BUILDING AN INTERNATIONAL CHILD PROTECTION SYSTEM The Hague

BUILDING AN INTERNATIONAL CHILD PROTECTION SYSTEM & The Hague 1996 Child Protection Convention Georgetown, Guyana 14, 2016 Ignacio Goicoechea Representative for Latin America and the Caribbean Hague Conference on Private International Law

WHY BUILD AN INTERNATIONAL CHILD PROTECTION SYSTEM?

General background Ø Globalization Ø Constant increase of situations where the effective protection of children requires coordinated actions of more than one “National Child Protection System” Ø Examples: i) cross border family conflicts (custody, access, relocation, abduction, filiation, child support); ii) Victims of trafficking and abuse (abandonment, domestic violence, sexual exploitation, sale, etc. ) iii) non accompanied children (children institutionalized abroad; children that are being deported) iv) international placements and intercountry adoptions.

Limitations of national child protection systems Ø jurisdiction to intervene Ø access to justice for the parties (legal representation, interpretation, etc. ) Ø access to foreign law Ø service of process and taking of evidence abroad Ø recognition and enforcement of protective measures Ø locate family, provide social services, etc.

Remedy: develop international cooperation Ø Objective Ø articulate cooperation among the different national child protection systems. Ø Tools Ø International conventions, to provide the legal basis for such cooperation (global, regional and bilateral, levels available). Ø International networks provide the means to make it efficient. Ø Judges Networks Ø Central Authorities & Contact points

Giving effect to Human Rights 1989 UN Convention on the Rights of the Child Articles 9(3) and 10(2) UNCRC Children whose parents do not live together have the right to stay in contact with both parents, except where contrary to the child’s best interests Article 11 UNCRC States Parties shall take measures to combat the illicit transfer and non-return of children abroad (promotes conclusion of bilateral or multilateral agreements or accession to existing agreements) Article 21 UNCRC For adoption, the best interests of the child shall be the paramount consideration (promotes conclusion of bilateral or multilateral agreements, which ensure that the placement of the child in another country is carried out by competent authorities) Child Abduction & Child Protection Conventions Child Abduction Convention Adoption Convention Article 27(4) UNCRC States Parties shall take all appropriate measures to secure the recovery of maintenance for the child (promotes accession to international instruments or the conclusion of such agreements) Child Support Convention Article 35 UNCRC States Parties shall prevent abduction of, sale of, or traffic in children (requiring all appropriate national, bilateral and multilateral measures to be taken) Child Abduction, Adoption & Protection Conventions

The Hague Children Conventions Ø Ø 25 October 1980 Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention) – 95 Contracting States 29 May 1993 Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (Intercountry Adoption Convention) – 96 Contracting States 19 October 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (Child Protection Convention) – 44 Contracting States 23 November 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention) – 33 Contracting States

Challenges: the long path for the convention to protect a child… Development of an International Convention The State decides to incorporate the Convention State adjusts its legal system to implement the Convention State becomes party to the Convention Prospective users are informed about the existence and benefits of the Convention Operators of the Convention are trained in its use The Convention benefits children

THE HAGUE 1996 INTERNATIONAL CHILD PROTECTION CONVENTION

1996 Child Protection Convention Objectives (Preamble, Art. 1): Ø Provide for the better protection of children in cross-border situations Ø Avoid conflicts between legal systems in decisions concerning child protection – all PIL aspects covered: jurisdiction, applicable law, recognition and enforcement, cooperation Ø Does not seek to regulate national laws and procedures on parental responsibility or placement of children Ø Confirms that the best interests of the child is paramount when it comes to child protection

Situations covered by the 1996 convention 1) Cross border family disputes (custody, access, relocation, parental responsibility). 2) International Child Abduction. 3) Unaccompanied children. 4) Victims of trafficking and abuse. 5) International placements.

Unaccompanied children & victims of trafficking and abuse Benefits provided by the 1996 Convention Ø CAs shall provide assistance in discovering the whereabouts of a child (Art. 31(c)). Ø CAs shall provide report on the situation of the child (Art. 32). Ø Authorities in Contracting States where the child is present can take urgent measures of protection with effect in any State (Art. 11). Ø The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of measures of protection taken under this Convention (art. 35) Ø Measures of protection taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States (Art. 23).

The hague 1996 convention has been recommended: Ø As a way of implementing the CDN Convention (Children Rights Committee – General Observation Nº 5 General implementation measures(CRC/GC/2003/5). October 3, 2003 (In the Annex to this observation, the Committee encourages the ratification of the 1996 Convention) Ø For the protection of unaccompanied minors (International Social Service – Fact Sheet - Special Series on Unaccompanied Minors) Ø For the placement of children abroad in foster care or institutional care (“United Nations Guidelines for the alternative care of children -par. 138 -) Ø As a complement to the 1980 Child Abduction and 1993 Intercountry Adoption Conventions (Special Commissions meetings that review the operation of these Conventions)

MANY THANKS ! Ignacio Goicoechea Representative for Latin America and the Caribbean Hague Conference on Private International Law E-mail: ig@hcch. nl http: //www. hcch. net