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Tuesday, September 16, 2014

Hague Child Abduction Convention: CJEU to decide next month if the EU should decide which accessions to accept!

The Hague Child Abduction convention, or more officially the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction has generally nothing to do with abductions or kidnappings of children by strangers for the sake of money: they are mainly about a parent that takes a child to another country without the assent of the other custodial parent.

The core of the convention is the principle that legal fights regarding children (custody, child maintenance etc) should be fought at the home (formally the "habitual residence") of the child, and thus if a parent takes the child to another jurisdiction, the judge there should dismiss any claims for custody etc and order the speedy return of the child to its home. Exceptions are rare and mainly apply if a long period (1 year) has evolved before the convention is invoked; or in case of a so called article 13b defence: when there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Central role for central authorities

Central authorities play an important role in the convention. Every state party [in fact, in states like the United States there are over 50: 1 for every state] is to designate one, which may help in locating the child, giving information about legal procedures, and assisting in return of the child. The designation of a central authority is however not a requirement for the entry into force of the convention.

Parties: ratification is not accession

Parties to the convention that ratified (light blue) or acceded (dark blue); via Wikimedia Commons
At the moment the convention has 93 parties, including all G-7 countries, all European Union states and its membership continues to grow. In 2014 the convention got 3 new parties: Japan, Iraq and [only last month] Zambia. As with many conventions states become a party through ratification (after signature) or through accession: accession is open to any state, while ratification is only open to those 27 states that were a member of the  Hague Conference of Private International Law in 1980 when the convention was concluded. Unlike most other conventions there is a big difference between accession and ratification. While the convention applies immediately between ratifiers, the convention applies only between an acceding country and those ratifying countries that explicitly accepted its accession. The convention is thus for example only applicable between ratifier Montenegro on one hand and the other ratifiers, and only 3 acceding countries; Slovenia, Ukraine and ... Andorra [the latter only out of sympathy with other small countries?]. Between two acceding countries the convention only applies if the country that acceded first accepts the accession of the newer state.

No role for the EU to play?

The European Union can not become a party to the convention, as back in 1980 no clauses were added to conventions for Regional Economic Integration Organizations (REIOs) to become a party. But within the EU much of the child abduction has been regulated within the Brussels II-bis regulation; and when the EU has legislated in an area within the EU it may also have exclusive [that is: at the exclusion of the Member States of the EU] competence to act on the matter in relations between the EU and other states [The Court of Justice of the European Union, CJEU, has decided so in decision ECLI:EU:C:2006:81 when determining that the EU had competence in concluding the Lugano convention (between the EU and Switzerland, Norway and Iceland). It argued that in questions of jurisdiction the smallest lacuna in those rules could give rise to the concurrent jurisdiction of several courts to resolve the same dispute, but also to a complete lack of judicial protection, since no court may have jurisdiction to decide such a dispute, which formed a major reason for declaring exclusive competence of the EU regarding the Lugano convention.]

European Council and member states disagree

The European Commission now considers that -in view of the Child abduction rules in Brussels II-bis- member states have lost their competence to accept the accession of new countries to the Child Abduction convention and drafted in 2011 8 [Russia, Albania, Andorra, Armenia, Gabon, Morocco, Seychelles and Singapore] Council Regulations on the declaration of acceptance the Member States, in the interest of the European Union of the Child Abduction Convention. In other words, the member states should accept the accession because the EU can't, after approval of the EU, and more or less on behalf of the EU. The Draft decision state that the moment of acceptance should be coordinated among the member states. While the European Parliament's rapporteur was positive especially as many EU citizens are of Andorran origin, the member states that need to approve the decision were critical. The UK government for example writes it attaches great importance to scrutiny of the acceding country's ability and willingness to operate the Convention effectively in cases where parents are seeking the return of their children from the country concerned and suggests such scrutiny has not taken place as the proposals do not appear to contain any element of evaluation of the ability of the States in question to operate the Convention successfully.

Questions to CJEU

In order to break the impasse, the European Commission decided in 2012 to ask CJEU if the EU had exclusive competence regarding the acceptance of accessions, stating that it had competence due to parallel legislation (Brussels II-bis). After a hearing last April, the court is now finally give its decision [well, its Opinion, but it carries so much weight that a Decision would be more appropriate], which will arrive on 14 October.

So what will the CJEU judges decide? If the question is boils down to: is acceptance a truly conflict of laws related decision in an area where the EU already has legislated, the answer seems clear: based on the Lugano opinion (see above) the EU has exclusive competence. But if the question can be phrased as: does it harm the EU conflict of law system if -say- Slovakia decides not to apply the convention to -say- the Seychelles, then the question may well be that the EU is not exclusively competent and subsidiarity requirements are not met.  I have no idea how this case will be determined, but if I had to guess... I think the CJEU will answer the question rephrased as in the first sentence and thus conclude the EU has exclusive competence... It remains in that case up to 28 member states to approve the draft Decisions and to coordinate the delivery of their acceptances at the same date at The Hague... We'll know in one month!

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