Habitual Residence and the 1996 Hague Child Protection Convention

The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”) entered into force on 1 January 2002.  Why the long name?  The drafters wanted to clarify the four aims of the Convention and thereby avoid confusion that would result from a shorter name.

With 19 Contracting Parties and 28 signatories so far, and more on the way, this multilateral treaty will likely play a major role in future cross-border parental responsibility cases.  This post examines the Convention’s purpose and functioning and, in particular, the habitual residence’s role in determining jurisdiction.

The Explanatory Report by Paul Lagarde provides detailed information about the Convention.  The Hague Conference on Private International Law’s 17^th Session set up a Special Commission to draft a treaty for the protection of children to update its 1961 predecessor and conform to the 1993 Convention on the Rights of the Child.  Completed during the 18^th Session in 1996, the Convention addresses a broader scope of parental responsibility issues than the 1980 Hague Abduction Convention.

Parental responsibility determinations begin with jurisdiction.  The Convention broadly defines parental responsibility as “parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child” (see Art. 1, ¶ 2).

The key jurisdictional factor in these parental responsibility matters is habitual residence (see Art. 5). This is true except in relatively rare cases where no habitual residence exists (see Art. 6), a new habitual residence exists due to a wrongful removal (see Art. 7), a court declares forum non conveniens (see Arts. 8 & 9), or jurisdiction on divorce proceedings exists under strict conditions (see Art. 10).  Additionally, any protective orders in other States require cooperation with authorities in the child’s habitual residence (Arts. 11 & 12).

Some drafters proposed defining habitual residence in the Convention.  The Conference declined to do so based on its prior practices and potential interpretation problems for other Hague Conventions.  Nonetheless, the negotiations indicated that temporary absences from a Contracting State cannot modify the habitual residence determination (see Lagarde Report at ¶ 40).

Thus, courts must determine habitual residence based on the facts in each case.  Though habitual residence is a determining jurisdictional factor in many areas of private international law, it necessarily has unique and sometimes complicated application in matters related to children.

Courts cannot always tie a child’s habitual residence to parents’ habitual residence—most obviously, when the parents have different residences.  Intent also plays a smaller role, because children often have no intent regarding their residence; they merely follow their parents.  Other issues pop up with periodic residences, peripatetic lives, shuttle custody arrangements, or newborns.  In rare cases, a child may have no habitual residence (in those Article 6 cases, the child’s presence determines jurisdiction).  Thus, courts must examine all the facts in the case to determine the child’s habitual residence.

Once a child acquires a new residence, the courts in the former habitual residence—even those seised of an action—lose jurisdiction, except in wrongful removal cases (see Art. 5(2)).  Though U.S. delegates suggested exclusive jurisdiction for two years after a court made an order (like Section 201(b) of the Uniform Child Custody Jurisdiction and Enforcement Act), the Conference rejected such a measure due to perceived practical problems.  Instead, the drafters decided that a court’s physical proximity in the new habitual residence was in the best interests of the child (more like continuing jurisdiction in Article 9 of EC Regulation 2201/2003).  The drafters declined to set a period for acquiring habitual residence, except in wrongful removal cases.

Wrongful removals fall under Article 7.  The policy behind habitual residence in these cases creates some tension.  On one hand, establishing jurisdiction in the previous habitual residence would deter wrongful removals.  Thus, the Convention recognized that though a child could acquire a new habitual residence, the courts in the previous habitual residence would maintain jurisdiction.

On the other hand, however,  a court’s proximity in the new habitual residence may better serve the best interests of the child. Thus, a court in the new habitual residence can exercise jurisdiction—if certain conditions exist.  These conditions essentially mirror those in Article 12 of the Hague Child Abduction Convention, establishing jurisdiction if all custody holders acquiesce in the removal or if:

“the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.”

The trick in this clause is that the wrongfully removing parent must show the child’s settlement in the new environment.

Three more options for jurisdiction.  First, a court or competent authority can essentially declare forum non conveniens under Articles 8 or 9.    Second, under Article 12, a court with jurisdiction over a divorce proceeding can adjudicate parental responsibility if a custodial parent resides in that jurisdiction, both parents agree to jurisdiction, and it is in the best interests of the child.  Finally, under Articles 11 – 13, courts outside of the child’s habitual residence may make provisional measures in urgent cases.

As per Article 50, this Convention works hand-in-hand with the 1980 Hague Abduction Convention to affect a child’s return in the event of a wrongful removal.  Further, the EU has made use of the Convention’s Article 52 in adopting EC Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, which will serve as the subject in my next post.

In sum, the Convention broadens the scope for jurisdiction in cases involving parental responsibility.  Perhaps more importantly, the Convention simplifies conflict of laws differences among countries and facilitates recognition and enforcement of parental responsibility decisions.  Thus, this Convention leads the way in the trend toward harmonization in jurisdiction, applicable law, recognition, and enforcement in private international family law.

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