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The 1996 Hague Convention on the Protection of Children

Nigel Lowe, Michael Nicolls

ISBN13: 9781846615313

Published: November 2012

Publisher: Family Law LexisNexis

Country of Publication: UK

Format: Paperback

Price: Out of print

The 1996 Hague Convention comes into force in the United Kingdom on 1 November 2012 and is intended to improve the protection of children in international situations.

It provides for the recognition and enforcement within all Contracting States of widely defined measures directed to the protection of a child’s person and property and aims to establish the necessary co-operation between the authorities of such States in order to achieve this purpose.

To that end, the ambit of the Convention extends to parental responsibility orders, the appointment of guardians and special guardians, residence, contact, specific issue and prohibited steps orders, and also care and supervision orders.

This book 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. The Appendices contain all relevant source material including the full text of the Convention.

Subjects:: Family Law

Contents:: Chapter 1 - INTRODUCTION, HISTORY AND OVERVIEW; Introduction; Origins of the Convention; Objectives and Framework of the Convention; Interpreting the Convention; The application of the Vienna Convention on the Law of Treaties; Important aids to interpretation; Travaux préparatoires and the explanatory report; Handbook; The Contracting States; The distinction between ratifications and accessions; Lack of competence of individual EU States to ratify/accede; The position in the United Kingdom; The position in Australia; Implementing legislation; The Australian experience of the 1996 Convention; Reservations; Denunciations; Convention not retrospective; The Relationship of the 1996 Convention to Other International Instruments; The application of the revised Brussels II Regulation; Applicable law; Jurisdiction; Chapter 2 - THE SCOPE OF THE CONVENTION; The children to whom the Convention applies; Non application to unborn children; Application to children up to the age of 18; No requirement that children be habitually resident in a Contracting State; The measures of protection covered by the Convention; The meaning of ‘measures’; The matters covered by the Convention; The attribution, exercise, termination, restriction and delegation of parental responsibility; Rights of custody and access; Guardianship, curatorship and analogous institutions; The designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; Placing a child in foster or institutional care or the provision of care by Kafala or analogous institution; Public authority supervision of the care of a child by any person having charge of the child; The administration, conservation or disposal of the child’s property; The matters not covered by the Convention; Establishing or contesting a parent-child relationship; Decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; Names and forenames of the child; Emancipation; Maintenance obligations; Trusts or succession; Social security; General public measures on education or health; Measures taken as a result of penal offences committed by children; Decisions on the right of asylum and immigration; The application of the Convention in the United Kingdom; Chapter 3 - THE JURISDICTIONAL RULES; Introduction; Pre-eminence accorded to courts of the child’s habitual residence; The meaning of ‘habitual residence’; The position where the child’s habitual residence changes; Commentary; Jurisdictions based on presence; Refugee and displaced children etc; Jurisdiction to take measures in cases of urgency; The general power; Meaning of ‘urgency’; What measures of protection may be taken; Jurisdiction to take provisional measures; The interplay between Articles 11 and 12; The position in the UK where time for appealing has not expired etc; Transferring Jurisdiction; The general power of transfer; The procedure in England and Wales; Some practical issues; Commentary; Jurisdiction of authority seised of matrimonial proceedings; Duration of Measures; Chapter 4 - APPLICABLE LAW; The general position; The position with regard to parental responsibility; The Convention scheme; Attribution and extinction of parental responsibility; The basic position; The position upon a change of habitual residence; The exercise of parental responsibility; Termination and modification; The application of public policy; Protecting third parties; The application of private international law; Illustrative examples of applying the parental responsibility provisions; Application of Articles 16-18 in the UK context; Commentary; Chapter 5 - RECOGNITION AND ENFORCEMENT; The Basic scheme; Recognition or enforcement; Recognition; Advance recognition; Enforcement; The Convention scheme; Commentary; Refusing recognition or enforcement; The position in England and Wales; Applications for recognition, non recognition and enforcement; Court orders; Appeals; Chapter 6 - CO-OPERATION; Central Authorities; Designation and establishment; Mandatory duties of co-operation and provision of information; Contemplating placement of a child abroad; Provision of information where a child is in serious danger; Discretionary duties; Requests for reports and information; Safeguarding rights of access; Personal data; Costs; The position in the United Kingdom; The designated Central Authorities; Requests for information received under Article 31(c); Power to request a report on a child’s situation; Requirement to provide a report; Power to respond to an Article 34 request; Power of court in Northern Ireland to authorise disclosure; Services under Article 35; Chapter 7 - THE IMPACT OF THE 1996 CONVENTION ON INTERNATIONAL CHILD ABDUCTION; Introduction; The application of the 1996 Convention where no other international instrument applies; The inter-relationship with the 1980 Hague Abduction Convention; The impact in the context of return applications; The applicable law provisions; The impact of Articles 7 and 13 of the 1996 Convention; The use of protective orders; The pros and cons on invoking the 1996 Convention rather then the 1980 Convention; The impact in the context of access applications; The inter-relationship with the revised Brussels II Regulation; Chapter 8 - OVERALL CONCLUSION