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Currently browsing entries tagged ‘child abduction’
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…
