Friday, 15 February 2013

Relocation Applications and the 1996 Hague Convention

JordansFamily Law featured on St Valentine’s Day (14 February 2013) a précis of a decision by Mr Justice Hedley on 7 December 2012.

The High Court case concerned an application by a Russian mother to relocate with the parties’ one-year-old daughter back to her native Russia.  The child’s father opposed the application, and sought a shared care arrangement.

The jurisprudence and current trends in relocation cases are dealt with comprehensively elsewhere, and are not the focus of this blog.

According to the summary (I have not been able to track down a full copy of the Judgment yet), the mother was given permission to relocate.  This was conditional upon her obtaining an order from the Russian court enshrining the contact proposals the court had accepted as being in the child’s interests.

Lord Justice Wilson (as he then was) observed in Re R (Leave to Remove: Contact) [2010] EWCA Civ 1137, [2011] 1 FLR 1336 the tension between granting a parent permission to relocate, but then attaching to that permission a contact order.  He said (at para [22]):

“Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle.  A contact order would be an order taking effect until further order of the English court.  But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court … [I]t would of course be to the court in Perth that the father would turn; for any further order of the English court would not have effect in Australia.  With the leave of the English court, he would be likely to present the judge’s judgment to the judge in Perth and seek an order for contact with L along the lines therein set out … this court [does not] automatically require a foreign, mirror order to be in place before the child leaves England and Wales.  In the circumstances in which the court has some doubt about the applicant’s bona fides in relation to the other parent’s contact, that precaution is often taken; but, in circumstances, like the present, in which the judge reached the firmest conclusion about the mother’s commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order.”

The Convention is intended to harmonise the approach between Contracting States on matters affecting – as its title suggests – the protection of children.  It does this in relation to matters of jurisdiction (which country’s courts and agencies should take measures to protect children), applicable law (which rules of law they ought to apply when doing so) and recognition and enforcement (the intention being a measure taken in one Contracting State should almost always be recognised in another).

The Hague PR Convention is in force throughout almost all of the EU Membership (excepting Belgium and Italy), much of the rest of Europe, and countries further afield, such as Australia and Morocco.  More Contracting States are expected to come on board in the months and years ahead.  The Russian Federation has approved of the Hague PR Convention and it enters into force there on 1 June 2013.  A full status table is available on the Hague Conference website.

If the Hague PR Convention had entered into force between the UK and the Russian Federation, it would have neatly sidestepped in the recently-reported case the tension identified by Wilson LJ.  The English court could have made a contact order at the same time as giving permission to relocate.  That contact order would have been (except in exceptional cases) automatically recognised and capable of enforcement in Russia (Articles 23, 26 and 28 of the Convention).  The father could have sought advance recognition of the contact order from the Russian authorities to ensure there were no obstacles in this regard (Article 24), prior to his daughter moving.  There would have been no need for the mother to obtain a separate order from the Russian court embodying the contact proposals. 

The Ministry of Justice has recently published a guide on how the Hague PR Convention will operate practically, and it is critical reading.   

It is still early days for the Hague PR Convention, but it promises to be an extremely valuable tool – especially as more Contracting States sign up to it – for those working to ensure the best outcomes for children in families where there are transnational issues. 

1 comment:

  1. On April 1, Japan will accede to the Hague Convention on the Civil Aspects of International Child Abduction. The government must now set up counselors, Lawyers, mediators (Which actually do their jobs) and give the grieving fathers in Japan access to their children.

    This has been a Long time coming and everyone is Happy japan has finally been forced to comply. Hope we have access to our children soon.
    Tim Johnston Japan
    Father of:
    Kai Endo Japan