Convention allows for the establishment and

(advance) recognition and enforcement of relocation orders and the conditions attached to them. It facilitates direct co-operation between administrative and judicial authorities between the two States concerned, as well as the exchange of information relevant to the child’s protection. With due regard to the domestic laws of theInternational Child Protection The Judges’ NewsletterSpecial Edition No 1 6

LIST OF PARTICIPANTS

Mr Ernie ALLEN (ICMEC)

The Honorable Marvin BAXTER (United States of America) Ms Michele T. BOND (United States of America) The Honourable Judge Peter BOSHIER (New Zealand) The Honourable Chief Justice Diana BRYANT (Australia) Mrs Mary Helen CARLSON (United States of America) Ms Denise CARTER (United Kingdom) The Honourable Jacques CHAMBERLAND (Canada) Mr Johannes Jácome CID (Mexico) The Honourable Madam Justice Robyn Moglove DIAMOND (Canada) Ms Nancy DUBE (ICMEC) Professor William DUNCAN (HCCH) The Honourable Martina ERB-KLÜNEMANN (Germany) Professor Ann Laquer ESTIN (United States of America) Ms Sabrina FARAONE (Argentina) The Honourable Judge Francisco Javier FORCADA MIRANDA (Spain) Dr Marilyn FREEMAN (United Kingdom)

Ms Anne GALER (ICMEC)

The Honorable Judge James D. GARBOLINO (United States of America) The Honorable Judge Ramona A. GONZALEZ (United States of America)

MIRANDA (Spain) Dr Marilyn FREEMAN (United Kingdom)

Ms Anne GALER (ICMEC)

The Honorable Judge James D. GARBOLINO (United States of America) The Honorable Judge Ramona A. GONZALEZ (United States of America) Ambassador Maura HARTY (ICMEC) Ms Juliane HIRSCH (HCCH) The Honourable Mr Justice Tassaduq Hussain JILLANI (Pakistan) States, this framework should be seen as an integral part of the global system for the protection of children’s rights. States that have not already done so are urged to join these Conventions. Promoting Agreement

8. The voluntar y settlement of relocation disputes between parents should be a major goal. Mediation and similar facilities to encourage agreement between the parents should be promoted and made available both outside and in the context of court proceedin gs. The views of the child should be considered, havin g regard to the child’s age and maturity, within the various processes.

Enforcement of Relocation Orders

9. Orders for relocation and the conditions attached to them should be able to be enforced in the State of destination. Accordingly States of destination should consider making orders that refl ect those made in the State of origin. Where such authority does not exist, States should consider the desirability of introducing appropriate enabling provisions in their domestic law to allow for the making of orders that refl ect those made in the State of origin.

Modifi cation of Contact Provisions

10. Authorities in the State of destination should not terminate or reduce the left behind parent’s contact unless substantial changes affecting the best interests of the child have occurred.

Direct Judicial Communications

11. Direct judicial communications between judges in the affected jurisdictions are encouraged to help establish,

recognise and enforce, replicate and modify, where necessary, relocation orders. Research

12. It is recognised that additional research in the area of relocation is necessary to analyse trends and outcomes in relocation cases.

Further Development and Promotion of Principles

13. The Hague Conference on Private International Law, in co-operation with the International Centre for Missing and Exploited Children, is encoura ged to pursue the further development of the principles set out in this Declaration and to consider the feasibilit y of embodying all or some of these principles in an international instrument. To this end, the y are encoura ged to promote international awareness of these principles, for example through judicial training and other capacity building programmes.International Child Protection

The Judges’ Newsletter 2010 7 Under Secretary Patrick F. KENNEDY (United States of America) Ambassador Michael D. KIRBY (United States of America) Ms Susan KLEEBANK (Brazil) The Honorable Judith L. KREEGER (United States of America)

Mr Hans VAN LOON (HCCH)

Mr Philippe LORTIE (HCCH) Professor Nigel LOWE (United Kingdom)

Ms Sandra MARCHENKO (ICMEC)

Ms Nina MEIERDING (United States of America) The Honourable Peter J. MESSITTE (United States of America) Professor Marta PERTEGÁS (HCCH) Ms Toni PIRANI (Australia) The Honorable Hiram E. PUIG-LUGO (United States of America)

Ms Asmita SATYARTHI (ICMEC)

The Honourable Mr Justice Vikramajit SEN (India) The Honorable Judge Mary W. SHEFFIELD (United States of America) Justice Adel Omar SHERIF (Egypt) The Honourable Chief Judge Mônica J. SIFUENTES

PACHECO DE MEDEIROS (Brazil)

Professor Linda SILBERMAN (United States of America) Professor Robert G. SPECTOR (United States of America) The Honorable Marjorie S. STEINBERG (United States of America) Dr Nicola TAYLOR (New Zealand) The Right Honourable Lord Justice Mathew THORPE

Professor Linda SILBERMAN (United States of America) Professor Robert G. SPECTOR (United States of America) The Honorable Marjorie S. STEINBERG (United States of America) Dr Nicola TAYLOR (New Zealand) The Right Honourable Lord Justice Mathew THORPE (United Kingdom) Mme Hélène VOLANT (France)International Child Protection The Judges’ NewsletterSpecial Edition No 1 8

1. AN INTRODUCTION: THE

OPENING PLENARY SESSION

Ernie ALLEN President & Chief Executive Offi cer, International Centre for Missing & Exploited Children and National Center for Missing & Exploited Children In his “State of the Union” address in 1998, former U.S. President Bill Clinton said, “Quietly, but with gathering force, the ground has shifted beneath our feet as we have moved into an Information Age, a global economy, a trul y new world.” He was right. Our world has changed in fundamental ways, some positive, some not. The world has shrunk. The concept of global nei ghborhood is not as farfetched as it once seemed. In man y areas this era of eas y global travel and communications has presented endless possibilities and opportunities. In the area of family law, it has also created some seemin gly unsolvable challen ges. Over the next three days, we will grapple with an increasing phenomenon in which a custodial parent seeks to relocate with his or her child to another cit y, another country, even to the other side of the world. For judges, this presents a Solomon-like dilemma. If you approve it, you effectively deny reasonable access for the left-behind parent to his or her child. If you don’t approve it, you effectively deny what might have been a

life-changing opportunity for the other parent and the child. This is a human challen ge of the highest order, but it is also a daunting legal challenge, one that may be handled very differently depending on what judge in what court in what country actually handles the case. We at the International Centre for Missing & Exploited Children are pleased to have the opportunit y to join with our friends at the Ha gue Conference on Private International Law and the U.S. State Department in hosting this important international judicial conference. We are honored and deepl y grateful that so man y judges, scholars and experts from around the world would take the time to participate in the discussions of the next three days. We look forward to your conclusions and recommendations, and to assisting in the effort to put them into practice around the world. The Internationa l Centre is wor king tire lessly to address this and other challen ges in law and polic y. In partnership with Interpol and Microsoft, we have trained police in 114 countries in the investi gation of computer-facilitated crimes a gainst children. We are implementing new technology tools for law enforcement in many countries. We have created a global missing children’s network, now linkin g 17 countries. We are workin g with parliamentary leaders to enact new laws re garding child sexual exploitation and child pornography. We are helping to set up new centers addressing the problems of child abduction and sexual exploitation in man y countries. Through our new Koons Family Institute on International Law and Policy, we are attempting to create a kind of Brookings Institution for children, undertaking policyrelated research and analysis in fi elds related to child abduction and exploitation. Our goal is to build greater knowledge, awareness and understanding for policy makers and the general public on a range of diffi cult issues relating to children. Today, the Koons Institute is a reality thanks to the kindness of world-renowned artist, Jeff Koons, himself a victim parent, whose child was abducted and taken internationally. I am particularly proud of the long-standing partnership

issues relating to children. Today, the Koons Institute is a reality thanks to the kindness of world-renowned artist, Jeff Koons, himself a victim parent, whose child was abducted and taken internationally. I am particularly proud of the long-standing partnership between the International Centre and the Hague Conference, with whom we are collaborating on this conference. We will work together to spread the word to the entire international community. One year ago, some of you were with us in Cairo as the International Centre convened a forum, chaired by Her Excellency Mrs. Suzanne Mubarak, the First Lady of the Arab Republic of Egypt. The forum examined several pressing issues facing the world’s children. Two of those who addressed that con ference are with us toda y: Hague Conference Deputy Secretary General William Duncan and the Deputy Chief Justice of the Supreme Constitutional Court of E gypt, Adel Omar Sherif. At the close of the session, the attendees ado pted what was called, “The Cairo Declaration.” One o f the ke y provisions reads as follows: “Family disputes can have a devastating impact on children. Parents have the responsibility to shield their children from the negative effects of family discord. Children must not be used as proxies for battles between parents, and both mothers and f athers should seek to m ediate peacefully disagreements about their children’s futures.” The Cairo Declaration urged global leaders to“explore bilateral and multilateral approaches to resolving family disputes, including mediation, in order to ensure that the children are not the victims.” As judges, central authorities and practitioners in the fi eld know all too well, there are no easy answers and sometimes no completely fair answers in cases of child relocation, particularly internationally. Our hope and conviction is that we will seize the opportunity presented by these next three da ys, and that this will be more than a conference. It will be an opportunity to share experiences and insights,International Child Protection The Judges’ Newsletter 2010 9 learn from each other and generate real solutions.

Our hope and conviction is that we will seize the opportunity presented by these next three da ys, and that this will be more than a conference. It will be an opportunity to share experiences and insights,International Child Protection The Judges’ Newsletter 2010 9 learn from each other and generate real solutions. We look forward to your fi ndings, conclusions and recommendations. We are committed to work with you to bring greater consistency, uniformity and humanity as we address these complex, difficult situations worldwide.

Hans VAN LOON

Secretary General, Hague Conference on Private International Law Honourable Judges and dear friends, my colleagues, William Duncan, Philippe Lortie, Juliane Hirsch, and myself are ver y honoured and immensely pleased to welcome you to the International Judicial Conference on Cross-Border Family Relocation, which the Ha gue Con ference on Private International Law is co-or ganising with our friends at the International Centre for Missin g and Exploited Children. The fact that we are able to hold this meeting here at the State Department over the next few days and with its full support is testimon y to the signifi cance of the theme from the State Department’s perspective. It means that the State Department, and in particular the Offi ce o f Children’s Issues, sees this issue – which is reall y an issue at the cross-roads of international mobilit y and parental confl ict – as an imminently public concern: an important matter t hat requires international co-ordination at the government level, and also direct transnational co-operation and communication at the l evel of administrations and courts. I would like to thank the Secretary of State, the Assistant Secretary of the Offi ce of Children’s Issues, and

in particular Deputy Assistant Secretary Michele Bond for their support, and Michele Bond and her staff for all their hard work. We are very grateful. It is obvious that without ICMEC’s support this judicial conference would not have been possible. We are very grateful to Ernie Allen for having accepted our proposal to co-organise this conference. This meeting will be essentially a brain-storming session of judicial experts, and not an event that will pay off immediately in terms of fantastic action plans and wide publicity. And it says something, I believe, of the high standards ICMEC has set for itself under Ernie Allen’s leadership that it has nonetheless agreed to co-organise and generously support this conference. ICMEC is aware that the issues are complex, that there are no cheap solutions, and that there is a need for thorough analysis and discussion before we can set more concrete steps. If ICMEC had to be persuaded at all, then I am sure that our best advocate was ICMEC’s Senior Policy Director, Mrs Maura Harty. Ernie Allen and I both knew her from her impressive past career as the Assistant Secretary of State for Consular Affairs and hold her in the highest regard. Many thanks must go to Maura Harty for her enthusiasm and support. I also want to thank and express our admiration for the superb work done b y the ICMEC staff. Organising a conference like this with highly positioned judges from all over the world is a logistical nightmare. You have all done an unbelievable job and we cannot thank you enough for that. Judicial conferences are a comparatively recent addition to the Hague Con ference’s “toolbox”. Originally the Hague Conference was set up to prepare and negotiate multilateral treaties and Conventions. Those Conventions were then supposed to fi nd their way to the various States and it was le ft up to the States to implement them and up to the judges to apply them. Of course, we did some support work, such as the collection of case law, but the idea that judges would communicate, let alone co-operate, directl y across

the various States and it was le ft up to the States to implement them and up to the judges to apply them. Of course, we did some support work, such as the collection of case law, but the idea that judges would communicate, let alone co-opera