Cooperative Efforts in Private International Law on Behalf of Children: The Hague Children's Conventions
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These lectures, entitled “Cooperative Efforts in Private International Law on Behalf of Children”, focus on three child-centred Conventions produced by the Hague Conference on Private International Law: the 1980 Convention on the Civil Aspects of International Child Abduction, the 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The three modem “Children” Conventions of the Hague Conference mark something of a shift in approach by the Conference, which has, since its revitalization in the 1950s, attempted to unify the rules of private international law The work of the Conference has concentrated on the issues of choice of law and the allocation of jurisdiction covering a range of subjects, including commercial law, products liability, and civil procedure. Family law matters have also been the subject of numerous Hague conventions, including conventions on marriage, divorce, support, adoption, protection of children, and matrimonial property, although with the exception of the conventions on support, these conventions were not widely adopted and as a result were not particularly successful. The “jurisdiction” and “choice of law” model used for other Hague Conventions seemed too theoretical and abstract to address cross-border family law issues; at the same time, obtaining agreement on “substantive” provisions among countries with very different cultural and legal traditions seemed even less likely to achieve success. What, seemed to be called for was something of a new approach. The first such attempt in the family law field was the Hague Convention on the Civil Aspects of International Child Abduction of 1980. Building on several of the “modem” civil procedure conventions which instituted the mechanism of a Central Authority to undertake certain tasks to effectuate particular Convention provisions, the Abduction Convention adopted a structure of formal cooperation to assist foreign applicants in locating children who were wrongfully removed or retained. In addition, the Convention created a judicial remedy to achieve the return of a child if informal or voluntary returns could not be achieved. With the success of the Abduction Convention, the Hague Conference directed its efforts towards preparation of a convention on intercountry adoption. The prior 1965 Hague Adoption Convention was of limited utility and had very few ratifications. The primary goals of this new Convention were to establish channels of communication between “sending” and “receiving” countries, to achieve co-operation between these countries and to assure substantive safeguards in intercountry adoption. The system of co-operation established in the Abduction Convention offered a precedent for a new Adoption Convention, which introduced co-operative efforts for intercountry adoption. The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption presented other unique features. First, it offered protection to children (and others) in two domestic systems—that is, in both the sending and receiving States Second, it introduced substantive requirements that were to be respected before any intercountry adoption could take place or be recognized. This latter feature gave the 1993 Adoption Convention some characteristics of a “human rights” convention. The most recent “Children’s Convention” was a revision and reworking of the 1961 Convention on the Protection of Minors finalized in 1996. The formal title of the new Convention is Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, but it is usually referred to as the 1996 Protection of Children Convention or, more simply, the 1996 Protection Convention. This Convention, unlike the Abduction and Adoption Conventions, is a jurisdiction and recognition of judgments convention; it establishes a set of international standards for the exercise of jurisdiction in child protection matters and requires enforcement of judgments exercised in accordance with those standards. It differs from the Abduction Convention in that the Abduction Convention merely establishes a remedy to preserve the pre-abduction status by returning a wrongfully removed child to its habitual residence. Moreover, provisions for co-operation and communication—important features of the Abduction Convention—are also part of the 1996 Protection Convention. The three “Children’s Conventions” are intended to be operational—that is, they provide specific rules and institute particular mechanisms to achieve their objectives. In that sense, these Conventions are a contrast to the United Nations Convention on the Rights of the Child which is aspirational in character and less likely to have a direct impact on day-to-day cross-border issues relating to children. However, the Hague Conventions do have an important synergy with the UN Convention in that they help to implement many of the goals of that Convention. Moreover, the Hague Conventions themselves have helped to identify a set of international norms for addressing children’s issues in transnational cases.
Source Publication
Recueil des Cours: Collected Courses of the Hague Academy of International Law—2006
Source Editors/Authors
Linda J. Silberman
Publication Date
2008
Volume Number
323
Recommended Citation
Silberman, Linda J., "Cooperative Efforts in Private International Law on Behalf of Children: The Hague Children's Conventions" (2008). Faculty Chapters. 1425.
https://gretchen.law.nyu.edu/fac-chapt/1425
