HCCH - The Judges' Newsletter on International Child Protection - Vol. XIX - Winter-Spring 2013

The Judges’ Newsletter on International Child Protection Volume XIX | Winter – Spring 2013 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 II, 25-31 January 2012 A publication of the Hague Conference on Private International Law Pour la version française, retourner la LettreThe Judges’ Newsletter on International Child Protection The Judges’ Newsletter is published biannually by the Hague Conference on Private International Law under the supervision of Louise Ellen Teitz, First Secretary, and Philippe Lortie, First Secretary, with the assistance of Joëlle Küng, former Legal Oŝ cer, and Carlo Di Nicola, Legal O ŝ cer. This journal is written by and for judges with the aim of exchanging the information necessary for e ŝ cient judicial co-operation in the ś eld of international child protection. Contact details for the Permanent Bureau of the Hague Conference on Private International Law are as follows: Hague Conference on Private International Law Permanent Bureau Scheveningseweg 6 2517 KT The Hague The Netherlands

Tel: +31 (70) 363.3303

Fax: +31 (70) 360.4867

E-mail: TheJudgesNewsletter@hcch.nl

secretariat@hcch.net Website: http:/ /www.hcch.net Copyright©2013 Hague Conference on Private International Law All rights reserved. Articles contained herein may be reproduced for educational purposes. No part may, however, be reproduced for commercial purposes without the express written consent of the Permanent Bureau of the Hague Conference on Private International Law. INTERNATIONAL BOARD OF JUDICIAL ADVISERS „ H.E. Justice Antonio Boggiano; former President of the Supreme Court of Argentina „ The Honourable Judge Peter Boshier; Principal Family Court Judge, New Zealand „ The Honourable Judge Eberhard Carl; former Judge at the Regional Superior Court at Frankfurt/Main, Germany

„ H.E. Justice Antonio Boggiano; former President of the Supreme Court of Argentina „ The Honourable Judge Peter Boshier; Principal Family Court Judge, New Zealand „ The Honourable Judge Eberhard Carl; former Judge at the Regional Superior Court at Frankfurt/Main, Germany „ The Honourable Justice Jacques Chamberland; Court of Appeal of Quebec, Canada „ The Honourable Justice James Garbolino; former Presiding Judge of the Superior Court of California, United States of America „ Ms Catherine Gaudet Bossard; Honouree Judge, former Conseiller to the Court of Appeal of Bourges, France „ The Honourable Mrs Justice Catherine McGuinness; former Judge of the Supreme Court of Ireland „ The Honourable Dr Katalin Murányi; Chairperson of the Civil College, Budapest, Hungary „ The Honourable Elisa Pérez-Vera; Constitutional Court of Spain „ The Honourable Judge Adel Omar Sherif; Deputy Chief Justice, Supreme Constitutional Court, Cairo, Egypt „ The Right Honourable Lord Justice Mathew Thorpe; Head of International Family Justice, England and Wales1on International 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 the 1996 Hague Child Protection Convention, Part II, 25-31 January 2012 1 – Introduction 2 2 – Cross-Border Recognition and Enforcement of Mediated Agreements 3 3 – Direct Judicial Communications (1980 and 1996 Hague Conventions) 4 4 – Domestic and Family Violence in the context of Return Proceedings and under Article 13(1)b) of the 1980 Convention 6 5 – International Family Relocation 8 6 – Future of the Malta Process 10 7 – Report on the Services and Strategies provided by the Hague Conference in relation to the 1980 and 1996 Conventions 10 8 – Conclusions and Recommendations 13 Judicial Communications

5 – International Family Relocation 8 6 – Future of the Malta Process 10 7 – Report on the Services and Strategies provided by the Hague Conference in relation to the 1980 and 1996 Conventions 10 8 – Conclusions and Recommendations 13 Judicial Communications • Report of the Dutch O ŝ ce of the Liaison Judge International Child Protection (BLIK) 15 • Report of the German members of the International Hague Network of Judges, Sabine Brieger and Martina Erb-Klünemann 16 • The Annual Report of the O ŝ ce of the Head of International Family Justice for England and Wales: A Brief Summary, Victoria Miller 18 • Case studies extracted from the Annual Report of the O ŝ ce of the Head of International Family Justice for England and Wales 19 Regional Perspectives • The Work of the Hague Conference on Private International Law and its Relevance for the Caribbean Region and Bermuda, Hamilton, Bermuda (21-24 May 2012) 21 • Intercountry Adoption in Africa 23

• Intercountry Adoption Workshop, Dakar, Senegal (27-30 November 2012) 25

International Child Protection Projects • European Judicial Training Network (EJTN) - Seminar on Child Abduction, Prague, Czech Republic (10-11 May 2012) 26 • 2nd Meeting of the Central American Judicial Council (CJC) (26-27 June 2012) 26 • The 2012 International Family Justice Judicial Conference, Hong Kong (28-31 August 2012) 26 • 9th German-Anglophone Judicial Conference, Thun, Switzerland (26-28 September 2012) 28 Hague Conference Update • Annual meeting of the Council on General A Ś airs and Policy of the Hague Conference (17-20 April 2012) 31 • Latest Developments in Latin America 32 • The Intercountry Adoption Technical Assistance Program (ICATAP): An Update 33 • O ŝ cial opening of the Hague Conference on Private International Law Asia Paciś c

(17-20 April 2012) 31 • Latest Developments in Latin America 32 • The Intercountry Adoption Technical Assistance Program (ICATAP): An Update 33 • O ŝ cial opening of the Hague Conference on Private International Law Asia Paciś c Regional Oŝ ce in Hong Kong (13 December 2012) 34 Hague Children’s Conventions Status 35 Members of the International Hague Network of Judges 36 Personal Note 402 The Judges’ Newsletter Prel. Doc. No 2) 2 inquiring about several potential topics for inclusion in any protocol. As a result of the discussions that took place during the 2011 Special Commission (Part I), the responses to Questionnaire II3 and consultations with Members, it appeared that it would not be possible to achieve consensus on asking the Council on General A Ś airs and Policy of the Conference (the “Council”) for a mandate to proceed with a protocol to the 1980 Convention. However, there were three areas where there appeared to be substantial support for further work: cross-border recognition and enforcement of mediated agreements; legal basis for cross-border direct judicial communications; and allegations of domestic violence in the context of return proceedings. The agenda for the 2012 Special Commission (Part II) therefore focused on these speciś c areas of further work in connection with the 1980 and 1996 Conventions, as well as on the matters originally scheduled for discussion at Part II of the meeting: that is, international family relocation (Prel. Doc. No 11), the future of the “Malta Process” and the role of the Hague Conference in monitoring and supporting the 1980 and 1996 Conventions (Prel. Doc. No 12). A Guide to Part II of the Sixth Meeting of the Special Commission (Prel. Doc. No 13)4 was prepared and circulated prior to Part II. The 2012 Special Commission (Part II) took place in The Hague from 25-31 January 2012 and included more

of the Special Commission (Prel. Doc. No 13)4 was prepared and circulated prior to Part II. The 2012 Special Commission (Part II) took place in The Hague from 25-31 January 2012 and included more than 240 experts and observers from 67 States and 13 organisations. 59 of the States were Contracting States to the 1980 Convention and 32 of the States were Contracting States to the 1996 Convention. Four States were neither Members of the Hague Conference nor Contracting States to either Convention, but were invited to participate in the meeting as observers, namely Iran, Pakistan, Qatar and Saudi Arabia. Representatives from one intergovernmental organisation and 12 non-governmental organisations also participated as observers. Among the participants were 56 judges from 34 States, including 29 members of the International Hague Network of Judges from 23 States. Ten States,5 one intergovernmental organisation 6 and one non-governmental organisation7 had not participated in the 2011 Special Commission (Part I). 2 “Questionnaire on the desirability and feasibility of a protocol to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”, Prel. Doc. No 2 of December 2010 for the attention of the Special Commission of June 2011, available on the Hague Conference website ibid. 3 All responses are available on the Hague Conference website at < www.hcch.net > under “Child Abduction Section” then “Special Commission meetings on the practical operation of the Convention”. 4 “Guide to Part II of the Sixth Meeting of the Special Commission and consideration of the desirability and feasibility of further work in connection with the 1980 and 1996 Conventions”, Prel. Doc. No 13 of November 2011 for the attention of the Special Commission of January 2012, available on the Hague Conference website at < www.hcch.net > under “Child Abduction Section” then “Special Commission meetings on the practical operation of the Convention”.

Doc. No 13 of November 2011 for the attention of the Special Commission of January 2012, available on the Hague Conference website at < www.hcch.net > under “Child Abduction Section” then “Special Commission meetings on the practical operation of the Convention”. 5 This number includes 7 States invited as Members of the Conference and / or Contracting States to the Conventions (Andorra, Bulgaria, Italy, Republic of Moldova, Slovenia, Sri Lanka, and Trinidad and Tobago) and 3 Non-Member States invited as observers (Iran, Pakistan and Qatar). 6 The United Nations Children’s Fund (UNICEF). 7 The Inter-American Bar Association (IABA). Special Focus Report of Part II 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, 25-31 January 2012 drawn up by the Permanent Bureau

1. Introduction In preparation for 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 Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention), it was decided that the subjects to be covered were too extensive for one meeting.

The exceptional decision was made for the ś rst time to hold the Special Commission in two separate parts, with the ś rst part taking place from 1 to 10 June 2011 and the second part seven months later from 25 January to 31 January 2012. Part I of the Special Commission (“the 2011 Special Commission (Part I)”) addressed primarily the practical operation of the Conventions, including the activities of Central Authorities, the draft Practical Handbook on the 1996 Convention (Prel. Doc. No 4), judicial communications

Part I of the Special Commission (“the 2011 Special Commission (Part I)”) addressed primarily the practical operation of the Conventions, including the activities of Central Authorities, the draft Practical Handbook on the 1996 Convention (Prel. Doc. No 4), judicial communications and networking (Prel. Docs Nos 3 A, 3 B and 3 C), and the draft Guide to Good Practice on Mediation under the 1980 Convention (Prel. Doc. No 5).1 A report of the 2011 Special Commission (Part I) can be found in Volume XVIII of the Judges’ Newsletter. It was initially decided that Part II of the Special Commission (“the 2012 Special Commission (Part II)”) would primarily consider the issue of the desirability and feasibility of a protocol to the 1980 Convention. In anticipation of Part II, the Permanent Bureau circulated in December 2010 to Members of the Hague Conference and Contracting States to the 1980 Convention, a questionnaire on the desirability and feasibility of a protocol to the 1980 Convention (“Questionnaire II”, 1 See also the Report of the 2011 Special Commission (Part I), “Conclusions and Recommendations and Report of 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 and 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”, Prel. Doc. No 14 of November 2011 for the attention of the Special Commission of January 2012, available on the Hague Conference website at < www.hcch.net > under “Child Abduction Section” then “Special Commission meetings on the practical operation of the Convention”.3on International Child Protection The Permanent Bureau underlined that the recognition and enforcement of mediated agreements can be a lengthy, cumbersome and expensive process. It therefore suggested the need to explore the desirability and feasibility of further

Abduction Section” then “Special Commission meetings on the practical operation of the Convention”.3on International Child Protection The Permanent Bureau underlined that the recognition and enforcement of mediated agreements can be a lengthy, cumbersome and expensive process. It therefore suggested the need to explore the desirability and feasibility of further work in this ś eld and, in particular, in connection with the development of private international law rules. Finally, the Permanent Bureau indicated that a new freestanding private international law instrument concerning mediated agreements in family law could also assist families more generally with respect to agreements containing a combination of diŚ erent family law issues in a cross-border situation. The instrument could o Ś er an e ŝ cient way to render such agreements binding and enforceable in the diŚ erent legal systems concerned. Potential further work on recognition and enforcement of mediated agreements A large number of experts expressed their support for mediation and for further work on enforcing mediated agreements. Some experts emphasised that mediation does not run counter to the objective of expeditious procedures set out in the 1980 Convention, but on the contrary, provides for the timely resolution of conŜ icts. A few experts expressed some reservations regarding the possibility of engaging in further work on recognition and enforcement of mediated agreements. Some experts indicated that the 1996 Convention should be given the opportunity to operate before a decision is taken to determine whether another binding instrument is necessary. States were accordingly encouraged to join the 1996 Convention. An expert from the United States of America expressed concern that further work on mediation would divert the attention and resources of the Hague Conference away from the original purpose of the 1980 Convention, namely the expeditious return of the child. The Secretary General recalled that mediation covered several family law issues and that it needed to be envisaged in a broader context than the 1980 Convention. He also indicated that the discussions concerned cases where the parties had already achieved an agreement and thus there was no interference with the regular

recalled that mediation covered several family law issues and that it needed to be envisaged in a broader context than the 1980 Convention. He also indicated that the discussions concerned cases where the parties had already achieved an agreement and thus there was no interference with the regular procedure under the 1980 Convention. In spite of these few reservations, the majority of experts recommended the establishment of an exploratory expert group on mediated agreements. A few experts requested that the Expert Group undertake a preliminary assessment as to the nature and extent of problems in the recognition and enforcement of agreements, including agreements resulting from mediation. It was also suggested that the Expert Group should take into account the framework of the 1980 and the 1996 Conventions as well as the 2007 Convention in order to identify potential gaps and to refer these ś ndings to the Council on General AŚ airs and Policy. An expert from the European Union indicated that a global instrument on mediated agreements would have added value for the Member States of the European Union in Six Preliminary Documents drawn up by the Permanent Bureau were prepared for the 2012 Special Commission (Part II). Two Information Documents were also made available to 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 Permanent Bureau provided an update as to the status of the 1980 and 1996 Conventions. There were two new Contracting States to the 1980 Convention since June 2011,8 bringing the total to 87. Since June 2011, the 1996 Convention had entered into force in Denmark, Malta and Portugal, bringing the total to 33 Contacting States, with a further six signatory States (the remaining ś ve European Union Member States and the United States of America).9 Experts from Japan and Korea reported on the steps taken with regard to the 1980 Convention in their respective States and the signiś cant progress made towards becoming Contracting States.

six signatory States (the remaining ś ve European Union Member States and the United States of America).9 Experts from Japan and Korea reported on the steps taken with regard to the 1980 Convention in their respective States and the signiś cant progress made towards becoming Contracting States.

2. Cross-Border Recognition and Enforcement of Mediated Agreements The Permanent Bureau recalled that the Hague Conference had a long history of working in the ś eld of cross-border mediation in family matters. It indicated that the Council on General AŚ airs and Policy in April 2008 asked the Permanent Bureau, as a ś rst step, to commence work on a Guide to Good Practice on the use of mediation in the context of the

1980 Convention.10 The Permanent Bureau noted that the discussions of the 2011 Special Commission (Part I) revealed practical challenges concerning the enforceability of mediated agreements. It highlighted that mediation is a tool which may touch upon not only the issue of the return of the child but also other issues such as custody or maintenance. It then explained that these multiple issues could, in turn, cause practical challenges, especially as to questions of jurisdiction of di Ś erent courts. It stated that although the 1996 Convention, as well as the 2007 Convention, may assist parents in achieving recognition of their agreed upon solution in a cross-border dispute concerning children in all Contracting States, these Conventions may not o Ś er a satisfactory solution where the agreement covers matters which fall outside the scope of one or both Conventions, or when the relevant Conventions are not in force in both countries. 8 Guinea and the Russian Federation. 9 Greece rati ś ed the 1996 Convention shortly after the 2012 Special Commission (Part II), on 7 February 2012; the 1996 Convention will enter into force for Greece on 1 June 2012. Montenegro also ratiś ed the 1996 Convention shortly after the 2012 Special Commission

Commission (Part II), on 7 February 2012; the 1996 Convention will enter into force for Greece on 1 June 2012. Montenegro also ratiś ed the 1996 Convention shortly after the 2012 Special Commission (Part II), on 14 February 2012. The 1996 Convention will enter into force for Montenegro on 1 January 2013. 10 See Conclusions and Recommendations adopted by the Council on General AŚ airs and Policy of the Conference (1-3 April 2008), p. 1, 3rd para., available at < www.hcch.net > under “Work in Progress” then “General AŚ airs”. The Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Part V – Mediation (hereinafter ‘Guide to Good Practice on Mediation’) is currently being ś nalised.4 The Judges’ Newsletter were endorsed. 14 However, the General Principles do not include a legal basis for judges to engage in direct judicial communications. The Permanent Bureau highlighted that, at the 2011 Special Commission (Part I), the delegation from Switzerland submitted Working Document No 415 and that this submission was followed by a discussion as to whether there was an interest in developing a legal basis for such communications in a binding instrument. At the request of experts at the 2011 Special Commission (Part I), the Permanent Bureau prepared an overview of this topic in Preliminary Document No 3 D. The document was developed following an analysis of the information in the Country Pro ś les and responses to questionnaires. While most States indicated that no legal basis was needed, several States indicated that they needed a legal basis to engage in direct cross-border judicial communications. The Permanent Bureau recalled that a number of States reported having an interest in developing a binding instrument. The Permanent Bureau outlined four options: (1) a binding international instrument to provide for judicial communications between judges in cases involving international child abduction; (2) a broader

Bureau recalled that a number of States reported having an interest in developing a binding instrument. The Permanent Bureau outlined four options: (1) a binding international instrument to provide for judicial communications between judges in cases involving international child abduction; (2) a broader binding instrument which contains a basis for judicial communications and other matters concerning the international protection of children; (3) a binding instrument that would cover all legal issues related to communications, as well as the topics in the General Principles; and (4) a legal foundation only within domestic law. The Permanent Bureau recalled that during the 2011 Special Commission (Part I), the experts considered it premature to legislate with respect to the content of the General Principles, preferring to wait to see how these principles are implemented by States and used by judges. Potential legal instrument providing a basis for the use of direct cross-border judicial communication Many experts indicated that there was no need for a binding international instrument at this time. An expert from the United States of America stressed that providing a legal basis for direct judicial communications was more properly a 14 See Conclusion and Recommendation No 68 of the 2011 Special Commission (Part I). 15 Work. Doc. No 4 provided as follows: “The Special Commission promotes, without prejudice to more speciś c principles, further examination of legal rules, in view of a later approval, as follows –

1. Each Contracting State shall designate one or more judges having as task to promote co-operation amongst the competent authorities of that State and to facilitate communications and the exchange of information between these authorities and those of other Contracting States in situations to which the Convention applies.

2. The Central Authority or the judicial authority, seised with the request for return, may, if the situation of the child and the review of the conditions of its return so require, request any authority of another Contracting State which has relevant information to communicate such information.

3. The Central Authority or the judicial authority, seised with the request for return, may in individual cases, if the situation of the

of the conditions of its return so require, request any authority of another Contracting State which has relevant information to communicate such information.

3. The Central Authority or the judicial authority, seised with the request for return, may in individual cases, if the situation of the child and the review of the conditions of its return so require, take measures for the protection of the child upon its return and enquire in particular about the measures which the competent authorities of the State where the child was habitually resident immediately before its removal or retention can take for the protection of the child upon its return.” their relations with other States. The expert stressed the importance of the implementation of existing measures such as the publication of the draft Guide to Good Practice on Mediation. It was also indicated that an EU Directive

(Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters) containing rules on the enforceability of mediated agreements was adopted in 2008. Several experts agreed that the work of the Expert Group should not only address mediated agreements but should cover all types of agreements obtained through alternative dispute resolution mechanisms. An expert from Canada noted that Preliminary Document No 13 was clear on this point and that this discussion on mediation was taken to include other processes which lead to an amicable resolution of disputes. Some experts considered that the Expert Group should be composed of experts in private international law to reŜ ect the fact that its work would address legal issues. A few observers emphasised that the Expert Group should also include experts in non-judicial settlements and related issues, in order for the Expert Group to beneś t from the broadest expertise possible. The Special Commission recognised that, in the course of international child disputes, the parties may enter into agreements settling their dispute, and therefore recommended that exploratory work be undertaken to identify legal and practical problems that may exist in the recognition and enforcement of such agreements, taking into account the implementation

The Special Commission recognised that, in the course of international child disputes, the parties may enter into agreements settling their dispute, and therefore recommended that exploratory work be undertaken to identify legal and practical problems that may exist in the recognition and enforcement of such agreements, taking into account the implementation and use of the 1996 Convention.11 To this end, the Special Commission recommended that the Council on General AŚ airs and Policy consider authorising the establishment of an Expert Group to carry out further exploratory research, which would include identiś cation of the nature and extent of the legal and practical problems in this area, including, speciś cally, jurisdictional issues and would evaluate the beneś t of a new instrument in this area, whether binding or not.12

3. Direct Judicial Communications (1980 and 1996

Hague Conventions) The Permanent Bureau introduced the topic by highlighting that, over the last ś fteen years, direct judicial communications under the 1980 Convention have developed “organically”. The Permanent Bureau recalled that, in June 2011, at the 2011 Special Commission (Part I), the General Principles for Judicial Communications (hereinafter “General Principles”)13 11 See Conclusion and Recommendation No 76 of the 2012 Special Commission (Part II). 12 See Conclusion and Recommendation No 77 of the 2012 Special Commission (Part II). 13 “Emerging rules regarding the development of the International Hague Network of Judges and draft general principles for judicial communications, including commonly accepted safeguards for direct judicial communications in speciś c cases, within the context of the International Hague Network of Judges”, drawn up by the Permanent Bureau, Prel. Doc. No 3 A of March 2011 for the attention of the Special Commission of June 2011, available on the Hague Conference website at < www.hcch.net > under “Work in Progress” then “Child Abduction”. During the 2011 Special Commission (Part I), it was decided to change the term “rules” to the term “guidance”. The Emerging Guidance

Commission of June 2011, available on the Hague Conference website at < www.hcch.net > under “Work in Progress” then “Child Abduction”. During the 2011 Special Commission (Part I), it was decided to change the term “rules” to the term “guidance”. The Emerging Guidance and General Principles for Judicial Communications were developed in consultation with a group of experts, the majority of whom were members of the International Hague Network of Judges.5on International Child Protection judicial practices di Ś er depending on the particular legal system of a country. She noted that in civil law countries the rules of procedure are strict, making direct judicial communications diŝ cult. Many experts supported the development of soft law tools such as a ‘guide to good practice’ on direct judicial communications to assist judges. An expert from Israel emphasised that the most important issues to be dealt with were the scope of direct judicial communications and the uniformity of practices, noting that the lack of formalism allowed Ŝ exibility. An expert from Brazil suggested the creation of a group of experts composed of judges, Central Authority oŝ cials and government oŝ cials to develop a guide to good practice. Observers from NGOs drew attention to other issues. An observer from the United States-Mexico Bar Association (USMBA) underlined that it was important to protect the rights of the parties and that the role of the IHNJ judge should be clearly deś ned. An observer from the International Association of Women Judge