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Sunday, September 28, 2014

Sex Trafficking Act also implements Hague Maintenance Convention

What just happened? Did the United States (after many false starts) this month set the decisive step which will lead to entry into force of the Hague Maintenance Convention for the US in 2017? It certainly seems that it did, by passing an act which title is only cursory linked to the convention: the Preventing Sex Trafficking and Strengthening Families Act.

UPDATE (30 October): And we have confirmation now that president Obama has signed the legislation!

Hague Maintenance Convention

But what am I talking about? The Hague Maintenance Convention is short hand for the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, a convention concluded within the framework of the Hague Conference on Private International Law. The convention thus handles receiving child support, alimony etc in international cases. The convention does not determine which law should govern child support: the latter is the subject of the Hague Maintenance Protocol, concluded on the same day in 2007. 

In the words of Article 1 of the Convention, the aim is: 
The object of the present Convention is to ensure the effective international recovery of child support and other forms of family maintenance, in particular by -
  1. establishing a comprehensive system of co-operation between the authorities of the Contracting States;
  2. making available applications for the establishment of maintenance decisions;
  3. providing for the recognition and enforcement of maintenance decisions; and
  4. requiring effective measures for the prompt enforcement of maintenance decisions.
Each country is to set up one or more Central Authorities which serves as the focal point for the convention in that country. They are to provide information regarding legislation, but also in individual cases to help e.g. identify the debtor  and facilitate (accelerated) payments. Decisions regarding maintenance should be accepted [although reservation can be made regarding some bases] in other convention states if jurisdiction is based on 1 of 6 bases, most of which are based the residence of the parent of the child.


The convention had a relatively slow start and requires both signature and ratification. The United States was the only country to immediately sign it in 2007, to be followed by Burkina Faso 2 years later. The ratification (after signature in 2010/2011) of Norway and Albania triggered entry into force of the convention on 1 January 2013; almost 6 years after its adoption. In 2013 the convention also entered into force for Bosnia and Herzegovina as well as Ukraine. The most significant event after entry into force took however place on 1 August: the European Union became a party. Because the EU has competence over all matters related to the convention [no, that does not mean maintenance issues have been harmonised over its member states, but that the regulations regarding international jurisdiction and enforcement have], the convention applies in all member states completely, and EU member states can not become parties themselves [except the UK, France and the Netherlands, on behalf of the territories outside the EU].... The only exception is Denmark and the EU ratification has not bearing there. 

US ratification

Family support is a state-competence, and since the nineties, a legal system is in place where every state has implemented (its own version of) the Uniform Interstate Family Support Act (UIFSA), which together gives a consistent system of recognition of family support decisions throughout the country. Under the system, also orders of "reciprocating countries" (countries outside the US, with which at state or federal level a system for recognition is already in place) are recognized. 
The Federal state has pushed for UIFSA to be implemented in all states by making federal level financial support for child support enforcement dependent on implementation of UIFSA by 1998. 

The United States have -both at federal and at state level- been strongly involved in the negotiation of the convention, and the result has been hailed in the US as convention that mimics the family support system in inter-state cases. The US was therefor the first to sign it in 2007 on the day of its adoption, and also the next steps went relatively smooth: the Uniform Law Commission (a forum of US states for uniformity in legislation in matters where states are competent) amended UIFSA in July 2008 to allow also "convention countries" (states where the 2007 convention applies) to have family support orders recognised and the Senate approved the Convention in September 2010. The Federal Office for Child Support Enforcement set out the steps that need to be taken afterwards: Congress must adopt implementing legislation and all states must adopt the amended UIFSA act. As with the original UIFSA version, the threat of losing federal funding will again form the incentive for all states to adopt the new UIFSA version....
In contrast to approval of the convention, approval of the implementing legislation proved to be quite a hurdle. There were in the past years during the last 3 congresses several bills, which never made it through congress:
  • S. 3848 ((SAVE Child Support) Act, in committee)
  • S. 1383 ((SAVE Child Support) Act, in committee)
  • S. 508 ((SAVE Child Support) Act, in committee)
  • H.R. 4282 (International Child Support Recovery Improvement Act of 2012, passed house)
  • H.R.1896 (International Child Support Recovery Improvement Act of 2013, passed House), 
  • S. 1870 (Supporting At-Risk Children Act, in committee
However, 2 weeks ago Senate passed an act which was only introduced last June:
  • H.R.4980 (Preventing Sex Trafficking and Strengthening Families Act, passed both houses)
In Title III of the bill (surprisingly if you look at the title), implementation of the convention is foreseen. I keep wondering why such a matter is placed in an act on sex trafficking, but the main point is that it has passed. The act gives states until the 1st quarter after its next legislative year to implement the act. This would mean 1 Jan 2017 if the act is signed into law before 1 October, and 1 April if it is signed after that... Although that means that it will take some time before the convention comes into effect in the US, it seems that now finally a deadline has been set. For many states that will mean that they have to place UIFSA on the agenda, because according to the Uniform Law Commission, only 12 (Florida, Georgia, Maine, Minnesota, Missouri, Nevada, New Mexico, North Dakota, Rhode Island, Tennessee, Utah, Wisconsin) have already enacted it (Washington has introduced the legislation in 2014, but not passed it yet).

The only question left is: will Obama sign the bill into law? In view of the long legislative history for the convention, not doing so might just delay things by another (half) decade...

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