ADDRESS OF MARGARET H. BENNETT LLB, SOLICITOR ON THE OCCASION OF THE HAGUE'S 750TH ANNIVERSARY INTERNATIONAL LAW CONFERENCE PRESENTED BY T.M.C. ASSER INSTITUUT 4TH JULY 1998 JUDICIAL AND ADMINISTRATIVE CO-OPERATION IN FAMILY LAW MATTERS: CO-OPERATION IN CHILD ABDUCTION AND SIMILAR CASES For the last 750 years, men have been fighting wars with each other based on their differences: material, ideological, philosophical, cultural and religious. From the Middle Ages particularly, there have been differences between Muslims and non-Muslims. As we approach the year 2000, we now have a divided world whose division is based on these differences. Starting from West Africa, going through the Middle East, across the upper Indian sub-continent into the Far East and out into the Pacific Ocean there is a wide band of Muslim countries with ideologies which are the same or very similar to each other but different from the rest of the world. The people within these Muslim countries are united in one thing. That is their belief in and daily practice of the word of the Prophet Mohammed as written in the Holy Quor'an. This address is on the subject of judicial and administrative co-operation in Family Law matters particularly co-operation in child abduction and similar cases. The Quor'an states that in matters relating to children, the principle to be applied in decisions is the question of what is in the best interests of the child. It was my privilege a few days ago to have a meeting with the Grand Kadi from a Sharia Court of Appeal and he read out these words to me. In all the common law and civil law jurisdictions, the principle of the best interests of the child is also the guiding principle to be applied. This principle is to be found enshrined in the United Nations Convention on the Rights of the Child which has been signed by 191 countries. The Hague Conference on Private International Law FN01 was established to bring together men and women in delegations from the governments of different countries to help find solutions for individual problems that their citizens have with other nationals of different countries and the difficulties which prevent such individuals in one State achieving solutions to the problems that they have with other individuals in another State. The Hague Conference on Private International law has been a unique forum to assist these individuals in finding resolutions to their problems in the private law realm. Through the process of creating international conventions, a remarkable achievement has been made in enabling governments of different States to find ways of removing or overcoming their differences in the interests of helping their own citizens in many private law areas. Although the legal systems, cultural norms and ideological beliefs existing in countries may differ, one thing remains consistent and has enabled delegates from all countries to agree is the belief that the "best interests of the child" is the overwhelming paramount principle when creating conventions in connection with children and the fundamental principle that all countries agree upon. A number of Hague Conventions relating to children have been ratified by a significant number of countries. These Conventions have proved to be very successful, providing a system of administrative and legal procedures when dealing with international children's' issues. Up to now not one Convention has been ratified by any of the Muslim countries although Muslim countries are members of The Hague Conference. A new age is now however dawning, to coincide with the advent of the new millennium, in that the most recent international Convention relating to children, The Hague Child Protection Convention FN02, came into existence on 19th October 1996 and was adopted unanimously by the Member States. This new Convention was signed by Morocco, the first Muslim country to sign a Hague Convention. The expectation is that this Convention will be ratified by Morocco soon. Hopefully then other Muslim countries will also follow this lead. The significance of these events can be related to the experience of Member States in applying The Hague Convention on the Civil Aspects of International Child Abduction3. The experience has been that it has been very difficult to achieve the return of abducted children either to or from Muslim countries. I say to or from because it is a two-way process and it is as important for the citizens of Muslim countries to have confidence in the judicial systems of non-Muslim countries as it is the other way around, in order to do what is in the best interests of the children of their Muslim citizens. The implementation of The Hague Child Abduction Convention has had a profound effect on the law as it affects children who move between Convention States. This Convention establishes the method and procedure for the management and administration of a child abduction case. Under the Convention, a Central Authority is set up in each State to facilitate communications between one country and another and to channel individual cases to the courts or other appropriate authorities who will make the decision about returning the child. The decision as to whether or not the child is returned is usually a judicial function and dealt with by judges in court, not in an administrative context. The Hague Child Abduction Convention does not currently require the judges of one country to communicate with the judges of another country. Considering how successful this Convention has been, it is unfortunate that this provision was not included. The new international Hague Child Protection Convention will now require judges in different countries to communicate with each other in child abduction cases. The preamble to the Hague Child Protection Convention states that it came into being following a recognition of the need "to improve the protection of children in international situations". There was a desire amongst signatory states to avoid conflicts between their respective legal systems as to jurisdiction, applicable law, recognition and enforcement. The Convention records the importance of international co-operation for the protection of children. The preamble also reaffirms that the best interests of the child are to be a primary consideration. The underlying principle of The Hague Child Protection Convention is that the competent authorities for dealing with issues relating to a child are those of the State of the child's habitual residence (subject to some exceptions). Accordingly, on the implementation of the Convention between Member States, the conflicts which have in the past arisen where, for example, the State of which the child is a national assumes jurisdiction over a child when the child is habitually resident in another State, will be avoided. Article 1 sets out the objects of The Hague Child Protection Convention. They are, inter alia: (a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the child; (b) to determine the law which is to be applied; (c) to determine the law applicable to parental responsibility; (d) to provide for the recognition and enforcement of such measures of protection in all Contracting States; and \par (e)to establish such co-operation between the authorities of Contracting States as may be necessary to achieve the purposes of the Convention. Article 7 of The Hague Child Protection Convention deals specifically with the relationship of the Convention to The Hague Child Abduction Convention and provides that in the event of the abduction of a child within the scope of the Child Abduction Convention the provisions of The Hague Child Protection Convention ensure that the State of the child's habitual residence, retains the welfare jurisdiction over the child and restricts the means by which a new State can acquire such jurisdiction. Article 7 of The Hague Child Protection Convention provides that in the case of the wrongful removal or retention of the child, the authorities of the State of the child's habitual residence immediately before the removal or retention, keep their jurisdiction until the child has acquired an habitual residence in another State, and (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in the new State for a period of at least one year after the person having rights of custody has or should have had knowledge of the whereabouts of the child and no request for return lodged within that period is still pending and the child has settled in his or her new environment. It should be noted that the 12 month period does not run from the date of the removal or retention as it does in Article 12 of The Hague Child Abduction Convention but from the time when knowledge of the child's whereabouts was received or imputed to the person having custody rights. Article 7(3) further provides that, as long as the authorities in the original State retain their jurisdiction, no steps, other than urgent steps, can be taken by the new State. I have mentioned above that the objects set out in Article 1 of The Hague Child Protection Convention require the setting up of arrangements to enable co-operation to take place between the authorities of Contracting States. Whilst, in some States, for child abduction purposes or inter-country adoption purposes these authorities may be administrative, experience in cases involving child abduction has shown that the authorities involved have usually been judges. When there is a failure of judicial co-operation between judges from different countries, experience has shown that there have been expensive and time consuming problems. These problems are accentuated in cases involving children. Procedural delays may cause serious damage to the well-being of the child not only because of the ongoing litigious strife between their parents, but also because the children may be subjected to psychological and physical damage due to delay. Any judicial tug of war may hurt a child and will not be in the child's best interests. Contradictory custody orders in different countries create chaos and confusion. There is also the problem of two different legal systems with different philosophies, cultures and religious origins. When courts consider the child's best interests in determining custody, they interpret the concept differently. Islamic countries, applying the law in accordance with the strict letter of the Quor'an, are often less flexible. In Asian countries, such as Japan, a foreign father is sometimes disadvantaged due to the cultural prejudice against foreigners and strong belief in the mother/child bond. Common law and civil law countries often ignore or give insufficient consideration to cultural and religious issues. In addition to the above problems, where there is tension or animosity between particular countries, judges may remain biased against foreigners and side with their own nationals in disputes. This should not, however, be permitted to affect individual citizens and particularly the rights of their children. The reality is that as nations draw closer together, information, capital and goods daily cross international boundaries, people travel regularly from country to country and national boundaries no longer prevent people from meeting or marrying and having children. Sometimes those relationships and marriages end in separation, divorce and custody disputes. The courts in all countries have therefore had to come to terms with becoming part of a global society and dealing with international cases. The Hague Child Protection Convention provides rules to determine which court in which State should decide the question of what is in the best interests of the child. The Hague Child Abduction Convention requires and mandates the court (to a State to which a child has been abducted) to return that child immediately to the State of the child's habitual residence so that the courts in the child's home State can, with the benefit of all the available information, decide what is in the child's best interests. This will be based upon all the necessary surrounding circumstances including the network of family, friends, cultural or religious community to demonstrate a stable home life and the best educational system for the child. We already have experience of a statute mandating the co-operation between judges in the United States where there are 50 different jurisdictions. The Uniform Child Custody Jurisdiction Act (UCCJA)4 is the uniform law for jurisdiction in child custody cases. The UCCJA provides a uniform mechanism to resolve jurisdictional child custody disputes. It has four bases of jurisdiction: (a) home state; (b) significant connection; (c) emergency procedures; and (d) default jurisdiction. The UCCJA provides a solution which allows the courts of the best possible place to hear the litigation; a place with the most information about the child and possible custodial arrangements. It not only requires judicial communications as between American States but it also requires judicial communications in international disputes with judges from other countries. The provisions require that the court of one State communicate with a court in another State concerning any proceeding arising under the Act and that communication be authorised whenever the court finds it would be helpful. Experience of the workings of the UCCJA has shown that there are further benefits in judicial co-operation. An honest assessment of the circumstances and a meaningful non-adversarial conduit for communications facilitating international judicial co-operation needs to be developed. The benefits of such practises are many. Judges can, when conferring with each other, ascertain whether a case can be scheduled earlier in one country than another, prevent procedural delays and discourage continuing and duplicate litigation, ensuring the speedy return of an abducted child. Judges tend to put more thought and discretion into making the law and make the process less inflexible and harsh. In addition to preventing inter-state competition and conflicts, it also promotes co-operation among states and has the unexpected side effect of expanding the exchange of information which helps judges to openly discuss, negotiate and draft custody and access orders. Judicial co-operation ensures that litigation occurs ordinarily in the State that has more significant connection with the child and family and where more substantial evidence about the child's welfare is available. In this way, vital information and direction on how to handle a problem in a different State can be provided. The mere fact of co-operation between the authorities of one country and another helps to reduce tension between States and develops familiarity of the workings of different judicial systems. In the context of child abduction cases, the overriding goal is the prompt return of the child. Judicial co-operation ensures the prompt return of the child and the establishment of procedures to ensure the child's prompt return to the State of his or her habitual residence. Experience in the handling of child abduction cases by judges demonstrates that there have been difficulties and concerns about returning children into situations that are unknown to the judge. One of the problems has been for judges to ensure that adequate protective measures are in place in the country of the child's habitual residence to which the child is being returned. The judge in the State to which the child has been abducted has no authority in the State of the child's habitual residence and the child may not be adequately protected against any threats to his or her welfare which made the parent abduct the child in the first place. When The Hague Child Abduction Convention was being drafted, most primary carers of children were mothers and it was envisaged that the abductors would be fathers. The experience of the application of the Convention recently has shown that it is now mostly mothers who abduct their children, often to run away from situations that they find intolerable. When considering whether to return children to the State of their habitual residence judges sometimes now use undertakings in the form of promises given to the court by the Plaintiff parent that he or she will abide by certain conditions to protect the child on the child's return. For example by providing housing for the child. Another measure that has been used is that of mirror orders. One of the promises that the judge may request is that both parents will co-operate in applying to the court in the State of the child's habitual residence when the child has been returned to ask that the court of that State should make or register a court order containing the same terms as are set out in the undertakings given to the judge who makes the decision to return the child. Both of these types of measures have been successfully used and the practice is now growing. In some international child abduction cases, judges from different countries have already started to communicate and co-operate in building up trust and confidence before the decision is made to return the child. This is the dialogue that is already beginning which is envisaged by The Hague Child Protection Convention and this is why it is so important that all States representing all ideologies, philosophies, religions and cultures should sign and ratify The Hague Conventions. Whether it be a common law State, a civil law State, as Islamic State or any other State, we, the international community, as represented at The Hague Conference on Private International Law and the International Bar Association which I represent and the two and a half million lawyers worldwide which the IBA represents, look forward to the future with our Islamic neighbours ratifying the Conventions, with all States experiencing co-operation between judges and all authorities working together in the best interests of children everywhere. Footnoes ------------------- 1 J.H.A. Van Loon, The Secretary General, Hague Conference on Private International Law, Permanent Bureau, 6 Scheveningseweg 6, 2517 KT The Hague, Netherlands; tel: +31 (70) 363 3303; Telefax: +31 (70) 360 4867 2 The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibilities and Measures for the Protection of Children dated 19th October 1996. 3 The Hague Convention on the Civil Aspects of International Child Abduction 25th October 1980. 4 The Uniform Child Custody Jurisdiction Act 9 U.L.A. 115 (1988) (UCCJA) can be found on web site: http://www.hiltonhouse.com as UCCJA.TXT. Acknowledgments ----------------------- Research by Dawn K. Hyun, Syracuse University College of Law Publication by T.M.C. Asser Insitituut, The Hague, The Netherlands in Proceedings of The Hague's 750th Anniversary International Law Conference The author is the Chairwoman of the Family Law Committee of the International Bar Association 19941998. International Bar Association, 271 Regent Street, London W1R 7PA; tel: +44 171 629 1206; fax: +44 171 409 0456. Copyright Margaret Bennett, Margaret Bennett Solicitors, Charlton House, 5A Bloomsbury Square, London, WC1A 2LX, ENGLAND FAX +44 171 240 549, e-mail: exclusive@divorce.uk.com