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EAPIL Takes Part as an Observer in the HCCH Special Commission on Maintenance

The first meeting of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol is due to be held on 17, 18 and 19 May 2022.

The purpose of the meeting, which is only open to delegates or experts designated by the Members of the Hague Conference on Private International Law, invited non-Member States and International Organisations that have been granted observer status, is to discuss a range of issues surrounding the interpretation of the two instruments mentioned above and their implementation in the domestic legal systems.

The Hague Conference, through its Permanent Bureau, has recently invited the European Association of Private International Law to take part in the meeting as an observer.

A Working Group has been immediately created for this purpose, formed by Alexandre Boiché (lawyer in Paris), Tena Hoško (University of Zagreb), Anna Nylund (University of Bergen), Francesco Pesce (University of Genova, Chair), Ian Sumner (Tilburg University), Lara Walker (Warwick University), and Anna Wysocka-Bar (Jagiellonian University).

In the space of just a few weeks the Working Group has prepared a position paper focusing on a selection of issues that the Special Commission plans to discuss. The provisional version of the paper, pending a review by the Scientific Council of EAPIL, is available here.

The conclusions reached by the Working Group are as follows:

I. The concept of marriage/spouse, being de jure included in the scope of application of the Convention, unlike other family relationships to which the Convention might apply by virtue of declaration under Art. 63 of the Convention, has a pivotal role in determination of the Convention’s scope. The main problem arises with reference to same-sex marriages. However, other relationships that could be equated to marriage in the national law of the State of origin, such as cohabitation, should also be considered. There are two potential options: (i) allow each Contracting State to define the concept based on its national law (so that differences between the law of the State of origin and the requested State can be faced accordingly) or (ii) find an autonomous definition of the concept; 

II. The concept of creditor: based on domestic experiences, it is clear that there are two opposing models concerning the formal ownership of the legal action. On the one hand, those systems where it is the child him/herself who qualifies as ‘creditor’ acting for the protection of his/her own interests, even if procedurally through an adult (parent) acting on his/her behalf. On the other hand, some State laws provide that a dependent child cannot be the creditor, so the action for the maintenance recovery is brought by the parent on his/her own behalf. It seems that a preference should be (uniformly) given to always granting a direct indication of the real creditor, even in case of a child.

III. The concept of residence: a more precise explanation seems to be appropriate on (i) the “minimum threshold” which can be requested (in addition to the negative definition which is fixed by the second sentence of Art. 9); and/or (ii) the fact that it should be possible for the applicant to be considered as resident in more than just one Contracting State, making him/her able to apply before different Central Authorities under Art. 9. 

IV. the (uniform) interpretation of Art. 4 of the Protocol, considering that the CJEU has explained how this provision should be interpreted when a maintenance debtor applies on the basis of a change in his income, for a reduction in the amount of maintenance awarded by a decision that has become final (see Mölk, C-214/17): considering that the CJEU’s interpretation is only binding for those Contracting States which are EU Member States, it would be necessary to discuss it with non-EU Contracting States, in order to understand how do they interpret this provision; 

V. The relationship between the 2007 Child Support Convention and the Lugano II Convention, as all EU Member States and Norway are parties to both instruments: the instruments seem to suggest different solutions, each pointing to the other one. Considering that Article 52 of the 2007 Child Support Convention allows creditors to select an instrument or arrangement that has more effective rules than the Convention, this could also be interpreted as giving the creditor the right to choose between the 2007 Child Support Convention and the Lugano II Convention. The principle of favor executionis should undoubtedly guide the choices of the court, where the convention to be applied is not directly indicated by the creditor/claimant. In the writers’ opinion, it would be appropriate to provide for a specific duty to inform creditors of the possibility to choose between the two instruments, in certain situations. 

The EAPIL blog will report in the coming days about the meeting of the Special Commission.

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