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More Atrocities in the Congo
Drifting from my previous posts on international family law, I will focus today on the recent Human Rights Watch report on the Lord’s Resistance Army atrocities in the Congo. I have chosen to highlight this report for two reaons. First and foremost, I believe that the direct and indirect victims of the situation in the Congo deserve—at the very least—the world’s attention. Secondarily, I believe the report points out the nuanced and interdependent relationship between human rights and humanitarian law.
The 73-page report is heartbreaking. It contains information from 128 interviewees interviewed by three Human Rights Watch staffers. The accounts of murder, violence against children through child soldiers, rape, torture, abduction, and unimaginable brutality are not easy to read. I did, however, feel a duty to pay attention to these accounts.
Astonishingly (at least to this Western writer), the 312 murders and 250 abductions went relatively unnoticed for months. The area’s remoteness slowed communication, assistance, and investigation. This persistent isolation surely devastates the local population, who were unimaginably terrorized by these atrocities. Thanks to the courageous interviewees and interviewers, the world can take notice and seek some measure of justice.
The Human Rights Watch report calls for justice by addressing several stakeholders. It first demands that the LRA cease its attacks and release its prisoners.
The report then addresses the governments of the Congo, Uganda, Central African Republic, and Southern Sudan, calling on these governments…
An early pitch for the Hague Maintenance Convention
In private international family law, a party (an obligee, that is) may face a legal maze when enforcing a foreign spousal support/maintenance order against a former spouse (an obligor). The U.S. state courts offer an illustrative example.
But before heading Stateside, I will mention some private international law instruments on this topic.
The Hague Conference on Private International Law has completed the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Maintenance. However, with only two signatories (the U.S. and Burkina Faso) and no ratification, this convention has not entered into force.
Nor do previous instruments offer much help. The predecessor 1973 Hague Conventions on the topic garnered relatively meager support. Some reciprocal agreements exist between the U.S. or U.S. states and other countries, but careful analysis reveals little uniformity among these agreements.
Thus, private international law agreements do not—yet—provide much clear help on this subject.
So in the U.S., domestic courts play the leading role, and the first issue in the domestic courts will be recognition. For those readers yearning for the “good old” private international law days, we now turn to the familiar subjects of comity and jurisdiction-specific law.
Based on comity, U.S. courts may recognize foreign maintenance orders. Comity—very generally—is a largely judicial doctrine whereby foreign court orders were obtained through proceedings in a foreign state that do not offend a strong public policy of the recognizing state.…
Habitual Residence in the EU?
Habitual residence faces considerable uncertainty in the EU. Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003). Habitual residence is the key factor in determining jurisdiction. This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.
a. Habitual Residence in the ECJ
The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far. The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency. Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday. While still in Finland in October 2005, they applied for public housing.
In November, a local welfare agency removed the children to a childcare unit. The mother unsuccessfully challenged this action in a Finnish court. On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland. The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child. Distinguishing between presence and habitual residence,…
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 17th 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 18th 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…
Child abductions and treaty interpretation
Private international law is, of course, a huge topic. A leisurely flip through the 1390 pages of Cheshire and North’s comprehensive text reveals the subject’s breadth. As society becomes more mobile and borders more porous, e.g. the European Union, private international law will only likely continue to grow.
One of the most “private” areas of private international law is international family law (which is, oddly enough, my focus area—see, e.g., my blog). Just this month, the United States Supreme Court heard a case involving a major private international family law convention, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Convention’s name tends to confuse some lay readers—it only deals with jurisdiction in cross-border custody disputes, not the more sinister cases that the words “child abduction” connote. The Convention primarily preserves jurisdiction in child custody disputes by providing an immediate return if a parent wrongfully removes a child from its country of habitual residence.
The father in the case before the U.S. Supreme Court, Abbott v. Abbott, contended that the mother wrongfully removed their child from Chile. The cases focuses on the ne exeat issue under the Convention.
Courts use ne exeat orders to preserve jurisdiction in custody disputes by forbidding a custodial parent from taking a child outside of a court’s jurisdiction without the express consent of the other parent or the court. However, ne exeat orders have an uncertain status under…
