EAPIL Takes Part in the Special Commission on the Child Abduction and Child Protection Conventions and Issues Position Paper
The eighth meeting of the Special Commission set up in the framework of the Hague Conference on Private International Law to discuss the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention kicked off on 10 October 2023.
As reported by Mayela Celis on Conflict of Laws, a broad range of issues will be addressed during the meeting, such as delays in return process under the 1980 Convention, the relationship of the 1980 Convention with other international instruments, in particular the 1989 UN Convention on the Rights of the Child, exceptions to the return of the child under the 1980 Convention and protective measures upon return, including with respect to domestic and family violence, child abduction and asylum claims, mediation as relevant to the 1980 and 1996 Conventions, and transfer of jurisdiction under the 1996 Convention, to name just a few (the draft agenda of the meeting can be found here).
The European Association of Private International Law was invited to take part in the meeting as an observer, as it occurred on the occasion of the first meeting of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol, and the first meeting of the Special Commission on the practical operation of the 2000 Adults Convention.
An EAPIL Working Group was set up for the purposes of contributing to the meeting on the 1980 and 1996 Conventions. The Group, chaired by Costanza Honorati and consisting of Sabine Corneloup, Mónica Herranz Ballesteros, Katarina Trimmings, and Mirela Zupan, prepared a position paper focused on protective measures, which the Scientific Council of the Association endorsed on 10 October 2023.
The conclusions reached by the Working Group are as follows:
I. Protective measures amount to a fundamental tool to achieve compliance with the Convention’s obligation, while guaranteeing physical and psychological safety of the child and thus ensuring respect of the child’s fundamental rights.
II. The Treaty’s main obligation to return the child is only discharged when such court is convinced that the return is safe and that the return shall not cause any harm, either physical or psychological, to the child.
III. Ensuring the child’s safe return must be construed as a treaty obligation set on all Contracting States. This requires that all States, i.e. the State of the child’s habitual residence and the State of refuge, shall cooperate one with each other to ensure the physical and psychological safety of the child when implementing the main obligation of returning the child.
IV. In the context of abduction proceedings the best interests of the child implies that, when pursuing the aim of returning the abducted child to the place of his/her habitual residence, the court in the State of refuge should pay particular attention to safeguarding the overall physical and psychological safety of the child.
V. A protection measure in the light of the above is only a court order which is capable of being enforced in the State of habitual residence. The requirement of enforceability in the State where protection is sought, i.e. in the State of habitual residence, thus becomes a constitutive element of any measure which aims to effectively protect the child’s on his or her return.
VI. Even where protective measures are enforceable in the State of habitual residence, caution is needed when determining whether a civil protection order would be appropriate in an individual child abduction case. In the light of concerns over the effectiveness of protective measures, protective measures should not be employed where credible allegations of severe violence have been made and there is a future risk of violence of such severity.
VII. There are several ways which can guarantee the enforceability of a protective measure. It is for the court in the State of refuge, in cooperation with the court in the State of habitual residence, to choose and implement the most appropriate measures.
VIII. Protective measures, if not triggered ex parte, should be considered by the court on its own motion, ex officio.
IX. A genuine consideration of adopting or requiring protective measures should be strongly encouraged every time the court is satisfied there is a grave risk of harm, and provide an explanation on facts, risks and measures that were considered should be provided.
A report on the conclusions and recommendations of the eighth meeting of the Special Commission will appear on this blog in due course.
