AVANT-PROJET DE CONVENTION SUR LE RECOUVREMENT INTERNATIONAL DES ALIMENTS ENVERS LES ENFANTS ET D’AUTRES MEMBRES DE LA FAMILLE
PROJET DE RAPPORT EXPLICATIF
établi par Alegría Borrás et Jennifer Degeling
V E R S I O N P R O V I S O I R E
* * *
HAGUE PRELIMINARY DRAFT CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND OTHER FORMS OF FAMILY MAINTENANCE
DRAFT EXPLANATORY REPORT
drawn up by Alegría Borrás and Jennifer Degeling
P R O V I S I O N A L V E R S I O N
Document préliminaire No 32 d’août 2007
à l’intention de la Vingt et unième session de novembre 2007
Preliminary Document No 32 of August 2007
for the attention of the Twenty-First Session of November 2007
Permanent Bureau | Bureau Permanent 6, Scheveningseweg 2517 KT The Hague | La Haye The Netherlands | Pays-Bas telephone | téléphone +31 (70) 363 3303 fax | télécopieur +31 (70) 360 4867 e-mail | courriel secretariat@hcch.net website | site internet http://www.hcch.net
AVANT-PROJET DE CONVENTION SUR LE RECOUVREMENT INTERNATIONAL DES ALIMENTS ENVERS LES ENFANTS ET D’AUTRES MEMBRES DE LA FAMILLE
PROJET DE RAPPORT EXPLICATIF
établi par Alegría Borrás et Jennifer Degeling
V E R S I O N P R O V I S O I R E
* * *
HAGUE PRELIMINARY DRAFT CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND OTHER FORMS OF FAMILY MAINTENANCE
DRAFT EXPLANATORY REPORT
drawn up by Alegría Borrás and Jennifer Degeling
P R O V I S I O N A L V E R S I O N
TABLE OF CONTENTS
I. BACKGROUND…………………………………………………………………………………….3
II. ABBREVIATIONS AND REFERENCES……………………………………………………….5
III. GENERAL FRAMEWORK………………………………………………………………………..8
IV. GENERAL LAYOUT OF THE PRELIMINARY DRAFT CONVENTION………………….9
V. DIRECT RULES OF JURISDICTION………………………………………………………..10
VI. INFORMATION TECHNOLOGY………………………………………………………………12
VII. ARTICLE-BY-ARTICLE COMMENTARY……………………………………………………13
CHAPTER I – OBJECT, SCOPE AND DEFINITIONS……………………………………13
Article 1 Object………………………………………………………………………13
Article 2 Scope………………………………………………………………………15
Article 3 Definitions………………………………………………………………..17
CHAPTER II – ADMINISTRATIVE CO-OPERATION…………………………………..20
Article 4 Designation of Central Authorities………………………………..21
Article 5 General functions of Central Authorities………………………..23
Article 6 Specific functions of Central Authorities………………………..25
Article 7 Requests for specific measures……………………………………39
Article 8 Central Authority costs……………………………………………….42
CHAPTER III – APPLICATIONS THROUGH CENTRAL AUTHORITIES……………45
Article 9 Application through Central Authorities………………………..45
Article 10 Available applications…………………………………………………45
Article 11 Application contents…………………………………………………..52
Article 12 Transmission, receipt and processing of applications and cases through Central Authorities………………………….58
[Article 13 Means of communications – Admissibility……………………..63
Article 14 Effective access to procedures…………………………………….64
Article 14 bis Free legal assistance for child support applications………………………………………………………….71
Article 14 ter Applications not qualifying under Article 14 bis…………74
CHAPTER IV – RESTRICTIONS ON BRINGING PROCEEDINGS…………………..76
Article 15 Limit on proceedings………………………………………………….76
CHAPTER V – RECOGNITION AND ENFORCEMENT…………………………………..77
Article 16 Scope of the Chapter………………………………………………….78
Article 17 Bases for recognition and enforcement…………………………80
Article 18 Severability and partial recognition and enforcement……..86
Article 19 Grounds for refusing recognition and enforcement…………86
Article 20 Procedure on an application for recognition and enforcement……………………………………………………………..89
Article 21 Documents……………………………………………………………….93
Article 22 Procedure on an application for recognition…………………..96
Article 23 Findings of fact………………………………………………………….96
Article 24 No review of the merits………………………………………………97
Article 25 Physical presence of the child or applicant…………………….97
Article 26 Authentic instruments and private agreements………………98
Article 27 Reciprocal arrangements involving the use of provisional and confirmation orders……………………………100
CHAPTER VI – ENFORCEMENT BY THE REQUESTED STATE……………………..101
Article 28 Enforcement under national law…………………………………101
Article 29 Non-discrimination…………………………………………………..102
Article 30 Enforcement measures……………………………………………..102
Article 31 Transfer of funds……………………………………………………..103
Article 32 Information concerning enforcement rules and procedures……………………………………………………………..103
CHAPTER VII – PUBLIC BODIES…………………………………………………………104
Article 33 – Public bodies as applicants……………………………………….104
CHAPTER VIII – GENERAL PROVISIONS……………………………………………..107
Article 34 Direct requests to competent authorities…………………….107
Article 35 Protection of personal information……………………………..107
Article 36 Confidentiality…………………………………………………………108
Article 37 Non disclosure of information……………………………………108
Article 38 No legalisation………………………………………………………..109
Article 39 Power of attorney…………………………………………………….110
Article 40 Costs recovery…………………………………………………………110
Article 41 Language requirements…………………………………………….110
Article 42 Means and costs of translation…………………………………..112
Article 43 Non unified legal systems…………………………………………113
Article 44 Co-ordination with prior Hague Maintenance Conventions……………………………………………………………114
Article 45 Co-ordination of instruments and supplementary agreements…………………………………………………………….115
Article 46 Most effective rule……………………………………………………117
Article 47 Uniform interpretation……………………………………………..117
Article 48 Review of practical operation of the Convention…………..118
Article 49 Amendment of forms………………………………………………..119
Article 50 Transitional provisions……………………………………………..119
Article 51 Provision of information concerning laws, procedures and services……………………………………………………………120
CHAPTER IX – FINAL PROVISIONS…………………………………………………….121
Article 52 Signature, ratification and accession…………………………..121
Article 53 Regional Economic Integration Organisations………………123
Article 54 Accession by Regional Economic Integration Organisations………………………………………………………….124
Article 55 Entry into force……………………………………………………….125
Article 56 Declarations with respect to non-unified legal systems………………………………………………………………….125
Article 57 Reservations…………………………………………………………..126
Article 58 Declarations……………………………………………………………127
Article 59 Denunciation…………………………………………………………..128
Article 60 Notification……………………………………………………………..128
ANNEX 1 LIST OF PRELIMINARY DOCUMENTS……………………………………..129
ANNEX 2 LIST OF MEETINGS OF THE SPECIAL COMMISSION AND COMMITTEES OF THE SPECIAL COMMISSION (THE DRAFTING COMMITTEE, THE APPLICABLE LAW WORKING GROUP, THE ADMINISTRATIVE CO-OPERATION WORKING GROUP AND THE FORMS COMMITTEE)…………………………………………………………………131
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I. Background
1. The formal mandate for negotiations on a new Convention on the international recovery of child support and other forms of family maintenance is to be found in the decision taken by the States represented at the Nineteenth Session of the Hague Conference on Private International Law. According to this mandate, the Session:
“a) Decides to include in the Agenda for the Twentieth Session the preparation of a new comprehensive convention on maintenance obligation which would build on the best features of the existing Hague Conventions on this matter and include rules on judicial and administrative co-operation, and requests the Secretary General to continue the preliminary work and to convene a Special Commission for this purpose.
b) Considers to be desirable the participation of non-Member States of the Conference, in particular signatory States to the New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance, and requests that the Secretary General make his best efforts to obtain their participation in this work, and ensure that the processes involved are inclusive, including by the provision, if possible, of Spanish translation of key documents and facilities for Spanish interpretation at plenary meetings”.1
2. A Special Commission meeting was held in April 1999 to examine the practical operation of the four existing Hague Conventions (the Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children (hereinafter “1956 Hague Maintenance Convention”2); the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children (hereinafter “1958 Hague Maintenance Convention”3); the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions relating to Maintenance Obligations (hereinafter “1973 Hague Maintenance Convention (Enforcement)”4); and the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations (hereinafter “1973 Hague Maintenance Convention (Applicable Law)”5) as well as the New York Convention of 1956 on the Recovery Abroad of Maintenance (hereinafter “1956 New York Convention”6).7 A variety of problems were identified ranging from, on the one hand, a complete failure by certain States to fulfil their Convention obligations, particularly under the 1956 New York Convention, to, on the other hand, differences in interpretation and practice under the various Conventions. These differences related to such matters as the establishment of paternity, locating the defendant, approaches to the grant of legal aid and the payment of costs, the status of public authorities and of maintenance debtors under the 1956 New York Convention, enforcement of index-linked judgments, the question of the cumulative application of the Conventions and detailed matters such as mechanisms for transferring funds across international frontiers.
3. There was clearly disappointment at the 1999 Special Commission meeting that many of the problems identified appeared to have remained unresolved despite the attention that had already been drawn to them by the previous Special Commission of 1995. That earlier Special Commission had taken the view that there was no need to consider major reforms of the relevant Conventions. The emphasis was placed on
1 Final Act of the Nineteenth Session, 2002, shortly to be published in Proceedings of the Nineteenth Session, Tome I, Miscellaneous Matters.
2 See list of abbreviations under para. 13 of this Report.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
7 See “Report on and Conclusions of the Special Commission on Maintenance Obligations of April 1999”, drawn up by the Permanent Bureau, December 1999, and W. Duncan, “Note on the Desirability of Revising the Hague Conventions on Maintenance Obligations and including in a New Instrument Rules on Judicial and Administrative Co-operation”, Prel. Doc. No 2 of January 1999 for the attention of the Special Commission (hereinafter Prel. Doc. No 2/1999).
4
improving practice under the existing Conventions.8 This approach was advocated again during the 1999 Special Commission. There was a natural reluctance among delegates to consider further international instruments in an area in which so many instruments already exist. Apart from the four Hague Conventions and the 1956 New York Convention, there are various regional conventions and arrangements, including the Brussels Convention, the Brussels Regulation, the Lugano Convention, the Montevideo Convention and the system that operates among Commonwealth countries, as well as a proliferation of bilateral treaties and less formal agreements.
4. Despite this natural reluctance, the Special Commission of 1999 in the end came down in favour of a radical approach, namely that the Hague Conference should commence work on the elaboration of a new worldwide instrument. The reasons for this conclusion may be summarised as follows:
8 See “General Conclusions of the Special Commission of November 1995 on the operation of the Hague Conventions Relating to Maintenance Obligations and of the New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance”, drawn up by the Permanent Bureau, Prel. Doc. No 10 of May 1996 for the attention of the Eighteenth Session (hereinafter Prel. Doc. No 10/1996).
– disquiet at the chronic nature of many of the problems associated with some of the existing Conventions;
– a perception that the number of cases being processed through the international machinery was very small in comparison with real needs;
– a growing acceptance that the 1956 New York Convention, though an important advance in its day, had become somewhat obsolete, that the open texture of some of its provisions was contributing to inconsistent interpretation and practice, and that its operation had not been effectively monitored;
– an acceptance of the need to take account of the many changes that have occurred in national (especially child support) systems for determining and collecting maintenance payments, as well as the opportunities presented by advances in information technology;
– a realisation that the proliferation of instruments (multilateral, regional and bilateral), with their varying provisions and different degrees of formality, were complicating the tasks of national authorities, as well as legal advisers.
5. The recommendation to begin work on a new worldwide international instrument adopted by the 1999 Special Commission included the following directions:
“The new instrument should:
– contain as an essential element provisions relating to administrative co-operation,
– be comprehensive in nature, building upon the best features of the existing Conventions, including in particular those concerning the recognition and enforcement of maintenance obligations,
– take account of future needs, the developments occurring in national and international systems of maintenance recovery and the opportunities provided by advances in information technology,
– be structured to combine the maximum efficiency with the flexibility necessary to achieve widespread ratification.”
6. In carrying out the Decision of the Nineteenth Diplomatic Session, the Secretary General convened a Special Commission which met at The Hague from 5 to 16 May 2003, from 7 to 18 June 2004, from 4 to 15 April 2005, from 19 to 28 June 2006 and from 8 to 16 May 2007. This Special Commission authorised the drawing up of a preliminary draft Convention, which, accompanied by the present Report, will serve as a basis for the discussions at the Conference’s Twenty-First Session which is to take place at The Hague from 5-23 November 2007. [add reference to States invited]
5
9 This Committee was made up, in addition to its chairman, by the reporters, as members ex officio and the members of the Permanent Bureau, as well as the following experts: Ms Denise Gervais (Canada), Mary Helen Carlson (United States of America), Namira Negm (Egypt), Mária Kurucz (Hungary), Stefania Bariatti (Italy), María Elena Mansilla y Mejía (Mexico), Katja Lenzing (European Commission) and Cecilia Fresnado de Aguirre (Inter-American Children’s Initiative) and Messrs Jin Sun (China), Lixiao Tian (China), Robert Keith (United States of America), Jérôme Déroulez (France) Edouard de Leiris (France), Paul Beaumont (United Kingdom), Antoine Buchet (European Commission) and Miloš Ha?apka (European Commission).
10 A full list of the preliminary documents is set out in Annex 1. See, in particular, W. Duncan, “Towards a New Global Instrument on the International Recovery of Child Support and other Forms of Family Maintenance”, Prel. Doc. No 3 of April 2003 drawn up for the attention of the Special Commission of May 2003 (hereinafter Prel. Doc. No 3/2003).
11 See footnote 6.
12 In the Special Commission of June 2004 Chile, Argentina and Mexico asked for the incorporation of Spanish as language of the Convention. For Chile, language could be an inconvenience for the exercise of access to justice, which is a human right.
13 “Revised preliminary draft Convention on the International Recovery of Child Support and other Forms of Family Maintenance”, Prel. Doc. No 29 of June 2007 drawn up for the attention of the Twenty-First Session of November 2007.
7. Mr Fausto Pocar, expert from Italy, was elected as Chairman of the Special Commission and Ms Mária Kurucz, expert from Hungary, Mrs Mary Helen Carlson, expert from the United States, and Mr Jin Sun, expert from China, were elected as vice-Chairs. Mrs Alegría Borrás, expert from Spain, and Ms Jennifer Degeling, expert from Australia, were elected as Reporters. A Drafting Committee was constituted under the chairmanship of Mrs Jan M. Doogue,9 expert from New Zealand. The work of the Special Commissions and of the Drafting Committee was greatly facilitated by the substantial preliminary documents10 and remarks of Mr William Duncan, Deputy Secretary General, who was responsible for the scientific work of the Secretariat.
8. According to the mandate given by the Special Commission, the Drafting Committee not only met during the Special Commission, but also met from 27 to 30 October 2003, from 12 to 16 January 2004, from 19 to 22 October 2004, from 5 to 9 September 2005, 11 to 15 February 2006 and from 16 to 18 May 2007. Also two meetings by conference calls took place on 28 November and 7 December 2006.
9. A Working Group on applicable law, chaired by Andrea Bonomi (Switzerland) and a Working Group on Administrative Co-operation, convened by Mrs Mary Helen Carlson (United States of America), Ms Mária Kurucz (Hungary) and Mr Jorge Aguilar Castillo (Costa Rica) met several times in person and through conference calls. Also, a Committee on Forms, co-ordinated by the Permanent Bureau, worked in close co-operation with the Working Group on Administrative Co-operation and some meetings and conference calls took place.
10. The Conference’s Twenty-First Diplomatic Session entrusted the drafting of the Convention to its second Commission which held ……… sittings. Participating in the negotiations, in addition to the delegates of the sixty-six Members of the Conference represented at the Twenty-First Session, observers from …….. other States as well as from …… intergovernmental organisations and ……. non-governmental organisations also took part.
11. It has to be remembered that, for this Convention, it is the first time that, in the final act of the Diplomatic Session11 in which the agreement to start the drafting of the Convention was adopted, Spanish is mentioned. Notwithstanding, this does not mean a new position for Spanish in the Hague Conference.12
12. This report deals with the preliminary draft Convention on the International Recovery of Child Support and other Forms of Family Maintenance which was drawn up by the Drafting Committee under the authority of the Special Commission on the International Recovery of Child Support and other Forms of Family Maintenance for the attention of the Twenty-First Session of November 2007.13
II. Abbreviations and references
13. To facilitate and simplify the reference to the different Conventions and instruments throughout this Report, the following abbreviations are used. A short description of the Convention is also included.
6
14 See footnote 10.
15 Lagarde Report (children), para. 31.
– 1956 New York Convention – New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance. It is the first Convention in which a system of co-operation of authorities is established. It is not a Convention on enforcement and it can be applied in combination with the 1958 Hague Maintenance Convention or with the 1973 Hague Maintenance Convention (Enforcement) (see Annex 1 of Prel. Doc. No 3/200314).
– UN Convention on the Rights of the Child – New York Convention of 20 November 1989 on the Rights of the Child. Article 2 of the Convention establishes that the parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. Article 27 refers specifically to maintenance obligations.
– 1956 Hague Maintenance Convention – Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children. A great majority of States Party in this Convention are also Parties in the 1973 Hague Maintenance Convention (Applicable Law).
– 1958 Hague Maintenance Convention – Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children. A great majority of States party in this Convention are also parties in the 1973 Hague Maintenance Convention (Enforcement).– 1973 Hague Maintenance Convention (Applicable Law) – Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations. According to Article 1, the Convention applies “to maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child who is not legitimate”. The law designated by the Convention (Art. 3) “shall apply irrespective of any requirement of reciprocity and whether or not it is the law of a Contracting State”.
– 1973 Hague Maintenance Convention (Enforcement) – Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. Article 1 of the Convention defines the scope of application as does the Hague Convention of the same date on applicable law. The advantage of having two Conventions and not only one is that some States can be Contracting States for one of them and not for the other.
– Verwilghen Report – Explanatory Report on the 1973 Hague Maintenance Conventions, by Michel Verwilghen (1975).
– 1980 Hague Child Abduction Convention – Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The experience from the operation of the provisions of this Convention concerning administrative co-operation and the functions of Central Authorities provided a basis on which similar provisions were developed in the new Convention.
– 1993 Hague Intercountry Adoption Convention – Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. As with the 1980 Convention, the experience from the operation of the provisions of this Convention concerning administrative co-operation and the functions of Central Authorities provided a basis on which similar provisions were developed in the new Convention.
– 1996 Hague Child Protection Convention – Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Article 4, sub-paragraph e) excludes “maintenance obligations” from the scope of application of the Convention, an exclusion that is considered as necessary, taking into account the existence of other Hague Conventions and the existing rules in Brussels and Lugano Conventions.15
7
16 Lagarde Report (adults), para. 32.
– Lagarde Report (children) – Explanatory Report on the 1996 Hague Child Protection Convention by Paul Lagarde (1998).
– 2000 Hague Adults Convention – Hague Convention of 13 January 2000 on the International Protection of Adults. Article 4, paragraph 1, sub-paragraph a) excludes “maintenance obligations” from the scope of the Convention, for the same reasons as the 1996 Hague Child Protection Convention.16
– Lagarde Report (adults) – Explanatory Report on the 2000 Hague Adults Convention (2003).
– 2005 Hague Choice of Court Convention – Hague Convention of 30 June 2005 on Choice of Court Agreements.
– Brussels Convention – Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It was opened for signature in Brussels, Belgium, on 27 September 1968. The original Parties were the six original Member States of what was the European Economic Community. As new States have joined the European Union, as it is now called, they have become Parties to the Brussels Convention. It now applies only between the fourteen old European Union Member States and the Netherlands Antilles and French overseas territories. Maintenance obligations are included in the Convention and the Convention includes a special rule on jurisdiction (Art. 5, para. 2).
– Lugano Convention – Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. It was opened for signature in Lugano, Switzerland, on 16 September 1988. It contains similar provisions to the Brussels Convention (it is also called the “Parallel” Convention). The Contracting States to the Lugano Convention are the 15 “old” European Union Member States and Iceland, Norway, Poland and Switzerland. The demarcation between the Brussels and Lugano Conventions is laid down in Article 54 B of the Lugano Convention. It is based on the principle that the Lugano Convention will not apply to relations among the European Union Member States, but will apply where one of the other countries mentioned above is involved. As in the Brussels Convention, maintenance obligations are included in the Lugano Convention. A new revised Lugano Convention will be concluded shortly. The text, as adopted in March 2007, maintains the same rule on maintenance obligations as the Convention of 1988.
– Brussels I Regulation – Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. It applies among all the European Union except Denmark and replaces the Brussels Convention in the mutual relations between those States to which it applies. The Regulation includes the same rule as in the Brussels Convention. An agreement between the European Community and Denmark has been concluded to apply the provisions of the Brussels I Regulation to the relations of the European Community with Denmark on 19 October 2005, that entered into force on 1 July 2007.
– Brussels II bis Regulation – Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 on proceedings relating to divorce, legal separation and marriage annulment and those relating to parental responsibility over the children of both spouses on the occasion of matrimonial proceedings.
– EEO Regulation – Regulation 805/2004 creates a European Enforcement Order for uncontested claims, which means (Art. 5) that a judgment which has been certified as a European Enforcement Order in the Member State of origin shall be recognized and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition. The Regulation, just as the Brussels Regulation, also includes maintenance.
8
17 See footnote 10.
18 See footnote 13.
19 Without prejudice of the fact that the progressive aging of the population may give rise to a change in those terms.
20 The Conventions and the Explanatory Report of Michael Verwilghen, Actes et documents de la Douzième session (1972), Tome IV, Obligations alimentaires. In para. 1 of the Report it is pointed out that “there are few examples in the annals of the legal discipline of subject matter which has been made the subject of so many attempts of unification”. Available at < www.hcch.net > under “Publications” then “Explanatory Reports”.
21 See list of abbreviations under para. 13 of this Report.
22 Ibid.
23 Ibid.
24 Ibid.
– UIFSA – The Uniform Interstate Family Support Act (USA) of 1996. Developed by the National Conference of Commissioners on Uniform State Laws to provide for a uniform reciprocal process of the establishment and enforcement of child support obligations, across state lines. Amended in 2001.
– REIO – Regional Economic Integration Organisation.
– REMO – The “Commonwealth” scheme for recognition and enforcement of maintenance orders including provisional orders is embraced by most of the States of the British Commonwealth including by the territorial units of these States, e.g. Canadian provinces and territories and overseas dependant territories of the United Kingdom. Such bilateral agreements are negotiated between these jurisdictions and sometimes with third States such as Austria, Germany, Norway or the states of the United States.
– Montevideo Convention – Inter-American Convention on support obligations, adopted in Montevideo, on 15 July 1989. The States Parties in the Convention are Argentina, Belize, Bolivia, Brazil, Costa Rica, Ecuador, Guatemala, Mexico, Panama, Paraguay and Uruguay (see Annex 2 of Prel. Doc. No 3/2003).17
– “The Convention” – This refers to the text of the revised preliminary draft Convention (in Prel. Doc. No 2918), officially known as the preliminary draft Convention on the International Recovery of Child Support and other Forms of Family Maintenance.
III. General framework
14. The protection of children is one of the main concerns in international co-operation in general and in the Hague Conference on Private International Law in particular. And, in this context, maintenance is a fundamental element. It is true that problems of maintenance obligations can arise from other family relationships, parentage, marriage or affinity. But a great majority of claims related to maintenance obligations involve children.19 In the period which followed the end of the Second World War three Conventions were concluded on maintenance obligations. Firstly, the 1956 New York Convention. Secondly, in the Hague Conference on Private International Law, the 1956 Hague Maintenance Convention and the 1958 Hague Maintenance Convention. And those Conventions were renewed and broadened by the 1973 Hague Maintenance Convention (Enforcement) and the 1973 Hague Maintenance Convention (Applicable Law).20
15. It is worth underlining how the Hague Conference, in recent times, has successfully adopted several Conventions on the protection of children and adults, which include notably modern rules on the co-operation of authorities and of the recognition and enforcement of decisions. These Conventions are the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Child Abduction Convention”21), the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereinafter “the 1993 Hague Intercountry Adoption Convention”22), the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (hereinafter “the 1996 Hague Child Protection Convention”23) and the Hague Convention 13 January 2000 on the International Protection of Adults (hereinafter “the 2000 Hague Adults Convention”24). In the meantime, the New York Convention of 1989 on the Rights of the
9
25 Ibid.
26 In force in 193 States (as of 19 April 2007).
Child (hereinafter “the UN Convention on the Rights of the Child”25) also entered into force in a large number of States in the world. The current Convention on maintenance is in harmony with the principles in all of these Conventions and can be considered as a significant further step in the protection of children and adults.
IV. General layout of the preliminary draft Convention
16. The title of the preliminary draft Convention – Convention on the International Recovery of Child Support and other Forms of Family Maintenance – stresses the main objective of the Convention: to ensure that maintenance obligations are respected even though the creditor and debtor may be in different countries. And, to that end, child support is mentioned in the first place but, in the second place, other forms of family maintenance are also envisaged. In contrast to other Hague Conventions, in particular the 1996 Hague Child Protection Convention, the techniques which are envisaged (such as recognition and enforcement, co-operation) are not mentioned in the title. Besides being a more elegant title, it has the advantage of simplicity and of being distinct from the title of other Conventions on maintenance obligations.
17. The Preamble explains the main concerns and the thinking underlying the preparation of the Convention. A special mention is made of the UN Convention on the Rights of the Child.26 According to Article 2 of that Convention, the parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. And the Preamble of the preliminary draft Convention specially mentions Article 3 of the UN Convention on the Rights of the Child, which establishes that the best interest of the child shall be a primary consideration, and Article 27, which states the following:
“1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements”.
18. The Convention is divided into nine Chapters: Scope and definitions; Administrative co-operation; Applications through Central Authorities; Recognition and Enforcement; Enforcement by the requested State; Public bodies; General provisions; Final clauses.
19. Chapter I of the Convention (Scope and definitions) includes, firstly, the objects of the Convention. Secondly, Article 2 sets out the material scope of the Convention, discussed at length during the preparation of the Convention. Finally, Article 3 provides some definitions.
20. Chapter II (Administrative co-operation) contains provisions concerning Central Authorities, in particular, their designation, functions and costs. It also provides for requests for specific measures of assistance which are not applications.
10
27 A summary of these discussions can be read in “Report on the First meeting of the Special Commission on the International Recovery of Child Support and other Forms of Family Maintenance (5-16 May 2003)”, Prel. Doc. No 5 of October 2003, drawn up by the Permanent Bureau, pp. 27-29, paras 86-89 (hereinafter Prel. Doc. No 5/2003).
28 The discussion took place in the context of the description found in the Report, Prel. Doc. No 3/2003 (supra footnote 10), pp. 44-54, paras 103-134.
21. Chapter III (Applications through Central Authorities) specifies the types of applications which must be available under the Convention. It also describes the required contents of the applications and the procedures to follow for the transmission, receipt and processing of applications. In addition, Chapter III contains key provisions which are intended to guarantee effective access to procedures under the Convention.
22. Chapter IV includes only one article, Article 15, related to the limit on proceedings.
23. Chapter V (Recognition and enforcement) deals with the recognition and enforcement of decisions, which means the intermediate formalities to which recognition and enforcement of a foreign decision are subject before enforcement stricto sensu, which is the subject of Chapter VI (Enforcement by the requested State). Chapter VII (Public bodies) clarifies that for the purpose of recognition and enforcement under Article 10(1), “creditor” includes a public body in certain circumstances.
24. Chapter VIII contains the general provisions, while Chapter IX contains the final provisions.
V. Direct rules of jurisdiction
25. The subject of direct rules of jurisdiction was discussed from the beginning of the negotiations27 and took place at different moments thereafter. The discussions focussed on the questions of whether the inclusion of uniform rules would bring real and practical benefits to the international system, and whether it was realistic to expect that negotiations on the subject would produce agreement or consensus.28 There are two important areas of divergence in relation to current approaches to jurisdiction. First, in the case of jurisdiction to make original maintenance decisions, there is the divergence between on the one hand those systems which accepted creditor’s residence / domicile without more as a basis for exercising jurisdiction (typified by the Brussels / Lugano and Montevideo regimes), and on the other hand systems which insist upon some minimum nexus between the authority exercising jurisdiction and the debtor (typified by the system operating within the United States). Second, as described under Article 15, in the case of jurisdiction to modify an existing maintenance decision, there is the divergence between systems that adopt the general concept of “continuing jurisdiction” in the State where the original decision was made (see the United States model), and those which on the other hand accept that jurisdiction to modify an existing order may shift to the courts or authorities of another State, in particular one in which the creditor has established a new residence or domicile (see the regional systems mentioned above).
26. The experts considered a number of options, including the following:
a) That the attempt should be made to identify a common core of jurisdictional grounds on which there might be widespread agreement, beginning for example with defendant’s forum and submission to the jurisdiction, and then adding a creditor’s forum but subject to limitations necessary to satisfy the “due process” concerns of certain States.
b) That a common core of rules might be identified, including creditor’s forum, on the basis that this principle is widely accepted, but this might be combined with some kind of opt-out provision for States unable to accept a pure creditor’s forum.
c) That the search for uniform principles should be set aside, and concentration should be placed on developing an effective system of co-operation combined with indirect rules of jurisdiction for the purposes of recognition and enforcement of maintenance decisions or orders.
27. At the end of the first meeting of the Special Commission, further to a proposal supported by several experts, an informal working group on direct jurisdiction was
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29 Co-ordinated by Mr Matthias Heger, from Germany.
30 See Prel. Doc. No 5/2003, supra, footnote 27, at para. 94.
31 Ibid., at para. 147.
32 Ibid.
established29 to proceed on an exchange of views on the subject.30 However, since there was no consensus on this issue, the informal working group did not have any mandate to report to the Special Commission or the Drafting Committee.31
28. The agreements for and against including in the Convention direct rules of jurisdiction are summarised as follows in the “Report on the First meeting of the Special Commission on the International Recovery of Child Support and other Forms of Family Maintenance (5-16 May 2003)”32 at paragraph 88:
“88. The following is a distillation of the arguments expressed during the Special Commission meeting for and against including in the new instrument uniform direct rules of jurisdiction, whether in respect of the exercise of original jurisdiction or in respect of modification jurisdiction.
C. In favour of including direct rules of jurisdiction
(a) A uniform agreed set of jurisdictional rules would promote the goals of clarity, foreseeability and simplicity.
(b) Agreed jurisdictional standards will foster mutual confidence and provide a firm framework on which to build an effective system of administrative co-operation. Administrative authorities will find their work more difficult if they have to deal with foreign systems operating varying jurisdictional standards.
(c) Uniform direct rules of jurisdiction provide a firm foundation for a system of recognition and enforcement of maintenance decisions, and make it easier to operate simple and rapid procedures for recognition and enforcement.
(d) Uniform rules help to prevent duplication of litigation and the generation of multiple conflicting decisions. While this may not be a serious problem in relation to the exercise of original jurisdiction (especially where child support is concerned), it is a real problem in the context of jurisdiction to modify an existing order. It is difficult to devise rules which regulate modification jurisdiction without at the same time considering the grounds for exercising original jurisdiction.
(e) There is likely to be broad agreement in respect of certain heads of jurisdiction, such as defendant’s residence (however defined), or submission of the defendant to the jurisdiction. Also, the idea that the residence (however defined) of the creditor should found jurisdiction is very widely accepted.
(f) Where there is a situation in which it appears that many or most States would be able to agree on common rules of direct jurisdiction, the opportunity to reflect this in the new instrument should not be lost. The position of a minority of States that cannot join the consensus could be accommodated by an opt-out clause of some sort.
(g) If, as appears to be the case, the differences are small in terms of practice between those systems which do and those which do not without qualification accept a creditor’s jurisdiction, it ought to be possible to formulate jurisdictional principles which capture the large area of common ground.
(h) Uniform rules on jurisdiction in Hague Conventions provide a valuable model for reforms in national systems.
D. Against the inclusion of rules of direct jurisdiction
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33 Ibid., at para. 88.
34 The iSupport system is described in Info. Doc. No 1 “Development of an International Electronic Case Management and Communication System in Support of the Future Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance” of June 2006 for the attention of the Special Commission of June 2006 on the International Recovery of Child Support and other Forms of Family
(a) The absence at the international level of agreed jurisdictional standards has not in practice been a serious cause of concern, and is not a source of the major shortcomings currently experienced within the international system. For many States, harmonisation of direct rules of jurisdiction excites little interest.
(b) Experience has shown that, where different approaches to jurisdiction operate in different systems, where both are supported by principle, and where both seem to work well in practice and give satisfaction within their respective contexts, it may be extremely difficult to reach consensus on a uniform approach.
(c) The perceived advantages of a uniform system are not such as to justify the energy and time that would need to be devoted to the search for consensus, which may in any case be futile and may prolong negotiations unnecessarily. There is a danger that attention will be distracted away from the real practical problems, in particular putting in place an efficient and responsive system of administrative co-operation.
(d) A system of recognition and enforcement can operate successfully on the basis of indirect rules of jurisdiction, without the need to agree uniform direct rules. See for example the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions relating to Maintenance Obligations.
(e) The problems of multiple decisions arising from the exercise of modification jurisdiction may be ameliorated by means other than the elaboration of direct rules of jurisdiction, including for example by provisions relating to recognition and enforcement.
(f) The establishment of rules of direct jurisdiction at the international level which will inevitably differ in some respects from the rules adopted in regional instruments, raises the complex problem of “disconnection”, i.e. how to define the borderline between cases coming within the scope of the international and regional instruments respectively.
(g) Any disadvantages, in particular for the maintenance creditor, which may arise from the absence of uniform standards of jurisdiction, may be ameliorated by the introduction of an effective and efficient system of co-operation which maximizes the supports offered to the creditor regardless of the country in which the maintenance application is made.”
29. Over time, the balance of opinion among experts favoured leaving aside the general issue of uniform direct rules of jurisdiction. While many experts acknowledged the possible advantages of uniform rules, the preponderant view was that any practical benefits to be derived from uniform rules were far outweighed by the cost of embarking on a long, complex and possibly futile attempt to reach a consensus.33
VI. Information technology
30. The Preamble on the preliminary draft Convention states “that the States signatory to the present Convention are […] seeking to take advantage of advances in information technology and to create a flexible system which can continue to evolve as needs change and further advances in technology create new opportunities”. In that respect the Convention will invite the use of electronic funds transfers (Art. 31) and will be geared towards the use of cross-border electronic case management and communications systems such as the iSupport software that has been presented on several occasions to the Special Commission during the course of its work.34
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Maintenance. It is highly inspired by the iChild software which is now being implemented around the world in many Central Authorities under the 1980 Child Abduction Convention.
35 As a background to this language, the Drafting Committee took on board comments from the UNCITRAL Secretariat to the effect that at this point in time, very few judicial or administrative authorities deliver or accept electronic documents that meet in particular integrity, irrevocability and authentification requirements. Furthermore, where such electronic documents would be transmitted across borders, their in-chain secured electronic transmission through different intermediaries (e.g., the transmission of a decision from a judicial authority in State A to a judicial authority in State B through the requesting and requested Central authorities of States A and B respectively) could either be: a) complex, as the final recipient of the document would need a technology to be able to verify through the chain of communication the authenticity, integrity and irrevocability of the document; or, b) not possible at all, where the two States involved could be using two different electronic communication standards (e.g., Public Key Infrastructures (PKIs)).
36 Following the most recent Conventions prepared in the Hague Conference (Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights in respect of Securities held with an Intermediary (hereinafter “the 2006 Hague Securities Convention”), 2005 Hague Choice of Court Convention) a heading appears following the number of every article, thereby facilitating the readability and comprehension of the Convention.
31. The system would assist the effective implementation of the Convention and lead to greater consistency in practice in the different countries. The system would help significantly to improve communications between Central Authorities and alleviate translation problems and costs as it could operate in different languages. Such a system could assist the daily operations of the Central Authorities established under the Convention and help to improve standards of case management. The system could also generate the required statistics as part of the means of monitoring the operation of the Convention. In addition to the management and monitoring of cases, the system could provide instructions to banks with regard to electronic transfer of funds and could send and receive secured online communications and applications under the Convention.
32. In order to pave the way to these important developments, the Drafting Committee has taken great care to develop a text that would allow the implementation of technologies without endangering due process principles. In this regard, the Drafting Committee benefited to a large extent from the work of the Forms Working Group that examined the practical issues surrounding electronic communication of Forms and other accompanying documents. The result is a text that avoids as much as possible the use of terms such as “signature” (where what is usually needed is a simple identification), “writing”, “original”, “sworn”, and “certified”. Furthermore, exchange of views with the UNCITRAL Secretariat in relation to “authentication” issues helped to inspire new provisions on the transmission of documents and related information. Language has been added to Articles 12(2), 13, 21 and 26, further to the mandate of the Special Commission, to ensure that the language of the Convention is media-neutral, without altering its substance and thereby making possible the swift transmission of documents by the most rapid means of communication available (i.e. technology-neutral).
33. The aim of the language under Articles 12(2), 13, 21 and 26, is to ensure in a first stage the swift transmission (whatever the medium employed) of applications, including accompanying documents, between Central Authorities while recognising the need for sometimes making available at a later stage (most often probably for evidence purposes), either at the request of the requested Central Authority (Art. 12(2)), or at the request of the competent authority of the State addressed (Art. 21(3)) or upon a challenge or an appeal by the defendant (Art. 21(3)), a complete copy certified by the competent authority in the State of origin of any document specified under Article 21(1) a), b) and d), [and 26(2)].35
VII. Article-by-article commentary
CHAPTER I – OBJECT, SCOPE AND DEFINITIONS
Article 1 Object36
The object of the present Convention is to ensure the effective international recovery of child support and other forms of family maintenance in particular by –
34. The main objective of the Convention is to make internationally effective the recovery of maintenance and to the same end the Preamble underlines that the States
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37 See “Observations of the Drafting Committee on the text of the preliminary draft Convention”, Prel. Doc. No 26 drawn up for the attention of the Twenty-First Session of November 2007 (hereinafter Prel. Doc. No 26/2007), p. 3, under Art. 1.
38 See comments on Chapter V (Recognition and enforcement).
are “aware of the need for procedures which produce results and are accessible, prompt, efficient, cost-effective, responsive, and fair” for the recovery of maintenance.
35. This Article includes a list of the principal elements in the Convention. The list is not exhaustive, but only enumerates the measures that “in particular” could be adopted, meaning that there may be other possible measures that the States can adopt to improve the way in which the recovery of maintenance is effective.
36. Nothing in this Article precludes “direct requests” for maintenance (Art. 16(5)), but they are not mentioned in the Article. The reason is that it would be misleading to suggest that provision for “direct requests” is a primary object of the Convention.37 As to direct requests to competent authorities, see Article 34.
Paragraph a) establishing a comprehensive system of co-operation between the authorities of the Contracting States;
37. From the beginning of the preparation of the Convention there was a clear desire to establish strong co-operation between the authorities of the Member States, improving the system of the 1956 New York Convention. In this matter, the Hague Conference provides excellent examples with the 1980 Hague Child Abduction Convention and the 1993 Hague Intercountry Adoption Convention.
38. The rule in Article 1 a) is linked to the scope of the Convention (Art. 2). In fact, while the system of co-operation based on Central Authorities is established for the purpose of the international recovery of child support, its application to other forms of family maintenance may be limited according to the text of Article 2.
39. In previous drafts of the Convention a reference was made in paragraph a) to the fact that the system of the Convention includes the “establishment of parentage when required for such purpose”, i.e., where this is necessary for the effective recovery of maintenance. The arguments against this inclusion were that it is difficult in some systems for parentage to be established only for the purpose of maintenance and that the establishment of parentage is often a judicial matter. See the discussion in this Report on Article 6(2) h) and on Article 10(1) c). The solution in these Articles makes the reference in Article 1 a) no longer necessary. The Convention is not prejudging the effects that the legislation of the State gives to the establishment of parentage. It is an open solution that allows that in every State this question may be solved by the internal law.
Paragraph b) making available applications for the establishment of maintenance decisions;
40. This paragraph is intended to underline the fact that the Convention establishes a system of applications for the establishment or recognition of maintenance decisions and for other procedures that could be useful for the effective collection of maintenance. The available applications are set out in Article 10.
Paragraph c) providing for the recognition and enforcement of maintenance decisions; and
41. The reference in Article 1 c) of the Convention to the recognition and enforcement of maintenance decisions, is to those provisions of the Convention which are designed to facilitate and to simplify the interim measures to which a foreign decision is submitted (what is known as exequatur for judgments) before enforcement under national law may take place.38
Paragraph d) requiring effective measures for the prompt enforcement of maintenance decisions.
42. The Convention is not limited to the traditional procedure of exequatur, but also seeks truly to facilitate the execution of the decision, thereby making it effective and this
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39 See comments on Chapter VI (Enforcement by the requested State).
40 See Art. 26.
41 In this respect, see also comments on Chapter Art. 17(5), para. 502 of this Report.
42 Report of Meeting No 14, p. 2.
43 I.e. unless the two States concerned have made a declaration extending Chapters II and III to spousal support, in accordance with Art. 58.
objective is underlined in paragraph d). But the wording of this provision cannot go further, as specific measures are not required by the Convention. The precise enforcement measures necessary to meet the broad requirements of effectiveness and promptness are a matter for individual Contracting States.39
43. This provision may need to be amended if authentic instruments and private agreements are to be covered by the Convention.40
Article 2 Scope
44. Article 2 defines the material scope of the Convention in a positive way by stating to which cases it applies. The Article begins by describing the core maintenance obligations to which the whole of the Convention applies (para. 1), followed by the obligations to which the Convention, or parts of the Convention may be extended by declaration (para. 2), adding in paragraph 4, a rule for the application of the Convention to claims by a public body. Finally, the rule of paragraph 3 is in brackets, for the reasons explained below.
Paragraph 1 – This Convention shall apply to maintenance obligations arising from a parent-child relationship towards a child under the age of 21 [including claims for spousal support made in combination with claims for maintenance in respect of such a child] and, with the exception of Chapters II and III, to spousal support.
45. Paragraph 1 describes the core maintenance obligations to which the whole of the Convention applies and these are maintenance obligations arising from a parent-child relationship towards a child under the age of 21. There are no doubts on this point, accepted by all delegations. The effect of the reference to the age of 21 is different from that in other Conventions on the protection of children (1996 Hague Child Protection Convention or the UN Convention on the Rights of the Child) and in the 1973 Hague Maintenance Convention (Enforcement) and Article 1 of the 1973 Hague Maintenance Convention (Applicable Law). It does not mean that States are obliged to modify internal rules if the limit for according maintenance in respect of children is below 21. Nor does it mean that States are obliged to modify the age of majority. Paragraph 1 merely fixes the scope of application of the Convention. The only obligation under the Convention will be to recognise and enforce a foreign decision until this age.41
46. During the Special Commission meeting in June 2006, some concerns were expressed about the situation of spousal support under the Convention.
47. Firstly, there is the situation where a claim for spousal support is made in combination with the claim for maintenance in respect of such a child.42 For the moment, this possibility is kept in brackets as at least for one delegation the Convention’s mandatory scope should apply only to children. The words “in combination with” have to be understood as “related” or “linked” to child support, regardless of whether the spousal support is claimed together with the child support, because in some countries spousal support is applied for at the same time as child support but in others not.
48. Secondly, there is the question of the more general application of the Convention to spousal support. After long discussion, it was accepted that the Convention should apply to spousal support, but that the application of Chapters II and III would not be mandatory. That means that the system of administrative co-operation and assistance between the authorities of the Contracting States will not necessarily apply43 for these cases, but that the system of recognition and enforcement will apply, as well as all the other rules included in the Convention.
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44 See also the debate around Art. 19 a) and comments under para. 510 of this Report.
45 See comments to Art. 33 in this Report.
Paragraph 2 – Any Contracting State may declare in accordance with Article 58 that it will extend the application of the whole or any part of the Convention to any maintenance obligation arising from a family relationship, parentage, marriage or affinity. Any such declaration shall give rise to obligations between two Contracting States only in so far as their declarations cover the same maintenance obligations and parts of the Convention.
49. Although a broad majority of States were in favour of a large scope of application for the Convention, other States have constitutional problems, related to the internal distribution of competences, that prevent them from accepting the application of the Convention in general to maintenance obligations in respect of any of the specified family relationships or relationships based on affinity, other than maintenance obligations in respect of children.
50. This is why the draft of paragraph 2 includes a rule according to which the States “may” declare the extension of the application of the whole or of any part of the Convention to maintenance obligations in res