09/12/2017. International Case Processing & The Hague Child Support Convention. Outline. What is the Hague?

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1 International Case Processing & The Hague Child Support Convention Nebraska Child Support Conference October 6, 2017 Outline Overview of 2007 Hague Child Support Convention Terms within Convention Scope of Convention Resources for Understanding Convention Recognition and Enforcement of a Convention Order under UIFSA (2008) Incoming Application Recognition and Enforcement of a Convention Order under UIFSA (2008) Outgoing Application What is the Hague? Den Haag is the location of the Parliament for the Netherlands. The Hague Conference on Private International Law is the world organization for cross-border cooperation, developing multilateral legal instruments. The Permanent Bureau is the Secretariat of the Hague Conference. 1

2 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 55 member countries, 15 observer countries, and NGOs such as NCSEA U.S. Negotiation Goals A Convention that the U.S. could ratify Scope Jurisdiction Establishment Cost free services A Convention that would produce results Address long delays in processing applications Expedite the recognition and enforcement of support orders Address the failure by some countries to comply with Convention obligations A Convention that would be widely accepted Negotiation Process Background Reports 2003 Negotiation sessions once a year Decision by consensus of States Meetings between sessions by: Drafting Committee Applicable Law Working Group Administrative Cooperation Working Group Forms Working Group Final Diplomatic Session November

3 The U.S. Has Ratified! Effective Jan. 1, 2017 Module 1 Hague Child Support Convention Current Status Went into force in 2013 with ratification by Norway and Albania As of August 31, 2017, Convention in force in 34 countries Coming soon to Kazakhstan and Brazil Albania Germany Norway Austria Greece Poland Belgium Hungary Portugal Brazil ( ) Ireland Romania Bosnia and Herzegovina Italy Slovakia Bulgaria Kazakhstan ( ) Slovenia Croatia Latvia Spain Cyprus Lithuania Sweden Czech Republic Luxembourg Turkey Estonia Malta Ukraine Finland Montenegro United Kingdom France Netherlands United States What Does This Mean for Nebraska s Child Support Agency? The U.S. now has a treaty relationship with many countries that were not foreign reciprocating countries The U.S. continues to have reciprocal arrangements with 16 Foreign Reciprocating Countries and Provinces/Territories that are not Convention countries You should now be sending and receiving new cases under the Treaty Pre-existing cases with Hague countries will continue as before, until a major action is needed 3

4 How does Convention Benefit U.S. Children? Expedited procedures for enforcing a child support order Limited judicial review Requires recognition unless valid defense timely raised Cost-free services including free legal assistance to U.S. creditors in child support cases Standardized procedures and timeframes Terms Within Hague Child Support Convention Convention Terms Creditor Debtor State Maintenance Requesting State Requested State Recognition and Enforcement of a Decision Maintenance Arrangement U.S. Equivalent Obligee Obligor Country Support Initiating state Responding state Recognition and Enforcement of Registered Order Foreign Support Agreement Additional Terms within Convention Competent Authority Depends on context and country. For example, Competent authority for recognition and enforcement may be limited to the court in some countries Competent authority for certifying a document may vary based on the document Contracting State Country that has ratified the Convention 4

5 Definition of Central Authority Entity designated by a State to perform certain functions specified under a Convention Central Authorities under the Hague Child Support Convention Cooperate with each other to achieve the purposes of the Convention Seek as far as possible solutions to difficulties that arise in the application of the Convention Serve as point of contact between Contracting States to transmit and receive applications made under the Convention Provide and facilitate a number of services Most functions of the Central Authority may be performed by public bodies, or other bodies subject to the supervision of the competent authorities of that State U.S. Central Authority Secretary of HHS who, in turn, has designated OCSE OCSE s primary Article 6 function location of debtor or creditor U.S. state of residence HHS has designated state IV-D child support agencies to perform the other specific Central Authority functions under Article 6, under the supervision of OCSE Transmission and receipt of Convention applications Initiation or facilitation of institution of proceedings in respect of such applications Mandatory Scope of Hague Child Support Convention Child support Establishment and modification (at least to age 18) Requested State law applies Recognition and enforcement up to age 21 BUT Contracting State may reserve right to limit scope to children under age of 18 U.S. did not make such a reservation Parentage establishment IF Necessary to establish a child support obligation 5

6 Mandatory Scope of Hague Child Support Convention (cont d) Spousal support Recognition and enforcement of spousal support in conjunction with child support Central Authority must assist Establishment, enforcement, modification of spousal support only No Central Authority responsibilities for spousal support only Optional Scope of Convention - Declaration A Contracting State may extend application of Convention, in whole or in part: To any maintenance obligation arising from a family relationship, parentage, marriage, or affinity To obligations in respect of vulnerable persons Such declaration applies to two Contracting States only in so far as their declarations cover the same maintenance obligations and parts of the Convention. United States did not make such declarations. Case Scenario 1 500/month until child self-sufficient Child now 21 No arrears Nebraska recognized and is enforcing an order from Spain under the Convention. The order requires support until the child becomes selfsufficient. There are no arrears. The adult child is now 21 years old. Is the Nebraska IV-D agency required to provide services under the Convention for current support after the child turns 21 years of age? 6

7 Case Scenario 1 (cont d) No. The Hague Child Support Convention only requires recognition and enforcement of current child support for a child under the age of 21 years. There is no Convention or federal requirement that the child support agency, acting as a Central Authority under the Convention, provide services to enforce the order for current support after age 21. To enforce current support once the child turns 21, the creditor could retain private counsel in Nebraska. Case Scenario 2 500/month until child is 21 years old Child now 21 Arrears of 20,000 Nebraska recognized and has been enforcing an order from Spain under the Convention. The order requires support until the child is age 21. The adult child is now 21 years. There are arrears of 20,000. Must the Nebraska IV-D agency continue to provide services to the creditor to enforce the remaining arrears? Case Scenario 2 (cont d) Yes. The Spanish order was recognized and enforced under the Convention during the child s minority. Since the initial application was within the scope of the Convention and the arrears arose under that order, the Nebraska IV-D agency must provide services to collect the arrears that accrued under the order before the child turned 21 years. Under the Convention and UIFSA, the longest statute of limitations either that of Spain or of Nebraska applies with regard to the enforceability of the arrears. 7

8 Case Scenario 3 Adult child now 25 Arrears only order for 20,000 Spanish order not sent to U.S. for recognition and enforcement during child s minority, because creditor did not know debtor s location. Creditor learns that debtor resides in Nebraska. Can Central Authority in Spain transmit application to Nebraska on behalf of creditor, seeking recognition and enforcement of arrears-only order when child is 21 years or older? Must Nebraska IV-D agency provide services to collect arrears-only? Case Scenario 3 (cont d) If the original order was made within the scope of the Convention (for a child support obligation arising from a parent-child relationship towards a person under the age of 21 years), then the arrears that accrued under the order are enforceable under the Convention. The Spanish Central Authority can therefore send an application for recognition and enforcement of the arrears only order and the Nebraska IV-D agency must provide services. Under the Convention and UIFSA, the longest statute of limitations applies so it is advisable for the Central Authority in Spain to contact the Nebraska child support agency or check the IRG in advance to learn what the Nebraska statute of limitations is. Applications through Central Authority CREDITOR Establishment of a Decision, including, if necessary, Determination of Parentage No existing order Recognition of foreign support order refused for certain reasons Recognition or Recognition and Enforcement of a Foreign Decision Enforcement of a Decision Made or Recognized in Requested State Modification of a Decision Decision made in requested State Decision made in State other than requested State DEBTOR Recognition of a Foreign Decision leading to the suspension, or limiting the enforcement, of a previous decision in the requested State Modification of a Decision Decision made in requested State Decision made in State other than requested State 8

9 Residence of Applicant Does it matter where the applicant resides? Yes. The Convention requires that the applicant reside in a Contracting State. French Order Custodial parent does not reside in Contracting State. Application vs. Direct Request Can an applicant request services from any Central Authority? No. In order to receive services of a Central Authority under the Convention, the applicant must transmit the application through the Central Authority of the Contracting State in which the applicant resides to the Central Authority of the requested State. Federal Office of Justice Ministry of Justice Application vs. Direct Request (cont d) Can an applicant proceed without using Central Authority services? Yes. An applicant from a Contracting State can also make a direct request to a competent authority in the requested State without Central Authority services. 9

10 Issuing Country Recognition and Enforcement If a Convention application requests recognition and enforcement of an order, does it matter which country issued the order? Yes. The Convention requires that the issuing country be a Contracting State A Contracting State may seek recognition and enforcement of its own order; or A Contracting State may seek recognition and enforcement of an order issued by another Contracting State Issuing Country Modification If a Convention application requests modification of an order, does it matter which country issued the order? No. An applicant in a Contracting State may request modification of an order issued by a non-contracting State. HOWEVER... Any modification will be processed under the law of the requested State In the United States, a foreign support order issued by a non- Contracting State would be registered for modification under Article 6 of UIFSA If the order is modified by a Contracting State, the applicant may seek recognition and enforcement of the order in any Contracting State because the modified order is an order issued by a Contracting State Specific Measures Article 7(1) Request by Central Authority to another Central Authority for assistance when no Article 10 application is pending Location of debtor or creditor Financial information about debtor or creditor Obtaining of documentary or other evidence Assistance in establishing parentage Institution of proceedings to obtain any provisional measures that are territorial in nature and necessary to secure the outcome of a pending support application Service of documents Must be supported by reasons Requested Central Authority must take appropriate measures if satisfied they are necessary to help a potential applicant: Make an application under Article 10, or Determine whether such an application should be initiated 10

11 Specific Measures Article 7(2) Request by Central Authority to another Central Authority for assistance with a domestic child support case in the requesting State that has an international element Request not limited to measures listed in Article 7(1) Requested Central Authority has discretion Hague Conference Website English Language Pages of Hague Conference Website The Hague web address: From website, go to the page for Child Support. 11

12 Child Support Section of Hague Conference Website Hague Child Support Convention - Resources Convention text Explanatory report Forms Country Profiles Handbook for caseworkers. OCSE International Page. 12

13 . OCSE Resources on Hague Child Support Convention Policy Guidance Webinar Training Hague Child Support Convention forms OCSE Policy Guidance IM-16-02: 2008 Revisions to the Uniform Interstate Family Support Act IM 15-01: Uniform Interstate Family Support Act (2008) and Hague Treaty Provisions DCL-16-21: Open Comment Period Hague Child Support Convention Case Processing Forms DCL 16-12: Pending Effective Date of the Hague Child Support Convention and Resources DCL 16-11: U.S. Ratification of Hague Child Support Convention AT 14-08: H.R. 4980: Preventing Sex Trafficking and Strengthening Families Act of 2014 Convention Forms USE NOW FOR OUTGOING Transmittal Acknowledgment Applications Recognition and enforcement Recognition and enforcement of a decision made/recognized in Requested State Establishment Modification Statement of Enforceability Statement of Proper Notice Financial Circumstances Form Status of Application 13

14 Translation of Documents OCSE Form Translation Resources Outgoing Required Transmittal English fillable, OCSE website French German Czech and Slovak (in progress) Required Transmittal available in most Convention country languages EU law website Ask OCSE for guidance Recommended Convention forms English fillable, OCSE website French German/English bilingual Czech and Slovak (in progress) Note: As requested State, U.S. IV-D agencies need only send Acknowledgments in English OCSE Training OCSE Training: Module 1: Overview of 2007 Hague Child Support Convention Module 2: Central Authorities and Applications Under the Convention Module 3: Recognition and Enforcement of a Convention Order under UIFSA (2008) Incoming Application 14

15 OCSE Training (cont d) OCSE Training: Module 4: Recognition and Enforcement of a Convention Order under UIFSA (2008) Outgoing Application Module 5: Establishment of a Convention Order, Including Where Necessary Establishment of Parentage Module 6: Modification of a Support Order under the Convention Incoming Application Module 7: Modification of a Support Order under the Convention Outgoing Application Module 8: Convention Implementation Topics/Issues OCSE International Page OCSE Convention Forms Page 15

16 OCSE Convention Forms Page (cont d) OCSE Convention Forms Page (cont d) Translation of Documents - Incoming Incoming Application and related documents Original language Translation into English Communication from Central Authority English State Central Registry review Do not reject application if translation is missing Use Acknowledgment to request missing documents Do not close case if requested Central Authority does not provide translated documents according to U.S. case processing timeframes. Convention allows at least 3 months. Source Section 713, UIFSA (2008) Article 44 of Hague Child Support Convention 16

17 UIFSA (2008) Implements Hague Child Support Convention Definition of foreign country includes many, but not all, foreign nations Foreign Reciprocating Country (FRC) State Reciprocal Arrangement Country with laws substantially similar to UIFSA Hague Child Support Convention Country Definition of outside this state anywhere but here! UIFSA (2008) Road Map Section 105 (N.C. 52C-1-104) Tribunal must apply UIFSA Articles 1 thru 6 and, as applicable, Article 7, to a support proceeding involving: A foreign support order; A foreign tribunal; or An obligee, obligor, or child residing in a foreign country Tribunal may apply Articles 1 thru 6 when asked to recognize and enforce a foreign support order on basis of comity New Article 7 applies only to Convention proceedings Overview of Application for Recognition or Recognition and Enforcement Used when there is existing support decision Usually creditor will seek recognition and enforcement but creditor may seek recognition only Debtor may only seek recognition Not applicable when creditor wants to enforce support order that was made or already recognized in requested State Application for Enforcement 17

18 Flow Chart in U.S. Incoming Cases Step 1 Reviewed by Central Registry Processed by Local Office Registered with Tribunal Review of Incoming Convention Application May refuse to process application only if manifest that Convention requirements are not met (Art. 12 of Convention) May not reject application solely on basis that additional documents or information are needed (Art. 12 of Convention) Must promptly inform requesting Central Authority of reasons for any refusal to process application Review of Incoming Convention Application Convention Requirements May refuse to process application only if manifest that Convention requirements are not met (Art. 12 of Convention) Reason for rejection must be clear on face of documents 18

19 Is application within scope of Convention and Section 704 of UIFSA (2008)? CREDITOR Recognition or recognition and enforcement of a foreign support order Enforcement of a support order issued or recognized in the responding state DEBTOR Recognition of an order suspending or limiting enforcement of an existing support order of the responding state Was order issued by Contracting State? If a Convention application requests recognition and enforcement of an order, the Convention requires that the issuing country be a Contracting State A Contracting State may seek recognition and enforcement of its own order; or A Contracting State may seek recognition and enforcement of an order issued by another Contracting State German Order French Order Review of Incoming Application - Completeness May not reject application solely on basis that additional documents or information are needed (Art. 12 of Convention) May ask requesting Central Authority for additional documents or information If not provided within 3 months (or longer specified period), may decide not to process application; but must inform requesting Central Authority of that decision 19

20 Are required documents included with application? Application must include transmittal Section 706 of UIFSA (2008) lists documents that must accompany application U.S. Country Profile Use Hague recommended forms Incoming Application for Recognition and Enforcement of Contracting State Order - Documents Required by UIFSA Section 706 When Used Form/Document Used Transmittal Always Convention Transmittal Application Always Convention Application Complete text of order Record stating order is enforceable in issuing country If risk of harm Always unless your state allows an abstract or extract of order Always Convention Restricted Information on the Applicant Order itself or Convention Abstract, if acceptable Convention Statement of Enforceability Incoming Application for Recognition and Enforcement of Contracting State Order (cont d) Required by UIFSA Section 706 Record attesting to proper notice and opportunity to be heard When Used Always if respondent did not appear and was not represented Module 3 Form/Document Used Convention Statement of Proper Notice Record of arrears Always if there are any Domestic document showing amount and date calculated Information about obligor Always Convention Financial Circumstances form (for applications by creditor only. Complete sections related to obligor) Record showing reqt for automatic adjustment and explaining how to adjust or index support amount Always if order provides for automatic adjustment or indexation Domestic document 20

21 Transmittal Required Form Application Page 1 Application Page 1 (cont d) 21

22 Application Page 4 Application Page 5 Restricted Information if Applicable 22

23 Abstract of Decision If Acceptable Statement of Enforceability Statement of Enforceability Page 1 (cont d) 23

24 Statement of Proper Notice Page 1 Statement of Proper Notice Page 1 (cont d) Statement of Proper Notice Page 2 24

25 Financial Circumstances Form Acknowledgment by Central Registry 45 CFR Within 10 working days of receipt of application Send acknowledgment Use required Convention form Inform requesting Central Authority of action Request any needed documents/information Provide requesting Central Authority with contact details of person/unit responsible for processing application Acknowledgment Page 1 25

26 Acknowledgment Page 1 (cont d) Acknowledgment Page 2 Flow Chart in U.S. Incoming Cases Step 2 Reviewed by Central Registry Processed by Local Office Registered with Tribunal 26

27 Registration for Recognition and Enforcement - Agency Follow Article 6 of UIFSA if no conflict with new Article 7 Send transmittal, application, and required documents to tribunal Definition of tribunal Information about Application Status Article 12 of Convention Within 3 months of acknowledgment Inform requesting Central Authority of application status Use Convention form Status of Application Page 1 27

28 Status of Application Page 2 Status of Application Page 2 (cont d) Status of Application Page 3 28

29 Status of Application Page 3 (cont d) Status of Application Page 4 Flow Chart in U.S. Incoming Cases Step 3 Reviewed by Central Registry Processed by Local Office Registered with Tribunal 29

30 Registration for Recognition and Enforcement - Tribunal Apply Article 6 of UIFSA if no conflict with new Article 7 Apply Sections 706 to 710 to registration of Convention order Documents Action by registering tribunal Contest Recognition and enforcement of registered Convention order Partial enforcement Foreign support agreement Registering Tribunal Registration/filing of Convention order Tribunal review May vacate registration on own motion only if recognition and enforcement of order would be manifestly incompatible with public policy Notice of registration or order vacating registration Effect of registration Resolution of challenge by respondent Applicable Timeframes for Challenge Non-Convention foreign support order Within [20] days after notice of registration Hague Convention support order Not later than 30 days after notice of registration Not later than 60 days after notice if contesting party does not reside in U.S. 30

31 Defenses Section 708, UIFSA (2008) Tribunal must recognize and enforce a registered Convention support order, unless respondent timely raises and proves: Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process Issuing tribunal lacked personal jurisdiction consistent with Section 201 Order is not enforceable in issuing country Order was obtained by procedural fraud A record transmitted under Section 706 lacks authenticity/integrity Pending proceeding filed first Defenses (cont d) Order incompatible with more recent support order, which is entitled to recognition and enforcement Alleged arrears have been paid If default order, there was a lack of due process regarding notice and opportunity to be heard Order was made in violation of Section 711 (limitation on modification jurisdiction) Choice of Law Section 604, UIFSA (2008) Law of issuing foreign country governs: Current support payments, including duration Computation and payment of arrears, including interest accrual Existence and satisfaction of other support obligations Law of responding state governs: Enforcement procedures and remedies Law of issuing foreign country or responding state whichever is longest governs: Statute of limitations on arrears 31

32 Possible Application Outcomes Recognition and enforcement Partial recognition and enforcement Recognition refused because of valid defense Recognition not possible because of U.S. reservation Non-Recognition of Convention Order Section 708, UIFSA (2008) If a tribunal does not recognize a Convention order because of: Lack of personal jurisdiction Procedural fraud Pending proceeding that was filed first Default order issued without proper notice & opportunity to be heard Non-Recognition of Convention Order (cont d) Then Tribunal may not dismiss proceeding without allowing reasonable time for party to request establishment of new Convention support order; and The [governmental entity] must take all appropriate measures to request child support order for obligee if application for recognition and enforcement was received through Central Authority No Application for Establishment of a Decision required 32

33 Case Scenario 4 Application for Recognition and Enforcement comes to Central Registry German Order What steps should the Central Registry take? Review application Appropriate applicant Within Convention scope Order issued by Contracting State Required documents Send Acknowledgment Process to extent possible Case Scenario 4 Convention order registered with tribunal What steps should the tribunal take? Send notice of registration If no timely contest, order is confirmed by operation of law and enforceable (Section 707(c)) Only exception: tribunal may vacate registration without the filing of a contest if, acting on own motion, tribunal finds recognition and enforcement would be manifestly incompatible with public policy If contest, comply with Section 708, UIFSA (2008) Are these grounds for refusal to recognize and enforce a registered Convention order? Respondent challenges on basis that Convention order is not certified Respondent challenges on basis that support amount is too high Respondent challenges on basis that record stating that support order is enforceable in issuing country is not submitted under penalty of perjury Respondent challenges on basis that there is no support duty under the law of Nebraska because the child is 19 and not enrolled in or attending school 33

34 Flow Chart in U.S. Outgoing Cases Step 1 Processed by Local Office Review Application Transmitted to Requested Central Authority in Convention Country Application must be within scope of Convention CREDITOR Recognition or recognition and enforcement of a support order Enforcement of a support order issued or recognized in the requested State DEBTOR Recognition of an order suspending or limiting enforcement of a previous support order in the requested State Order must be issued by Contracting State May seek recognition and enforcement of a U.S. order; or May seek recognition and enforcement of an order issued by another Contracting State NY Order French Order 34

35 Required documents must be included with application Application must include transmittal form Article 25 of the Convention lists documents that must accompany application Country Profile Most countries request use of Hague recommended forms Outgoing Application for Recognition and Enforcement of Contracting State Order - Documents Required by Convention Article 25 When Used Form/Document Used Transmittal Always Convention Transmittal (required form) Application Always Convention Application Complete text of order If risk of harm Always unless requested State allows an abstract or extract of order Convention Restricted Information on the Applicant Order itself or Abstract/Extract, if acceptable Requested State can require certified order Outgoing Application for Recognition and Enforcement of Contracting State Order Documents (cont d) Required by Convention Article 25 Document stating order is enforceable in issuing country When Used Always Form/Document Used Convention Statement of Enforceability Document stating requirements of Art. 19(3) are met Decisions are subject to appeal or review by judicial authority Decisions have similar force and effect to judicial decisions U.S. never needs to send because our Country Profile specifies that decisions of our administrative authorities always meet Art. 19(3) requirements Domestic form 35

36 Outgoing Application for Recognition and Enforcement of Contracting State Order Documents (cont d) Required by Convention Article 25 Document attesting to proper notice and opportunity to be heard When Used Always if respondent did not appear and was not represented Form/Document Used Convention Statement of Proper Notice Document of arrears Always if there are any Domestic document showing amount and date calculated Document showing req t for automatic adjustment and explaining how to adjust or index support amount Always if order provides for automatic adjustment by indexation Domestic document Outgoing Application for Recognition and Enforcement of Contracting State Order Documents (cont d) Required by Convention Article 25 Documentation showing extent to which applicant received free legal assistance in State of origin When Used If requested State requires, pursuant to Art. 17 of Convention Form/Document Used Domestic document Information about debtor Always Convention Financial Circumstances form (For application by creditor, complete sections related to income and assets of debtor. Do not complete sections related to creditor.) Flow Chart in U.S. Outgoing Cases Step 2 Processed by Local Office Review Application Transmitted to Requested Central Authority in Convention Country 36

37 Flow Chart in U.S. Outgoing Cases Step 3 Processed by Local Office Review Application Transmitted to Requested Central Authority in Convention Country Role of Requested Central Authority Responsibilities Article 12 of Convention Within 6 weeks from receipt of application Send acknowledgment form Inform requesting Central Authority of steps taken Request any needed documents and information Provide requesting Central Authority with name and contact details of person/unit responsible for answering questions about application Within 3 months of acknowledgment Inform requesting Central Authority of application status Case Processing Role of Requested Central Authority Mandatory Functions Article 6 of Convention Legal assistance, where needed Location of debtor or creditor Financial information about debtor or creditor Amicable solutions Ongoing enforcement, including any arrears Collection and expeditious transfer of payments Obtaining of documentary or other evidence Assistance in establishing parentage Proceedings to obtain any necessary provisional measures that are territorial in nature, in order to secure outcome of pending application Service of documents 37

38 Role of Central Authority Application for Recognition and Enforcement Where the application is sent by a requesting Central Authority, the requested Central Authority must promptly: Refer application to competent authority, which must without delay declare order enforceable or register order for enforcement If it is the competent authority, take such steps itself Role of Competent Authority Recognition and Enforcement Subject to Convention, follows procedures based on its own country s laws Procedures under Convention Article 23 Declaration of enforceability Registration for recognition and enforcement QUESTIONS? Diane Potts, Esq. Contractor, OCSE dpotts@csfmail.org Module 1 38