Conflict of Laws header image

The Hague Conference on Private International Law reports that the Hague Convention of 13 January 2000 on the International Protection of Adults will enter into force on January 1st, 2009.

This is because a third country, France, has ratified the Convention on September 18th, 2008. There are thus three countries which ratified the Convention: France, Germany in 2007 and the U.K., but for Scotland only, in 2003. Pursuant to article 57 of the Convention, this is what was necessary to trigger the entry into force in those states on the first day of the third month after the third ratification.

On the same date, the Convention was also signed by five new states: Finland, Greece, Poland, Ireland and Luxembourg.

There are now ten signatories altogether. They may eventually all ratify the Convention. If they do not, will someone assess the efficiency of the whole enterprise? This is a lot of transaction costs for harmonizing the law of three states only.

UPDATE: for a discussion of whether the Convention applies in England and Wales irrespective of the fact that the UK only ratified the Convention for Scotland, see below the comments of Michelle S. de Bruin.

Comments on this entry are closed.

  • Richard Frimston September 21, 2008, 5:05 pm

    This is great news.
    The Hague website has still not included the fact that in addition to Scotland in the UK, England & Wales ratified the convention by virtue of the Mental Capacity Act 2005 with effect from 1 October 2007.
    It is good to know that the introduction of the mandat de protection future in France will coincide with the ratification of the Hague Convention.

  • Gilles Cuniberti September 21, 2008, 8:25 pm

    Thanks for the info.

    I must say that it is quite surprising to hear that England can ratify a treaty by virtue of a mere domestic act. From an international law perspective, wouldn’t at least a notification to the Hague Conference be needed?

  • Michelle S de Bruin September 22, 2008, 9:07 am

    Gilles is correct. Article 53 of the 2000 Convention provides the usual clause in relation to the ratification of a Hague Convention. It states:
    1. The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law on 2 October 1999.
    2. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.
    The status table (see http://www.hcch.net/index_en.php?act=conventions.status&cid=71 )
    for the Convention shows that Scotland ratified the Convention in 2003, but states ‘ratification for Scotland only.’
    England and Wales have not yet deposited instruments of ratification.
    It may well be the case, however, that the same (or similar) provisions have been inserted in the Mental Capacity Act, 2005 in advance of the deposit of the said instruments. Can anyone provide clarification on this?

  • Michelle S de Bruin September 22, 2008, 9:40 am

    The preamble to the 2005 Act states that it is:
    An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.

    The explanatory notes on the Mental Capacity Act, 2005 (available at http://www.opsi.gov.uk/ACTS/acts2005/en/ukpgaen_20050009_en.pdf shed some more light on the issue.

    Section 63: International Protection of Adults
    This introduces Schedule 3 which makes provision as to the private international law of England and Wales in relation to persons who cannot protect their interests. For example it determines which jurisdiction should apply when a national of one country is in another.

    Schedule 3: International protection of adults
    This makes provision as to the private international law of England and Wales in relation to persons who cannot protect their interests. In particular, it gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm. 5881) (the “Hague Convention”) (the text of which is available at: http://www.hcch.net/e/conventions/menu35e.html

    It should be noted that for the purposes of the Hague Convention, England and Wales, Scotland and Northern Ireland are treated separately because they constitute separate jurisdictions. The provisions of Schedule 3 are intended to be compatible with the provisions of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 which provided for the private international law of Scotland in this field and implemented the Hague Convention for Scotland. Scotland is as yet the only country to have ratified the Convention, which will enter into force only once it has been ratified by three states. However, Schedule 3 provides private international law rules to govern jurisdictional issues between Scotland and England/Wales, irrespective of whether the Convention is in force.

  • Gilles Cuniberti September 22, 2008, 9:50 am

    So, are you saying that, in effect, the Mental Capacity Act incorporates the Hague Convention into the legal system of England & Wales, while on the international plane, the Convention is deemed unapplicable in these two jurisdictions ?

    Could that mean that the Convention would apply in England and Wales at once, and thus before it would actually apply in the three states which ratified the Convention?

  • Jan von Hein September 22, 2008, 10:27 am

    The legal status of England and Wales as contracting states of the Hague convention seems to be ambiguous, to put it mildly. On the one hand, England made a declaration in 2003 which states the following: “The United Kingdom declares, in accordance with Article 55, that the Convention shall extend to Scotland only, and that it may modify this declaration by submitting another declaration at any time.”. Two years later, the Mental Capacity Act 2005 provided in section 63: “International protection of adults
    Schedule 3—
    (a) gives effect in England and Wales to the Convention on the
    International Protection of Adults signed at the Hague on 13th January
    2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and
    (b) makes related provision as to the private international law of England
    and Wales.”
    If we assume that the website of the Hague Conference is up to date, perhaps the simple explanation for the confusion is that the United Kingdom has up to now failed to extend or to withdraw its “Scotland-only”-declaration of 2003, although the Act of 2005 was meant to “give effect” to the Hague convention. For other contracting states (e.g. Germany and France), this leads to the intricate question whether the habitual residence of an adult in England should be considered as sufficient to trigger the application of the convention or whether England should be treated as a non-contracting state.

  • Richard Frimston September 28, 2008, 8:38 pm

    The Ministry of Justice have clarified the position. The United Kingdom has under Article 55 declared that its ratification only extends to Scotland. This is so notwithstanding the fact that section 63 of the Mental Capacity Act 2005 (the Act) specifically states that Schedule 3 of the Act gives effect in England and Wales to Convention XXXV (in so far as the Act does not otherwise do so), and makes related provision as to the private international law of England and Wales.

    SI 2007/1897 makes it clear that both section 63 and Schedule 3 have taken effect from 1 October 2007 save that by paragraph 35 of the Schedule to the Act, paragraphs 8 [jurisdiction in relation to non residents], 9 [jurisdiction in relation to convention countries], 19(2) and 19(5) [protective measures made by convention countries], Part 5 [co-operation with convention countries], and paragraph 30 [Article 38 certificates given by convention countries] only come into force, when Convention XXXV itself enters into force under Article 57.

    However this does not mean that England & Wales has ratified. The existing declaration under Article 55 still operates and although Convention XXXV is effective in England & Wales, England & Wales has not yet actually ratified the Convention.

    Paragraphs 8, 9, 19(2) and 19(5), Part 5, and paragraph 30 however are not limited to coming into force solely when England & Wales ratifies, but only when Convention XXXV itself enters into force. Therefore these provisions will also come into force in England & Wales on January 1 2009. Convention XXXV therefore will have full effect in England & Wales from January 1 2009, but for the purposes of the law in Scotland, France or Germany, England & Wales has not ratified.

    The UK Ministry of Justice has made it clear that “England & Wales is committed to extending Convention XXXV as soon as possible. The work for this is under way“.

    Schedule 3 does of course now set out the private international law in England & Wales and therefore in addition to setting out the rules for jurisdiction and recognition in England & Wales Schedule 3 also sets out the applicable law and therefore the rules as to which lasting powers are or are not valid. A lasting power validly made in South Australia by a person habitually resident in South Australia is now valid whenever the power was made. An English Enduring Power of Attorney made by a person habitually resident in a state where such powers are not valid, may now be invalid, even if made at a time when Schedule 3 to the Act did not apply.

    The difficulty that Schedule 3 extends Convention XXXV to the applicable law issues of Lasting Powers not only of adults subject to incapacity but also to all Lasting Powers, including those of persons not subject to incapacity remains. Other ratifying states will not recognise this extension of the Convention.

  • Peter Beaton November 27, 2008, 5:50 pm

    As someone who was closely involved with the ratification by the UK of the Convention in 2003 I can confirm definitively that that ratification was only and was only intended to be for Scotland since at that time legislation in the form of the Adults with Incapacity(Scotland) act had been passed by the Scottish Parliament with specific provisions to enable the Convention to apply in Scotland as well as providing rules of PIL for Scotland on the matter.
    The intention was and remains that so soon as legislative provision has been made in the other law districts of the UK that further Ratification by the UK will take place with the aim of ensuring application of the Convention for the UK as a whole. It is gratifying to note that this step has moved closer with the passage of the legisaltion for England and Wales. What, by the way, isa the situation for Northern Ireland does anyone know? This may be significant indeed given that Ireland has signed the Convetion and it is likely that the Irish legisltion will enable ratification reasonably soon.
    Incidentally I gather also that Switzerland is likely to ratify the Convnetin early in 2009.

  • AF September 7, 2010, 9:11 am

    When reading the above comments, for clarification, it should be made clear that the Ministry of Justice does not act on behalf of the United Kingdom. The Ministry of Justice acts only on behalf of the jurisdiction of England & Wales. In Scotland the appropriate ministry is the Scottish Government Justice Directorate. I cannot answer for Northern Ireland, which is also a separate jurisdiction.

    Matters concerning Private International Law are the responsibility of the Scottish Government; however, negotiations for ratification purposes are carried out on behalf of all three United Kingdom jurisdictions by the UK Foreign and Commonwealth Office, following consultation with, where necessary, the appropriate ministries of Scotland and Northern Ireland. The Foreign and Commonwealth Office is the British government department responsible for promoting the interests of the United Kingdom overseas

    Scotland ratified the Convention separately from the other UK jurisdictions, and ratification was carried out on behalf of Scotland by the UK Foreign and Commonwealth Office.

    Enquiries in Scotland on the operation of the Convention should be made to the Scottish Government Justice Directorate and not the Ministry of Justice for England & Wales.

    Any reference to the UK Ministry of Justice should be construed as a misnomer.

  • Richard Frimston September 8, 2010, 5:06 pm

    The judgment of Hon. Mr. Justice Hedley in the case of Re MN of July 30, 2010 is the first reported Anglo-Welsh decision relating to cross border capacity issues, since the advent of Sch. 3. of the Mental Capacity Act 2005. The case involved the removal of MN from California to England by PLN under a Californian Advance Health Care Directive. After the removal, the Californian court made orders appointing DD as a permanent conservator and directing the return of MN to California.
    The judgement comes to two interesting conclusions.
    1. The removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence. The wrongful removal of an incapacitated adult should have the same consequence.
    2. If habitual residence had not been changed and the Californian court had jurisdiction, the question was raised as to whether s.1(5) MCA2005 requiring an act to be done in a person’s best interests, was a mandatory provision for the purposes of Sch.3, para 19(4)(b). The court decided that it was not, but that under Sch.3 para.12, the conditions of implementation of the foreign order would be subject to the whole of the MCA2005, including s.1(5).
    The case will be the first of many and will deserve a full article.

    It will be great as and when we can get England & Wales to ratify Hague Convention XXXV. Unlike the devolved Scottish powers, sadly we do not yet have any Ministries for England & Wales. We have to struggle on with the Ministries of the United Kingdom Government including the Ministry of Justice and try to persuade them of the value of ratification for England & Wales.

  • A Fay October 16, 2010, 9:59 pm

    Does anyone know if the Hague Convention is relevant to the protection of a dual national (UK, FR) adult woman, protected under French law by a curatelle, and who has lived in France for many years, and who may be pressurised by her husband to move to Scotland against her better interests?
    If a person is protected in France, are they automatically protected in Scotland? Are the two countries’ authorities obliged to liaise on case? Does Scottish law respect such a person’s mariage contract established in France?

  • Richard Frimston October 17, 2010, 6:35 pm

    Certainly. You could have a look at the Adults with Incapacity (Scotland) Act 2000 which deals with the ratification of the Hague Convention into Scots Law.

    Section 39 of the Family Law (Scotland) Act 2006 deals with the recognition of matrimonial property regimes under Scots law.

    The UK Ministry of Justice has not yet had to consider whether the UK will opt in to the forthcoming EU Rome IV Regulation (previously known as Brussels III) on PIL and matrimonial property regimes when it is published next year. The forthcoming decision of the UK Supreme Court in Radmacher v Granatino on 20 October 2010 should not affect Scots law, but may well set out Anglo Welsh PIL on this issue.

  • AF October 19, 2010, 11:23 am

    The answer really depends on who has been appointed as the Guardian for the incapable adult. If the husband is the Guardian then the question must be, there are measures in place in France to prevent him from taking any action which might be detrimental to his wife? I do not know how the system of Guardianship works in France, or how one party may be prevented from removing a vulnerable adult from France.

    If a person is protected in France, they are automatically protected in Scotland. However these protections extend only to property and the welfare of the vulnerable adult. If it is the case that a foreign national is residing in Scotland and someone wishes to take measures, either in France or in Scotland, to protect their interests, this can be done.

    Before any measures can be taken, the Central Authorities of both countries are obliged to liaise with each other to determine the best interests of the vulnerable adult.

    However, if a vulnerable adult is removed to Scotland against their will, the protections afforded under the Hague Convention might not extend to a forcible return to France if wrongfully removed.

    The marriage entered into in France does not need any formal recognition in Scotland.

    If you are in the UK, perhaps you should contact the designated person at the Central Authority for Scotland for further advice.

  • AF October 19, 2010, 3:17 pm

    Richard.

    The UK will opt out of any Regulation on the creation of a European Certificate of Succession. It has been strongly opposed in Scotland.

  • Lisa Ball February 4, 2011, 8:03 pm

    Please can you tell me if Switzerland ratified the agreement ?
    Thank you.

  • Richard Frimston February 4, 2011, 9:36 pm

    Certainly. The Hague website HCCH gives all the details. The convention came into force on 1 January 2009 and Switzerland’s ratification had effect from 1 July 2009. It is good to see that Finland has ratified with effect from 1 March 2011 and Estonia acceded with effect from 1 November 2011. We are hopeful that Ireland and Austria and also possibly Northern Ireland may ratify this year. We still wait for England & Wales to follow Scotland’s good example. The Office of the Public Guardian in England & Wales is still considering issues and is yet to be persuaded that this is a significant issue.
    However the subtle differences even between jurisdictions that have ratified continue to create interest and discussion.

    A fascinating and fast changing area of PIL.