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I. LUXEMBOURG, BRUSSELS AND NOW THE HAGUE: CONGESTION IN THE PROMOTION OF FREE MOVEMENT IN PARENTAL RESPONSIBILITY MATTERS

Published online by Cambridge University Press:  14 May 2010

Peter McEleavy
Peter McEleavy
Affiliation:
University of Dundee.
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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 59 , Issue 2 , April 2010 , pp. 505 - 519
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 [2003] OJ L338/1–29.

2 Case C-195/08 PPU Inga Rinau [2008] ECR I-5271; Case C-523/07 A [2009] 2 FLR 1.

3 ETS No 105. As of 24 February 2010 the Convention had 36 States Parties, these include all EU members (except Slovenia) and Iceland, Liechtenstein, Moldova, Montenegro, Norway, Serbia, Switzerland, Macedonia, Turkey and Ukraine.

4 UNTS I-31922. As of 24 February 2010 the Convention had 18 States Parties: Albania, Armenia, Australia, Bulgaria, Croatia, Czech Republic, Ecuador, Estonia, Hungary, Latvia, Lithuania, Monaco, Morocco, Slovakia, Slovenia, Switzerland, Ukraine and Uruguay. The accession of the Dominican Republic is pending (1 October 2010).

5 McEleavy, P ‘The Brussels II Regulation: How the European Community has Moved Into Family Law [2002] ICLQ 883, 892CrossRefGoogle Scholar.

6 McEleavy, P ‘The New Child Abduction Regime In The European Union: Symbiotic Relationship or Forced Partnership? [2005] J Priv Int L 5CrossRefGoogle Scholar.

7 [2003] OJ L048/1-2. The then Member States signed the Convention on 1 April 2003, except for the Netherlands, which had already signed on 1 September 1997.

8 As regards the evolution in external competence see: Case 22/70 Commission v Council (ERTA) [1971] ECR 263; Opinion 1/03, Lugano Convention [2006] ECR I-1145; and Council Regulation (EC) No 664/2009 of 7 July 2009 Establishing a Procedure for the Negotiation and Conclusion of Agreements Between Member States and Third Countries Concerning Jurisdiction, Recognition and Enforcement of Judgments and Decisions in Matrimonial Matters, Matters of Parental Responsibility and Matters Relating to Maintenance Obligations, and the Law Applicable to Matters Relating to Maintenance Obligations [2009] OJ L200/46-51.

9 Both the Netherlands and Ireland were restrained from completing their ratification process. In the latter Member State the implementing legislation had indeed been completed, see: Protection of Children (Hague Convention) Act, 2000, No 37 of 2000. More recent Member States have been treated differently, both Hungary and Slovenia ratifying the instrument following their accession to the Community, although by this time Council Regulation 2201/2003 had been concluded, and so their Contracting State status would not give rise to problems for the purpose of art 52(2) of the Convention, see below.

10 A Proposal for a Council Decision authorizing the Member States to ratify, or accede to the Convention was issued shortly thereafter: COM (2003) 348 final.

11 The other being the UNIDROIT Convention on International Interests in Mobile Equipment, 2001, UNTS I-41143.

12 Spain was of the view that any designation of the Gibraltar government as a ‘competent body’ would undermine its claim to sovereignty: House of Commons—Foreign Affairs Committee, HC 147-I, Seventh Report of Session 2007–08—Volume I, para. 412.

13 ‘Agreed Arrangements Relating to Gibraltar Authorities in the Context of Mixed Agreements’, Written Ministerial Statement, Official Report, HC Deb, 8 January 2008, col 6WS.

14 [2008] O.J. L 151/36–38.

15 Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and Slovenia.

16 If this date is met entry into force would follow on 1 October 2010, see Art 61.

17 s 1(3).

18 It must be noted however that pursuant to ECJ case law where an agreement has been concluded by the Community with non-member countries its provisions may be directly applicable where they embody a clear and precise obligation which is not subject, in their implementation or effects, to the adoption of any subsequent measure: (Case 12/86) Demirel v Stadt Schwabisch Gmund [1987] ECR 3719, para. 14.

19 Command Paper (Cm 7727).

20 The European Communities (Definition of Treaties) (1996) Hague Convention on Protection of Children Etc) Order 2009: www.opsi.gov.uk/si/si2009/draft/ukdsi_9780111487563_en_1 And Explanatory Memorandum.

21 Arts 40–42.

22 Art 12(3).

23 Art 10.

24 Art 2; this is not however a substantive rule so fixing the age of majority in all Contracting States, see Lagarde Report, para. 16. In fixing the outer limit at eighteen the 1996 Convention is aligned with the associated Hague Convention on the International Protection of Adults, 2000, see art 2(1), and also the integrating clause in art 2(2).

25 Art 1(1)(b).

26 cf art 3(a) of the Convention.

27 Art 1(1)(a).

28 Recital 10 articulates what is understood from the European concept of ‘civil matters’, that social security or public matters of a general nature in matters of education or health are excluded from the scope of the Regulation (cf Art 4(g) &(h) of the Convention).

29 Art 3(e) of the Convention refers to Kafala which is an institution of Islamic law, see Lagarde Report at para 23. The Regulation does not replicate the reference in art 3(f) of the Convention that general supervision of a child by a public authority whilst he is in the care of a person is included with the instrument's scope, but such situations would already appear to be covered in both instruments, cf Minutes, No 3, Proceedings of the Eighteenth Session of the Hague Conference on Private International Law, Volume I, 316 ff.

30 Art 15.

31 Art 16.

32 Family Law Act 1986, s 1.

33 Art 1(3)(c) Brussels IIa; art 4(c) Hague Convention.

34 Family Law Act 1986, Part I, Chapter II (England & Wales); Chapter III (Scotland); Chapter IV (N. Ireland).

35 Lagarde Report at para. 17. cf art 13, Hague Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants.

36 cf Re I. (A Child)(Contact Application: Jurisdiction) [2009] UKSC 10, [2009] 3 WLR 1299; Dicey, Morris & Collins on the Conflict of Laws, 14th edn. 3rd Cumulative Supplement para. 19-035.

37 Art 5.

38 Art 6.

39 Lagarde Report at para. 84.

40 cf Art 21(1) which simply refers to ‘judgment’, which is specified in art 2(4) as one pronounced by a court of a Member State. The judgment may be made on a residual basis of jurisdiction as well as under the Regulation rules.

41 The use of the term ‘measures’, rather than ‘judgment as in Brussels IIa, reflects the terminology used throughout the instrument to describe decisions of judicial or administrative authorities which are designed to have legal effect, see E Clive ‘The New Hague Convention on Children’ 1998 Juridical Review 169, 171.

42 ibid para 84 and para. 122.

43 Art 16, Lagarde Report para. 17.

44 See below.

45 cf Luxembourg Convention.

46 Art 5.

47 Art 6(1).

48 Art 6(2). The complete absence of habitual residence is confirmed by the Lagarde Report at para. 45. Exclusivity of the Convention jurisdictional regime is not therefore triggered where a child is present in a Contracting State but habitually resident in a third State. The flexibility this provides may be interpreted as affording respect for the child's non-Convention ties. No such clarity extends to Art. 13 of Brussels IIa. Whilst the latter is modelled on Article 6, the Euro-centricity of the ECJ is such that one could not predict with confidence that the presence (no habitual residence) jurisdiction would only be extended to children without any habitual residence at all, rather than simply no habitual residence in a Member State.

49 Art 7. There is no need for art 7 to take precedence over art 6, as in the absence of a habitual residence a wrongful removal or retention cannot occur.

50 For example if return proceedings conclude without an order to send the child back, the child has been in the new State for more than 12 months since the left behind parent has had or should have had knowledge of his whereabouts, and the child has become habitually resident and settled there, then the courts of that place will have jurisdiction. Under Brussels IIa a transfer can only occur in such situations where a left behind parent has acquiesced in the abduction or has lost or given up in proceedings in the original State of habitual residence; the passage of time combined with a non-return order in Convention proceedings will not bring about a transfer.

51 Art 10. There is no prorogation in favour of a Contracting State with which the child has a substantial connection, cf art 12(3), Brussels IIa.

52 cf. ‘Without prejudice to Articles 5 to 9 …’.

53 Authorities ‘… may, if the law of their State so provides, take measures …’. Unlike art 12(1), Brussels IIa, the divorce jurisdiction does not have to be founded upon art 3, Brussels IIa, and could arise under the residual rules, see: Domicile and Matrimonial Proceedings Act 1973, s 5(2)(b) England & Wales; s 7 Scotland.

54 Arts 8 & 9; Lagarde Report, para 53 art 9 mistakenly fails to refer to the State of presence, see Lagarde Report, para. 58.

55 cf art 15(3), Brussels IIa.

56 Minutes, No 7, Proceedings of the Eighteenth Session of the Hague Conference on Private International Law, Volume I, 339 ff. cf art 13(2).

57 Case C-281/02, Owusu v Jackson [2005] ECR I-1383.

58 The Convention does not however contain an express provision as to examination of jurisdiction, cf art 17, Brussels IIa.

59 Art 13(1). cf art 19 Brussels IIa. The lis pendens clause does not apply to the direct, but non-exclusive grounds of the jurisdiction established under the Convention (cf art 20 Brussels IIa) to take protective measures in cases of urgency (art 11) or which have a provisional character (Art. 12).

60 Case C-116/02, Gasser GmbH v MISAT Srl [2003] ECR I-14693.

61 Art 13(2).

62 Lagarde Report, para 80. The matter in question may already have been determined in another jurisdiction, s 5(1) Family Law Act 1986, or, another forum may be more appropriate: s 5(2)(b).

63 Art 23(2)(a). cf art 24 Brussels IIa, which further provides that the test of public policy may not be applied to the rules relating to jurisdiction.

64 Art 25.

65 Practice Guide for the application of the new Brussels II Regulation, 12 http://ec.europa.eu/civiljustice/parental_resp/parental_resp_ec_en.htm; see also HA v MB (Brussels II Revised: Article (11)7 Application) [2007] EWHC 2016 (Fam); [2008] 1 FLR 289.

66 Art 5(2), Lagarde Report para 41; cf Leon v Leon [1967] 275.

67 See discussion by Professor Clive, head of the UK delegation during the negotiations, in ‘The New Hague Convention on Children’ (1998) JR 169, 173. The late Professor Nygh suggested that the jurisdiction of the original court seised would be preserved following a change of habitual residence by virtue of the lis pendens clause: P Nygh ‘The Hague Convention on the Protection of Children’ [1998] NILR 1.

68 See below.

69 Eleven of the fourteen States Parties: Austria; France; Germany; Italy; Latvia; Lithuania; Luxembourg; Netherlands; Poland; Portugal; Spain.

70 Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, UNTS, 1969, 145.

71 See for example: Re K (Children) (Rights of Custody: Spain) [2009] EWCA Civ 986, [2010] 1 FLR 782.

72 In Re J (A Child) (Custody Rights: Jurisdiction)[2005] UKHL 40, [2006] 1 AC 80 Baroness Hale affirmed: ‘If our courts have jurisdiction, then the welfare principle applies, unless it is excluded, and our law has no concept of the “proper law of the child”'.

73 Children (Scotland) Act 1995, s 14(3).

74 cf discussion below.

75 Art 15(1).

76 The exception is not to be utilised too easily: Lagarde Report, para 89.

77 The omission of ‘contracting’ clearly indicates that this might be the law of any State, an outcome expressly permitted by art 20.

78 Art 15(2).

79 Lagarde Report, para. 17.

80 Art 16(1).

81 Art 16(3). The consequence of this provision is that where proceedings are brought in accordance with the prorogation clause in art 10, recourse may have to be paid to two foreign laws, that of the child's current State of habitual residence as well as of his immediately previous habitual residence. It would appear from the drafting of art 16(3) that an attribution of parental responsibility by operation of law will only subsist after one move and would not survive a move to a third State under whose law parental responsibility is also not attributed by operation of law.

82 Art 16(2).

83 Art 22.

84 Part II. See Child Abduction and Custody Act 1985, Sch 2, arts 9 & 10.

85 Art 23(1).

86 Art 23(2).

87 Art 26.

88 Art 28.

89 Lagarde Report, para. 118.

90 Art 23(2)(d).

91 Art 23(2)(c).

92 cf art 11(2) & (5).

93 Art 23 of Brussels IIa affirms that a judgment ‘shall not be recognised’ if …. Whereas Art 23(2) of the Convention provides that ‘recognition may however be refused’ if ….

94 Art 23(2)(f). cf art 23(g) Brussels IIa.

95 Art 23(e). cf art 23(f) Brussels IIa.

96 cf art 23(e) Brussels IIa.

97 Art 14.

98 cf art 23(c) Brussels IIa.

99 Case C-7/98 Krombach v. Bamberski [2000] ECR I-1935.

100 Art 23(2)(a). Only findings of fact are binding on the requested State, art 25. Under the Council of Europe Convention recognition can equally be refused if by reason of a change in the circumstances the effects of the original decision are found to be manifestly no longer in accordance with the welfare of the child, art 10(1)(b).

101 cf art 24 Brussels IIa.

102 Art 27. cf art 26 Brussels IIa.

103 Lagarde Report paras 136, 137. The power of Central Authorities to issue certificates attesting to the rights held by an individual pursuant to art 40, is also discretionary.

104 Art 29(1). States composed of more than one legal unit may appoint more that than one Central Authority, art 29(2).

105 This is seen clearly in art 30 which affirms that Central Authorities shall co-operate and provide information, whilst art 31 provides that Central Authorities shall facilitate communications, agreed solutions and assist in locating children. The Lagarde Report notes in this context, at para 137, that there is ‘no obligation to take an initiative, no obligation to give information or to co-ordinate in advance the taking of measures …’.

106 This includes the possibility of providing a report on the situation of a child (art 32); requesting information from another Contracting State where a measure of protection is contemplated (art 34); and seeking or providing assistance with regard to transfrontier contact (art 35). Consultation is though obligatory where the placement of a child in some form of care in another Contracting States is envisaged (art 33), whilst where a report is provided pursuant to art 35(2) and proceedings are brought under the Convention in another Member State, the latter shall be considered (art 35(2); and where a child is exposed to serious danger and changes his residence, the authorities formerly competent are to advise those which have acquired jurisdiction, (art 36).

107 Family Law Act 1975, Part XIIIAA, s 111CU ff.

108 Civil Legal Aid (General) Regulations 1989/339, r 14.

109 cf Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.

110 Art 55. An equivalent, albeit more detailed provision to art 33 of the Convention where an overseas placement is contemplated is included, see art 56.

111 Art 57(3). See also 1980 Council of Europe Convention, art 5.

112 A phenomenon which is of course complemented by the acquisition and exercise of external competence in respect of future initiatives in the same field concerning third States, see above. Cf. Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L7/1-78, art 15, where in an example of inverse subsidiarity the law applicable to maintenance obligations is to be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations. See: Beaumont, P ‘International Family Law in Europe—the Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity’ [2009] The Rabel Journal of Comparative and International Private Law, 509–546Google Scholar.

113 This declaration of precedence over the 1980 Convention is somewhat anomalous, cf art 62, Recital 17 and McEleavy [2005] J Priv Int L 5.

114 Art 60. It is confirmed in art 62(1) that all such Conventions do continue to have effect in relation to matters not governed by the Regulation. cf art 52(1) of the 1996 Hague Convention which provides that the Convention shall not affect any international instrument to which Contracting States are Parties and which covers matters governed by the Convention, unless a contrary declaration is made by the State Parties to such instrument.

115 Lagarde Report para. 170.

116 Art 52(1).

117 cf art 52(1) and Lagarde Report para 171.

118 cf art 52(2).

119 Parallel agreements may be concluded ‘in respect of children habitually resident in any of the States Parties to such agreements’.

120 In this situation both the Convention (art 6) and Brussels IIa (art 13) seek to claim jurisdiction over the child. Where a child is habitually resident in a third State there is no such conflict as the Convention does not seek to exercise exclusive jurisdiction. In such cases jurisdiction will fall to be decided under Brussels IIa and depend on whether the child is present or there is a prorogation agreement (art 12). It must be recalled that where a child is not habitually resident in a Member State but is habitually resident in a Hague Contracting State then the Convention alone must apply.

121 See above.

122 Art 10 Brussels IIa is of no assistance as it is restricted to intra-EU abductions.

123 Art 16 is different being a general choice of law rule which is not tied to there being jurisdiction to take measures of protection.

124 This extension could also usefully be applied to the very small number of cases coming within the residual Family Law Act 1986 rules, as well as internal United Kingdom cases.

125 The Luxembourg Convention only applies to such orders: arts 7 & 11.

126 A declaration could be made whereby only the Hague Convention would be applied, see art 20(2), but as this would arguably trespass on the Community's external competence, permission would have to be sought.

127 As regards art 7 see Lowe, N ‘The 1996 Hague Convention on the Protection of Children—a Fresh Appraisal’ [2002] CFLQ 191–206Google Scholar.