HCCH - The Judges' Newsletter on International Child Protection - Vol. XXI - Winter-Spring 2018

Special focus The Seventh Meeting of the Special Commission on the Pratical Operation of the 1980Hague Child Abduction Convention and the 1996 Hague Child Protection Convention 10-17 October 2017The Judges' Newsletter2 Participants to the Seventh Meeting of the Special Commission on the practical operation of the 1980Hague Child Abduction Convention and the 1996 Hague Child Protection Convention (10-17 October 2017). The Hague Academyof International Law (Peace Palace), The Hague.on International Child Protection 3 Foreword The Permanent Bureau is pleased to publish the XXIst Volume of the Judges’ Newsletter with a special focus on the Seventh Meeting of the Special Commission on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, 10-17 October 2017 (hereinafter, “the 2017 Special Commission”). The Permanent Bureau is also delighted to report to its readers that “[t]he [2017] Special Commission acknowledges the value and usefulness of the information provided in The Judges’ Newsletter”1 and furthermore “[t]he [2017] Special Commission supports the continued electronic publication of The Judges’ Newsletter, subject to available resources, to be edited in-house”.2 After an absence of almost four years, it would have been a missed opportunity not to publish anything on the Seventh Meeting of the Special Commission. Instead of drawing up a formal report in the form of a Preliminary Document to the attention of the Council on General Affairs and Policy, preference was given to the publication of an informal report of the 2017 Special Commission as a "special focus" of the Judges’Newsletter. That is in line with the Conclusions and Recommendations of the 2017 Special Commission according to which “States and members of the [International Hague Network of Judges] are invited to

share with the Permanent Bureau topics for 'special focus' that they would like to see addressed in future issues of The Judges’ Newsletter”.3 Additionally, and contrary to Preliminary Documents, the Judges’ Newsletter includes pictures for those who could not attend the meeting and enjoys a wider distribution. We already have ideas for our “special focus” in future publications of the Judges’Newsletter but would welcome any additional ideas from States and members of the International Hague Network of Judges (hereinafter, “IHNJ”). For example, future “special focuses”could cover the 20th Anniversary in 2018 of the IHNJ, recent case law under Article 11 of the 1996 Convention, description of implementation measures in relation to Articles 24 and 26 of the 1996 Convention, case law, practice and description of implementation measures in relation to Articles 8 and 9 of the 1996 Convention and Article 15 of the Brussels II a Regulation,4 the next meeting of the Malta Process, to name a few. At a minimum, every volume of the Judges' Newsletter should include recent developments and experiences in relation to direct judicial communications with a view to promoting their use across the IHNJ. Any contributions and / or suggestions for relevant topics to be addressed in future volumes of The Judges’Newsletter should be sent directly to the following e-mail address: < secretariat@hcch.nl > with the subject line “The Judges’ Newsletter”. With regard to “timely information”, “[t]he Special Commission notes however that the current format of The Judges’ Newsletter is not adequate to provide timely information”.5 In that respect, “[t]he Special Commission supports the development of an IHNJ specialised section on the HCCH website. This section would constitute a dedicated platform providing information relevant to the IHNJ”.6 Once, that specialised section is operational it could be used, for example, to announce new designations to the IHNJ, draw attention to recently posted case law on INCADAT, provide information on past judicial conferences and general information on direct judicial communications. Subject to available resources, it is our hope to see in the future, as supported by the Special Commission, “the creation of a secure portal for the members of the IHNJ. The secure portal would serve as an electronic platform to foster communication and dialogue among the members of the Network”.7 But that is for later. For the moment, subject to available resources, we will endeavor to publish the Judges’ Newsletter on a regular basis and create an IHNJ specialised section on the HCCH website. The publication of this Volume of the Judges’ Newsletter would not have been possible without the assistance of current and former interns respectively, Julie Pheline, Phillip Adnett and Shi Ing Tay to which we are most grateful, and members of the Family Law Team. Most importantly, this publication would not have been possible without the very generous contributions of Francisco Javier Forcada Miranda, Serge Léonard, Martin Menne, Nigel Lowe, Victoria Stephens and Graciele Tagle de Ferreyra. We look forward to reading from other members of the IHNJ, members of Central Authorities under the Hague Children Conventions, academics and practitioners. The continuation of the Judges' NewsletterThe Judges' Newsletter4 We hope you enjoy reading this Volume of Judges’Newsletter and we look forward to receiving your comments and suggestions. The editors, Philippe Lortie Frédéric Breger First Secretary Legal Officer 1 "Conclusions and Recommendations adopted by the Special Commission on the practical operation of the 1980 and 1996 Hague Conventions (10-17 October 2017)", C&R No 71

[hereinafter, "C&R of the 2017 SC"], available on the HCCH website at < www.hcch.net > under “Child Abduction” then “Special Commission meetings”and “7th Special Commission meeting (2017)". 2 C&R No 72 of the 2017 SC. 3 Ibid. 4 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. 5 C&R No 71 of the 2017 SC. 6 C&R No 73 of the 2017 SC. 7 C&R No 74 of the 2017 SC.on International Child Protection 5 Table of contents Special Focus The Seventh Meeting of the Special Commission on the practical operation of the 1980Hague Child Abduction Convention and the 1996 Hague Child Protection Convention (10-17 October 2017) The 2015 Statistical Survey, Nigel Lowe & Victoria Stephens 6 Table of Conclusions and Recommendations of previous meetings of the Special Commission 8 Addressing delays under the 1980Convention 9 The operation of Article 15 of the 1980Convention 12 Revised Forms for Return and Access applications under the 1980Convention 12 European Court of Human Rights Case Law - X v. Latvia 13 Benefits and use of the 1996 Convention in relation to the 1980Convention 13 The application of the 1996 Convention to unaccompanied and separated children 15 Draft Guide to Good Practice on Article 13 (1)(b) of the 1980Convention 16 Third meeting of the Experts' Group on recognition and enforcement of mediated agreements in family matters 17 Recognition and enforcement of protection orders 19

Launch of the improved INCADAT 20 New Contracting States to the 1996 Convention 20 Country Profiles for the 1980and 1996 Conventions 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Direct Judicial Communications Dialogue of Judges - European Liaison Judges and Judges of the International Hague Network of Judges, Martin Menne 22 Direct judicial communications and international judicial co-operation, Francisco Javier Forcada Miranda 28 1 2 1996 Child Protection Convention Protecting children beyond borders - In support of multi-disciplinary and international child protection, Serge Léonard 31 International Child Protection Conference International Family Law Conference 2016: The Future of Family Justice: International and Multi-Disciplinary Pathways, Shi Ing Tay 34 News from Argentina Implementation law for the 1980Convention in the Province of Cordoba (Argentina), Graciela Tagle de Ferreyra 37 Members of the IHNJ 37The Judges' Newsletter6

1. The 2015 Statistical Survey

By Nigel Lowe QC (Hon), Emeritus Professor of Law (Cardiff University) & Victoria Stephens, Freelance Research Consultant (Lyon, France) A fourth statistical survey into the operation of the 1980 Convention has been conducted by Professor Nigel Lowe and Victoria Stephens, in consultation with the Permanent Bureau and the International Centre for Missing and Exploited Children (ICMEC). ICMEC generously funded the project and provided support throughout. The provisional report was formally presented to the Seventh Meeting of the Special Commission in October 2017. This report is an updated summary of the main overall findings. Like previous surveys, the 2015 Survey is based upon the response to a detailed questionnaire sent to every Central Authority designed to collect information about the number of applications, the parties involved in the abduction,

the outcome of the applications, and the length of time it took to reach the outcome. Details were sought of every application received in 2015 regardless of when, or even if, an outcome was reached. To be comparable with the previous surveys the cut-off date for outcomes was 18 months after the last possible application could have been made, namely, 30th June 2017. Although the questionnaire was essentially the same as before, for the first time information was collected via the INCASTAT online database (www.incastat.net) developed thanks to generous funding from the Government of Canada. Replies were received from 76 of the then 93 Contracting States, providing detailed information on 2,270 incoming return applications and 382 incoming access applications. We estimate that overall there were a maximum of 2,335 return (86%) and 395 access (14%) applications made to Central Authorities under the 1980 Convention. In other words, the 2015 Survey is estimated to have captured 97% of all applications. Making a direct comparison with the 2008 Survey, there was a 3% increase in return applications but a 3% decrease in access applications. This is in distinct contrast to the 2008 Survey which found a 45% increase in return applications and a 40% increase in access applications from 2003, and to the 2003 Survey which found a 16% increase in return applications and 8% in access applications from 1999. Special Focus The Seventh Meeting of the Special Commission on the practical operation of the 1980Hague Child Abduction Convention and the 1996 Hague Child Protection Convention (10-17 October 2017) Participants to the Seventh Meeting of the Special Commission on the practical operation of the 1980Hague Child Abduction Convention and the 1996 Hague Child Protection Convention (10-17 October 2017). The Hague Academyof

International Law (Peace Palace), The Hague.on International Child Protection 7 Although many Central Authorities received fewer applications in 2015, busy Authorities, such as the United States of America, England and Wales and Germany, continued to receive significantly more applications. Looking first at return applications, 73% of taking persons were mothers, a higher proportion than the 69% recorded in 2008, 68% in 2003 and 69% in 1999. In 2015, 24% of the taking persons were fathers and the remaining 3% comprised grandparents, institutions or other relatives. Where known, 80% of taking persons were the “primary carer” or “joint primary carer”of the child (91% of taking mothers and 61% of taking fathers). Analysing the data further, 67% of the taking mothers were joint primary carers as against 37% in 2008, while 52% of taking fathers were joint primary carers as against 20% in 2008. This finding reflects a growing trend of joint parenting. As earlier surveys had exploded the myth that all abducting mothers were primary carers and all abducting fathers were non-primary carers, so the 2015 Survey goes some way at least to dispel the notion that most abducting mothers are sole primary carers. 58% of taking persons (comprising 56% mothers and 64% fathers) had the same nationality as the requested State and might be presumed to be going home. The majority of applications (70%) involved a single child and most (78%) were under 10 years old (the average age was 6.8 years, as against 6.4 years in 2008 and 6.3 years in 2003). 53% of the children were male and 47% female.

The overall return rate was 45%, in line with the 46% recorded in 2008 but lower than the 51% in 2003 and 50% in

1999. This return rate comprised 17% voluntary returns and 28% judicial returns. A further 3% concluded with access being agreed or ordered (the same as in 2008 and 2003). 12% of applications ended in a judicial refusal (less than the 15% in 2008 and 13% in 2003, though higher than the 11% in 1999). 14% were withdrawn compared with 18% in 2008. 6% of applications were still pending at the cut-off date of 30 June 2017. This is lowest such proportion so far recorded and compares with 8% in 2008, 9% both in 2003 and

1999. There was a decrease in the rate of rejection by the Central Authorities under Article 27 with 3% of applications ending in this way in 2015 (compared with 5% in 2008, 6% in 2003 and 11% in 1999).

Of the cases decided in court, 65% ended with a judicial return order (compared with 61% in 2008, 66% in 2003 and 74% in 1999), 6% with access (compared with 5% both in 2008 and 2003) and 28% were refused (reversing an upward trend compared with 34% in 2008, 29% in 2003 and 26% in 1999). Furthermore, more cases were appealed, 31% as against 24% in 2008 (22% in 2003 and 14% in 1999). In 67% of these cases the same outcome was reached on

appeal as at first instance, compared with 80% in 2008. Analysing the refusals in a little more detail, there were in total of 243 refusals and in 185 of these we have information on the reasons. Some cases (30) were refused for more than one reason. If all reasons are combined, the most frequently relied upon grounds for refusal were Article 13(1)(b) (the grave risk of harm exception) (47 applications, 25%) and the child not being habitually resident in the requested State (46 applications, 25%). Article 12 was a reason for refusal in 32 applications (17%) and the child’s objections in 27 applications (15%). In proportional terms, the 2015 findings are evidence, particularly in comparison with 2008, of a notable shift in the grounds for refusals with increasing reliance being placed on non-habitual residence in the requesting State and a decline in reliance on Article 13(1)(b) and on the child’s objections. In fact, the proportion of refusals based on the child’s non-habitual residence has consistently risen from 17% in 1999, 19% in 2003, 20% in 2008 to 25% in 2015. On the other hand, the 25% of refusals based on Article 13(1)(b), though markedly lower than the 34% in 2008, is more in line with the 26% both in 2003 and 1999. So far as the child objection exception is concerned, at 15%, the 2015 finding is the lowest proportion yet recorded and may be compared with 22% in 2008, 18% in 2003 and the 21% in 1999.

None of the four surveys found any significant reliance upon Article 20. In 2015, applications were generally resolved more quickly, compared with the 2008 Survey. The average time taken to reach a decision of judicial return was 158 days (compared with 166 days in 2008, 125 days in 2003 and 107 in 1999) and a judicial refusal took an average of 245 days (compared with 286 days in 2008, 233 days in 2003 and 147 days in 1999). For applications resulting in a voluntary return the average time taken was 108 days, compared with 121 days in 2008, 98 days in 2003 and 84 days in 1999. So far as access applications were concerned, 73% of respondents were mothers (79% both in 2008 and 2003 and 86% in 1999) and 58% had the same nationality as the requested State compared with 50% in 2008, 53% in 2003 and 40% in 1999. The majority (75%) of applications concerned a single child. The overall average age of a child involved was 8 years (compared with 7.8 years in 2008 and 7.9 years in 2003) and 51% of children were female and 49% male.The Judges' Newsletter8 The overall rate at which access was agreed or ordered was 27%, compared with 21% in 2008, 33% in 2003 and 43% in 1999. 19% of applications were withdrawn (31% in 2008, 22% in 2003 and 26% in 1999), 17% pending and 31% ending in reasons described as “other”. 4% were rejected and 2%

judicially refused. Of the 50 applications ending in an order for access, 68% were made under the 1980 Convention and 32% under domestic law. In 2008, these figures were 45% and 55%, respectively. Information on the nature of orders for refusal was only available in two applications –one order made under the 1980 Convention and one under domestic law. This reflects the different interpretations of Article 21. Access applications took longer to resolve than return applications. The average time taken to reach a final outcome was 254 days overall, 97 days if there was a voluntary agreement for access, 291 days if access was judicially ordered and 266 days if access was refused. These timings are considerably faster than those in 2008 when the overall average was 339 days, 309 days where there was a voluntary agreement, 357 days where access was judicially ordered and 276 days if access was judicially refused. The overall findings of the 2015 Survey are encouraging. That, however, is not to say that the 1980 Convention is working well in all respects. The access provisions clearly need re-visiting. Although the speedier disposals of return applications as evidenced by the 2015 Survey is a positive development, further improvements are required if the goal of prompt disposals of applications is to be truly met. More detail can be found in the revised report (posted on the HCCH website (www.hcch.net) under “Child Abduction” then “Statistics”), which comprises a Global Report, three Regional Reports and a number of National Reports. Finally, we would like to express our thanks to the Central Authority staff who spent so much time in completing the questionnaire and answering our subsequent queries. We are also indebted to ICMEC for their additional assistance in

inputting data into INCASTAT.

2. Table of Conclusions and Recommendations of previous meetings of the Special Commission At the beginning of the meeting of the 2017 Special Commission, the Permanent Bureau of the Hague Conference introduced a “Table of Conclusions and Recommendations of previous Meetings of the Special Commission (SC) on the 1980 Child Abduction Convention and the 1996 Child

Protection Convention” (Prel. Doc. No 6).8 The objective of this document is “to provide Contracting States with a compilation of Conclusions and Recommendations (C&R) from past Special Commission Meetings that are still relevant today”. The document was very useful in the context of the 2017 Special Commission, as it ensured that all experts were on the same page with regard to issues already discussed, and concluded at previous meetings of the Special Commission. As a result, issues already resolved previously were not reopened and current issues were discussed further, or for the first time. At the end of the Special Commission, new Conclusions and Recommendations were adopted especially in relation to the 1996 Convention. Those new Conclusions and Recommendations that would be relevant for the future will be added to Preliminary Document No 6. The Permanent Bureau reminded experts that this document is also an extremely useful tool for the new and old Contracting States with regard to their implementation of the 1980 and 1996 Conventions and for their daily application and practical operation. Contracting States, Central Authorities, judges and even, in some cases, legal practitioners should regularly refer to the “Table of Conclusions and Recommendations of previous Meetings of the Special Commission (SC) on the 1980 Child Abduction Convention and the 1996 Child Protection Convention”. 8 "Table of Conclusions and Recommendations of previous Meetings of the Special Commission (SC) on the 1980 Child Abduction Convention and the 1996 Child Protection Convention (1989 (1st SC), 1993 (2nd SC), 1997 (3rd SC), 2001 (4th SC), 2002 (follow-up SC), 2006 (5th SC), 2011-2012 (6th SC))", Prel. Doc. No 6 of July 2017 for the attention of the Seventh Meeting of the Special Commission on the practical operation of the 1980 Child Abduction and the 1996 Child Protection Convention (available on the HCCH website, see path indicated in note 1).on International Child Protection 9 continue in many Contracting States. Such delays have significant human rights implications and in some cases can constitute violations of States’ treaty obligations contained in human rights conventions. 1980 Convention requirements for prompt procedures The 1980 Convention in several places emphasises the need for the rapid return of children who have been wrongfully removed or retained. The first object of the 1980 Convention set forth in Article 1 is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” (Art. 1(a)). As mentioned above, Article 11 establishes a benchmark of sixweeks as the time frame within which a decision on return should be made. The need for the expeditious return of abducted children is stated in a number of additional provisions: “[…] to ensure their prompt return to the State of their habitual residence […]”(Preamble, third paragraph); “[…] they shall use the most expeditious procedures available”(Art. 2); “[…] to secure the prompt return of children […]”(Art. 7); and, “[…] it shall directly

and without delaytransmit the application […]”(Art. 9). Statistics The Statistical Analysis of Applications Made in 2015 under the 1980 Convention (hereinafter, “2015 Survey”),9 the results of which were presented at the 2017 Special Commission, notes the critical importance of timing with regard to the successful operation of the Convention. The 2015 Survey documents a trend of increasing delays in the operation of the 1980 Convention between 1999 and 2008, with some reversal in that trend during the period between 2008 and 2015. Some of the relevant findings: The mean number of days taken to reach a final conclusion from the date the application was received by the requested Central Authority 1999 2003 2008 2015 Voluntary return 84 98 121 108 Judicial return 107 125 166 158 Judicial refusal 147 233 286 244 Percentage of applications taking over 300days to resolve 1999 2003 2008 2015 5% 12% 21% 15%

3. Addressing delays under the 1980 Convention Introduction Given the centrality of expeditious procedures to the effective operation of the 1980 Convention, achieving prompt action has repeatedly been addressed at meetings of the Special Commission on the practical operation of the 1980

Convention, including at its Seventh Meeting in October

2017. Prompt return has also been the subject of good practices developed by Contracting States over the years and collected by the Hague Conference. In preparation for the 2017 Special Commission, the Permanent Bureau prepared a number of documents to assist with the discussion of this subject, namely, Preliminary Documents Nos 10 A, 10 B and 10 C of August 2017, respectively dealing with:

(A) Delays in the return process; (B) Delays in the operation of the 1980 Convention – a compilation of existing resources; and, (C) Fact Sheets on swift procedures in the operation of the 1980 Convention (available on the HCCH website at < www.hcch.net > under “Child Abduction” then “Special Commission meetings” and “7th Special Commission meeting (2017)”). The text that follows consists of extracts from Preliminary Document No 10 A. The prompt return of abducted children is essential to the effective operation of the 1980 Convention. Each day that the child remains abducted from his / her place of habitual residence has repercussions for the child and contributes to the escalation of the conflict between the parents, the eroding of contact between the child and the left-behind parent (if it has not been severed altogether), and the child’s integration into the place to which he / she has been abducted. The passage of time may cause the child to suffer once again severe emotional instability at the time of return. Besides the harm that delays in the resolution of cases can cause to the child and the parents, delays also make it more difficult for judges to administer the 1980 Convention, as the passing of time complicates the assessment and application of key concepts, such as habitual residence custody, grave risk, and settlement of the child. The drafters of the 1980 Convention established an urgent mechanism for return, which can only meet the 1980 Convention’s goals if applied efficiently, without significant delays. Article 11 of the 1980 Convention suggests that there is a presumption of a case being delayed if a decision on return is not made within six weeks from the date of initiation of the proceedings. Nonetheless, delays in returnThe Judges' Newsletter10 Other statistics reveal that the overall reduction in the time

needed to reach a final conclusion can in general be attributed to more efficient judicial procedures (although in some States, the Central Authorities dealt with applications very quickly). However, improvement is still needed, as indicated in the following: Percentage of cases resulting in a return order that were resolved in 90 days or less from the date the application was received by the requested Central Authority 1999 2003 2008 2015 59% 51% 43% 36% Appeals, which add a substantial amount of time to the return process, are increasing. However, there has been significant improvement in the time needed to resolve appeals: The average number of days to conclude a return application decided on appeal 2008 2015 Judicial return by consent 280 167 Judicial return not by consent 281 249 Judicial refusal 369 286 Good practices to ensure prompt procedures To determine how some States are achieving swift returns, the Permanent Bureau examined the Country Profiles for the 1980 Convention10 for a selected number of States that have had success in this regard.11 Common features of the practice of those States are as follows: a. At the Central Authority phase: • Sufficient resources allotted to Central Authorities, with the presence of qualified, and if the volume of cases requires, dedicated Central Authority staff who deal only with 1980 Convention applications and related issues. • Acceptance of the requesting State’s application form or the Hague Conference Model Application Form. • Acceptance of return applications sent electronically, allowing the originals (if and when needed) to be sent subsequently by mail. • Where information in the application is incomplete, beginning to process the application while informing the requesting State of the additional information that is needed. • To avoid delays where efforts are made to obtain the voluntary return of the child, either: (1) initiating court

proceedings at the same time as the voluntary return efforts, or (2) starting court proceedings after a relatively short deadline, if voluntary return efforts are not successful. • Providing regular training to Central Authority staff, including updates on legal developments related to the 1980 Convention. b. At the judicial phase: • “Concentration of the jurisdiction”of courts in respect of applications under the 1980 Convention. • The judges who decide return applications are specialists in family law, and in some cases international child abduction. • Either requiring or recommending legal representation in return proceedings. • The availability of reduced rate or free legal assistance, most often based upon eligibility. • The availability of such legal assistance also for appeals and enforcement proceedings (this can be subject to an assessment of the likelihood of success of an appeal for which the assistance is sought). • Adopting either legislation or procedural rules to ensure that judicial and administrative authorities act expeditiously in return proceedings. • Where the child is to be heard, having procedures in place to prevent this from delaying the process unnecessarily, for example: determining whether hearing the child is desirable at an early stage in the proceedings; making such arrangements on an urgent basis; or, scheduling the child’s testimony to be given in conjunction with the hearing on the return application. • Appeal at the first level being available by right, with expedited procedures. • Designating at least one judge for the IHNJ. • Training of judges including participation in judicial seminars. c. At the enforcement phase: • Not allowing the merits of the proceedings for return to be reviewed in enforcement proceedings. • The availability of coercive measures (which vary by State) to enforce a return order. Mediation Mediation is an important tool in the return process, as it can result in agreement between the taking parent and the

left-behind parent on the return of the child to the State ofon International Child Protection 11 habitual residence without the need for a litigated decision. At the same time, there is a risk that mediation efforts, if not managed carefully, can unnecessarily delay the return process. A balance needs to be found between exploring the possibility of a mediated outcome while ensuring that return is achieved in an expedient manner. The Guide to Good Practice on Mediation underscores that “[m]ediation in child abduction cases has to be conducted rapidly at whatever stage it is introduced”.12 Mediation should be suggested at an early stage, and its suitability should be assessed before attempting it. Recognising that States employ a variety of models or methods for mediation, the Guide does not