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A few thoughts on the HCCH Guide to Good Practice on the grave-risk exception (Art. 13(1)(b)) under the Child Abduction Convention, through the lens of human rights (Part II)
Written by Mayela Celis – The comments below are based on the author’s doctoral thesis entitled “The Child Abduction Convention – four decades of evolutive interpretation” at UNED (forthcoming)
As indicated in a previous post, the comments on the HCCH Guide to Good Practice on the grave-risk exception (Art. 13(1)(b)) under the Child Abduction Convention (subsequently, Guide to Good Practice or Guide) will be divided into two posts. In a previous post, I analysed the Guide exclusively through the lens of human rights. In the present post, I will comment on some specific legal issues of the Guide but will also touch upon on some aspects of human rights law.
Please refer to Part I. All the caveats mentioned in that post also apply here.
The Guide to Good Practice is available here.
I would like to touch upon three topics in this post: 1) the examples of assertions that can be raised under Article 13(1)(b) and their categorisation; 2) measures of protection and 3) domestic violence.
1) One of the great accomplishments of the Guide to Good Practice is the categorisation of the examples of assertions that can be raised under Article 13(1)(b) of the Child Abduction Convention. While at first sight the categorisation may appear to be too simplistic, it is very well thought through and encompasses a wide range of scenarios.
I include below the assertions as stated in the Guide:
Examples of assertions that can be raised under Article 13(1)(b)
a. Domestic violence against the child and / or the taking parent
b. Economic or developmental disadvantages to the child upon return
c. Risks associated with circumstances in the State of habitual residence
d. Risks associated with the child’s health
e. The child’s separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence of the child
i. Criminal prosecution against the taking parent in the State of habitual residence of the child due to wrongful removal or retention
ii. Immigration issues faced by the taking parent
iii. Lack of effective access to justice in the State of habitual residence
iv. Medical or family reasons concerning the taking parent
v. Unequivocal refusal to return
f. Separation from the child’s sibling(s)
Nevertheless, while this categorisation is very comprehensive, there are a few matters that are mentioned only very briefly in the Guide and could have benefited from a more in-depth discussion. One of them is the extensive case law on what constitutes “zone of war” or a place where there is conflict. See footnotes 88 and 89 of the Guide under the heading c. Risks associated with circumstances in the State of habitual residence.
Perhaps due to political sensitivities, it would be hard to pinpoint in the Guide jurisdictions that have been discussed by the courts as possibly being a “zone of war”. Among these are Israel (most of the case law), Monterrey (Mexico – during the war on drugs) and Venezuela. See for example: Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT reference: HC/E/USf 530] (United States); Kilah v. Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT reference: HC/E/AU 995] (Australia) and other references in footnotes 88 and 89 of the Guide.
Some of course may argue that “zone of war” is a gloss on the Convention and that as such it should not be analysed. However, one may also describe such situations without labelling them as “zone of war”, such as a State where there is conflict, be it military, social, political, etc. Perhaps this could have been expanded under the heading c. Risks associated with circumstances in the State of habitual residence of the Guide referred to above.
While the “zone of war” exception has hardly been successful, it would have been beneficial to discuss some of the arguments set forth by the parties such as: the fluctuation of violence throughout the years, terrorist attacks, a negative travel advice by a government concerning the State of habitual residence of the child, the specific place where the family lives and the risks of terrorism, the violence of drug cartels, and the fact of being a political refugee in the State where the child was abducted. The negative travel advice is particularly apposite to our times of Covid-19 as that would have given some guidance to the courts.
Another assertion made under Article 13(1)(b) of the Child Abduction Convention that could have been analysed in more depth by the Guide – perhaps under a. Domestic violence against the child and/or the taking parent – is the sexual abuse of children. The Guide includes very brief references to sexual abuse in the glossary, paragraphs 38 and 57, and footnote 76.
Undoubtedly, sexual abuse is a terrible and unbearable experience for children but it is still a taboo to single out this topic, let alone explain the current trends existing in the case law when this issue has been raised. Nevertheless, from my research there seems to be a very clear distinction in the case law: when the sexual abuse has been raised in the State of habitual residence and no action or insufficient action was taken by such authorities, and there is evidence of sexual abuse, the State where the child has been abducted tends to reject the return of the child to his or her State of habitual residence. In cases where this is not the case, the child is ordered back to the State of habitual residence, often with measures of protection. See for example: the multiple-layered decisions in the case of Danaipour v. McLarey, see for example the decision Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004) [INCADAT reference: HC/E/USf 597] (United States). This brings us to:
2) The second topic of this post: measures of protection (also referred to as protective measures). The paragraphs dedicated to this topic in the Guide are 43-48. The Guide is absolutely at the forefront of the latest developments and social research on the effectiveness of measures of protection. It has answered the call of many professors/scholars and practitioners, who have cautioned about the indiscriminate use of measures of protection, in particular of undertakings, when the person causing the violence is known to infringe orders and not to heed the warnings of the courts. The Guide is to be commended for this great step forward.
The Guide defines undertakings as follows: “an undertaking is a voluntary promise, commitment or assurance given by a natural person – in general, the left-behind parent – to a court to do, or not to do, certain things. Courts in certain jurisdictions will accept, or even require, undertakings from the left-behind parent in relation to the return of a child. An undertaking formally given to a court in the requested jurisdiction in the context of return proceedings may or may not be enforceable in the State to which the child will be returned.” Because undertakings are a voluntary promise, their enforcement is fraught with problems, especially if the left-behind parent refuses to comply once the child has been returned. Where the primary carer (usually the mother) returns with the child to a “domestic violence” situation and it is not possible to enforce undertakings, both the mother and the child may be subject to a grave risk of harm. For more information, see Taryn Lindhorst, Jeffrey L. Edleson. Battered Women, Their Children, and International Law: The Unintended Consequences of the Hague Child Abduction Convention (Boston: Northeastern University Press, 2012). This leads us to:
3) The third topic of this post: domestic violence. Many claim that domestic violence is a human rights violation. In a wider context, there is indeed a correlation between domestic violence and human rights and this has been recognised by resolutions of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) and the judgment of the European Court of Human Rights. See for example AT (Ms) v. Hungary, (Decision) CEDAW Committee and Opuz v. Turkey (Application No. 33401/02), respectively.
While the issue of domestic violence in the context of Article 13(1)(b) of the Child Abduction Convention was the one topic that sparked concern among the Contracting States to the Child Abduction Convention, as well as judges and the legal profession alike, the Guide only dedicates a few paragraphs to it. See paragraphs 57-59 of the Guide. It also arrives at a conclusion, which raises some doubts.
In particular, the Guide states that “Evidence of the existence of a situation of domestic violence, in and of itself, is therefore not sufficient to establish the existence of a grave risk to the child.” There are a few problems with such a statement. Domestic violence comes in different shapes and sizes and the level of violence can be high or low. This statement is a “one-size-fits-all” and thus is necessarily flawed. In addition, it does not say what it means by “in and of itself”, does it mean prima facie? Also, it does not elaborate on what is necessary to invoke and substantiate domestic violence in order for this assertion to be considered sufficient. It also appears to set a standard of proof when it says that it “is not sufficient”, which might perhaps not be appropriate for a soft law instrument, such as a Guide to Good Practice, to do.
Some scholars have analysed and criticised this statement of the Guide. In particular, Rhona Schuz and Merle H. Weiner in the following article “A Small Change That Matters: The Article 13(1)(b) Guide to Good Practice” (Family Law LexisNexis©, January 2020) I refer to their arguments and prefer not to replicate them in this post.
Despite the weakness mentioned above and in Part I of this post, I believe that this Guide would be of great benefit to the legal profession.
Having all the above in mind, I would like to conclude with some words of the renowned American judge Richard Posner: “[t]here is a difference between the law on the books and the law as it is actually applied, and nowhere is the difference as great as in domestic relations.” (Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005) [INCADAT reference: HC/E/USf 812] (United States)).
Same Region, Two Different Rulings on Fake News at the Internet
Fernando Pedro Meinero
Recently, two criminal court decisions investigating the spread of fake news show the difficulty of determining the scope of national court jurisdiction over the internet.
In Argentina, Google was successful in reversing a decision that determined the deindexation of a person’s name from search engines hosted outside the country. In this case, the searcher associated a person’s name with crimes of possession of drugs and weapons, something that proved to be false. But in Brazil, Twitter and Facebook were forced to globally block the access of investigated people to their respective accounts. These people are investigated for participating in the dissemination of defamatory publications through these internet platforms against members of the Legislative and Judiciary.
Although these are decisions taken in the context of criminal cases, the issues raised by them reflect difficulties that also arise in civil cases. Both decisions were taken against companies that have branches in the countries where the courts exercise their jurisdiction – Argentina and Brazil, but they see differently the scope of that jurisdiction for the fulfillment of an order outside the territory.
On the one hand, the idea that the imposition of removing content or access implies an obligation to do so outside the national territory. Therefore, this decision, in order to produce effects outside the territory, should pass through the control mechanisms of international cooperation, since otherwise there would be an invasion of foreign jurisdictions. Not to mention the issues that arise from the point of view of the applicable law, according to what each State considers as a defamatory act and what is the limit of freedom of speech.
On the other hand, the understanding that this obligation to comply, imposed on a company with legal personality in the country, based on national legislation, must be fulfilled by that company, regardless of where and how it will become effective. In this way, speculations about an eventual violation of foreign sovereignty are eliminated, as well as with regard to laws that may eventually consider such publications to be non-defamatory and just an exercise of freedom of speech.
This divergence exposes, in essence, issues related to international jurisdiction, applicable law and international legal cooperation, the three traditional pillars of Private International Law, and the challenges that the ubiquity of internet impose to this field of study.
Case no. CPF 8553/2015/4 / CA3 “C., E. – provisional measure – 1st Panel of the Federal Criminal and Correctional Chamber – Argentina
Last June 16, 1st Panel of the Federal Criminal and Correctional Chamber – Argentina – Appeal in Case no. CPF 8553/2015/4 / CA3 “C., E. – provisional measure”, decided in favor of Google Inc. in a case concerning fake news.
The giant of the internet appealed a decision that extended a provisional measure determining the removal of the indexation of a content in the search engine. The content – proved to be fake – referred to an alleged arrest of Enrique Santos Carrió in Mexico for drugs and weapons possession. He is the son of Elisa Carrió, an important figure in Argentine politics, currently serving as National Deputy.
The questioned order extended the restriction to domains hosted outside the national territory, namely: www.google.com, www.google.com.es and www.google.mx.
In its allegations, Google argued that, by virtue of the principle of state sovereignty, the implementation of that measure would represent a violation of the sovereignty of other states, which would affect services subject to foreign law. The company understood that the restrictive measure should be directed at the sites that published the fake news, and not at the search engine that, according to the company, is a mere intermediary between the users and the publishers.
Also, according to Google, the removal of the contents of www.google.com would require the deletion of them on global servers, which would represent that an Argentine judge could decide about the information that can be accessed worldwide. In turn, it believes that this type of measure constitutes a serious threat to freedom of expression and the right to seek, receive and disseminate information freely.
The Court, granting the appeal, understood that the categorization of the news as fake is typical of the activity of the intervening court. However, these categorizations cannot be imposed on foreign jurisdictions, except through judicial cooperation mechanisms that do not violate their legal order. In its understanding “the core of this controversy concerns the principle of the territoriality of the law, which prevents the possibility of taking for itself the prerogative to prohibit the global dissemination of certain contents published by the press, whose disclosure would be prohibited under the local regulatory framework, but its circulation may be authorized in the context of another territory, according to the legal provisions and the categorization that this content could be granted ”(in free translation).
By this basis, the Chamber decided to leave the proposed precautionary measure ineffective, understanding that, if it so wishes, the judge a quo may request measures of judicial cooperation from foreign authorities and thus limit the dissemination of such news.
The full text of the decision can be found here (in Spanish).
Criminal Investigation no. 4781 from Distrito Federal – Brazil. Justice Alexandre de Moraes (Monocratic Decision), Supreme Federal Court, Brazil.
On the other hand, we find in Brazil a decision that went in a very opposite direction if compared to the previous one.
In the context of the Criminal Investigation no. 4781 from Distrito Federal – Brazil, the Supreme Federal Court investigates the existence of organized use of accounts on social networks to create, publish and disseminate false information (commonly known as fake news). On May 26, 2020, Alexandre de Moraes, Minister of the Supreme Federal Court, ordered the blocking of Facebook, Twitter and Instagram accounts belonging to a group of allies of Jair Bolsonaro, current President of Brazil. Such profiles would be used to commit crimes against honor in concurrence with criminal association (typified in the Penal Code in arts. 138, 139, 140 and 288) and crimes against national security (typified in Act 7.170/1983, in arts. 18, 22, 23 and 26). Specifically, the investigation refers to attacks to the Supreme Federal Court and the National Congress.
Some of those investigated, however, evaded the order, changing the location settings on the sites, as if they were publishing from other countries. Therefore, on 07/28/2020, the said magistrate provided that the aforementioned social networks must block for access from any IP (Internet Protocol), from Brazil or abroad. To guarantee compliance, he imposed a daily fine of R $ 20,000.00 for each unblocked profile.
Twitter announced that it would comply with that decision, though it would appeal.
Differently, Facebook Serviços Online do Brasil Ltda. stated that it would refuse to comply with that decision, alleging its illegality. Thus, it would maintain the access of those investigated and the possibility of posting by accessing to the accounts abroad, allowing the viewing of content in the national territory. Facebook argued: “We respect the laws of the countries in which we operate. We are appealing to the Supreme Federal Court against the decision to block the accounts globally, considering that Brazilian law recognizes limits to its jurisdiction and the legitimacy of other jurisdictions”.
In view of this declaration, Minister Alexandre de Moraes issued a new decision, which raised the daily fine to R $ 100,000.00 for unblocked profile.
In his reasons, the Magistrate understood that “like any private entity that carries out its economic activity in the national territory, the social network Facebook must respect and effectively comply with direct commands issued by the Judiciary regarding facts that have occurred or with their persistent effects within the national territory; it is incumbent upon him, if deemed necessary, to demonstrate its non-conformity by means of the resources permitted by Brazilian law”. Then, he understood that “the blocking of social network accounts determined in this case, therefore, is based on the necessity to stop the continuity of the disclosure of criminal manifestations, which, in particular, materialize the criminal offenses found in this investigation and which continue to have its illicit effects within the national territory, including the use of subterfuge permitted by the social network Facebook”. Finally, he argued that “the issue of national jurisdiction over what is posted and viewed abroad is not discussed, but the dissemination of criminal facts in the national territory, through news and commentary by accounts banned.”.
After this decision, Facebook informed the observance of the global blocking of the investigated accounts.
Fernando Pedro Meinero is Professor of Private International Law at the Universidade Federal do Pampa, RS – Brazil.
Portugal joins the CISG
This post is authored by Ana Coimbra Trigo (Associate Lawyer at PLMJ Law Firm; PhD Candidate at NOVA Lisbon Univ.; LL.M. China-EU School of Law (China Univ. Political Science and Law, conferred by Univ. Hamburg); Law Degree from Univ. Coimbra), with contributions from Gustavo Moser.
Today, on 7 August 2020, Decree 5/2020 of the Council of Ministers approved the United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention), making Portugal its newest signatory state (link to the official publication here). The Convention will enter into force, in respect of Portugal, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of approval.
Portugal joins the Convention alongside two historic moments. First, this is the year that marks the 40th anniversary of the Convention, and second, the current Secretary General of the UN, António Guterres, is a Portuguese national.
Portugal was in fact active in the preparatory works at UNCITRAL and present at the diplomatic conference that adopted the CISG in 11 April 1980. Although “arriving late to the party”, it is foreseen that the CISG will be advantageous for Portugal, both at the legal and commercial level.
First, as is well known, the CISG provides a uniform and neutral regime for cross-border transactions regarding carriage of goods, and related dispute settlement. The text is based on a common set of remedies inspired by the principle of favor contractusand structured to maximize economic benefits of the contract.
Second, the CISG provides for overall legal certainty, especially in cases where there is and there is not a (valid) choice of law. It is drafted in plain language and this is particularly advantageous for small and medium-sized companies.
Third, scholars highlight the balanced system of solutions included in the Convention that allowsefficiencies in transaction costs and thus more competitive prices for imported and exported goods. This is beneficial for overall trade, but from a Portuguese viewpoint, will also allow Portuguese final users to get more value for their money, and Portuguese exporters to sell their products at lower prices in global markets.
Fourth, the above benefits are emphasized when one considers that the CISG has been ratified already by93 states. This includes 24 of 27 EU Member-States (excluding UK, Ireland, Malta and not for long Portugal) and also the United States of America, Canada, Brazil, China, Japan and South Korea. Some of these countries are relevant trade partners of Portugal.
Lastly, Portugal will now benefit from 40 years of scholarly writings and decisions for guidance, including in the Portuguese language, since Brazil recently became the first Lusophone country to adopt the CISG.
The increased availability of materials on the CISG in Portuguese may boost capacity building and contribute to the affirmation of the CISG in other Lusophone countries.
Scholars and diplomats have clamoured about this potential accession over the years, so we anticipate that this will be viewed positively by the local and international legal community.
Moreover, this can be seen as strategic boost for Portugal in international trade in this demanding international context.
News
Certificat de coutume: New volume in French
Gustavo Cerqueira, Nicolas Nord, and Cyril Nourissat have recently edited a new volume on the “Certificat de coutume – Pratiques en droit des affaires internationales” (in French). The editors have kindly provided us with an English translation of the blurb available on the publisher’s website:
Read more
Seminar series Crossroads in Private International Law
The Centre for Private international Law of the University of Aberdeen’s Law School is continuing this year its series on Crossroads in Private International Law.
The aim of the series is to explore the intersection between Private International Law and substantive areas of law, with the outcome of featuring cutting edge interdisciplinary research carried out by the Centre members.
The format is hybrid, with presentations and room for discussion. Find out more and register for the individual events here; and sign up for selected seminars of for the entire series here.
EAPIL Winter School in European Private International Law (12–16 Feb 2024 in Como, Italy)
In cooperation with the Department of Law, Economics and Cultures of the University of Insubria (Italy), the Law Faculty of the University of Murcia (Spain) and the Law Faculty of the Jagiellonian University in Kraków (Poland), the European Association for Private International Law (EAPIL) has created a Winter School in European Private International Law.
The School’s inaugural session will take place from 12 to 16 February 2024 at the University of Insubria, in the cloister of the Basilica di Sant’Abbondio in Como, Italy. It will dedicated to the topic of ‘Personal Status and Family Relationships’. More information on the programme, which has been put together by Silvia Marino (University of Insubria), Javier Carrascosa González (University of Murcia), and Anna Wysocka-Bar (Jagiellonian University in Kraków), can be found on the official flyer. More information on the registration process can also be found here.
The organisers are also offering a teaser seminar on 4 December 2023, at 6pm (Italian time), which can be joined here.