Views
Nothing Found
Sorry, no posts matched your criteria
News
The HCCH Child Abduction Convention and the grave risk exception: A petition for a writ of certiorari is pending before the US Supreme Court – Golan v. Saada
A petition for a writ of certiorari has been filed before the US Supreme Court in a case concerning the HCCH Child Abduction Convention and the grave risk exception (art. 13(1)(b)). The issue at stake is: Whether, upon finding that there is a grave risk that a return would expose a child to physical or psychological harm (or intolerable situation), a district court is required to consider ameliorative measures (in other words, undertakings) to facilitate the (safe) return of the child. For the exact wording of the petition, see below.
Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition).This petition has been docketed as Golan v. Saada, No. 20-1034. This petition and other documents relating to this case have been distributed for the Conference of today – 1 April 2021.
“QUESTION PRESENTED
The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:
Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.”
With regard to this issue, there is indeed a split in the US circuits (as well as state courts).
According to the petition “The First, Eighth, and Eleventh Circuits have indicated that, once a district court determines that there is a grave risk that the child will be exposed to harm, the court need not consider any ameliorative measures,” whereas “the Second, Third, and Ninth Circuits require a district court to consider a full range of ameliorative measures that would permit return of the child, even when the court finds that there is a grave risk that a child’s return would expose that child to physical or psychological harm.” This case originated in the Second Circuit.
The split in the US circuits has been acknowledged by practitioners, see for example, James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, Second Edition (2015), 137-147 (see in particular p. 143. – but a few different circuits are mentioned, which attest to the confusion of practitioners). Accordingly, in my personal opinion, there is definitely merit in raising this issue before the US Supreme Court.
We will keep you informed as to whether this petition is granted or refused.
HCCH Monthly Update: March 2021
Meeting of the Council on General Affairs and Policy
The Council on General Affairs and Policy (CGAP) of the HCCH met online from 1 to 5 March 2021, with over 350 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead. More information is available here.
Several important developments relating to Membership and HCCH Conventions occurred during the meeting:
- Thailand deposited its instrument of acceptance of the Statute, becoming the 88thMember of the HCCH.
- El Salvador applied to become a Member of the HCCH. Following a six-month voting period and provided a majority of votes have been cast in its favour, El Salvador will be invited to become a Member by accepting the Statute of the HCCH.
- Israel signed the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention. The 2005 Choice of Court Convention, which currently binds 31 States and the EU, will enter into force for Israel only after it deposits an instrument of accession or ratification. Although the 2019 Judgments Convention is not yet in force, Israel is the third signatory to the Convention.
More information on these developments is available here.
Finally, as customary the meeting coincided with the publication of the Annual Report of the HCCH. The 2020 Annual Report can be downloaded or ordered here.
Other Meetings & Events
On 15 and 18 March, the HCCH and the International Union of Judicial Officers co-hosted a webinar on the application of the 1965 Service Convention and the 2019 Judgments Convention aimed at judicial officers and other legal professionals. Recordings of the webinar are available here in English and here in French.
On 18 March, the HCCH and the Ministry of Foreign Affairs of Japan co-hosted a webinar on the HCCH 1980 Child Abduction Convention in the Asia Pacific, attended by judges and officials of Central Authorities from 12 countries and regions in the Asia Pacific. More information is available here.
On 30 March, the HCCH participated in the virtual High Level Conference “Protecting Vulnerable Adults across Europe – the Way Forward”, organised by the Ministry of Justice of Portugal, the European Commission and the European Union Agency for Fundamental Rights under the auspices of the Portuguese Presidency of the Council of the European Union. The recording of the conference is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.
European Commission: Experts’ Group on the Recognition of Parenthood between EU Member States
The European Commission (EC) has issued a call for experts to join an Experts’ Group on the Recognition of Parenthood between the Member States of the European Union (EU).
Families are increasingly mobile as they move and travel between the Member States of the EU. Yet, given the differences in Member States’ substantive and conflict of laws rules on parenthood, families may face obstacles in having the parenthood of their children recognised when crossing borders within the Union.
The EC is preparing a legislative initiative on the recognition of parenthood between the Member States of the European Union. The goal of this initiative is to ensure that children will maintain their rights in cross-border situations, in particular where families travel or move within the Union.
In this context, the EC seeks experts to advise it in the preparation of this legislative initiative. Experts must have proven and relevant competence and experience at EU and / or international level in areas relevant to the recognition of parenthood between EU Member States. In particular, the members of the Expert Group must be experts in one or more of the following areas:
- private international law on family matters;
- Member States’ law, and comparative law, on the establishment and recognition of parenthood;
- Union case law on free movement, name and nationality;
- fundamental rights and related case law, in particular under the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) on or affecting parenthood and nationality; and / or
- the rights of the child and related case law.
The members of the Expert Group will be appointed in their personal capacity to represent the public interest. The call is not limited to experts with the nationality of one of the EU Member States.
The call for experts will run until 23 April 2021. Details about the call can be found at the following here.
this information was provided by Ms Lenka Vysoka, EC.