HCCH - The Judges’ Newsletter on International Child Protection - Vol. XXVI - Fall-Winter 2024

The Connecter Protéger Coopérer Depuis 1893 Connecting Protecting Cooperating Since 1893 Conectando Protegiendo Cooperando Desde 1893 on International Child Protection Special Focus Experts’ Meeting on Nurturing the 1980 Hague Convention University of Westminster, London 19-20 October 2023 Volume XXVI | Fall-Winter 2024www.hcch.net Newsletter Judges’Special Focus Experts’ Meeting on Nurturing the 1980 Hague Convention University of Westminster, London

19-20 October 2023

Volume XXVI | Fall – Winter 2024

A publication of the Hague Conference on Private International Law@HCCH, 2025 Hague Conference on Private International Law (HCCH) Permanent Bureau Churchillplein 6b 2517 JW The Hague, Netherlands

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Attribution should be as follows: HCCH, “Special Focus – Experts’ Meeting on Nurturing the 1980 Hague Convention, University of Westminster (London), 19-20 October 2023”, The Judges’ Newsletter on International Child Protection, Volume XXVI, The Hague, 2025.

Attribution should be as follows: HCCH, “Special Focus – Experts’ Meeting on Nurturing the 1980 Hague Convention, University of Westminster (London), 19-20 October 2023”, The Judges’ Newsletter on International Child Protection, Volume XXVI, The Hague, 2025.

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Published in The Hague, the NetherlandsSpecial Focus: Experts’ Meeting on Nurturing the 1980 HCCH Convention | 3 Volume XXVI | Fall – Winter 2024 Foreword

This edition of the Judges’ Newsletter on International Child Protection covers the Experts’

Published in The Hague, the NetherlandsSpecial Focus: Experts’ Meeting on Nurturing the 1980 HCCH Convention | 3 Volume XXVI | Fall – Winter 2024 Foreword

This edition of the Judges’ Newsletter on International Child Protection covers the Experts’ Meeting on Nurturing the 19 80 Hague Convention, convened by Professor Marilyn Freeman and held at the University of Westminster in London from 19 - 20 October 2023. Issues of asylum, domestic violence and child participation , as they relate to international child abduction, were examined during the course of the Experts’ Meeting. This Newsletter aims to serve as a useful repository for the remarks and contributions of the organisers, chairpersons, as well as the panellists, most of whom have submitted their contributions in writing for the purpose of this Newsletter. In so doing, some panellists have chosen to share their verbal presentations in verbatim text while others have opted to transform their presentations into articles. The Permanent Bureau, as well as the organisers Professor Marilyn Freeman (University of Westminster, United Kingdom) and Professor Nicola Taylor (University of Otago, New Zealand) , are extremely grateful to all panellists who participated in the Experts’ Meeting and those who have prepared and shared their contributions in writing for this Newsletter. It is hoped that those who were not able to attend the Experts’ Meeting, and those who have an interest in the subject matter, will find this Newsletter interesting and helpful. Given that this Newsletter serves as a repository of the remarks and contributions of the organisers, chairpersons, and panellists of the Experts’ Meeting, i t is to be understood that the views expressed by the authors are their own and may not reflect those of the HCCH.4 | The Judges’ Newsletter Volume XXVI | Fall – Winter 2024 Contributions by Edited by Professor Marilyn Freeman Nietta Keane (English version) Professor Nicola Taylor Philippe Lortie (English and French version) Philippe Lortie Lydie De Loof (French version)

Ewa Kopacz

Volume XXVI | Fall – Winter 2024 Contributions by Edited by Professor Marilyn Freeman Nietta Keane (English version) Professor Nicola Taylor Philippe Lortie (English and French version) Philippe Lortie Lydie De Loof (French version)

Ewa Kopacz Nuala Mole Julia Zelvenska Henry Setright KC and James Turner KC Professor Merle Weiner Lord Justice Andrew Moylan Professor Katarina Trimmings Ischtar Khalaf-Newsome Professor Rhona Schuz Stephen Cullen Professor Yuko Nishitani The Honourable Justice Victoria Bennett AO

Prior to the publication of this Newsletter, the sad passing of James Turner KC in January 2025 was announced by his Chambers, 1 King’s Bench Walk. James was a prominent specialist in the area of family law and international child abduction. The HCCH and the organisers of the Experts' Meeting remember him with great fondness and would like to extend their deepest condolences to his family and colleagues.

Regrettably, the contribution of Mrs Julia Zelvenska could not be provided for the purpose of this Newsletter. A paper is not available for this informal discussion and presentation. Contribution forthcoming.Special Focus: Experts’ Meeting on Nurturing the 1980 HCCH Convention | 5 Volume XXVI | Fall – Winter 2024 Table of Contents

Welcome and opening remarks ................................ ................................ ................................ ............................ 7 Professor Marilyn Freeman, Co-Director, International Centre for Family Law, Policy and Practice, and Principal Research Fellow, Westminster Law School, University of Westminster, London, England ................................................................... 7 Mr Philippe Lortie, First Secretary at the Hague Conference on Private International Law ................................................................................................................................................................. 8 Mrs Ewa Kopacz, Vice-President of The European Parliament and The European Parliament Coordinator on Children’s Rights ............................................................. 12 Session 1 – Abduction and Asylum Issues ................................ ................................ ................................ ...... 15

International Law ................................................................................................................................................................. 8 Mrs Ewa Kopacz, Vice-President of The European Parliament and The European Parliament Coordinator on Children’s Rights ............................................................. 12 Session 1 – Abduction and Asylum Issues ................................ ................................ ................................ ...... 15 Introduction by Session Chairperson Nuala Mole, The Aire Centre ............................................. 15 Child Abduction and Asylum, Julia Zelvenska, Head of Legal Support and Litigation (European Council on Refugees and Exiles) ..........................................................................23 Reflections on the relationship between asylum and international child abduction, Henry Setright KC and James Turner KC .............................................................................. 24 Session 2 - Abduction and Domestic Violence Issues ................................ ................................ ............. 25 Introduction by Session Chairperson Professor Merle Weiner, Philip H. Knight Professor, School of Law, University of Oregon, USA ....................................... 25

Abduction and Domestic Abuse: A Judicial Perspective from England and Wales, Lord Justice Andrew Moylan, Court of Appeal, Head of International Family Justice and Hague Network Judge for England and Wales ............. 29

The Interface Between Domestic Violence and International Parental Child Abduction: Focus on the Protection of Abducting Mothers in Return Proceedings, Professor Katarina Trimmings ................................................................................................. 35 Mediation in Child Abduction Cases with Domestic Violence, Ischtar Khalaf-Newsome ............................................................................................................................................ 40 Project to investigate the effects and outcomes of abduction where the abduction is alleged to have occurred against a background of violence or abuse to the taking parent and/or the abducted child: Initial Observations, Professor Marilyn Freeman, Co-Director, International Centre for Family Law, Policy and Practice, and Principal Research Fellow, Westminster Law School, University of Westminster, London, England ................................................................................................ 41 Session 3 - Abduction and Child Participation Issues ................................ ................................ ............. 46 Introduction by Session Chairperson Professor Rhona Schuz, Centre for the Rights of the Child and the Family, Sha'arei Mishpat Law School, Israel ........................... 46 Hearing the Child in the Context of the 1980 Hague Convention,

Introduction by Session Chairperson Professor Rhona Schuz, Centre for the Rights of the Child and the Family, Sha'arei Mishpat Law School, Israel ........................... 46 Hearing the Child in the Context of the 1980 Hague Convention, Professor Nicola Taylor, Faculty of Law, University of Otago, New Zealand ............................ 49 Child Participation in Abduction Cases, Stephen Cullen ........................................................................ 556 | The Judges’ Newsletter Volume XXVI | Fall – Winter 2024 ‘Child Participation’ in Japan, Professor Yuko Nishitani ........................................................................... 57 Return proceedings in Australia under the 1980 Convention and Child Participation Issues, The Honourable Justice Victoria Bennett AO ................................................. 64 Conclusions by the Meeting Chairman, Mr Philippe Lortie ................................ ................................ ... 70Special Focus: Experts’ Meeting on Nurturing the 1980 HCCH Convention | 7 Volume XXVI | Fall – Winter 2024 Experts’ Meeting on Nurturing the 1980 Hague Convention University of Westminster, London 19 - 20 October 2023

Welcome and opening remarks

Professor Marilyn Freeman, Co-Director, International Centre for Family Law, Policy and Practice, and Principal Research Fellow, Westminster Law School, University of Westminster, London, England

A very warm welcome to this Experts’ Meeting and thank you for making the time in your very busy lives to contribute your expertise, thoughts and ideas on the three topics we will be working on together as they relate to international child abduction and the 1980 Hague Convention on the Civil Aspects of International Child Abduction. We have three specialist session chairs - Nuala Mole, The Aire Centre, London; Professor Merle Weiner, University of Oregon, USA; and Professor Rhona Schuz, Sha’arei Mishpat Law School, Israel. Rhona is sadly unable to be here inperson due to the very wor rying situation in Israel and will therefore be participating online. We are delighted that Philippe Lortie, First Secretary of the HCCH, kindly agreed

Schuz, Sha’arei Mishpat Law School, Israel. Rhona is sadly unable to be here inperson due to the very wor rying situation in Israel and will therefore be participating online. We are delighted that Philippe Lortie, First Secretary of the HCCH, kindly agreed to chair the Experts’ Meeting and are especially indebted to him having only completed work on the Eighth Special Commission in The Hague just two days’ earlier, from where he travelled to Aberdeen for a project meeting yesterday, and then rushed here to be with us today. It is a testament, if one is needed, to his commitment to this subject and his willingness to help find solutions to the problems which arise within it - and we thank him sincerely for both. Professor Nicola Taylor, University of Otago, New Zealand, very kindly offered to act as Rapporteur for the Experts’ Meeting, for which we are of course extremely grateful. She has also been an immense help to me in the organisation of this meeting for which I offer her my heartfelt thanks. I also thank Dominika Opyrchal for her patient good humour and efficiency in helping with the preparations for the Experts’ Meeting, which many of you will also have experienced, and from which I have benefitted greatly. Also, Professor Luke Mason, Head of the Westminster Law School, for his enthusiastic and muchappreciated support of me, my projects, and this gathering. We also thank Ischtar Khalaf-Newsome and the team at MiKK for their wonderful collegiality and willingness to help with tasks outside of their own sphere of operation, and to just roll up their sleeves to assist with our requests for help. Such collaboration is truly valued.8 | The Judges’ Newsletter Volume XXVI | Fall – Winter 2024

One final expression of thanks is essential before I hand over to Philippe, and that is to Stephen Cullen and Kelly Powers of Miles & Stockbridge, a US firm of lawyers specialising in international child abduction. Stephen and Kelly do so much

Volume XXVI | Fall – Winter 2024

One final expression of thanks is essential before I hand over to Philippe, and that is to Stephen Cullen and Kelly Powers of Miles & Stockbridge, a US firm of lawyers specialising in international child abduction. Stephen and Kelly do so much valuable work in this area, helping as many parents as p ossible on a pro bono basis who would otherwise be without legal assistance in circumstances where the stakes are so incredibly high. They do that because they care. And they care enough to want to support the search for solutions to the issues which they encounter in their daily practice. I want to express my personal appreciation to them, and to Miles & Stockbridge, for their long -term support and encouragement, and for helping to make this Experts’ Meeting possible.

Mr Philippe Lortie, First Secretary at the Hague Conference on Private International Law

I would like to thank Professor Marilyn Freeman and Professor Nicola Taylor for organising this Experts’ Meeting and for inviting me to Chair the event alongside the three Session Chairs, with whom I have had the pleasure to collaborate over the years. Each one of them will be chairing a specific session, the theme of which we will explore all together: - Abduction and Asylum Issues, chaired by Nuala Mole, Founder and Senior Lawyer, The AIRE Centre, London England - Abduction and Domestic Violence Issues , chaired by Professor Merle Weiner, University of Oregon, United States of America - Abduction and Child Participation Issues , chaired by Professor Rhona Schuz, Centre for the Rights of the Child and the Family at the Academic College of Law and Science, Israel Having just completed the Eighth Meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention, held in The Hague from 10 to 17 October 2023 (hereinafter the 2023 Special Commis sion), one could have not chosen a better title for the Experts’ Meeting: “Nurturing the 1980 Hague Convention”. International treaties,

Protection Convention, held in The Hague from 10 to 17 October 2023 (hereinafter the 2023 Special Commis sion), one could have not chosen a better title for the Experts’ Meeting: “Nurturing the 1980 Hague Convention”. International treaties, or Conventions, as we refer to them at the Hague Conference on Private International Law (hereinafter HCCH), contrary to domestic law or even European Regulations, are rarely amended. First, finding a consensus for such amendments is extremely challenging, especially with more than 100 Contracting States, as is the case with the 1980 Child Abduction Convention. Second, if amended, it is challenging to ensure that all States will join the amended version of the Convention in a timely manner. Until all States join the amended version, we risk having the old version of the Convention operating in some States and the amended version operating in others, leading to the Convention operating “at different speeds”. Instead, the HCCH “nurtures” its Conventions.Special Focus: Experts’ Meeting on Nurturing the 1980 HCCH Convention | 9 Volume XXVI | Fall – Winter 2024

The HCCH provides post-Convention services to facilitate the implementation of its Conventions. Such services include, but are not limited to, organising meetings to review their practical operation (i.e., Special Commission meetings), developing and adopt ing Guides to Good Practice and Practical Handbooks, maintaining Country Profiles and case law databases, and providing training. Over a little more than 40 years, the Special Commission on the 1980 and 1996 Conventions has met, on average, every five years. But it takes more than the work of the HCCH to “nurture” a Convention. The dedication and hard work of a multitude of actors, many of whom are in attendance today, is also required: Judges, members of Central Authorities, lawyers, barristers, mediators, enforcement officers, academics, researchers, social workers, psychologists, and representatives from non-governmental organisations (NGOs), just to name a few. Many thanks to all

many of whom are in attendance today, is also required: Judges, members of Central Authorities, lawyers, barristers, mediators, enforcement officers, academics, researchers, social workers, psychologists, and representatives from non-governmental organisations (NGOs), just to name a few. Many thanks to all of them for making the 1980 Child Abduction Convention what it is today. I would like to take this opportunity to extend a special thank you to Justice Victoria Bennett from Australia, who is in attendance, for co -chairing the 2023 Special Commission alongside Mr Daniel Trecca from the Central Authority of Uruguay. The three themes we will be discussing during the next two days of the Experts’ Meeting were the subject of Conclusions and Recommendations at the 2023 Special Commission. I will now offer a brief summary as to where the 1980 Child Abduction Convention stands in relation to these three themes. From the outset, it is clear to me that these three themes will require further nurturing in the years to come. While return applications where the taking parent has lodged a parallel asylum claim have been observed in Canada since the early 2000s, they seem to be relatively recent in other Contracting Parties to the 1980 Child Abduction Convention. In Canada, the observed trend is to the effect that parallel asylum claims are most often introduced after a return application has been made, thus giving an indication as to thei r possible dilatory purpose. Parallel return applications and asylum claims were discussed fo r the first time at the 2023 Special Commission. With the understanding that return applications should be decided swiftly, in accordance with Articles 1, 2 and 11 of the 1980 Child Abduction Convention, the 2023 Special Commission emphasised the importanc e of deciding return applications and any parallel asylum claims expeditiously. Where appropriate and where domestic law permits, the 2023 Special Commission invited Contracting Parties to the 1980 Child Abduction Convention to consider taking steps to achieve this result. Issues concerning abduction and domestic violence were discussed at the 2023

deciding return applications and any parallel asylum claims expeditiously. Where appropriate and where domestic law permits, the 2023 Special Commission invited Contracting Parties to the 1980 Child Abduction Convention to consider taking steps to achieve this result. Issues concerning abduction and domestic violence were discussed at the 2023 Special Commission in the context of the operation of Article 13(1)(b) of the 1980 Child Abduction Convention (the “grave risk” exception to return). One important development in this area is the holding of a Forum on Domestic Violence and the Operation of Article 13(1)(b) of the 1980 Child Abduction Convention, to take place in Sandton, South Africa, from 18 to 21 June 2024. The idea of the Forum was put to the 2023 Special Commis sion, and later to the Council on General Affairs and Policy (CGAP) in 2024, by the Secretary General of the HCCH, Christophe Bernasconi, in the light of the correspondence he and I received from advocates10 | The Judges’ Newsletter Volume XXVI | Fall – Winter 2024

for victims of domestic violence prior to the Special Commission, as well as discussions on these issues that took place during the Special Commission. The importance of ensuring a balanced representation of all interested parties and relevant actors at th e Forum was emphasised by the 2023 Special Commission from the outset. While it was, and continues to be, extremely important to give a voice to national NGOs advocating for victims of domestic violence at events such as the Forum (particularly because onl y international NGOs can attend meetings of the Special Commission), the Forum was not the only development welcomed by the 2023 Special Commission. The 2023 Special Commission also welcomed the publication of the Guide to Good Practice on Article 13(1)(b) (hereinafter GGP on Article 13(1)(b)) and encouraged its dissemination. Underlining that the Guide must be read as a whole, the Special Commission noted that, as set out in paragraph 33 of the GGP

Good Practice on Article 13(1)(b) (hereinafter GGP on Article 13(1)(b)) and encouraged its dissemination. Underlining that the Guide must be read as a whole, the Special Commission noted that, as set out in paragraph 33 of the GGP on Article 13(1)(b): “… harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Art icle 13(1)(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child”. We all agree that harm to a parent is harm to a child, but this may not always imply a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In some cases, this harm ca n be addressed through protective measures, thus allowing for the return of the child. In the context of domestic violence, the 2023 Special Commission also discussed the safe return of a child, including urgent measures of protection. The 2023 Special Commission encouraged Contracting Parties, where they have not already done so, to complet e and/or update the section of the Country Profile under the 1980 Convention on “Provisions for safe return” (Section 11.2). Doing so should enhance the understanding of the measures of protection available to ensure the safe return of a child and the mech anisms by which to ensure compliance with such protective measures. In that regard, the 2023 Special Commission also encouraged Contracting Parties to provide publicly available information, through means such as specialised websites, which outlines services that can assist families where a child may be exposed to family and domestic violence, which may relevantly include police and legal services, financial assistance schemes, housing assistance and shelters, and health

Commission also encouraged Contracting Parties to provide publicly available information, through means such as specialised websites, which outlines services that can assist families where a child may be exposed to family and domestic violence, which may relevantly include police and legal services, financial assistance schemes, housing assistance and shelters, and health services. Having robust domestic sys tems to combat family violence is an important way to prevent child abduction in the first place, as it is well understood that child abduction is also a violent act towards a child.Special Focus: Experts’ Meeting on Nurturing the 1980 HCCH Convention | 11 Volume XXVI | Fall – Winter 2024

Furthermore, the 2023 Special Commission welcomed the Australian factsheet “International Hague Network of Judges – Assistance with protective measures through the International Hague Network of Judges for children orders to be returned to Australia”, developed thanks to the initiative of Justice Victoria Bennett, and noted that the information contained therein would be helpful in cases where the availability, necessity and appropriateness of protective measures needs to be addressed. The 2023 Special Commission also recognised that, when necessary and appropriate, a court may order protective measures to protect the accompanying parent in order to address the grave risk to the child. In that respect, the 2023 Special Commission recognised that measures to protect the accompanying parent may cover, as set out in paragraph 43 of the GGP on Article 13(1)(b), “a broad range of existing services, assistance and support, including access to legal services, financial assistance, housing assistance, health services, shelters and other forms of assistance or support to victims of domestic violence, as well as responses by police and through the criminal justice system.” Finally, the 2023 Special Commission underlined that measures of protection should be considered and/or ordered only where necessary and appropriate. As set out in paragraph 45 of the GGP on Article 13(1)(b), “[i]deally, given that any delays could frustrate the objectives of the Convention, potential protective measures should be raised early in proceedings so that each party has an

set out in paragraph 45 of the GGP on Article 13(1)(b), “[i]deally, given that any delays could frustrate the objectives of the Convention, potential protective measures should be raised early in proceedings so that each party has an adequate opportunity to adduce relevant evidence in a timely manner in relation to the need for, and enforceability of, such measures.” The participation of the child in child abduction proceedings was also discussed at the 2023 Special Commission. This topic has been the subject of discussions at multiple meetings of the Special Commission in the past. It has also been the subject of two focused editions of the HCCH Judges’ Newsletter on International Child Protection (Vol. Nos VI (2003) and XXII (2018)). As underlined at previous meetings of the Special Commission, the 2023 Special Commission recognised 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 p roceedings”. When hearing the child for the purposes of Article 13(2) of the 1980 Child Abduction Convention, the 2023 Special Commission emphasised that it is only for that purpose and not in respect of broader questions concerning the welfare of the child, which is the responsibility of the court of the child’s habitual residence. In that regard, the 2023 Special Commission noted the following good practices: a) the person who hears the child, be it the judge, an independent expert or any other person, should have appropriate training to carry out this task in a child-friendly manner and training on international child abduction and the operation of the 1980 Child Abduction Convention; b) if the person hearing the child speaks to one parent, they should speak to the other; c) the person hearing the child should not express any view on questions of custody and access as the child abduction application deals only with return.12 | The Judges’ Newsletter Volume XXVI | Fall – Winter 2024

The 2023 Special Commission noted that the “child objection” exception under

custody and access as the child abduction application deals only with ret