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Transfrontier Contact Concerning Children

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Transfrontier Contact Concerning Children Contact details for the Permanent Bureau of the General Principles Hague Conference are as follows: and Guide to Hague Conference on Private International Law Transfrontier Permanent Bureau Good Practice, Scheveningseweg 6 Hague Conference 2517 KT The Hague The Netherlands on Private Contact Tel.: +31 (70) 363 3303 International Law Fax: +31 (70) 360 4867 Email: [email protected] Website: www.hcch.net Concerning Children TRANSFRONTIER CONTACT CONCERNING CHILDREN GENERAL PRINCIPLES AND A GUIDE TO GOOD PRACTICE TRANSFRONTIER CONTACT CONCERNING CHILDREN GENERAL PRINCIPLES AND A GUIDE TO GOOD PRACTICE Published by Family Law A publishing imprint of Jordan Publishing Limited 21 St Thomas Street Bristol BSI 6JS For the Hague Conference on Private International Law Permanent Bureau 6, Scheveningseweg 2517 KT The Hague The Netherlands Telephone +31(0)70 363 3303 fax +31(0)70 360 4867 e-mail [email protected] website http://www.hcch.net © Hague Conference on Private International Law 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN 978 1 84661 141 4 Printed in Great Britain by Anthony Rowe Limited. TABLE OF CONTENTS Page THE OBJECTIVES AND SCOPE OF THE GENERAL PRINCIPLES AND GUIDE TO GOOD PRACTICE vii EXECUTIVE SUMMARY ix INTRODUCTION xxi A. Background work of the Hague Conference on transfrontier contact xxi B. The context – some typical cases xxv C. Some matters of terminology xxvi THE GUIDE 1 OUTLINE 2 1. The importance of contact 4 2. Promoting agreement 6 3. The framework for international legal co-operation 12 4. Inter-State administrative co-operation 18 5. The processing of international applications concerning contact by courts or other authorities 26 6. Orders relating to contact 31 7. Enforcement of contact orders under national law 34 8. Relocation and contact 38 9. Access / Contact rights and rights of custody 42 APPENDIX 46 Objectives and Scope vii THE OBJECTIVES AND SCOPE OF THE GENERAL PRINCIPLES AND GUIDE TO GOOD PRACTICE The principles and good practices set out in this Guide serve the following purposes – • they assist in the more effective implementation and application of those provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which concern transfrontier contact; • they draw attention to provisions of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children which relate to transfrontier contact and which supplement the 1980 Convention, and provide guidance concerning their application; • they provide an overall model for constructing an international system of co-operation designed to secure effective respect for rights of contact. As such, the Principles and Guide are intended to be helpful also to those States, which are not Parties to the Hague Conventions, but are considering how best to develop effective structures. The Guide is intended to be of particular use to judges and Central Authorities appointed under the 1980 or 1996 Conventions, as well as to governments engaged in the development of policies concerning transfrontier contact. It may also be of assistance to other professionals working in the area. Three Guides to Good Practice relating to the 1980 Convention have already been published: Part I relating to Central Authority Practice, Part II on Implementing Measures and Part III on Preventative Measures. This Guide differs from them in two respects. First, it contains general principles as well as examples of good practice. Second, it relates to the 1996 Convention, as well as to the 1980 Convention. While in relation to some matters covered by this Guide, one approach is recommended, such as where it has already been endorsed by a Special Commission, in relation to other matters it will be indicated that there is more than one possible approach. This allows States and other interested parties to give full consideration to the approach that would best suit their legal system. The Guide received the general endorsement of the Special Commission to review the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the practical implementation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. However, nothing in this Guide may be construed as binding on State Parties to the 1980 Convention or the 1996 Convention. The general principles set forth in this Guide are purely advisory in nature. All State Parties, and in particular Central Authorities designated under the 1980 and 1996 Hague Conventions, are encouraged to review their own practices, and where appropriate and feasible, to improve them. For both established and developing Central Authorities the implementation of the Conventions should be seen as a continuing, progressive or incremental process of improvement. EXECUTIVE SUMMARY x Transfrontier Contact Concerning Children 1. THE IMPORTANCE OF CONTACT 1.1 The general principle • All possible steps should be taken to secure the rights of children to maintain personal relationships and have regular contact with both of their parents and of parents to maintain personal relationships and have regular contact with their children, unless it is determined that such contact is contrary to the interests of the children. This is equally applicable when the parents live in different countries. 1.2 Restrictions on contact should be proportionate • Legal restrictions on contact between parents and children should be no more than are necessary to protect the interests of the child. 2. PROMOTING AGREEMENT 2.1 Promoting parental agreement • Legal and administrative arrangements should support the exercise of contact by promoting and facilitating agreement between parents or other holders of parental responsibility 2.2 Facilitating and encouraging the achievement of agreed solutions • Agreed solutions should be facilitated and encouraged by mediation, conciliation, negotiation and similar means. 2.3 The role of the State in promoting and supporting parental agreement on contact 2.3.1 The role of the State is not confined to the provision of mediation or similar facilities. The law has a wider role to play in establishing the conditions, which guarantee fairness in the negotiating process, and in supporting agreements once made. 2.4 Further elements in the legal framework 2.4.1 The legal framework that should be provided should ensure fairness in negotiations between the parents and respect the rights of the child, including the right of the child to express his / her views and to have those views taken into account in accordance with the child’s age and maturity. 2.4.2 Confidentiality, impartiality and independence of mediation should, as a general rule, be guaranteed, as it should for other means of alternative dispute resolution used to reach an amicable agreement. 2.4.3 Training for mediators should be provided or encouraged, with special regard to the difficulties of cross-border family disputes, including ongoing training concerning the applicable legal instruments. 2.4.4 Quality of mediation should be assured, for instance, by promoting the establishment of and adherence to voluntary codes of conduct. Executive Summary xi 2.4.5 The views of the child should be taken into account in mediation in accordance with the child’s age and maturity. 2.5 Legal framework to give the contact agreement cross-border effect 2.5.1 A legal framework should be provided, which gives effect to agreements on contact reached between the parents in both countries in which the parents live. 2.5.2 An agreement based on mediation which is intended by the parties to be legally binding should be made enforceable in both States concerned. This also applies to agreements achieved through other means of alternative dispute resolution. 3. THE FRAMEWORK FOR INTERNATIONAL LEGAL CO-OPERATION 3.1 The basic framework Two basic elements for successful inter-State legal co-operation to support contact rights across frontiers are – • common rules which define the circumstances in which the courts (or their equivalents) in each legal system may exercise jurisdiction to make or modify binding decisions relating to custody and contact; • mutual respect for, including the recognition and enforcement of, decisions concerning contact which are made on the common jurisdictional bases. 3.2 The Hague Convention of 1996 3.2.1 States Parties to the Hague Convention of 1980 which have not yet signed, ratified or acceded to the Hague Convention of 1996 are encouraged to consider its advantages in providing a framework for jurisdiction and for the recognition and enforcement of contact decisions, and thus as a complement to the 1980 Convention. 3.2.2 In any case, it is incumbent on States Parties to the 1980 Convention, and necessary for the practical operation of Article 21, to make known the circumstances in which their authorities will exercise jurisdiction to make or modify contact
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