The 1996 Hague Convention on the Protection of Children

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

The authors are leading international child law specialists. They are two of the authors of the much acclaimed book International Movement of Children: Law, Practice and Procedure and The New Brussels II Regulation: A Supplement to International Movement of Children (both Family Law).

Nigel Lowe LLB, LLD
Professor of Law, Cardiff Law School, Cardiff University, Wales

Nigel is a Professor and has a well established global reputation on the application of The Hague Children Conventions and has written extensively on the subject and delivered papers all round the world. He is a contributor to The Continuing Evolution of Family Law (Family Law) and an editor for the Judicially approved Family Law Reports (Family Law).

Michael Nicholls QC
1 Hare Court, London England
Francis Burt Chambers, Perth, Western Australia