Conference Presentation
Reference
The 1996 Hague Convention on Protection of Children: Key Aspects
ROMANO, Gian Paolo
ROMANO, Gian Paolo. The 1996 Hague Convention on Protection of Children: Key Aspects. In:
Conference on "Cross-border child protection: Legal and social perspectives -
Towards a better protection of children worldwide - The 1996 Hague Child Protection Convention in practice", organised by the International Social Service (ISS) and the Hague Conference on Private International Law (HCCH), Geneva, 20 October 2015, 2015, p. 1-10
Available at:
http://archive-ouverte.unige.ch/unige:135143
The 1996 Hague Convention on Protection of Children:
Key Aspects
Gian Paolo Romano, [Geneva 20 October 2015]
Good morning everybody. And what a beautiful day.
On behalf of the University of Geneva as well as of the Dean of the Faculty of Law, Professor Chappuis, who was unable to attend, it is a pleasure to join my fellow panelists to welcome you, with joy and gratitude, at this multiple-day conference.
I want to thank the International Social Service and the Hague Conference on Private International Law for having associated our University to shape and organise this event.
This means a lot to us.
Not only because it offers us a tremendous opportunity to work and partner with these two celebrated institutions, but also because studies on children are increasingly one of the focal points and avenues of research and expertise of our University.
This is underscored by the creation earlier this year of The Centre for Children’s Rights Studies, whose aim is to advance and promote an inter-disciplinary approach to children- related issues, harnessing a variety of standpoints and levels of analysis: legal, so- ciological, psychological and medical.
That very approach is ultimately reflected in the title of this symposium, which so fittingly proposes to combine « legal and social perspectives ».
As previous speakers noted, it makes a lot of sense to hold this event in Geneva:
not only because it is the HQ of the International Social Service worldwide, but also because of this city’s century-long tradition as a center for intercountry cooperation, for dialogue among nations, for efforts to respect diversity, overcome divergences and settle conflicts peacefully.
And it is wonderful to see Geneva and the Hague, which have both done so much to champion multilateralism across the world, come together today.
Highlighting the importance of these two cities, and the institutions that they host, should not make us overlook the role of the European Union, which is also significantly present today among the panelists and in the audience.
And rightly so.
For in the field of global private international law, little can be done without the EU, which, in this field, with particular regard to inter-judicial cooperation, is leading and inspiring the world.
And I also want to mention the increasing supervisory involvement of the European Court of Human Rights in cross-border children affairs, which is a constant reminder of the responsibilities of the States towards the individuals.
10. Gian Paolo Romano, The 1996 Hague Convention on Protection of Children: Key Aspects (speech delivered in Geneva, 20 October 2015), p. 1-9
And we are so privileged to have among us some outstanding members of the Strasbourg Court.
Speaking about symbols, let me also note that the choice of the venue – the Centre Oecumenique – so powerfully captures the spirit of today’s gathering: which is to bring countries and human institutions together, to strengthen our collective awareness of common concerns, of shared values and interests, of our mutual interdependence, in the crucial area of the welfare of our children.
Last, but emphatically not least, I want to acknowledge and commend the heroic work of this incredible bunch of young people from the International Social Service and the University of Geneva.
Their contribution to make this event happen has been beyond measure.
Together with the young people in the audience – and I am pleased to see so many of them – they represent the most diverse, the most dynamic, and the best educated generation in all human history.
As a final, household remark, I want to recall that most of the conference is video- and audio recorded.
So let me encourage our speakers and panelists to gratify our cameraman – rather camerawoman – as well as our prospective viewers with an occasional smile.
Let me set the example… and to all those who will be watching us at some point, we are sorry you were not able to join us but we hope you are going to benefit from this video.
I wish you all a profitable conference and a pleasant stay in this wonderful city.
[…]
Thank you, Mrs Chairwoman.
And I also want to thank you for accepting on such a short notice to moderate this morning session.
***
Let me start with a few words about the scope of the Convention.
Some 40 countries are currently party to it, the majority being EU Member States.
But that also includes European, non-EU countries, such as Switzerland, as well as countries from all other continents: Morocco, Australia, Russian Federation, Equador, and others.
The Convention entered into force in 2002.
But for most of its signatories, date of initial application has been much later:
2009 for Switzerland, 2013 for Russia, 2016 for Italy, and so on...
***
The Convention is designed to prevent a « conflict between legal systems ».
This is what the preamble says.
A « conflict between legal systems » is a conflict between two (or more) States as to what the interests of children having connections with both of them require, a disagreement as to how best to meet the needs of those children when they face some critical situations and require some protection.
***
One of the key notions of the Convention is indeed a « protection measure », which is intended broadly so as to cover in the first place child custody, access or visitations rights, but also less frequent situations, such as withdrawal of parental authority, placement in a foster family, as well as protection of child’s property.
The Convention applies to children of married and non-married parents alike, hetero- sexual or homosexual, regardless of whether they were born through some forms of reproductive technology or were adopted.
On the other hand, immigration law and asylum-related issues are not covered.
And we’ve seen in recent years how those public law issues may stand in the way of the implementation of custody and access decisions.
With the migrants’ crisis deepening with each passing day, this is likely to be a momentous problem in the near future.
The Convention also leaves outside its scope private law issues such as maintenance, the Hague Conference having devoted a set of specific instruments to this critical aspect.
Nor is the Convention concerned with the question as to who, legally, is the father, or the mother, of a child.
This issue has gained importance due to the increasing use of surrogacy and other forms of reproductive assistance.
***
Now, to understand how the Convention works, it’s good to rely on a case-study.
Let me offer you one which draws on a real story, although I will make some variations.
A French mother and a Swiss father have a common boy who has dual citizenship.
The family lives in France, then in Switzerland, with both parents travelling constantly between the two countries.
After some years, their union breaks down and they split – which obviously makes the child very sad.
The mother wants to permanently settle in France.
The father to remain in Switzerland.
Each of them wants to secure the maximum rights and control over the child.
We say in French « enfant du pays ».
Our binational child is an enfant des deux pays: of his motherland (« mère patrie »), France, and his fatherland (« Vaterland »), Switzerland.
And so, France and Switzerland have a joint responsibility for the welfare of their common child and a shared interest to resolve the parental dispute and thereby minimise the harm that the fight between Mom and Dad inevitably causes to the child.
The problem is each of both countries may have its own idea of how to do it.
French authorities may think the mother is better equipped to look after the child on a daily basis.
Swiss authorities may think the father should be the primary carer.
***
Here is where the Convention jumps in, in order to first specify which of the two countries will have the power and responsibility to solve the parental dispute.
Under its scheme, the country of habitual residence of the child has essentially such power.
Not the residence of the defendant nor of the claimant.
But that of the child.
This underscores the child being at the center of the relationship involving him or her.
***
Notoriously, the Convention does not define habitual residence.
What’s clear, though, is that this notion has to be construed autonomously regardless of domestic law idiosyncrasies.
Factually, residence of a child is often easy to identify.
But sometimes it is not.
Because of two factors.
First, the child may, over a particular period of time, have been living in two countries.
He may move, or have moved, with one or both parents, sometimes repeatedly, from one country to another.
The Court of Justice in Luxembourg has been faced with those situations while interpreting Brussels IIa Regulation.
While the rulings of the ECJ are not binding when it comes to implementing the Con- vention, the texts of the Convention and Brussels IIa are similar.
So I believe precludes looking at the ECJ cases for some guidance.
A number of factors have been articulated by the ECJ, including (quote) « the regularity, conditions and reasons for the stay in the territory of a State and for the family’s move to that State, child’s nationality, school attendance, linguistic knowledge », as well as
« the intention of the parents or one of them to settle permanently with the child in a State ».
***
The second difficulty associated with habitual residence is:
What is the relevant time to assess it?
The residence of the child may lawfully be transferred from one country to another during the proceedings:
for example, after the filing of the action and before the decision;
or after the lower court’s decision and before or during the appeal proceedings.
During the negotiations, some advocated for the principle of continuity of jurisdiction (so called perpetuatio fori).
Others wanted this question to be left to domestic procedural law.
The Official Report by Paul Lagarde suggests a change of habitual residence should trigger change in jurisdiction.
Brussels IIa takes a different view because it freezes jurisdiction at the time of seisin.
So if action is filed in France and, during the French proceedings, child moves from France to Switzerland,
has the French court lost jurisdiction or retained it?
If we rely on the Lagarde Report, it has lost it and the Swiss court has taken over it.
Brussels IIa says French court has retained the jurisdiction.
Having two different ways to determine this question does not seem to be very sensible.
***
If a child has nowhere habitual residence, its presence in a particular country triggers jurisdiction.
That’s the case of refugees or internationally displaced children.
***
Contrary to what happens with contracts or torts, there’s no alternative general ground for jurisdiction that may compete with child’s residence.
It is true that court in charge of divorce – or separation – proceedings may extend its power to children issues.
But the conditions to do so are restrictive.
Going back to our Swiss-French couple, let’s assume they are married.
Divorce may be sought either in France or in Switzerland (based on Swiss « LDIP » and Brussels IIa).
Let’s stipulate that the mother files for both divorce and custody in France.
If the habitual residence of the child is in Switzerland, three requirements must be satisfied in order for the divorce court to rule on custody.
Number 1. One of the parents must hold parental responsibility.
That’s fulfilled.
Number 2. Each of the parents must agree to the divorce court deciding on child custody.
So, if the defendant father tells the French judge: « I don’t want you to deal with child custody », the French judge must decline jurisdiction as to custody.
If the father does not contest jurisdiction, the divorce court has to assess – that’s condition Number 3 – that exercice of that jurisdiction is consistent with the child’s best interests.
***
As you will have realized, a critical objective is to avoid parallel proceedings.
The Convention attempts to do it in a number of ways.
First, by laying down a lis pendens provision relying on prior-in-time.
This typically applies when the mother files suit with the French court and the father files suit with the Swiss court.
Now, both courts may believe the habitual residence of the child is on their own territory.
That’s a positive conflict of residences which may, potentially, lead to a conflict of ju- risdictions.
If the Swiss court has been seized after the French court, it should (I think) stay proceedings until the French court has ruled on its own jurisdiction.
And as soon as the French court concludes the child’s residence is in France, the Swiss court should dismiss the action.
What’s not clear, though, is whether, as part of the lis pendens analysis, the Swiss court is permitted to assess the likelihood of the French decision qualifying for recognition in Switzerland.
By way of flash forward, the recognition court is bound by the assessment of facts as established by the court of origin.
So, I believe that the Swiss court should not oppose recognition only because its French counterpart has found the residence of the child to be in France while the Swiss court is convinced that it is in Switzerland.
As a passing remark, Brussels IIa is superior to the Convention with respect to this critical lis pendens mechanism.
What, in theory, may also happen is that both courts think that habitual residence of the child is in the other country.
That’s a negative conflict, which is not regulated by the Convention nor by Brussels IIa.
***
Speaking about coordination, another important mechanism is transfer of jurisdiction.
The court of the habitual residence of the child may assign the exercice of jurisdiction to the authorities of another country that has a substantial connection with the child and is better placed to assess what its best interests require.
In order for the transfer to take place, the authorities of the two countries have to agree on it.
There has to be a bi-lateral, bi-judicial, ad hoc agreement.
So the French court may think the Swiss court is better placed to deal with the case and ask – directly or though the parties – the Swiss court to take care of it.
And, conversely.
And both courts may enter into a dialogue, proceed to an « exchange of views », over the phone or through skype.
If no agreement is reached, the court of the habitual residence retains the responsibility to settle the dispute.
***
Which substantive law would it apply?
The Convention also deals with applicable law.
Brussels IIa does not.
No risk that the two instruments overlap in this regard.
Now, the principle is that the authorities of each State will apply their own law when considering protection measures that are needed.
This principle suffers a few exceptions.
The first is about parental authority that is established by operation of law as opposed to through judicial order.
An example.
According to French law, the unmarried father has parental authority if he acknowledges paternity, regardless of whether the mother consents to it.
According to German law, the unmarried mother has to give her consent.
Now, if the child is born in France and the father acknowledges paternity before officier de l’état civil, the father is vested with parental authority.
If the child subsequently moves to Germany and custody proceedings are initiated there, the father’s authority is not lost only because, based on German law, the mother’s opposition would have prevented such authority from arising.
Another exception is the possibility for the judge of a country to take into account the law of another closely connected country.
In the French-German case, the French court may be tempted to pronounce the alternate residence (résidence alternée), which is possible based on French law and practice.
Geographically, it would be feasible, because – for example – the parents live at either side of the border within a few kilometers.
But the French court may take into account the German law position, which (I will assume) is rather skeptical about alternate residence, and forget about it so as to avoid any difficulties at the recognition stage.
***
So let’s talk about recognition.
That’s arguably the most important chapter of the Convention.
In the hope of the framers, the child custody order made in a State should as a rule be recognized in the other State on whose territory the life of the child is also in part located.
If the French order (awarding custody (for example) to the mother and visitation rights to the father) is recognized in Switzerland, our binational child will benefit from a binational legal framework.
But the Convention allows Switzerland not to recognise the French decision based on a long list of grounds (no less than seven):
- failure by the authority of origin to respect the jurisdictional rules as interpreted by the requested State;
- public policy, based on the child best interests as appreciated by the requested State;
- the fact that the child has not been heard.
And so on.
***
Now, what happens if the decision is not recognized?
In our example, if the French decision finding for the mother is not recognized in Switzerland, the Swiss court may be requested by the father (or the mother) to make a new custody order enforceable in Switzerland.
And it may award custody to the father.
In which case, the child will be faced with a Swiss-French conflict between judges and the custody orders they make:
a conflict between his motherland and his fatherland on how best to solve the conflict between his mother and his father.
The child does not benefit from the Rule of Law but rather falls prey of a conflict of laws and of legal systems.
Practically, the parents are left to resort to some type of law-of-the jungle behaviour.
The parent who shouts louder, who runs faster, who threatens harder, the most robust, physically, financially, will prevail.
***
The Convention allows the two countries to disagree and does not do anything to overcome their disagreement.
That’s, in my opinion, its weakest point.
In order to change this, different pathways are available.
One of them was suggested by one of my nephews.
A brief anecdote to conclude.
But I have six nephews and nieces.
Not too long ago, I was babysitting two of them: Giacomo and Edoardo.
And having those problems swirling around my mind, I allowed myself to ask them two questions.
The first was: « Who settles the disputes between humans? » They answered in chorus: « The judges ».
Let me add that they are both sons of lawyers.
The second question was trickier: « Who settles the disputes between judges? ».
Edoardo, who’s 7, said with excitement:
« It’s God ».
He attends a school run by nuns.
Giacomo, who’s 10, took some more time to think and, after a while, he said: « It’s a superjudge » (« un supergiudice »).
That offers an interesting perspective.
Thank you so much.
