Last week, the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children organized an international judicial conference in Washington DC on cross-border family relocation. The opening remarks of the president of the Centre can be found here.
The following Declaration was then adopted:
On 23-25 March 2010, more than 50 judges and other experts from Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the United States of America, including experts from the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children, met in Washington, D.C. to discuss cross-border family relocation. They agreed on the following:
Availability of Legal Procedures Concerning International Relocation
1. States should ensure that legal procedures are available to apply to the competent authority for the right to relocate with the child. Parties should be strongly encouraged to use the legal procedures and not to act unilaterally.
Reasonable Notice of International Relocation
2. The person who intends to apply for international relocation with the child should, in the best interests of the child, provide reasonable notice of his or her intention before commencing proceedings or, where proceedings are unnecessary, before relocation occurs.
Factors Relevant to Decisions on International Relocation
3. In all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.
4. In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case:
i) the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest;
ii) the views of the child having regard to the child’s age and maturity;
iii) the parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment;
iv) where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation;
v) any history of family violence or abuse, whether physical or psychological;
vi) the history of the family and particularly the continuity and quality of past and current care and contact arrangements;
vii) pre-existing custody and access determinations;
viii) the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;
ix) the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;
x) whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden to the child;
xi) the enforceability of contact provisions ordered as a condition of relocation in the State of destination;
xii) issues of mobility for family members; and
xiii) any other circumstances deemed to be relevant by the judge.
5. While these factors may have application to domestic relocation they are primarily directed to international relocation and thus generally involve considerations of international family law.
6. The factors reflect research findings concerning children’s needs and development in the context of relocation.
The Hague Conventions of 1980 on International Child Abduction and 1996 on International Child Protection
7. It is recognised that the Hague Conventions of 1980 and 1996 provide a global framework for international co-operation in respect of cross-border family relocations. The 1980 Convention provides the principal remedy (the order for the return of the child) for unlawful relocations. The 1996 Convention allows for the establishment and (advance) recognition and enforcement of relocation orders and the conditions attached to them. It facilitates direct co-operation between administrative and judicial authorities between the two States concerned, as well as the exchange of information relevant to the child’s protection. With due regard to the domestic laws of the States, this framework should be seen as an integral part of the global system for the protection of children’s rights. States that have not already done so are urged to join these Conventions.
8. The voluntary settlement of relocation disputes between parents should be a major goal. Mediation and similar facilities to encourage agreement between the parents should be promoted and made available both outside and in the context of court proceedings. The views of the child should be considered, having regard to the child’s age and maturity, within the various processes.
Enforcement of Relocation Orders
9. Orders for relocation and the conditions attached to them should be able to be enforced in the State of destination. Accordingly States of destination should consider making orders that reflect those made in the State of origin. Where such authority does not exist, States should consider the desirability of introducing appropriate enabling provisions in their domestic law to allow for the making of orders that reflect those made in the State of origin.
Modification of Contact Provisions
10. Authorities in the State of destination should not terminate or reduce the left behind parent’s contact unless substantial changes affecting the best interests of the child have occurred.
Direct Judicial Communications
11. Direct judicial communications between judges in the affected jurisdictions are encouraged to help establish, recognise and enforce, replicate and modify, where necessary, relocation orders.
12. It is recognised that additional research in the area of relocation is necessary to analyse trends and outcomes in relocation cases.
Further Development and Promotion of Principles
13. The Hague Conference on Private International Law, in co-operation with the International Centre for Missing and Exploited Children, is encouraged to pursue the further development of the principles set out in this Declaration and to consider the feasibility of embodying all or some of these principles in an international instrument. To this end, they are encouraged to promote international awareness of these principles, for example through judicial training and other capacity building programmes.