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The Hague Convention on Child Abduction and UK Overseas Territories: VB v TR
Written by Elijah Granet
In a recent decision of the Family Division of the English and Welsh High Court—VB v TR (Re RR) [2020] EWFC 28, Mr Justice Mostyn highlighted a lacuna in the protection of children from abduction under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’). As a result of what Mr Justice Mostyn (at para 7) refers to as a ‘colonial anachronism’, unconsented removals of children from the British overseas territory of Bermuda to the UK proper fall outside the remit of either the convention or domestic law.
Facts
VB and TR are parents from Bermuda with a young son, RR. In 2019, TR removed RR from Bermuda secretly, without the consent of VB, and in violation of Bermudian court orders. The UK ratified the 1980 Convention on the Civil Aspects of International Child Abduction in 1986 and implemented it domestically by way of the Child Abduction and Custody Act 1985. Section 28(1)(c) of that Act enables the UK to extend the effect of the Convention to Overseas Territories by means of an Order in Council. However, Bermuda, which enjoys full internal self-governance (with its own laws, parliament, and courts) instead passed the International Child Abduction Act 1988, which essentially transposed the 1985 Act into Bermudian law. As a consequence, the UK made an Article 39 Notification declaring that the Convention applied to Bermuda, which is now listed in the annex of authorities required by Article 18 of the Convention.
Decision
As both Bermuda and the UK are signatories to the Convention, one would expect that arrangements for the return of RR could be easily carried out. Mr Justice Mostyn notes (at para 12), if TR had gone to the USA (or indeed, any state other than the UK), the Convention would unquestionably applied as Bermuda is listed in the aforementioned annex of authorities. The problem arises because, for the purposes of the Convention, the UK and Bermuda are a single state party; therefore, because there is no ‘international’ element to child abduction between the UK and Bermuda, the Convention is not considered to apply. This ‘counterintuitive’ (para 21) state of affairs has caused confusion, including a 2014 ruling which (mistakenly) held that Bermuda is not a party to the Convention.
Of course, there is no inherent problem with the Convention being inapplicable between different British jurisdictions. For example, if a parent who removed a child from Northern Ireland to England against a court order, the English court would automatically recognize the Northern Irish court order under the Family Law Act 1986, s 25, which provides for mutual enforcement of family court orders across the UK. However, that Act does not apply to Bermuda, because Bermuda is not a part of the United Kingdom (whatever the Convention might say). A Bermudian court is, for all intents and purposes, a foreign court in the eyes of the law of England and Wales.
Thus, there is a paradoxical and frustrating outcome: for the purposes of the Convention, Bermuda is part of the UK, but, for the purposes of English and Welsh family law, Bermuda is a foreign country. This is contrary to the intention of both the Bermudian and British Parliaments in implementing the Convention: namely, to prevent the unlawful abduction of children. The result is that Mr Justice Mostyn, rather than beginning with the presumption that RR should be returned (as he would under the Convention) or automatically implementing the Bermudian court’s order (as he would with a court from a ‘domestic’ UK jurisdiction), was forced to essentially ignore the Bermudian court’s order, and to circuitously employ a complex legal test under the Children Act 1989, s 1(1) to determine if it would be in the interests of the welfare of RR for him to be returned to Bermuda. Mr Justice Mostyn ultimately held that it was in the child’s best interests to return to Bermuda, albeit at a time more conducive to international travel than the current pandemic. The only alternative route would be to employ the test for the recognition of foreign custodial orders set out by the Privy Council in C v C (Jersey) [2019] UKPC 40, which focuses on questions of public policy rather than the child’s welfare.
Comment
The lacuna in the UK’s regime for protecting against child abduction is, as Mr Justice Mostyn correctly put it (at para 12), ‘an embarrassment’. The defect in this very important area of the law was so severe that the judge felt it appropriate to state (in the same paragraphs) , bluntly, ‘the law needs to be changed’—either to add Bermuda (and other overseas territories) to the domestic list of recognised Hague Convention authorities, or to extend the automatic recognition of orders under the Family Law Act to all British Overseas Territories. Either option would be a welcome and necessary respite from the current state of affairs, by which abduction from a territory party to the Convention (Bermuda) to another party (the UK) is not covered by the law. In a matter as serious as this, it is astonishing that, two decades after Bermuda joined the Convention, there is still no UK framework for ensuring the swift return of abducted children to their homes.
Choice of Australian Aboriginal Customary Law
The relationship between the conflict of laws and constitutional law is close in many legal systems, and Australia is no exception. Leading Australian conflict of laws cases, including, for example, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, which adopted a lex loci delicti rule for intra-Australian torts, are premised on public law concepts essential to our federation. These cases illustrate how the conflict of laws bleeds into other disciplines.
Love v Commonwealth [2020] HCA 3 is a recent decision of the High Court of Australia that highlights the breadth and blurry edges of our discipline. Most legal commentators would characterise the case in terms of constitutional law and migration law. The Court considered a strange question: can an Aboriginal Australian be an ‘alien’?
Policy background
Australia’s disposition to migration is controversial to say the least. Our government’s migration policies, which often enjoy bi-partisan support, are a source of embarrassment for many Australians. One controversial migration policy involves New Zealanders. Australia and New Zealand enjoy a very close relationship on several fronts, including with respect to private international law: see the Trans-Tasman Proceedings Act 2010 (Cth). New Zealanders often enjoy privileges in Australia that are not afforded to persons of other nationality.
Yet recently, Australia began to deport New Zealanders who had committed crimes in Australia no matter how long they had lived in Australia. In February, New Zealand Prime Minister Jacinda Ardern said that the policy was ‘testing’ our countries’ friendship. Australian Prime Minister Scott Morrison replied, ‘[w]e deport non-citizens who have committed crimes in Australia against our community’. Sections of the Australian community are seeking to change Australia’s policy on point, which is effected by the Migration Act 1958 (Cth).
Facts and issues
The Court heard two special cases together. As Kiefel CJ explained: ‘[e]ach of the plaintiffs was born outside Australia – Mr Love in Papua New Guinea and Mr Thoms in New Zealand. They are citizens of those countries. They have both lived in Australia for substantial periods as holders of visas which permitted their residence but which were subject to revocation. They did not seek to become Australian citizens’.
Section 501(3A) of the Migration Act requires the Minister for Home Affairs to a cancel a person’s visa if they have been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. Each of the plaintiffs committed crimes and had their visas cancelled. The effect of which was that they became ‘unlawful non-citizens’ who could be removed from Australia.
The plaintiffs’ cases turned on s 51(xix) of the Commonwealth Constitution, which provides:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… naturalization and aliens…
The plaintiffs contended that they were outside the purview of the Migration Act, the Australian Citizenship Act 2007 (Cth) and s 51(xix) because they each had a special status as a ‘non-citizen, non-alien’. ‘They say that they have that status because although they are non-citizens they cannot be aliens because they are Aboriginal persons’: [3]. Each plaintiff arguably satisfied the tripartite test for Aboriginality recognised at common law and considered below. Thoms was even a native title holder.
The High Court was asked to consider whether each plaintiff was an ‘alien’ within the meaning of s 51(xix) of the Constitution. Kiefel CJ clarified that the question is better understood as follows: ‘whether it is open to the Commonwealth Parliament to treat persons having the characteristics of the plaintiffs as non?citizens for the purposes of the Migration Act’: [4].
The High Court split
The High Court’s seven justices departed from usual practice and each offered their own reasons. The majority of four (Bell, Nettle, Gordon and Edelman JJ) answered as follows:
The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.
Arcioni and Thwaites explain: ‘The majority rested their reasoning on the connection of Aboriginal Australians with Australian land and waters. Aboriginal Australians were a unique, sui generis case, such that Aboriginality may generate a class of constitutional members (non-aliens) who are statutory non-citizens’. The minority of Kiefel CJ, Gageler and Keane JJ dissented for different reasons. A common theme of those reasons was that ‘alien’ is the antonym of ‘citizen’.
Is this a choice of law case?
The case is about constitutional law. It is also about status. ‘Alienage or citizenship is a status created by law’: [177] per Keane J. One understanding of the difference between the majority and minority is a difference in opinion as to the applicable law to determine status as ‘alien’ in this context.
According to Nettle J, ‘status [as a member of an Australian Aboriginal society] is inconsistent with alienage’: [272]. ‘Aboriginal Australians are not outsiders or foreigners – they are the descendants of the first peoples of this country, the original inhabitants, and they are recognised as such’: [335] per Gordon J. The majority appealed to the common law’s recognition of native title rights underpinned by traditional laws and customs in support of their analyses (see, eg, [339]).
The minority denied that status as Aboriginal could determine whether a person has the status of an ‘alien’ within the meaning of the Constitution.
Recognition of non-state law?
Nettle J quoted (at [269]) the following passage from the native title case Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 445 [49] (Gleeson CJ, Gummow and Hayne JJ):
Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.
The status of the laws and customs of Australia’s Aboriginal peoples has been the subject of case consideration for decades. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267, for example, Blackburn J said:
The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.
Later, in Mabo (No 2), the High Court finally recognised the significance of those laws to recognition of native title. In that case, the Court articulated a tripartite test for whether a person is an Aboriginal Australian: biological descent, self-identification, and recognition by the relevant Aboriginal community (see [291] per Gordon J). As explained further below, satisfaction of this test depends on application of traditional laws and customs. Arguably, satisfaction of the test requires recognition of the positive force of that non-state law.
Against that, Keane J held, ‘[t]he common law’s recognition of customary native title does not entail the recognition of an Aboriginal community’s laws’: [202]. Rather, it goes the other way: Aboriginal laws are necessary for recognition of native title. Kiefel J also explicitly rejected recognition of Aboriginal customary law: ‘[i]t is not the traditional laws and customs which are recognised by the common law. It is native title … which is the subject of recognition by the common law, and to which the common law will give effect. The common law cannot be said by extension to accept or recognise traditional laws and customs as having force or effect in Australia’: [37]. Arguably, this means that there is no choice of law at play in this case: there is just one law at issue, being the law of Australia.
Yet even in transnational cases within the traditional domain of the conflict of laws, Australian courts will only apply foreign laws via application of the lex fori: Pfeiffer, [40]–[41]; Nygh’s Conflict of Laws in Australia, ch 12. For practical purposes, the majority approach does recognise Aboriginal non-state law as capable of application to resolve certain issues of (non-Aboriginal) Australian law.
A choice of law rule?
Nettle J came close to articulation of a new intra-Australian choice of law rule at [271]:
for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership. Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law of status) and self-identification (a protection of individual autonomy), constitutes membership of an Aboriginal society: a status recognised at the “intersection of traditional laws and customs with the common law”.
If there is a choice of law rule in there, its significance might be expressed through this syllogism:
- P1. Whether a person is capable of being deported after committing a serious crime depends on whether they are an ‘alien’.
- P2. Whether a person is an ‘alien’ depends on whether they are ‘Aboriginal’.
- P3. Whether a person is ‘Aboriginal’ depends on whether they satisfy the tripartite test in Mabo [No 2] with respect to a particular Aboriginal society.
- P4. Whether a person satisfies the tripartite test turns on the customary law of the relevant Aboriginal society.
Like questions of foreign law, ‘[w]hether a person is an Aboriginal Australian is a question of fact’: [75] per Bell J. How does one prove the content of the relevant Aboriginal law? Proof of traditional laws and customs often occurs in native title cases. It was considered at [281] per Nettle J:
It was contended by the Commonwealth that it might often prove difficult to establish that an Aboriginal society has maintained continuity in the observance of its traditional laws and customs since the Crown’s acquisition of sovereignty over the Australian territory. No doubt, that is so. But difficulty of proof is not a legitimate basis to hold that a resident member of an Aboriginal society can be regarded as an alien in the ordinary sense of the term. It means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country.
Minority critique of the choice of law approach
As a dissentient in the minority, Gageler J offered a compelling critique of what I construe to be the choice of law approach of the majority (at [137]):
To concede capacity to decide who is and who is not an alien from the perspective of the body politic of the Commonwealth of Australia to a traditional Aboriginal or Torres Strait Islander society or to a contemporary Aboriginal or Torres Strait Islander community, or to any other discrete segment of the people of Australia, would be to concede to a non?constitutional non?representative non?legally?accountable sub?national group a constitutional capacity greater than that conferred on any State Parliament. Yet that would be the practical effect of acceptance of either of the first and second variations of the plaintiffs’ argument.
The choice of non-state law is arguably made more controversial by the character of those laws’ content. Nettle J explained at [276]: ‘As is now understood, central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations’. Gordon J held at [290], ‘[t]hat connection is spiritual or metaphysical’. Tacit in the majority’s mode of analysis, then, is that a person’s spiritual or religious views can have an impact on their status as an ‘alien’, or otherwise, within the Commonwealth Constitution. (A once-Aboriginal non-citizen who lacks those spiritual views and renounces their membership of their Aboriginal society may still be an ‘alien’ following this case: see [279], [372].) From a secular perspective within an increasingly secular nation, that is a striking proposition.
Conclusion
This is not the first time that the relationship between the conflict of laws and issues affecting indigenous peoples has been considered. More generally, whether non-state law may be the subject of choice of law is a topic that has been considered many times before. One of the factors that makes Love v Commonwealth unique, from an Australian legal perspective, is the majority’s effective choice of Aboriginal customary law to determine an important issue of status without really disturbing the common law proposition that Aboriginal groups lack political sovereignty within the Australian federation (see [37], [102], [199]). COVID-19 may have stalled sought after changes to the Australian Constitution with respect to recognition of indigenous peoples (see (2019) 93 Australian Law Journal 929), yet it remains on the national agenda. In any event, Australia’s very white judiciary may not be the best forum for recognition of the sovereignty of Australian Aboriginal and Torres Strait Islander peoples.
Competition Law and COVID 19
Written by Sophie Hunter
With more than 200 countries affected to date, the current crisis presents far reaching implications for competition law and policy on a global scale. This crisis is affecting developed and developing countries alike, especially by putting young competition authorities under a stress test of the resilience of their competition rules. As the pandemic of COVID19 spreads to every parts of the world, most recently the African continent, competition authorities are looking at whether relaxing their competition rules to allow for cooperation between key actors of the health sector and other essential economic sectors, like the airline industry. However, full or partial relaxation of competition rules may have adverse effects on industries, business and consumers by resulting in anti-competitive practices such as price fixing, excessive pricing and collusion between competitors.
Competition authorities have responded to this crisis in a piecemeal approach. While the European Commission was quick to a temporary framework[1] and relied on measures implemented during the 2008 financial crisis[2] , in the US, the FTC and DOJ only recently issued a guidance note based on previous emergency situations (Harvey and Irma hurricanes) to allow cooperation of competitors in the health sector, especially in the development of vaccines.[3] The UK has granted temporary exemptions from anti collusion rules to supermarkets. An approach also adopted by the German competition authority to ensure continuity of food supplies. South Africa promptly enacted an overall sector wide block exemption for the health sector.[4] Some countries like France and China have toughened up their price regulations.[5]
With a surge in excessive pricing of health-related products such as masks and hand sanitizers, competition authorities are currently dealing with ongoing investigations in a wide range of jurisdictions, namely the UK, France, Brazil, Russia, Spain and Italy. Some have announced price controls over high demand items. This has already been done in France through a decree regulating the price of hand sanitizers to prevent retailers and pharmacists engaging in abusive price increases.[6] Enforcement of sanctions against anti-competitive conducts toughened up, especially from competition authorities in Kenya and China, which have already heavily put sanctions on retailers engaged in excessive pricing of health-related products.
In times of crisis, governments can allow specific exceptions for joint research projects because they understand the need for collaborative efforts between firms to, for instance, develop a vaccine. Such exceptions have already been granted during other pandemics such as Swine Flu in 2009, MERS in 2015 and influenza in 2019. Those exceptions may be exempted from competition rules. For instance, the European Commission has called for an increase effort in research and development at the European level to develop a vaccine against COVID 19 within an exceptional regulatory framework (as it already did in 2009). [7] In South Korea, similarly, the government encouraged the main pharmaceutical companies to work together on a vaccine through an emergency use authorisation that was established post MERS in 2015.[8]
Apart from exceptions, certain countries granted exemptions from anti collusion rules to businesses in specific economic sectors. The most far reaching measures were taken by South Africa with the COVID-19 Block Exemption for the Healthcare Sector 2020. It established price controls on everyday goods as well as a list which exempts hospitals, medical suppliers, laboratories and pathologists, pharmacies, and healthcare funders from engaging in anti-competitive collaboration.[9]Other temporary exemptions have been granted to the airline industry by Norway, the retail sector in Germany, banking in Australia, the distilled spirit industry in the US, education in Denmark and tourisms in Italy and Kazakhstan.
Competition authorities must enforce strict compliance to competition rules, even during this time of pandemic. Despite this, some leverage and legal leeway enacted by certain competition authorities demonstrates a willingness to allow for a temporary flexibility to mitigate the economic impact. This can be achieved through sector specific block exemptions, strict guidance on collaboration in times of emergency or enhanced legislation on price controls. This time of crisis creates a great opportunity for competition authorities around the world to engage in international cooperation to share best practices. Prompt responses to the crisis in developing countries demonstrates the ambition and dynamism of such agencies (Peru, South Africa, Kenya). Nevertheless, it remains to be seen how competition authorities will cope during the crisis with sustaining investigation, enforcement and compliance with competition rules.
[1] François-Charles Laprévote, Theodora Zagoriti, Giulio Cesare Rizza, The EU Commission adopts a Temporary Framework to support the economy in the context of the COVID-19 outbreak, 19 March 2020, e-Competitions Bulletin Preview, Art. N° 93837
[2] https://www.concurrences.com/fr/bulletin/special-issues/competition-law-covid-19/competition-policy-covid-19-an-overview-of-antitrust-agencies-responses
[3] https://www.competitionpolicyinternational.com/ftc-and-doj-announce-expedited-antitrust-procedure-for-coronavirus-public-health-efforts/
[4] Minister of Trade and Industry of South Africa, ‘Covid-19 Block Exemption for the Health Care Sector, 2020 – South Africa’ (2020) 657 Government Gazette 12.
[5] State Administration of Market Supervision (SAMR) of People’s Republic of China, ‘Urgent Notice of the General Administration of Market Supervision on Severely Cracking down on Price Violations in the Production of Preventive and Control Materials during the Epidemic Prevention and Control Period’ (5 February 2020) <http://www.gov.cn/zhengce/zhengceku/2020-02/06/content_5475223.htm> accessed 22 March 2020.
[6] ‘Encadrement Des Prix Pour Les Gels Hydroalcooliques’ (Economie.gouv.fr, 2020) <https://www.economie.gouv.fr/dgccrf/encadrement-des-prix-pour-les-gels-hydroalcooliques-voir-la-faq> accessed 22 March 2020.
[7] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Pandemic (H1N1) 2009’ (15 September 2009) 1 <http://op.europa.eu/en/publication-detail/-/publication/9ec8052e-c269-4b57-9be9-4b40c5101d15/language-en> accessed 22 March 2020.
[8] https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW
[9] South African Government, ‘Guidelines – Coronavirus Covid-19 in South Africa’ (23 March 2020) <https://www.gov.za/coronavirus/guidelines> accessed 23 March 2020.
News
Symposium on Reparation for “Crimes of the Past” in Strasbourg (Oct. 19–20)
Written by Dr. Delphine Porcheron, Associate Professor at the University of Strasbourg Law Faculty
On October 19 and 20, the University of Strasbourg is organizing a symposium on Reparation for “Crimes of the Past”.
Mass crimes, deportations, spoliations, colonial exploitation, slavery… The “crimes of the past” are first known to us as historical facts. Their protagonists have mostly disappeared; they have been documented by historians; almost all of them are mentioned in school textbooks. They have become part of our collective memory as disastrous episodes of a bygone past.
Book Launch: Blockchain & Private International Law
The Series Editors of International and Comparative Business Law and Public Policy are hosting a book launch and cocktail party to celebrate the publication of Blockchain & Private International Law, edited by Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani (reviewed here by Christina Blanchet Valle).
The hybrid event will take place on 5 October, 5pm Swiss Time, both at the University of Lausanne, IDHEAP, AULA, and online (Zoom-Link; pw: 832357).
The event had originally been scheduled for 11 October (indicated wrongly above) but has been postponed for logistical reasons. The new date will be advertised shortly.
The 2023 Annual Conference of the Chinese Society of Private International Law
The 2023 Annual Conference of the Chinese Society of Private International Law was held on 14-16 of September in Wuhan, PRC. This is probably the most important academic event for Chinese scholars specializing and researching in the area of private international law. This year, there were more than 300 participants.
After the HCCH Asia Pacific Week in Hong Kong, the Secretary General of the HCCH, Dr. Christophe Bernasconi was invited to attend the conference and give a speech. He was also invited to act as a commentator for a panel of plenary session which was conducted in English.