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The 1996 Hague Convention on the Protection of Children


ISBN13: 9781846615313
Published: November 2012
Publisher: Family Law
Country of Publication: UK
Format: Paperback
Price: £55.00



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The 1996 Hague Convention comes into force in the United Kingdom on 1 November 2012 and is intended to improve the protection of children in international situations.

It provides for the recognition and enforcement within all Contracting States of widely defined measures directed to the protection of a child’s person and property and aims to establish the necessary co-operation between the authorities of such States in order to achieve this purpose.

To that end, the ambit of the Convention extends to parental responsibility orders, the appointment of guardians and special guardians, residence, contact, specific issue and prohibited steps orders, and also care and supervision orders.

This book provides a comprehensive guide to the complexities of the 1996 Convention, including detailed coverage of the relationship with other international instruments such as the revised Brussels II Regulation. The Appendices contain all relevant source material including the full text of the Convention.

Subjects:
Family Law
Contents:
Chapter 1 - INTRODUCTION, HISTORY AND OVERVIEW
Introduction
Origins of the Convention
Objectives and Framework of the Convention
Interpreting the Convention
The application of the Vienna Convention on the Law of Treaties
Important aids to interpretation
Travaux préparatoires and the explanatory report
Handbook
The Contracting States
The distinction between ratifications and accessions
Lack of competence of individual EU States to ratify/accede
The position in the United Kingdom
The position in Australia
Implementing legislation
The Australian experience of the 1996 Convention
Reservations
Denunciations
Convention not retrospective
The Relationship of the 1996 Convention to Other International Instruments
The application of the revised Brussels II Regulation
Applicable law
Jurisdiction

Chapter 2 - THE SCOPE OF THE CONVENTION
The children to whom the Convention applies
Non application to unborn children
Application to children up to the age of 18
No requirement that children be habitually resident in a Contracting State
The measures of protection covered by the Convention
The meaning of ‘measures’
The matters covered by the Convention
The attribution, exercise, termination, restriction and delegation of parental responsibility
Rights of custody and access
Guardianship, curatorship and analogous institutions
The designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child
Placing a child in foster or institutional care or the provision of care by Kafala or analogous institution
Public authority supervision of the care of a child by any person having charge of the child
The administration, conservation or disposal of the child’s property
The matters not covered by the Convention
Establishing or contesting a parent-child relationship
Decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption
Names and forenames of the child
Emancipation
Maintenance obligations
Trusts or succession
Social security
General public measures on education or health
Measures taken as a result of penal offences committed by children
Decisions on the right of asylum and immigration
The application of the Convention in the United Kingdom

Chapter 3 - THE JURISDICTIONAL RULES
Introduction
Pre-eminence accorded to courts of the child’s habitual residence
The meaning of ‘habitual residence’
The position where the child’s habitual residence changes
Commentary
Jurisdictions based on presence
Refugee and displaced children etc
Jurisdiction to take measures in cases of urgency
The general power
Meaning of ‘urgency’
What measures of protection may be taken
Jurisdiction to take provisional measures
The interplay between Articles 11 and 12
The position in the UK where time for appealing has not expired etc
Transferring Jurisdiction
The general power of transfer
The procedure in England and Wales
Some practical issues
Commentary
Jurisdiction of authority seised of matrimonial proceedings
Duration of Measures

Chapter 4 - APPLICABLE LAW
The general position
The position with regard to parental responsibility
The Convention scheme
Attribution and extinction of parental responsibility
The basic position
The position upon a change of habitual residence
The exercise of parental responsibility
Termination and modification
The application of public policy
Protecting third parties
The application of private international law
Illustrative examples of applying the parental responsibility provisions
Application of Articles 16-18 in the UK context
Commentary

Chapter 5 - RECOGNITION AND ENFORCEMENT
The Basic scheme
Recognition or enforcement
Recognition
Advance recognition
Enforcement
The Convention scheme
Commentary
Refusing recognition or enforcement
The position in England and Wales
Applications for recognition, non recognition and enforcement
Court orders
Appeals

Chapter 6 - CO-OPERATION
Central Authorities
Designation and establishment
Mandatory duties of co-operation and provision of information
Contemplating placement of a child abroad
Provision of information where a child is in serious danger
Discretionary duties
Requests for reports and information
Safeguarding rights of access
Personal data
Costs
The position in the United Kingdom
The designated Central Authorities
Requests for information received under Article 31(c)
Power to request a report on a child’s situation
Requirement to provide a report
Power to respond to an Article 34 request
Power of court in Northern Ireland to authorise disclosure
Services under Article 35

Chapter 7 - THE IMPACT OF THE 1996 CONVENTION ON INTERNATIONAL CHILD ABDUCTION
Introduction
The application of the 1996 Convention where no other international instrument applies
The inter-relationship with the 1980 Hague Abduction Convention
The impact in the context of return applications
The applicable law provisions
The impact of Articles 7 and 13 of the 1996 Convention
The use of protective orders
The pros and cons on invoking the 1996 Convention rather then the 1980 Convention
The impact in the context of access applications
The inter-relationship with the revised Brussels II Regulation

Chapter 8 - OVERALL CONCLUSION