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The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the "1996 Hague Convention") comes into force on 1 November 2012. Although the 1996 Hague Convention was concluded 16 years ago, it has only been ratified by the United Kingdom this year. Click here for a list of the other Contracting States.
The subject matter of the 1996 Hague Convention is wide ranging, covering not just the physical protection of children but also matters such as parental responsibility, contact, residence, children's property, guardianship, foster parents and more. The main areas it deals with are helpfully listed in the title:
Jurisdiction - The 1996 Hague Convention sets out rules governing which Contracting State's courts will have jurisdiction in children cases. The country in which the child is habitually resident will have jurisdiction, although there are exceptions to this rule. The rules relating to jurisdiction are found in Articles 5-14 of the Convention
Applicable law - The general rule is that each Contracting State should apply its own law (if it has jurisdiction). The rules relating to applicable law are found in Articles 15-22 of the Convention.
Recognition and enforcement - The default position is that a court's decision in one Contracting State must be recognised "by operation of law" in all other Contracting States, without any further proceedings being necessary. This may be useful in relocation cases (for example, enabling a contact order in favour of a left-behind parent to be recognised without the need for proceedings for "mirror orders"). There are some circumstances in which recognition can be refused, which are listed at Article 23. The procedure for enforcement of orders remains to be determined by each particular Contracting State according to its national law. However, the Convention makes it clear that the procedure for enforcement should be "simple and rapid". The rules relating to recognition and enforcement are found in Articles 23-28 of the Convention.
Co-operation - The Convention contains provisions for Contracting States to co-operate in order to protect children, such as providing for the relevant child protection authorities in one Contracting State to request a report on a child in another Contracting State and to seek measures to protect the child. The rules relating to co-operation are found in Articles 29-39 of the Convention.
The 1996 Hague Convention does not apply to every case involving a child (a list of the areas it does not apply to are set out at Article 4) but, because of its very wide scope, it will come into play in most child care cases with a foreign element, including child abduction cases (alongside the 1980 Hague Abduction Convention). The Convention will, therefore, have a major impact on practitioners whose caseload includes any child care cases involving Contracting States. As a result, they will need to be aware of the effect the Convention will have in such cases and familiar with the text of the Convention itself.
The full text version of the 1996 Hague Convention is available below, as is the full text version of the connected regulations(The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010, SI 2010/1898).
The 1996 Hague Convention on the Protection of Children by Nigel Lowe QC and Michael Nicholls QC provides a comprehensive guide to the complexities of the 1996 Convention, including detailed coverage of the relationship with other international instruments such as the revised Brussels II Regulation.
Amy Royce-Greensill is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.