Pushing the boundaries
27 October 2003
The lives of an increasing number of children and their parents are being profoundly affected not only by the continuing problem of international child abduction, but also because they are separated, or want to become separated, by an international frontier. Their problems are becoming more, not less, complicated as more international bodies try to solve them. Even apparently straightforward issues are being confused by the need to interpret instruments designed to be used in different jurisdictions and legal systems.
Until relatively recently, lawyers dealing with international children's cases primarily had to consider only the 1980 Hague Abduction Convention and, to a lesser extent, the Council of Europe's 1980 Custody Convention. Now, poverty, war and civil unrest, as well as international business and romance, are causing legal problems for children on an unprecedented scale. The older conventions are still important, but it is the newer instruments, their application and their relationship with the older conventions and each other which are now becoming the focus of attention. Conflict of conventions is replacing conflict of laws.
As far as children are concerned, the most important of the new instruments is Brussels II (Council Regulation (EC) 1347/2000). This EU instrument began life as a proposed convention, extending what were the 1968 Brussels and 1988 Lugano conventions to matrimonial matters and the children of both spouses involved. But the EU took advantage of the right of initiative conferred by Title IV of the new Treaty of the European Community and turned the proposed convention into a regulation, which has direct effect. This ability to impose its wishes by regulations, and the inability of member states to conclude their own agreements which affect the areas covered by regulations or alter their scope, makes the EU a particularly powerful new player. The fact that the EU is about to increase from 15 to 25 states will not make matters any easier.
The little we have seen of Brussels II so far shows that it might work well enough for divorce, but for children its mandatory application to the enforcement of contact orders that fall within its scope is likely to be damaging rather than helpful. There is nothing in it that gives a judge any room for manoeuvre. The pace of change is such that Brussels II is already being hotly pursued by its proposed replacement, Brussels IIbis. This is intended to provide for the recognition and enforcement of all orders relating to children, both public and private, marital and non-marital. It will also deal with child abduction within the member states of the EU.
The substance of Brussels IIbis has received political approval, although the text needs perfecting, and it will be applied from 1 March 2005. The result of this is that there are now three jurisdictional schemes in the UK relating to private law disputes about children and there will shortly be three ways of dealing with international child abduction under international instruments; one within the EU (with the exception of Denmark), one involving non-EU states which are parties to the 1980 Hague Abduction Convention (including Denmark) and one under the 1980 European Custody Convention.
The 1980 Hague Abduction Convention, widely, although not uncritically, regarded as being the most successful international instrument for the protection of children, now has 74 Contracting States. How some of the newer member states will cope with their obligations is yet to be seen. At the same time as the EU was extending its remit into family life, the Hague Conference was revisiting the 1961 Convention on the Protection of Minors. This resulted in the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, which came into force in 2002, and which has now been signed by all present 15 EU member states.
The other major player in the family field, the Council of Europe, has for some time been working towards the harmonisation of family law within its member states, primarily by promoting common principles and good practice. It has produced a convention on contact concerning children, adopted by the Committee of Ministers on 3 May 2002 and opened for signature on 3 May 2003. This sets out the principles to be applied to contact orders and fixes safeguards for the return of children after visiting a parent in another state.
This increased level of international activity has led to a noticeable and welcome increase in judicial cooperation. Judges are less reticent about speaking to a judge in another state, when previously they might have hesitated for fear that it might not be regarded as proper, or be a breach of due process. There is a general realisation that children's cases need bold and decisive action to ensure that decisions are made with the minimum of delay and uncertainty. Judicial conferences have been very valuable in bringing judges together to discuss approaches to common problems and to reinforce mutual understanding. Meetings between the judges of the UK and Germany took place at Dartington in May 1997, in Wüstrau in September 1998, Edinburgh in September 2000 and in Trier in September 2002, and there was a meeting between Francophone judges and the judges of the UK in Dartington in June 2001.
The conclusions of a meeting at De Ruwenberg in June 2000, especially those on the need for effective international judicial cooperation and the desirability of restricting internal jurisdiction in international matters to a limited number of courts or tribunals, were affirmed in Washington DC in September 2000. It was a significant sign of the changing times that both ministers and judges attended the fourth meeting of the Special Commission in March 1991 held at the Hague to discuss the operation of the 1980 Hague Abduction Convention. This necessity for judicial and administrative cooperation will increase as the older principle of courts having continuing jurisdiction to vary their own orders is gradually replaced by the concept of jurisdiction following habitual residence.
Despite the multiplicity of statutes, conventions and regulations, the cooperation and the good intentions, some very real problems remain unresolved. There are few, if any, formal agreements with Islamic states and the Caribbean. There are still conflicts of jurisdiction and conflicts of orders, even within the UK. Current international instruments still do not deal very effectively with access. They are either too prescriptive or the way that they have been interpreted means that they lack power and flexibility. Continuing to differentiate, as the EU has done in Brussels II, between on the one hand the children of spouses, and on the other hand step-children or children born out of wedlock will still lead, for the time being, to the prospect of partial recognition of orders and continuing injustice for some unmarried fathers who have failed to obtain parental responsibility.
It is also questionable whether the strict interpretation of Article 13b of the 1980 Hague Abduction Convention by the courts of the contracting states, especially the English courts, is truly in the best interests of children. Nearly three-quarters of 'abductors' are mothers who are the primary carers of their children. A significant number are trying to escape from violence or exploitation, or have husbands or partners involved in organised crime or corruption, from which even the most sophisticated countries are unable to guarantee protection. Proceeding on the footing that all removals are axiomatically harmful and all returns beneficial, despite evidence and experience to the contrary and against the wishes of children, is not calculated to enhance public confidence.
Michael Nicholls is a barrister at 1 Hare Court