HCCH - The Judges' Newsletter on International Child Protection - Vol. XXII - Summer-Fall 2018

Special focus The Child's Voice - 15 Years LaterThe Judges' Newsletter2on International Child Protection 3 Foreword The Child’s Voice –15 Years Later The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is pleased to publish Volume XXII of the Judges’Newsletter with a special focus on “The Child’s Voice –15 Years Later”in co-operation with Professor Marilyn Freeman, University of Westminster, London, England, and Associate Professor Nicola Taylor, University of Otago, Dunedin, New Zealand, in the context of their British Academy research grant on the “objection of the child”exception under Article 13(2) of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Convention”). The Permanent Bureau was most supportive when approached by both Professor Marilyn Freeman and Professor Nicola Taylor a little more than a year ago to support their British Academy application for funding. In the light of the very rich and high-quality contributions made by academics, judges, lawyers, mediators, psychologists, social workers and other professionals working in this field during the three workshops held at the end of the project (Auckland (7-8 February 2018), Genoa (7-8 March 2018) and London (22-23 March 2018), it was decided to bring the result of this work to the attention of the international community of experts working in this area through this publication. The objective of this publication is several-fold. It will provide an opportunity to share good practices in an area where the HCCH has not yet published a Guide to Good Practice. Further, it outlines examples of guidelines and normative work developed in relation to the voice of the child. It will also provide an opportunity to raise trust and confidence between the different international actors

in an area where there are as many practices on how to hear the voice of the child as there are legal cultures and traditions. This is of the utmost importance, in particular regarding the cross-border recognition and enforcement of measures of protection concerning children under the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibilityand Measures for the Protection of Children (the “1996 Convention”). Under the 1996 Convention, recognition of measures of protection may be refused “if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State”(Art. 23(2)(b)). Judges and practitioners will need to be familiar with and respect the different ways in which a child can be heard, including in the context of mediation, with a view not to trigger this ground of refusal unnecessarily. While the United Nations Committee on the Rights of the Child has produced a General Comment on this issue,1 the HCCH has done very little work on the “objection of the child”with the exception of publishing a Judges’Newsletter on the subject in 2003, which explains the title of the present Special Focus “The Child’s Voice –15 Years Later”. The Special Focus of the 2003 Judges’Newsletter was the “Child’s Voice”in international child protection cases, which is a broader subject than the scope of the British Academy project as it covered the hearing of the child in any circumstances including both the 1980 Child Abduction and 1996 Child Protection Conventions. In 2011, the Sixth Meeting of the Special Commission on the practical operation of the 1980 and 1996 Conventions adopted a Conclusion and

Recommendation on the subject (C&R No 50), to which we will come back later. In the late 1970s, the HCCH and the Council of Europe developed pioneer provisions regarding the voice of the child respectively in the work that led to the 1980 Hague Convention and the 1980 Child Custody Convention.2 A lot of the work carried out at the HCCH at the time found inspiration in the work of the Council of Europe and vice versa. Nine years later, the Convention of 20 November 1989 on the Rights of the Child (the “UNCRC”) followed with Article 12. In the late 1970s, there were 27 Members of the Organisation3 (83 Members today) participating actively in the negotiations of the 1980 Convention. As a result, as for all Hague Conventions, the text developed reflected some of the trends found in the domestic laws of the States sitting around the negotiation table. Family law was undergoing massive changes at the end of the 1970s. The child, who was previously an object of the law, was becoming a subject of the law. Progressively, the age of majority was changing from 21 years of age to 18 years of age. One could read in Dutch legislation that in child custody cases, children above the age of 14 should be given the opportunity to be heard in relation to custody issues. Furthermore, in the previous version of the United States of America Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), decisions concerning child custody were to be taken taking into consideration the best interest of the child. However, some legislation in the United States of America provided that children under the age of 14 years old should not be consulted.The Judges' Newsletter4 This development led to the inclusion of Article 15 in the

1980 Child Custody Convention. In child custody cases, apart from those in the context of removal, recognition and enforcement of custody orders may be refused “if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child”.4 Before reaching a decision, “the authority concerned in the State addressed shall ascertain the child's views unless this is impracticable having regard in particular to his age and understanding”in accordance with Article 15. In this context, when it came to the negotiation of the 1980 Convention, it was only natural to include a provision concerning the views of the child as part of the defence in relation to the return of the child. However, the discussions were very divisive because of concerns that on the sole basis of the views of the child, a judicial authority could, by deciding on the non-return of a child, in fact decide indirectly on custody issues. Article 13(2) of the 1980 Convention reads as follows: “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” This provision was negotiated against the age limit of application of the Convention being 16 years of age. The reason for this derives from the objects of the Convention themselves; indeed, it was recognised by the negotiators that a person of more than sixteen years of age generally has a mind of his or her own which cannot easily be ignored either by one or both of his or her parents, or by a

judicial or administrative authority.5 Therefore, because some children below sixteen years of age may attain an age and degree of maturity at which it is appropriate to take account of their views, it was important to provide a provision to avoid forcible returns. Article 13(2) was viewed as an escape route for mature adolescents. In the Explanatory Report on the 1980 Child Abduction Convention, Elisa Pérez-Vera explains that “[s]uch a provision was absolutely necessary given the fact that the Convention applies, ratione personae, to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will. Moreover, as regards this particular point, all efforts to agree on a minimum age at which the views of the child could be taken into account failed, since all the ages suggested seemed artificial, even arbitrary. It seemed best to leave the application of this clause to the discretion of the competent authorities.”6 Pérez-Vera goes on and explains that “[i]n general, it is appropriate to emphasize that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child's retention; nevertheless, the very nature of these exceptions gives judges a discretion — and does not impose upon them a duty — to refuse to return a child in certain circumstances.”7 Nowadays, most judicial and administrative authorities are also obliged in any proceedings affecting the child to apply Article 12 of the UNCRC, which provides as follows:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in

accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Furthermore, the principle of Article 12 of the UNCRC has been incorporated in 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. As a result, children should be given the opportunity to be heard in any return proceedings under the 1980 Convention, and not only in proceedings limited to a defence under Article 13(2). It is important to note that in its latest decision on the 1980 Convention, Office of the Children’s Lawyer v. Balev,8 the Supreme Court of Canada indicated that there is no conflict between the 1980 Convention and the UNCRC, and in particular between Article 11(2) of the 1980 Convention and Article 12 of the UNCRC.9 In June 2011, Part I of the Sixth Meeting of the Special on the practical operation of the 1980 and 1996 Conventions adopted on this issue Conclusion and Recommendation No 50 ("C&R No 50"), which reads as follows: “The Special Commission welcomes the overwhelming support for giving children, in accordance with their age and maturity, an opportunity to be heard in return proceedings under the 1980 Convention independently of whether an Article 13(2) defence has been raised. The Special Commission notes that States follow different approaches in their national law as to the way in which the child’s views may be obtained and introduced into the proceedings. At the same time the Special Commission emphasises the importance of ensuring that the person who interviews the child, be it the judge, an independent expert or any other person, should have appropriate training for this task where at all possible. The Special Commission recognises the need for the child to be informed of the ongoing process and possible consequences in an appropriate way considering the child’s age and maturity.”on International Child Protection 5 It is reassuring to read in the contributions to this Volume of the Judges’ Newsletter that seven years after Part I of the Sixth Meeting of the Special Commission and fifteen years after the publication of the Judges’ Newsletter on “The Child’s Voice”, many jurisdictions are following and giving effect to C&R No 50 of June 2011. It is hoped that the following contributions will inspire other States and jurisdictions to do same. We hope that you will enjoy as much as we did reading this Volume of the Judges’ Newsletter with a special focus on “The Child’s Voice – 15 Years Later”. We wish you a happy reading and a lovely summer (northern hemisphere) or winter (southern hemisphere). Philippe Lortie Frédéric Breger First Secretary Legal Officer 1 See United Nations Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child to be heard, 20 July 2009, CRC/C/GC/12, available at < http://www.refworld.org/docid/4ae562c52.html >. 2 Council of Europe, European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody on

Children. 3 Argentina, Australia, Austria, Belgium, Canada, Denmark, Egypt, Finland, France, Germany, Greece, Ireland, Israel, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain, Suriname, Sweden, Switzerland, Turkey, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Venezuela. 4 1980 Child Custody Convention, Art. 10 1) b). 5 Almost 40 years later, one could imagine that this age is now 14 years of age. 6 See E. Pérez-Vera, “Explanatory Report on the 1980 Hague Child Abduction Convention”, in Proceedings of the Fourteenth Session (1980), Tome III, Child abduction, The Hague, Imprimerie Nationale, 1982 (“Explanatory Report”), para. 30. 7 Explanatory Report, ibid., para. 113. 8 2018 SCC 16, available at: < https://scc-csc.lexum.com/scccsc/scc-csc/en/item/17064/index.do >. 9 See para. 34 of the decision on the conflict with the UNCRC and paras 75-81 more specifically in relation to Art. 13(2) of the 1980 Convention.The Judges' Newsletter6 Table of contents Special Focus The Child's Voice –15 Years Later 1 Outcomes for Objecting Children under the 1980Convention, Associate Professor Nicola Taylor & Professor Marilyn Freeman 8 2 A statistical analysis of the child objections exception, Nigel Lowe QC (Hon) & Victoria Stephens 12 Auckland Workshop (8-9 February 2018) 3 The voice of the child in international child abduction cases - Do judges have a hearing problem? Professor Mark Henaghan 14 4 What happens to children in high conflict parenting disputes. How should we think

of their "voice"? Dr Sarah Calvert, PhD. 16 5 A better place for the child in return proceedings under the 1980ConventionA perspective from Australia, the Honourable Justice Bennett AO 20 6 Child's view in return proceedings - Practice of Japanese courts, Judge Tomoko Sawamura 24 7 Role of Children in 1980Hague Proceedings. The Singapore Experience, Judge Wong Sheng Kwai 25 Genoa Workshop (8-9 March 2018) 8 Hearing abducted children in Court - A comparative point of view from three countries (Belgium, France & the Netherlands), Sara Lembrechts 28 9 The hearing of the child in civil proceedings in Italy - Rules and practice, Marzia Ghigliazza & Sara Luzzati 31 10 The Voice of the Child in Hague Convention Proceedings in Greece, Karolina Zoi Andriakopoulou & Maria Louiza Andriakopoulou 34 11 Listening to the Child's Voice in Spain, Christopher Lee 37 London Workshop (22-23 March 2018) 12 Child Abduction from the Child's Point of View, Baroness Hale of Richmond 40 13 Hearing the Children's Objections - Some perspectives from a judge hearing cases in England and Wales, the Honourable Mr Justice MacDonald 45 14 Towards a Children's Rights-Based Approach to Judging Child's Objections Cases, Helen Stalford & Kathryn Hollingsworth 50 15 The voice of the child in 1980Hague return procedures in the Netherlands, Judge Annette Olland 54 16 The Role of Children in 1980Hague Child Abduction Convention ProceedingsA perspective from Scotland and the USA, Stephen J. Cullen & Kelly A. Powers 55 17 Child Exceptions / Representation of the Child in South Africa, Zenobia Du Toit 59 18 Hearing the Children's Objections - Some perspectives from a French lawyer,

Véronique Chauveau 62 Wrap-up speech by the Rt. Hon. Sir Matthew Thorpe at the London Workshop on 23 March 2018 64on International Child Protection 7 International Child Protection Conference 1 HCCH-UNICEF Workshop on the "Role of the Hague Conventions in Cross-Border Child Protection in South Asia", Katmandu (Nepal) (23-31 May 2018) 66 2 Expatriate Law International Family Law Conference (Dubai, United Arab Emirates) 68 News 1 Third meeting of the Experts' Group on the Parentage / Surrogacy Project 70 2 New Brochure - 25 Years of Protecting Children in Intercountry Adoption 71 News from the International Hague Network of Judges - A tribute to the Honourable Madam Justice Robyn M. Diamond (1952-2018) 72 - Members of the IHNJ 73The Judges' Newsletter8 Special Focus The Child's Voice - 15 Years Later

1. Outcomes for Objecting Children under the

1980 Convention By Associate Professor Nicola Taylor (University of Otago, Dunedin, New Zealand) & Professor Marilyn Freeman (Universityof Westminster, London, England) Introduction The issue of children objecting to their return in proceedings under the 1980 Convention particularly vexes the family justice sector internationally as an order for return to a State of habitual residence in such circumstances disregards the child’s expressed objection. Given the absence of systematic empirical evidence on use of this exception, we were therefore pleased to receive a research grant from the British Academy to undertake a crossjurisdictional and interdisciplinary project in England & Wales and New Zealand from 27 March 2017 to 26 March

2018. This mixed-methods project enabled us to investigate, on a global basis, the tensions and challenges inherent in use of the child’s objections exception under Article 13(2)

of the 1980 Convention. This article outlines the various aspects of the project that were centred around an international literature review, caselaw analyses in New Zealand and England & Wales, a global online survey, interviews with family justice professionals and family members (parents and abducted children/young people), and specialist Workshops in Auckland, Genoa and London. We are particularly delighted that 22 of the experts we invited to make presentations at these three Workshops during February/March 2018 agreed to provide written papers for this issue of the Judges’ Newsletter. This enables the wider international child abduction community to benefit from the project outcomes and to contribute in the future as we move to extend it, in a new yet-to-be-funded project, beyond the narrower issue of children’s objections in 1980 Hague Convention cases, to the wider issue of child participation and hearing the child in Hague Convention cases more generally (e.g. the 1980 Child Abduction and 1996 Child Protection Conventions and other relevant Hague Conventions). The establishment of an interdisciplinary International Working Group to progress the issues raised by our project is therefore planned. The Child’s Objections Exception to Return Article 13(2) of the 1980 Convention states that a court hearing an application may refuse to order return when an abducted child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take their views into account. This is a complex provision as there is no minimum age set in the 1980 Convention for when it applies, nor any guidelines for assessing the child’s maturity. The objection must be more than a preference and the child must object to returning to the State of habitual residence and not to returning to the left-behind parent - notwithstanding that

the place and the person may be the same in the child’s mind, especially if the abducting parent (most usually now the primary or joint primary carer mother) refuses to return with the child. There is no guidance in the 1980 Convention on how it is to be found whether children object to return or on the way in which they should be heard. Even if the child is found to object, and to be of an age and degree of maturity at which it is appropriate to take account of their views, the child may, nonetheless, still be returned to the State of habitual residence against their wishes as the fulfilment of these criteria simply creates a discretion for the court which it must then exercise in determining the matter. This approach is somewhat inconsistent with i) the United Nations Convention of 1989 on the Rights of the Child (UNCRC) which includes the child’s right to express their views and to be heard under Article 12; and ii) Article 11(2) of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) (inspired by Art. 12 of the UNCRC) which provides guidance on how certain aspects of the 1980 Convention should be interpreted within the Member States of the European Union (other than Denmark). The proposed Recast of Brussels IIa goes further than the current Regulation, and is more consistent with the provisions of the UNCRC, as Article 20 contains the instruction that Member States shall ensure that a child who is capable of forming his or her own views is given the genuine and effective opportunity to express those views freely during the proceedings, and that those views should be given due weight in accordance with his or her age and maturity, and the authority’s considerations in the decision

should be documented. Therefore, the acknowledged tensions and challenges of the child’s objections exception include the need to strike the right balance between The articles in this Special Focus are contributions received from several speakers who participated to the various Workshops organised in Auckland, Genoa and London in the context of the British Academy research grant on the “objection of the child” exception under Article 13(2) of the 1980Convention.on International Child Protection 9 respecting the individual child’s rights, in the way in which they are currently understood, and upholding the collective interest in preventing/deterring abductions. Research Project Our research project funded by the British Academy comprised the following five aspects: Literature Review (Taylor, Freeman & Stephens, 2018): This reviewed the international evidence-base on the child’s objection exception, including statistical analyses, research and professional publications. The key issues addressed included the genesis and history of the child’s objections exception; state practices on hearing the child; interpretation of the exception; age and degree of maturity of the child; undue influence; the exception in the context of children’s rights developments, the UNCRC, the Brussels IIa Regulation and the proposed Brussels Recast; the practical operation of the exception; how children should participate in 1980 Hague Convention proceedings, and suggestions for reform. Caselaw Analyses (Freeman, Taylor & Wright, 2018): Reported court judgments examining use of the child’s objections exception to return were analysed in England & Wales from 1985, and New Zealand from 1991, through to

2017. The similarities and differences in approach between these two jurisdictions were also identified.

Online global survey of family justice professionals: An online survey to ascertain global use of, and experience with, the child’s objections exception was completed by 97

family justice professionals from 32 countries: Australia (5), Belgium, Brazil, Canada (8), Chile, Croatia, Denmark, Estonia (2), France, Germany (11), Hong Kong, Hungary, Israel (2), Italy, Kenya, Latvia (2). Lebanon, Lithuania, Luxembourg, Malta, Norway, NZ (16), Poland, Portugal (2), Russia, Sweden (2), Switzerland (3), The Netherlands (3), South Africa, UK (16), USA (4) and Venezuela. Just over half the sample were lawyers/solicitors/barristers (50.5%) and 22.7% were judges. Other roles included researchers/academics (9.3%), mediators (8.2%), psychologists, managers and administrators/clerks (4.1% each), social workers (3.1%), and other (16.5%) e.g. caseworker, charity worker, public servant, jurist and mediation officer. Nearly a third of the sample (28.9%) was self-employed, 22.7% worked in law firms/chambers, 24.7% in a court, 22.7% in a Central Authority, 14.4% in a government department/agency, 9.3% in university/tertiary institution, 6.2% in a NGO, and 3.1% in the non-profit sector or IGO. One-third of the sample (33%) spent 0-9% of their current professional work time on international child abduction cases/issues, while 17.5% spent 10-19% and another 17.5% spent 20-29%. Six respondents (6.2%) spent 90-100% of their worktime on abduction matters. The respondents had worked in the international child

abduction field for between three months – forty years (mean: 11.7 years; s.d. 9.1 years), with 60% having between five to twenty years’experience. Research interviews with family justice professionals and family members with experience of the child’s objection exception: Research interviews were undertaken with eight family justice professionals from Switzerland (5), Israel (2) and England (1), and with thirteen family members who had been involved in 1980 Hague Convention proceedings. The family member sample involved ten parents (nine taking mothers; one left-behind father) and three abducted children/young people (from two families) aged 19, 15 and 8 years. Five interviews were conducted face-toface, seven by skype and one by telephone. The family members were recruited through the Child Abduction Lawyers’ Association (CALA – UK), GlobalAARK (Global Action on Relocation and Return with Kids) and individual lawyers who agreed to pass details of the research onto their clients who then contacted the researchers directly. The jurisdictions involved in these abductions were: Hungary / England; New Zealand / England (2); France / England; USA / England (2); Spain / Wales; USA / Scotland; Australia / New Zealand; and France / Israel.

Specialist Workshops: We hosted three specialist crossjurisdictional interdisciplinary Workshops in Auckland (7-8 February 2018), Genoa (7-8 March 2018) and London (22-23 March 2018) with experts from the following 19

jurisdictions: Australia, Belgium, Croatia, Czech Republic, England & Wales, France, Germany, Greece, Italy, Japan, New Zealand, Poland, Russia, Scotland, Singapore, South Africa, Spain, The Netherlands and the United States of America. We had originally planned to hold regional dissemination events in Auckland, Genoa and London to disseminate our preliminary project findings within the Asia Pacific region, the various regions of Europe, and the wider global jurisdictions in which we had specialist contacts who were likely to want to attend. However, the high level of interest generated internationally by our project during 2017 led to us recognising the unique opportunity that collaborative Workshops would offer instead of pure dissemination events. We thus used the three Workshops to invite abduction specialists to come together, to share our preliminary research findings, to gather invaluable additional specialist perspectives on children’s objections and child participation in many of the jurisdictions of the State Parties to the 1980 Hague Convention, and to ascertain and discuss other issues of relevance including how best to move forward from this important research. These Workshops thus became integral to the project, contributed to the rich material it produced, and enabled current international thinking on the child’s objections exception and the role of children in 1980 Hague Convention proceedings to be shared internationally through this issue of the Judges’ Newsletter. The design of the three Workshops was identical in that each began with a lecture delivered by a well-known international specialist in the field to set the scene in a broad context for the Workshop that followed the next day. We also delivered a one-hour presentation on the keyThe Judges' Newsletter10 findings from our project on Outcomes for Objecting Children under the 1980 Convention at each Workshop. i) Auckland, 8-9 February2018. This first Workshop was attended by 39 invited delegates from five jurisdictions: New Zealand, Australia, Japan, Singapore and England & Wales. The Workshop was interdisciplinary in nature with judges, solicitors, barristers, academics, Central Authorities, psychologists, government representatives, report writers, mediators and counsellors

in attendance. Professor Mark Henaghan, Dean of the Faculty of Law, University of Otago, New Zealand, opened the Workshop with a lecture entitled The voice of the child in international child abduction cases – Do judges have a hearing problem? His key message was that we need to act with children, not on them, as this is respectful for the dignity of the person the decision is about. He expressed the view that the 1980 Convention is “totally out of tune with a children’s rights framework”. This statement was made in the context of the general support he expressed for the Convention’s achievements and continued operation. The question was how to make it work better. The programme also included papers by: Dr. Sarah Calvert, clinical psychologist and specialist report writer, who spoke about children and high conflict parenting disputes, estrangement, alienation, relocation, abduction and entrenched conflict; The Hon. Justice Victoria Bennett, Hague Network Judge, Family Court of Australia, and Caroline Smith, Victoria Legal Aid, who together discussed the role of children in international child abduction proceedings; Judge Wong Sheng Kwai, Family Justice Courts, Singapore, and Judge Tomoko Sawamura, Director, First Division, Family Bureau, General Secretariat, Supreme Court of Japan, who both participated in a practitioner and judicial panel on the role of children in 1980 Hague Convention proceedings, together with Judge Lex de Jong from New Zealand, and a barrister from Australia. ii) Genoa, 8-9 March 2018. This second Workshop was also highly interdisciplinary, being attended by 31 academics, lawyers, mediators, judges, researchers, psychologists and government representatives from twelve jurisdictions: Italy, Bel