TECHNICAL ASPECTS OF IMPLEMENTATION OF THE 1996 HAGUE PROTECTION OF CHILDREN CONVENTION RESOLUTION S RESPONSE TO THE MINISTRY OF JUSTICE

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1 TECHNICAL ASPECTS OF IMPLEMENTATION OF THE 1996 HAGUE PROTECTION OF CHILDREN CONVENTION RESOLUTION S RESPONSE TO THE MINISTRY OF JUSTICE Resolution s 5,500 members are family lawyers committed to the nonadversarial resolution of family disputes. Resolution solicitors abide by a Code of Practice which emphasises a constructive approach to family problems and encourages solutions that take into account the needs of the whole family and the best interests of any children in particular. Resolution as an organisation is committed to developing and promoting best standards in the practice of family law amongst its members and amongst family lawyers in general. Resolution explores and promotes other means of resolving family disputes, such as mediation and collaborative law, so that couples can negotiate solutions without using the courts. Many Resolution members also practice as mediators and collaborative lawyers and many are accredited by the organisation as specialists in particular aspects of family law, such as contact cases or financial aspects of separation. Resolution publishes various guides to improve standards of practice. Resolution provides training in law and in the skills and understanding that family lawyers need to help their clients face a difficult time. We also campaign for better laws and better support and facilities for families and children undergoing family change. This response has been prepared by Resolution s International Committee with the assistance of Duncan Ranton of Kingsley Napley. Q.1. Do you consider there should be a separate court process to provide for declarations as to the existence and/or extent of parental responsibility under Article 16 which arise outside the context of proceedings already before the court? Yes. However we agree that a free-standing process is likely to be used relatively infrequently. It will be in unusual circumstances that issues about the nature and extent of parental responsibility will require to be the subject of declaratory relief not associated with any live dispute about the exercise of that parental responsibility. Conceivably, the ability to seek declaratory relief about the scope of a party s parental responsibility based upon a change in a child s habitual residence

2 might avoid a dispute arising in the first place: if parents are able to ascertain with certainty the nature and extent of parental responsibility, this will facilitate sensible discussions taking place about the subsequent exercise of that parental responsibility. Therefore, having observed that such a process is likely to be utilised infrequently, the regulations ought nevertheless to permit such applications to be made, and to confirm which court has jurisdiction to entertain them. Q.2. If so, at what level of court should these be heard? Should they be restricted to the High Court? The High Court is the appropriate tribunal to consider applications for such declaratory relief. Applications should be issued out of the Principal Registry of the Family Division of the High Court in the first instance, and listed for a case management hearing before a Judge of the Division. To the extent that it is proper and appropriate, at that case management hearing the Judge can consider whether some other court (for example, the PRFD, a District Registry of the High Court, a local county court) should thereafter deal with the application. Directions regarding transfer of such applications can be given by the President under section 37 of the Matrimonial and Family Proceedings Act The addition of proceedings under the Convention to paragraph 3 of Schedule 1 to the Senior Courts Act 1981 (provided for at paragraph 2 of the Schedule to the regulation) facilitates this. Q.3. Do you consider that the s.2(2) regulations (or rules of court?) should make provision requiring the person on whose behalf an order is registered here to notify the registering court of any variation or revocation? We have considered the comparable schemes in place, for example under Part II of the Child Abduction and Custody Act 1985 and under Chapter V of the Family Law Act The former places the obligation to notify the registering court of any variation or revocation on the party who sought the initial registration. The latter imposes the equivalent obligation on the court that varies or revokes the previous measure. There is some attraction to notice of the variation or revocation being communicated via the authority that made the initial measure. However, we are concerned about how manageable that would be from an administrative point of view. Amongst other problems, it is far from certain that the authority that made the initial measure will be apprised of its subsequent registration in other Contracting States. Therefore, a system that imposes the obligation on a foreign authority is likely to be far from effective when it comes to practical operation.

3 Having regard for what is said above, we favour the adoption of an approach influenced by section 17 of the Child Abduction and Custody Act The person on whose behalf the application for registration of the measure was made ought to be under a positive obligation to notify the registering court promptly of any subsequent variation or revocation. A regulation ought to formulated in mandatory terms to confirm this obligation. We suggest and support the following text: #. Variation and revocation of registered measures (1) Where a measure registered under Chapter IV of the Convention is varied or revoked by an authority in the Contracting State in which it was made, the person on whose behalf the application for registration of the measure was made must notify the court in which the decision is registered of the variation or revocation, within fourteen days of becoming aware of the variation or revocation. We would further support the regulation permitting other parties interested in the relevant measure being able to bring any subsequent revocation or variation to the registering court s attention. This would address the lacuna that would otherwise arise where a variation or revocation has occurred, but where the party who sought to registration fails to comply with the obligation formulated above. Drawing on the closest parallel provisions in the Child Abduction and Custody Act 1985, the Family Law Act 1986 and BIIr, we suggest and support the following text: (2) Where a measure registered under Chapter IV of the Convention is varied or revoked by an authority in the Contracting State in which it was made, any interested party may notify the court in which the decision is registered of the variation or revocation. The expression any interested party is taken from BIIr (see for example Article 21(3), where it is used to define whom may bring an application under Section 1 of Chapter III). It is understood in practical terms to include any person whose parental responsibility is (or might be) infringed by the measure in question, the individuals (if different) who were parties to the measure in the sending Contracting State, and potentially the child or children affected. We consider it is an appropriate expression to use this context, and with reference to the Convention. Q.4. Should the court automatically vary or cancel the registration (as appropriate) upon such notification? No. We see potential difficulties with there being an automatic revision to the registration of measures upon notification of a subsequent variation or

4 cancellation. For example, what if the subsequent variation or cancellation is successfully challenged in the sending Contracting State by review/appeal? If the alteration to the registration occurs automatically upon notification of the event, there is then the prospect of a further application for registration having to be made afresh if the subsequent variation/cancellation is overturned on review and the original measure reinstated or confirmed. Likewise, what if the subsequent variation or cancellation occurred in circumstances where the procedural rights of all of the interested parties were not adequately respected (for example, without notice to one or more of them)? An automatic revision to registration upon subsequent variation or cancellation of the original measure would deny such individuals an opportunity to show cause why the previous registration should be maintained, whilst the procedural irregularity was addressed in the sending Contracting State. We can envisage other circumstances in which injustice would stand to be done if revision to the registration followed as an automatic response to notification of a subsequent variation or cancellation. The examples given above best epitomise the difficulties that might arise. That said, we do support there being a starting presumption that the registration of a measure will be amended to reflect its subsequent variation or cancellation in the sending Contracting State. It should be for any party resisting the alteration to show why the registered measure should not be amended to reflect subsequent changes made to it by the authorities in the sending Contracting State. We have considered the similar provisions of the Child Abduction and Custody Act 1985, the Family Law Act 1986 and the Family Proceedings Rules 1991 (Chapter 3 of Part VII). We would support a procedure whereby, upon receiving notification of the variation or cancellation of a measure, the registering court should issue notice to show cause to the interested parties. The notice to show cause should require any person resisting the corresponding change to the registration of the initial measure to file and to serve evidence in support of that resistance. Should any person confirm an intention to seek to show such cause, the court should proceed to fix a date, time and place to enable the issue to be argued and determined. Notice of that hearing should be given to all interested parties. If no notice to show cause was received within the allotted time, the registration could be altered to reflect the subsequent variation or cancellation. We would be happy to further assist in relation to the preparation of a draft regulation for your consideration giving effect to the principles expressed above.

5 Q.5.Do you agree that applications for recognition and enforcement should be heard in the High Court? Yes. The High Court is the court identified for similar applications under the Luxembourg Convention. Likewise, it is the relevant court for registration/enforcement purposes under BIIr (see Articles 21(3), 29(1) and the list notified by each Member State to the Commission under Article 68). We consider that it would be particularly undesirable for a different approach to prevail to applications for registration/enforcement under BIIr to those under the Convention. Amongst other considerations, Article 23 of the Convention is virtually identical to Article 23 of BIIr (save for the entitlement to challenge jurisdiction under the former, which is not permissible under the latter). Our experience shows that there remains a degree of confusion amongst High Court Judges in practice about the proper interpretation of Article 23 of BIIr (for example: the proper interpretation of the expression manifestly contrary to the public policy in Article 23(a); whether the exceptions to recognition/enforcement should be applied restrictively to satisfy the spirit and purpose of the Regulation; the relevance of best interests of the child and whether and how that qualifies the former part of Article 23(a)). In light of the similarity between the two instruments, that apparent difficulty would be compounded if Convention registration/enforcement applications were capable of being dealt with by a multitude of Judges at any level. Given the real need to strive for a uniformity of approach and analysis, such applications ought to be restricted to Judges of the Division. We hope that by restricting these cases to the small pool of specialist High Court Judges, a degree of uniformity and excellence of approach will emerge (in much the same way as has occurred in child abduction proceedings under Part I of the 1985 Act). Q.6 Do you agree that, where recognition arises as an incidental question in proceedings in the lower courts, it is appropriate to permit those courts to deal with it? We agree that it would be appropriate to allow lower courts to deal with questions of recognition under the Convention in the limited circumstances required to ensure parity between the Convention and BIIr (that is, the circumstances contemplated by Article 21(4) of the latter, where, recognition of a measure is raised as an incidental question in proceedings in the lower courts). We anticipate that the frequency with which such issues will arise will be limited, and share the view that it would be unhelpfully cumbersome (in terms of time and cost) to require all such applications to be transferred up to the High Court.

6 We share the view that, to the extent that it can be encouraged, there ought to be a uniformity of practical approach as between BIIr and the Convention on the management of issues where the two instruments overlap. We note that this ability of lower courts to deal with such applications is restricted to recognition proceedings only, and does not extend to questions of registration for the purposes of enforcement (which applications will remain the purview of the High Court). We do not therefore apprehend that there will be any significant body of applications that would fall to be considered by lower courts. Q.7. Do you consider that specific provision needs to be made in s.2(2) regulations (or in rules of court?) for proof of documents and evidence? Notwithstanding that the Convention is silent on the issue, we believe it would be helpful for the regulations (or rules of court) to identify in broad terms the documents and evidence that one would normally expect to see in the context of a recognition or enforcement application. Having regard for the difference in approach as between Contracting States, the fact that some measures might be given administratively and others judicially, and the circumstances contemplated at paragraph 120 of the Lagarde Report, we believe that the regulation (or rule) should be indicative, rather than prescriptive, as to what documents are required. There is a need to strike the right balance between providing sufficient clarity for applicants on the one hand, and the maintaining flexibility to ensure that a valid but procedurally unusual measure can still achieve recognition/enforcement on the other. We return to this theme in greater detail in response to the following question. Q.8. Are the categories defined in paragraph 13 appropriate, and sufficient? Noting what we say in response to the preceding question, we consider that more thought needs to be given to the formulation of the relevant regulation (or rule). We have considered the corresponding provisions in relation to applications under Part II of the Child Abduction and Custody Act 1985, as well as under Sections 1 and 2 of Chapter III of BIIr. We have considered the provisions of the FPR 1991 in relation to such applications (in particular r. 7.43). We suggest and support the following formulation, which is a portmanteau of the best aspects of the source material identified in the preceding paragraph:

7 #. Evidence in support of application (1) An application under the Convention for: (a) (b) a decision on recognition or non-recognition of a measure taken in another Contracting State under Article 24, or a declaration of enforceability or registration for the purposes of enforcement of a measure taken in another Contracting State under Article 26 shall be supported by the documents identified at sub-paragraph (2) below. (2) The documents are duly authenticated copies of: (a) (b) (c) (d) the measure taken in the other Contracting State; such document or documents as are required to demonstrate that, according to the law of the Contracting State in which the measure was taken, the measure is enforceable; in the case of a measure taken in default of appearance, a duly authenticated document that establishes that the party in default was served with the document instituting the process resulting in the measure (or with an equivalent document), and a translation into English which is either certified by a notary public or else authenticated by witness statement or affidavit of any document referred to at sub-paragraphs (a) to (c) above that is not in the English language. (3) The court may, on application of any interested party or of its own motion: (a) (b) (c) specify a time for the production of; authorise the acceptance of equivalent or substitute documents to, and/or if it considers that it has sufficient information before it, dispense with the production of any of the documents referred to at sub-paragraph (2) above. (4) The expression duly authenticated in sub-paragraph (2) above means that the document bears the seal, or is signed by a judge or officer, of the authority that took the measure in the other Contracting State, or else is a certified copy of such a document.

8 (5) Unless the contrary is shown, any document under subparagraph (2) above: (a) (b) that purports to be duly authenticated shall be deemed to be a true copy of that document, and shall be sufficient evidence of anything stated in it for the purposes of proceedings of the type referred to at subparagraph (1) above. Q.9. Do you agree that provision needs to be made for applications to court by any person requesting the court to make an Article 9 request of another authority where the transferred jurisdiction would be such that only a court can exercise it here? We support draft regulation 4. We would not wish to see a situation arise where steps that would require judicial sanction in a purely domestic case (an application under section 31 of the Children Act 1989) could be approved administratively and without court oversight in cases to which the Convention applied. We in fact question whether the draft regulation 4 goes far enough. Noting the position of the DCSF, we nevertheless would support an approach that requires all applications under Article 9 of the Convention to be made to a court in this jurisdiction, requesting the court to exercise its power under Article 9 (as opposed to being handled by an administrative (such as a Local) authority). There are difficulties inherent with Article 9 transfers being dealt with in this jurisdiction by non-judicial authorities. For example, are the parties entitled to make representations regarding the Article 9 application (presumably they are, as a failure to permit that would likely constitute a breach of Article 6 rights under the ECHR)? How will that be managed in practical terms? What appellate process will exist to review Article 9 decisions taken by non-judicial authorities (we suppose that judicial review is an option, but that might be unduly complex and costly)? We would support draft regulation 4 being redrafted to require all Article 9 applications to be made to the judicial authorities in this jurisdiction. We would rather see reposed in the court ultimate responsibility for making Article 9 requests, if satisfied that that is an appropriate request in the circumstances of that particular case. The unlikely scenario posited at paragraph 17 of the Consultation Document does not in our view justify a bifurcated approach, whereby some Article 9 requests can be transmitted in this jurisdiction via administrative authorities, whereas others require to be channelled judicially. We consider it would be preferable for there to be a uniformity of approach.

9 Assuming our suggestion is adopted, in the situation contemplated at paragraph 17 of the Consultation Document, the court application would be necessarily swift, uncomplicated and non-contentious. The court would almost invariably proceed to transmit the request under Article 9 to the authorities in the other Contracting State following the initial hearing. It is difficult to see how our proposed approach adds much in the way of delay or cost. What it does instead is to ensure that the court maintains judicial oversight and management of the process, and of the ultimate transmission of the Article 9 application. Q.10. To which level of court should such an application be made? Having regard for the transnational issue invariably involved, such applications ought to be made in the first instance to the High Court. Thereafter, if the issues in the litigation are capable of being resolved at another level of court, then can be transferred in the manner identified in response to Question 2 above. Q.11. Do you agree that Local Authorities (which would be competent authorities under the Convention for some purposes and therefore in theory entitled to make direct requests under Article 9) should in particular be restricted from making requests under Article 9 to authorities of other Contracting States where the proposal to protect the child would require court intervention here? Yes, for the reasons identified in response to Question 9 above. As indicated in response to Question 9, we would prefer for the regulation to require Local Authorities to make Article 9 requests via the courts in this jurisdiction. Q.12. Do you agree that there are sufficient existing powers in the courts to address situations where there is insufficient evidence about the location of the child subject to proceedings? We consider existing powers are sufficient, having regard especially for section 33 of the Family Law Act 1986, and the High Court s wide powers to require disclosure under its inherent jurisdiction. The latter can be invoked by ensuring that applications are intituled to include reference to the court s inherent jurisdiction. Given the flexibility in terms of the range of disclosure that is then accessible, we cannot see that a discrete provision (similar to section 24A of the Child Abduction and Custody Act 1985) is either necessary or appropriate.

10 In the small number of cases proceeding other than in the High Court (see the response to Question 6 above), a transfer to the High Court so as to access the range of orders available under the inherent jurisdiction would be possible. Q.13. Are there any situations raised by implementation of the Convention which appear to require the courts to have additional powers to locate? If so please describe that situation. We cannot contemplate any situations not adequately addressed by the court s existing powers. Q.14. Do you agree that it should be possible for the CA to require a court, to which a written report has been made concerning a child, to provide a copy of the report for Article 32(a) purposes? If not, please explain your view. We have concerns about the court being required to disclose to the Central Authority a written report that has been made concerning a child in proceedings, for the purposes of satisfying Article 32(a). We can conceive of situations where there might be very good reason to refuse a request to transmit a report to another Central Authority. Whereas this possibility is provided for in the draft regulation (regulation 11(5)), by reference to Article 37, we consider that the drafting is such that the onus is misplaced. As above, there are practical concerns arising from the current drafting. It might well be that a party in the litigation has concerns about the disclosure of the report in question. How is that party s case vis-à-vis the disclosure issue to be considered and determined? What is the process for hearing competing submissions? How are the Article 6 (ECHR) rights of those interested in the proceedings to be protected? We consider it would be preferable if the Central Authority were to devolve its powers under Article 32(a) to the judicial authorities in this jurisdiction. This is permissible under the Article (which refers to the Central Authority responding to requests directly or through public authorities or other bodies ). it is noted that Article 32 is itself permissive: a Central Authority is not obliged to decide whether to provide a report on the situation of a child, but it may. The current drafting of the regulation obliges the court to respond to a request from our Central Authority to provide a copy of a report. The discretion on whether to disclose one to another Contracting State s authorities then rests with our Central Authority. We would support a redrafting of the regulation that recognises that it should be the court, rather than the Central Authority, which exercises ultimate

11 discretion as to whether a report produced in proceedings ought to be transmitted to another Central Authority under Article 32(a). Our Central Authority s role in turn should be to correspond with the Central or other authority in the other Contracting State, to confirm the judicial determination made. We would support a reformulation of the regulation whereby the Central Authority, upon receiving an Article 32(a) request, transmits it on to the court entertaining the proceedings in this jurisdiction. The court, having given notice to and heard from interested parties, and having regard for Article 37 of the Convention, should then decide whether any relevant report should be released for onward disclosure (via Central Authorities) to the requesting Contracting State. The court would have available to it a range of options, having heard from the interested parties, ranging from: disclosure of the full report; disclosure of a redacted version of the report; or a refusal of the request for disclosure, with reasons as to why (with reference to Article 37) that is considered the appropriate course. We respectfully suggest that such decisions are better undertaken by a Judge seised of proceedings that relate to the interests of the child, rather than by the Central Authority dealing with an incoming request at a remove from the welfare considerations that may arise. Rules of court could prescribe how the process we suggest and support should work in detail. In broad terms, we have in mind that the incoming request should be transmitted administratively from our Central Authority to the relevant court. The court should give notice to the parties of the request and invite any objections to the disclosure of any relevant report to be filed and served within a time-limited period. If there were no objections received within that time period, the court should direct disclosure of the relevant reports (subject to it exercising of its own motion its powers under Article 37). If objections were received, those should be the subject of consideration at a hearing on notice, following which a decision would be taken about which of the disclosure options available was appropriate. We would have no objection with the principle being enshrined in the redrafted regulation (or the correspondence rule) that disclosure of the report should be the customary response, unless Article 37 is considered engaged. This would ensure that proper emphasis is placed on the concepts that underpin the Convention (that is, international cooperation for the protection of children, having regard for their best interests being the primary consideration).

12 Q.15. If you agree that a court should provide reports as envisaged in the draft s.2(2) regulations at regulations 10 and 11, are any particular safeguards required? We consider that the response to Question 14 ensures that proper safeguards are in place, and strikes the appropriate balance between the competing considerations: cooperation on the part of authorities in Contracting States versus the need to ensure that disclosure is not made in circumstances that are inimical to the welfare of the child or his family. For further information please contact: Daniel Eames Chair, International Committee c/o Resolution PO Box 302 Orpington Kent BR6 8QX info@resolution.org.uk Resolution April 2010