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1980 Hague Child Abduction Convention and Brussels II bis
Interaction within the EU and beyond
Prof. Dr. Marta PertegásFirst SecretaryHague Conference on Private International Law
Rome, 24 October 2014
The global impact of the 1980 Hague Child Abduction Convention
93 Contracting States
New Contracting States in 2014: Japan, Iraq & Zambia
The Convention continues to attract new Contracting States
A successful Convention
◦ Protects the rights of wrongfully removed children
◦ Guarantees assistance by competent authorities to the left-behind parent
◦ Secures international co-operation (judicial and administrative) on the basis of a shared legal structure
◦ Relieves consular authorities
◦ Fulfills a limited but essential goal (return of the child) and establishes an efficient procedure to attain that goal
The 1980 Hague Convention:
Despite important challenges…
Still reluctance to join – in particular States whose legal systems are based on or influenced by Sharia: how to promote the Convention in these States? Training authorities in newly acceding States “Malta Process”
Uniform interpretation and implementation – different legal systems and concepts: Convention provisions need to be applied consistently INCADAT, Judges Newletter, Guides to Good Practice, etc
Other challenges: duration of proceedings still too long, enforcement is a challenge, how to better prevent child abductions (e.g., through use of travel forms?) Regular discussion with relevant stakeholders and at Special Commission meetings Concentration of jurisdiction
Achieving voluntary returns – promotion of amicable agreements / mediation to find solutions to cross-border family disputes
1980 Hague Convention, Brussels II bis Regulation and 1996 Hague Convention
working as a package
And in Europe?
The Convention within an integrated system of
international child protection:
Child Abduction Convention is acquis…
• Identification of new challenges and trends
• Interaction with 1996 Hague Child Protection Convention
• Development or adaptation of the Convention(s)
• Dialogue with EU institutions and Member States
Review of Brussels II bis
Opinion 1/13
Human rights approach to the Convention
◦ ECtHR Grand Chamber decision Neulinger and Shuruk v. Switzerland (6 July 2010) on the need of “an in-depth examination of the entire family situation and of a whole series of factors” (§139)
◦ ECtHR Grand Chamber decision X. v. Latvia (26 November 2013) emphasises the interaction between the ECHR and the 1980 Convention
• “in the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention” (§ 93)
• “the Court considers it opportune to clarify that its finding in paragraph 139 of the Neulinger and Shuruk judgment does not in itself set out any principle for the application of the Hague Convention by the domestic courts” (§ 105)
Nature of abductions
◦ 1980 – taking parent not the primary caregiver (most frequently the father)
◦ 2008 – 70% of taking parents are the primary caregiver (most frequently the mother)
131769%
54628%
533%
Mother
Father
Other
Relationship between the taking parent and the child
Expediting proceedings?
Longer time periods to process applications
84
107
147
98
125
233
121
166
286
50
100
150
200
250
300
Voluntary return Judicial return Judicial refusal
1999
2003
2008
Number of days taken to reach a final conclusion
Asserted exceptions
◦ Increase of assertion of the “grave risk exception”, mainly in the context of domestic and family violence
◦ Increased refusal of return based on the child’s objection
14%
11% 11%
3%
10%
5%
22%
18%
0%
5%
13%11%
17%
7%9%
5%
19%
13%
4%2%
15%
8%
13%
7%5% 5%
27%
17%
1%2%
0%
5%
10%
15%
20%
25%
30%
35%
Child nothabituallyresident inrequesting
State
Applicant norights ofcustody
Art. 12 Art. 13(1)(a) -not exercising
rights ofcustody
Art. 13(1)(a) -consent
Art. 13(1)(a) -acquiescence
Art. 13(1)(b) Child'sobjections
Art. 20 Other
1999
2003
2008
Is the Convention still fit for its purpose?
Child Abduction Convention is acquis…
• Identification of new challenges and trends
• Interaction with 1996 Hague Child Protection Convention
• Development or adaptation of the Convention(s)
• Dialogue with EU institutions and Member States
Review of Brussels II bis
Opinion 1/13
The 1996 Hague Child Protection The 1996 Hague Child Protection ConventionConvention
41 Contracting States
Main characteristics
Rules on international jurisdiction based on the child’s habitual residence
Rules on the law applicable to parental responsibility and measures of child protection.
Rules on recognition and enforcement in all Contracting States of measures of protection taken by authorities in one Contracting State.
A practical but flexible system of inter-State co-operation using Central Authorities and other established channels.
1996 Convention completes the system on international child protection
