HCCH - The Judges Newsletter on International Child Protection - Volume XXIV (2019)

Special focus Urgent Measures of ProtectionThe Judges' Newsletter2on International Child Protection 3 Foreword Urgent Measures of Protection The 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 Child Protection Convention”) unlike the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Child Abduction Convention”) is not supported through a dedicated case law database such as INCADAT. Hence, it is difficult to research and find cases from other jurisdictions or summaries of such cases and legal analyses of the application of the 1996 Child Protection Convention. In the light of this shortcoming, it was decided to dedicate the Special Focus of Volume XXIV of The Judges’Newsletter to leading case law under the 1996 Child Protection Convention with a view to raising awareness of the many benefits of the Convention, in particular with regard to its relationship with the 1980 Child Abduction Convention. One article of the 1996 Child Protection Convention, Article 11, is of particular relevance to the application of the 1980 Child Abduction Convention as it provides a basis of jurisdiction to the authorities of the State where the child is present to take urgent measures of protection. Article 11 of the 1996 Child Protection Convention reads as follows: Article 11 (1) In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection. (2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which

have jurisdiction under Articles 5 to 10 have taken the measures required by the situation. (3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question. The 1996 Child Protection Convention does not define the notion of urgency. Guidance in this regard is found in the Explanatory Report, drawn up by Professor Paul Lagarde, which states that “[i]t might be said that a situation of urgency within the meaning of Article 11 is present where the situation, if remedial action were only sought through the normal channels of Articles 5 to 10, might bring about irreparable harm for the child”. In this respect, the Practical Handbook on the Operation of the 1996 Child Protection Convention (the “Practical Handbook”) suggests a pragmatic approach to determine what constitutes a situation of urgency: “A useful approach for authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his / her protection or interests compromised if a measure is not taken to protect the child in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection.”It is important to note that the situation of “urgency”justifies a derogation from the general rules of jurisdiction provided under the 1996 Child Protection Convention (Arts 5-10). The Explanatory Report indicates for this reason that Article 11 ought to be construed “rather strictly”. The Practical Handbook provides examples of cases involving such a situation of “urgency”: (1) the child is outside the State of his / her habitual

residence and medical treatment is required to save the child’s life (or to prevent irreparable harm occurring to the child or his interests being compromised) and parental consent cannot be obtained for the treatment; (2) the child is exercising contact with a non-resident parent outside his / her State of habitual residence and makes allegations of physical / sexual abuse against the parent such that contact needs to be suspended immediately and / or alternative temporary care found for the child; (3) it is necessary to make a rapid sale of perishable goods belonging to the child; or (4) there has been a wrongful removal or retention of a child and, in the context of proceedings brought under the 1980 Hague Child Abduction Convention, measures need to be put in place urgently to ensure the safe return of the child to the Contracting State of his / her habitual residence. Part I 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, which met from 1 to 10 June 2011, adopted the following Conclusion and Recommendation with regard to the latter point: “41. It was noted that the 1996 Convention provides jurisdictional basis, in cases of urgency, for taking measures of protection in respect of a child, also in the context of return proceedings under the 1980The Judges' Newsletter4 Convention. Such measures are recognised and may be declared enforceable or registered for enforcement in the State to which the child is returned provided that both States concerned are Parties to the 1996 Convention.” It is interesting to note that the drafters of the 1996 Child Protection Convention did not set out what particular “necessary” measures of protection might be taken under Article 11 on the basis of “urgency”. Neither the Explanatory

Report nor Conclusion and Recommendation No 41 provide additional information in that respect. The Explanatory Report merely indicates that the urgency should dictate in each case the “necessary” measures. The Pratical Handbook explains that “[i]t will therefore be a matter for the judicial or administrative authorities in each Contracting State to determine, based upon the facts of each particular case, what measures (within the scope of the Convention [i.e., Article 3]) are “necessary”to deal with the urgent situation at hand”. The duration of the measures of protection taken under Article 11 is regulated by the said Article. In the case of a child habitually resident in a Contracting State, the measures of protection shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation. In the case of a child who is habitually resident in a non-Contracting State, the measures of protection shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State (including a nonContracting State) are recognised in the Contracting State in question. It is important to note that Article 11 applies whether the habitual residence of the child is in a Contracting State or a non-Contracting State. This edition of The Judges’Newsletter intends to draw the attention of judges, lawyers and policy makers to the existence of tools to implement protection measures which may not yet be part of their "tool box". It is hoped that the written contributions found in this volume may encourage States not yet Party to this very important Convention to consider joining the Convention in the near future. For actors involved in child abduction matters in States already Party to the 1996 Child Protection Convention, the written contributions may hopefully bring to their attention some novel applications of the Convention. In relation to the Special Focus of this issue, readers will find a commentary from Justice Alistair MacDonald, member of the International Hague Network of Judges (IHNJ) for England and Wales, on the leading case law of the Supreme Court of the United Kingdom on Article 11. Also featured are case notes on three important decisions from the Family Court of Australia prepared by the Chambers of the Honourable Justice William Alstergren, member of the IHNJ for Australia. Justice Victoria Bennett, also member of the IHNJ for Australia, in her contribution provides a practical insight on the operation of Article 11 from an Australian point of view. On the other hand, Justice María Lilián Bendahan Silvera, member of the IHNJ for Uruguay, provides her views on the operation of Article 11 in the context of a child abduction case from the perspective of a judge from Uruguay. Finally, on the subject of Article 11, Judge Myriam De Hemptinne, member of the IHNJ for Belgium, on part-time secondment to the Permanent Bureau (PB) of the Hague Conference on Private International Law (HCCH), provides a summary and commentary of an interesting decision from the High Court of Ireland. The decision deals with a return application between Ireland and Pakistan at a time when the 1980 Child Abduction Convention did not apply between Ireland and Pakistan and where Pakistan is not a Contracting State to the 1996 Child Protection Convention. Also in this volume of The Judges’Newsletter, is an article by Judge Judith van Ravenstein, member of the IHNJ for the Netherlands, providing an insight on the 2018 activities of the Dutch Office of the Liaison Judge – International

Child Protection. Judge António José Fialho, member of the IHNJ for Portugal, writes on the latest reforms in Portugal to implement the 1980 Child Abduction Convention and Judge Graciela Tagle de Ferreyra, member of the IHNJ for Argentina, informs readers about an extraordinary training that took place in Argentina of all national actors involved in child abduction cases. The training, which was organised by the Federal Board of Courts of Justice of the Provinces and the Autonomous City of Buenos Aires, took place online and on site one afternoon a week for two months. It provided 25 hours of training for more than 900 participants from the 22 provinces of Argentina. Finally, Justice Judith L. Kreeger, former member of the IHNJ for the United States of America, informs us in her article of the steps taken in the state of Florida to concentrate jurisdiction with regard to child abduction cases. Hopefully, other states, like California, New York and Texas, will soon follow this leadership. We hope that you, the reader, will enjoy reading this volume of The Judges’Newsletter as much as we did preparing it, and that it will prompt discussions and inspire initiatives in your respective jurisdictions. Philippe Lortie Frédéric Breger First Secretary, Co-Editor Legal Officer, Co-Editoron International Child Protection 5 Table of contents Special Focus UrgentMeasuresofProtection 1 The use of Article 11 of the 1996 Child Protection Convention in the United Kingdom of Great Britain and Northern Ireland, TheHonourableM rJusticeMacDonald 6 2 Recent cases from Australia on the operation of Article 11 of the 1996 Child Protection Convention, TheHonourableJusticeW illiam Alstergren 9 3 The need for robust judicial management for the effective use of Article 11

of the 1996 Child Protection Convention in return applications under the 1980Child Abduction Convention, TheHonourableJusticeVictoria BennettAO 12 4 A case between Ireland and Pakistan, MQ/KJ, [2017] IEHC 342, M yriam deHem ptinne 16 5 Contribution to the safe return of the child in cases of wrongful removal, Dr.Maria LilianBendahan 20 News from the IHNJ - National developments 1 Contribution to a procedural regime for return cases in Portugal under the 1980Child Abduction Convention, AntónioJoséFialho 25 2 1980Child Abduction Convention Concentration of Jurisdiction in Florida, TheHonourableJudithL.Kreeger 29 3 An experience to share, GracielaTagledeFerreyra 30 4 The annual report of the Office of the liaison judge on international child protection ('BLIK'), JudithvanRavenstein 32 News from the International Hague Network of Judges Passing away of Judge Irma Rumilda Alfonso de Bogarín (1948-2019) 34The Judges' Newsletter6 Special Focus Urgent Measures of Protection

1. The use of Article 11 of the 1996 Child Protection Convention in the United Kingdom of

Great Britain and Northern Ireland ByThe Honourable MrJustice MacDonald,Deputy HeadofInternationalFam ilyJusticeforEnglandandW ales This article considers the judicial practice in the jurisdiction of England and Wales in relation to Article 11 of the 1996 Child Protection Convention on urgent measures of protection. Article 11 allows for the taking of “necessary measures of protection”in “all cases of urgency”. Article 11 is designed as a rule of jurisdiction. The jurisdiction of a Contracting State under Article 11 of the 1996 Child Protection Convention, based on urgency and necessity, is concurrent with the general jurisdiction under Articles 5 to 10 of the Convention and is subordinate to that general jurisdiction. Article 13 of the Convention pertaining to the resolution of possible conflicts of jurisdiction does not apply where measures of protection have been taken under Article 11. As with the HCCH Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, the 1996 Child Protection Convention does not define urgency, however the Practical Handbook to the 1996 Child Protection Convention (the “Practical Handbook”) provides as follows at paragraphs 6.2 and 6.4 in this regard: “[6.2] The Convention does not provide a definition as to what constitute “cases of urgency”. It will therefore be a matter for the judicial / administrative authorities in the Contracting State in question to determine whether a particular situation is “urgent”. The Explanatory Report states that a situation of urgency may be said to exist where, if measures of protection were only sought through the normal channels of Articles 5 to 10 (the general bases of jurisdiction), irreparable harm might be caused to the child, or the protection of the child or interests of the child might be compromised. A useful approach for authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his / her protection or interests compromised if a measure is not taken to protect the child in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection. .../ [6.4] Examples of cases involving such a situation of “urgency” might include: (1) the child is outside

the State of his / her habitual residence and medical treatment is required to save the child’s life (or to prevent irreparable harm occurring to the child or his iterests being compromised) and parental consent cannot be obtained for the treatment; (2) the child is exercising contact with a nonresident parent outside his / her State of habitual residence and makes allegations of physical / sexual abuse against the parent such that contact needs to be suspended immediately and / or alternative temporary care found for the child; (3) it is necessary to make a rapid sale of perishable goods belonging to the child; or (4) there has been a wrongful removal or retention of a child and, in the context of proceedings brought under the 1980 Hague Child Abduction Convention, measures need to be put in place urgently to ensure the safe return of the child to the Contracting State of his / her habitual residence.” Within this context, it will be for the judicial or administrative authorities of the Contracting State in question to determine whether a particular situation is one of urgency, with a useful approach being to ask “whether the child is likely to suffer irreparable harm or to have his or her protection or interests compromised if a measure is not taken to protect him/her in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection”. With respect to the question of whether a measure of protection can be said to be necessary, the Explanatory Report drawn up by Paul Lagarde suggests the concept of necessity is linked to the concept of urgency, describing measures under Article 11 as a “functional concept, the urgency dictating in each situation the necessity of the measures". Paragraph 6.5 of the Practical Handbook provides as follows: “[6.5] Whilst there is no settled practice regarding what constitutes a “case of urgency” as yet, in these circumstances it is clearly for the competent authority hearing the return application to determine whether, on the facts of the particular case before it, the case is one of “urgency”such that Article 11 can be relied upon to take measures of protection to ensure the child’s safe return.” Once again, in the circumstances, it will be a matter for the judicial or administrative authorities in each Contracting State to determine on the facts of the particular case, including the degree of urgency of the case, what measures within the scope of the Convention are necessary to deal with a situation of urgency.on International Child Protection 7 A further aspect of the protection conferred in cases of urgency by the taking of necessary measures of protection under Article 11 is the fact that, in accordance with Chapter IV of the 1996 Child Protection Convention, measures of protection taken in cases of urgency under Article 11 are entitled to recognition and enforcement. Pursuant to Article 23, such measures shall be recognised by operation of law. Further, pursuant to Article 23(2)(b) and (c) the grounds for non-recognition of an order are limited in cases of urgency. Thus, in respect of cases in which a return order is made in the context of proceedings under the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, the "1980 Child Abduction Convention"), as the Practical Handbook notes at paragraph 13.7: “The 1996 Convention adds to the efficacy of any such measures of protection ordered by ensuring that such orders are recognised by operation of law in the Contracting State to which the child is to be returned and are enforceable in that Contracting

State upon the request of any interested party (until such time as the authorities in the requesting Contracting State are able to put in place any necessary protective measures).” Within this context, in England and Wales secondary legislation has been implemented to take account of the provisions of Article 11 of the 1996 Child Protection Convention in the domestic context. In particular, regulation 5 of the Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 provides that where a local authority in England and Wales thinks that the conditions in section 31(2)(a) and (b) of the Children Act 1989 (threshold for public law care and supervision orders) apply in relation to a child and Article 11 applies, an interim care or interim supervision order may be made to provide temporary protection, notwithstanding that the English or Welsh court has no international jurisdiction to make a final care or supervision order. The English and Welsh courts have considered the application of Article 11 in a number of decisions. The key decision however, is that of the United Kingdom Supreme Court in Re J (A child) (1996 Hague Convention: Morocco) [2016] AC 1291 in which the Supreme Court considered comprehensively the operation of Article 11 of the 1996 Child Protection Convention. The facts of the case can be summarised as follows. The child was born in January 2007. His parents held Moroccan and British citizenship. The parents lived in England when the child was born but then moved first to Saudi Arabia and then to Morocco. The parents’marriage broke down and the child lived with his mother, who was granted residential custody. The father was granted and exercised visiting

rights. The mother then moved to England. The child remained in the care of his maternal grandparents but the mother later brought the child to England. Thereafter, the child lived in England with the mother and her new husband. Face to face contact between the father and the child ceased. The father brought proceedings in the English High Court seeking an order that the child be made a ward of court and directions for his summary return to Morocco. The High Court found that the child had been habitually resident in Morocco at the time of his removal and that the father had not consented to his removal from Morocco, which was wrongful. The High Court ordered the mother to return the child to Morocco. The mother appealed to the Court of Appeal, which held that the English courts did not have jurisdiction under the 1996 Child Protection Convention. The Court of Appeal concluded that in cases where a child was habitually resident in another State jurisdiction under the 1996 Child Protection Convention only arose in cases of urgency pursuant to Article 11 and this was not such a case as the father could have made an immediate application to the Moroccan court for a return order. The Supreme Court allowed the appeal against the decision of the Court of Appeal, holding that it is open to the English courts to exercise the Article 11 jurisdiction in cases of wrongful removal under the 1996 Convention. In the course of its judgment, the Supreme Court considered in detail the operation of Article 11 in the jurisdiction of England and Wales. The Supreme Court described Article 11 as supplying “an additional jurisdiction in limited circumstances”. Within that context, the Supreme Court compared Article 11 with Article 20 of the Brussels IIa Regulation as follows: “There are several things to note about this provision. First, it bears a striking resemblance to article 20 of Council Regulation (EC) No 2201/2003

concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, otherwise known as the Brussels II revised Regulation (“the Regulation”). Article 20, however, merely allows one member state to “take provisional, including protective measures in respect of persons or assets in that State as may be available under the law of that member state”, even if, under the Regulation, the court of another member state has jurisdiction. Article 11, in contrast, confers an additional jurisdiction upon the State where the child or the property is. An order made under article 20 is not enforceable in another member state: Purrucker v. Valles Perez (No 1) (Case C256/09) [2011] Fam 254. In contrast, an order made under article 11 is enforceable in the other Contracting States in accordance with Chapter IV of the 1996 Convention. The order can thus have extra-territorial effect, although it will lapse in accordance with article 11(2) once the authorities inThe Judges' Newsletter8 the State of primary jurisdiction have taken the measures required by the situation.” From the decision of the Supreme Court in Re J can be drawn the following key observations made by the Court with regard to the manner in which Article 11 operates: (a) Article 11 applies where there is (i) a case of “urgency”, (ii) the child or his or her property is present in the jurisdiction, and (iii) measures of protection are necessary. Within this context, Article 11 demands a holistic approach. It may be helpful for the court to ask itself three questions. Is the child here? Are measures of protection necessary? Are they urgent? This is not to suggest that these questions must always be asked in that order. The Article

should be applied according to its terms. (b) The concept of “measures of protection” goes far wider than the public law measures of child care and protection to which an English lawyer might otherwise think that they referred (although those are also included). (c) Article 11 confers jurisdiction on the presence country in all situations to which its terms apply. It is not limited to cases of wrongful removal or retention. A child may be habitually resident in one country but present in another in a whole host of situations which do not involve an unlawful removal or retention. It cannot be the case that the courts of the presence country are prohibited from taking steps under Article 11 because it has not been shown to be impossible for the courts of the home country to do so. (d) An order made under Article 11 can have extraterritorial effect and jurisdiction and extends to safeguarding children who are lawfully present in another country. As such, it can secure a valuable 'soft landing' for children whose return to their home country is ordered under the 1980 Hague Convention. (e) If the courts of the home country take action, the measures they take will “trump" those taken in the presence country. But if no action is taken, the measures taken in the presence country will continue to operate throughout the Convention space. (f) Article 11 should not however be used to interfere in issues that are more properly dealt with by the authorities in the home country. It is a secondary not a primary jurisdiction. In the circumstances, the jurisdiction is not one that is entirely ‘at large’. Within this context, the Supreme Court in Re J, whilst noting that “it would be unfortunate if words in the Explanatory Report were treated as if they were words in the Convention itself”, observed as follows with respect to situations in

which Article 11 is likely to be of application: “[37] The Practical Handbook suggests that “A useful approach for Authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his/her protection or interests compromised if a measure is not taken to protect him/her in the period that is likely to elapse before the authorities with general jurisdiction under articles 5 to 10 can take the necessary measures of protection” (para 6.2). The examples given cover (1) medical treatment to save the child’s life or prevent irreparable harm occurring to the child or his interests being compromised; (3) a rapid sale of perishable goods; but also (2) the child is having contact with a nonresident parent outside his home State and makes an allegation of abuse against that parent such that contact needs to be suspended immediately and alternative care arranged; (4) there has been a wrongful removal or retention of the child and, in the context of 1980 Hague Convention proceedings, measures need to be put in place to ensure the safe return of the child”(para 6.4).” With respect to the area of child abduction, in Re J the Supreme Court further observed that whilst a case of abduction governed solely by the 1996 Child Protection Convention is not invariably one 'of urgency', it is difficult to envisage a case in which the court should not consider it to be so and go on to consider whether it is appropriate to exercise the Article 11 jurisdiction. With respect to child abduction matters under the 1980 Child Abduction Convention, it is noteworthy in this context that in the Practical Handbook in a footnote to paragraph 6.4 the Handbook states as follows: “In relation to example (4), it was suggested at the 2011 Special Commission (Part I) that whilst

measures which facilitate the safe return of a child in the context of a return application under the 1980 Convention are extremely valuable, they may not always suggest a “case of urgency” (such that Article 11 can be relied upon for a basis for jurisdiction to take these measures). This would particularly be the case in light of the strict interpretation of “urgency” called for in the Explanatory Report. In contrast, it was pointed out that the use of Article 11 in such circumstances was an important addition to the “toolbox” which authorities have at their disposal to ensure the “safe return” of a child following a wrongful removal or retention. It was further suggested that a case involving the need for measures to be taken to ensure a child’s safe return to the State of his / her habitual residence would usually be a “case ofon International Child Protection 9 urgency”such that Article 11 can be relied upon. In the Conclusions and Recommendations of the 2011 Special Commission (Part I) the following was noted (at para. 41): “[T]he 1996 Convention provides a jurisdictional basis, in cases of urgency, for taking measures of protection in respect of a child, also in the context of return proceedings under the 1980 Convention. Such measures are recognised and may be declared enforceable or registered for enforcement in the State to which the child is returned provided that both States concerned are Parties to the 1996 Convention.''

2. Recent cases from Australia on the operation of Article 11 of the 1996 Child Protection Convention BytheHonourableJusticeW illiam Alstergren,Chief Justice ofthe Fam ilyCourtofAustralia and ChiefJudge of theFederalCircuitCourtofAustralia There have been at least three recent cases before the Family Court of Australia concerning the operation of Article 11 of the 1996 Child Protection Convention.

a) The first decision concerned Australian children who had been placed in the care of German Social Services following the mother wrongfully retaining the children in Germany. The second decision had to confront the practical reality of a Contracting State not having established the “simple and rapid”procedure to render protective measures enforceable between States. The third decision demonstrated the regulation of the care of a returned child in the short period after the child re-entered the State of habitual residence up until the time when the competent authorities of that jurisdiction were seized of the matter and took the measures required by the situation. In November 2018, Justice Berman delivered a decision in Ryland & Ryland. In that case, both parents were German citizens by birth and held dual Australian citizenship. The parents separated in April 2016 af