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International Family Law, Policy and Practice International Family Law, Policy and Practice Some Current International Issues in Child Law and Parentage Volume 6, Number 1 • Spring 2018 International Family Law, Policy and Practice Volume 6, Number 1 • Spring 2018 SOME CURRENT INTERNATIONAL ISSUES IN CHILD LAW AND PARENTAGE Contents The Abduction Convention in a Post Brexit Era – Hon Diana Bryant 5 Evaluation of the Fight Against Child Marriage in Nigeria– O S Adeluken Odewale 17 Protecting Children under Hague– R Saladino 26 Affectivity As A Legal Support to the Right to Filiation in Brazil – D Pereira and Z Consalter 30 Book Review: Family Forms and Parenthood (Andrea Buchler & Helen Keller, Intersentia) – A M Hutchinson and C Rogerson 36 Guidelines for Submission of Articles 38 – International Family Law, Policy and Practice • Vol. 6.1 •Spring 2018 • page 2 – Editor’s Message This issue is the first since we completed the selection of collected papers from the Centre’s 2016 Conference on Culture, Dispute Resolution and the Modernised Family. In this collection we have four articles and a book review highlighting topics of key international interest in relation to cross border child protection (with particular reference to the post Brexit era) and on parentage,vwith particular reference to the huge changes in family formation which now appear to be current in most jurisdictions of the world. We start with The Hon Diana Bryant AO’s 2017 International Family Law Lecture on Child Abduction in the Post-Brexit Era, held in association with ICFLPP at the University of Westminster in June 2017, which she has kindly written up for us in this issue. Next is a detailed and thoroughly referenced article from Nigeria on the ongoing fight against Child Marriage which remains particularly prevalent in Africa and of significant impact in Nigeria because of the at least 3 religious and cultural contexts in which the population of this large West African country lives, thus offering increased opportunity for not giving up the practice, whatever the international initiatives to address this essentially child protection issue. Thirdly, Rosa Saladino from Australia takes up the Hague child abduction theme from the perspective of her ISS background, setting out her concerns about lack of universal legal aid for the abducting parent, who (however wrong in taking a child or children across borders without consent of the left behind parent) has a role to play in providing security and confidence for the children involved which arguably includes legal assistance in explaining what s/he did and why in the proceedings which will inevitably follow - and in which if s/he cannot afford representation the court, and the children involved, will just as inevitably be disadvantaged . Fourthly, two researchers from Parana State University in Brazil take us through the remarkable changes in family formation in that very large country which appear now to be recognised by its courts owing to the perceived importance of affectivity in filiation, which it seems can now, in the interests of the children concerned, be prioritised over biological connection. Finally, Anne-Marie Hutchinson and Colin Rogerson review Intersentia’s Family Forms and Parenthood, which they describe as being unable to be ‘more timely’ in view of the now worldwide adoption of such a variety of family units. The themes from this issue, covering both key child and parenting topics, afford an excellent preparation for ICFLPP’s next triennial International l conference in July 2019, registration for which will shortly be open, since the themes for that next gathering in London when we will once again share perspectives and insights from around the world are on Gender, Inclusivity and Protecting the 21st Century Family. Fr a n c e s B u r to n Frances Burton Editor, International Family Law, Policy and Practice This issue may be cited as (2018) 6 IFLPP 1, ISSN 2055-4802 online at www.icflpp.com. – International Family Law, Policy and Practice • Vol. 6.1 •Spring 2018 • page 3 – Editorial Board of International Family Law, Policy and Practice Professor Peter de Cruz Professor Julian Farrand (Joint Chairmen) The Hon Mr Justice Jonathan Baker Professor Stephen Gilmore, Kings College, London Anne-Marie Hutchinson QC OBE, Dawson Cornwell, Solicitors Clare Renton, 29 Bedford Row Chambers Julia Thackray, Solicitor and Mediator (Ex officio, the Co-Directors of the Centre) Dr Frances Burton (Editor) Professor Marilyn Freeman – International Family Law, Policy and Practice • Vol. 6.1 •Spring 2018 • page 4 – The Abduction Convention in a Post-Brexit Era: The Law Will Survive the Changes to the Political Landscape1 The Honourable Diana Bryant AO* 1. Introduction Manifesto. n 29 March 2017, the British Ambassador to the In the result, it was not part of the Manifesto, but the European Union hand-delivered a letter from the Prime Minister said that the UK would remain signatories OPrime Minister of the United Kingdom to the ‘for the next parliament’. President of the European Council, thereby invoking The Conservative Party Manifesto says that Article 50 of the Lisbon Treaty2 and triggering the two-year consideration will be given to the UK’s ‘human rights legal process of negotiations that will lead to Britain’s exit from framework when the process of leaving the EU concludes’.7 the European Union. This ‘Brexit’ will significantly alter the That would not be until 2022. political landscape — though how exactly it will do so is, as Clearly the issue remains a live one and, although weight yet, largely unknown. of opinion at present seems to favour remaining, as I will I will discuss what Brexit means for how international demonstrate later, one never knows what political parental child abduction is dealt with by the United imperatives might intervene. The recent attacks in London Kingdom. I will discuss what is known as the Brussels IIa will inevitably lead to some strengthening of anti-terror Regulation (‘Brussels IIa’)3 and two relevant Hague laws which involve as a corollary some interference with Children’s Conventions, the Convention of 25 October 1980 on human rights and freedoms. the Civil Aspects of International Child Abduction (‘the 1980 I will therefore take some licence to consider some of Convention’)4 and the Convention of 19 October 1996 on the decisions of the European Court of Human Rights Jurisdiction, Applicable Law, Recognition, Enforcement and Co- which impinge on the 1980 Convention with the possibility Operation in respect of Parental Responsibility and Measures for the that at some point the UK might not be subject to its Protection of Children (‘the 1996 Convention’).5 I will also jurisdiction. discuss certain controversial international family law decisions of the European Court of Human Rights 3. The 1980 Hague Abduction Convention (‘ECtHR’). Along with the unprecedented human mobility that became commonplace in the 20th century came greater 2. The European Convention on Human Rights numbers of relationships between citizens of different On 25 April 2016, the then Home Secretary, Teresa May, countries. Sometimes these relationships evolved into said that the United Kingdom must withdraw from the families, and sometimes those families did not remain European Convention on Human Rights.6 together. And when relationships end, many migrants want Fast forward 12 months to April 2017, and the post- to return to their countries of origin — and some do so, Brexit referendum reality, to reports that the now Prime taking their children with them, without the consent of the Minister’s colleagues were seeking to have her change her other parent. Prior to 1980, many parents took this action views leading up to the publication of the Tory election in an attempt to obtain more favorable custody *Chief Justice of the Family Court of Australia. The paper on which this article is based was delivered at the University of Westminster in association with The International Centre for Family Law, Policy and Practice, as the International Family Law Lecture 2017. 1 The views of the paper and this article are my own; they do not represent the views of the Family Court of Australia or other judges. These views do not indicate how I would decide a case after having the benefit of the argument. I would like to thank my Senior Legal Research Adviser, Candice Parr, for her assistance in researching and composing this paper. 2 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, signed 13 December 2007, 2702 UNTS 3 (entered into force 1 December 2009). 3 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000 [2003] OJ L 338/1 (‘Brussels IIa’). 4 Opened for signature 25 October 1980, 1343 UNTS 97 (entered into force 1 December 1983) (‘1980 Convention’). 5 Opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002) (‘1996 Convention’). 6 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010). See also Council of Europe, ‘European Court of Human Rights’ (2014) Migration
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