The Hague Conference on Private International Law has been the proponent of numerous private international family law instruments since its founding in 1893. For the last decade, its family law work focused primarily on three significant projects. The first, to assemble a publication that provides guidance to judges, governments, attorneys, and practitioners in the application of Article 13(b) of the Hague Child Abduction Convention, concluded in early 2020. The second involved findings of an Experts Group that has been exploring the cross-jurisdictional recognition and enforcement of agreements between parents in their disputes, specifically related to their children’s custody, relocation, child abduction, and child support. The expectation is that this group will produce a publication by early 2022. The third key project has been a long-standing discussion among experts on whether to propose a new treaty that addresses the issue of surrogacy and parentage for children in cross-border families. Countries differ in their approaches to issues such as paternity establishment, assisted reproductive technologies, and surrogacy arrangements, with intended parents at times traveling to different countries to engage in processes to bear a child and then meeting the difficulty of repatriating that child to their home country and having their parentage recognized.
With some of the Hague Conference’s seminal work product concluding in the coming year or two, it has the difficult, yet important, task of proposing new family law work, in line with its Member States’ direction. In late 2023, the Hague Conference will host its next Special Commission meeting for the exploration of work and discussions on the practical operation of the Hague Abduction Convention and the Hague Child Protection Convention. In preparation, the Permanent Bureau of the Hague Conference has already set forth a tentative agenda, presented to the Council on General Affairs and Policy at its annual meeting in March 2021. To prepare for any Special Commission meeting, the Permanent Bureau circulates questionnaires to Member States and collects statistics to focus on the most relevant discussion topics.
The Permanent Bureau has already begun pinpointing some focal points for discussion at its next Special Commission meeting. Most importantly, the Special Commission meeting will include a discussion on the impact of the pandemic and court shutdowns, remote proceedings, and delays. Child abduction cases were still routinely treated as “emergency” matters during the COVID-19 pandemic, and still addressed urgently, despite backlogs on court calendars. Nonetheless, there remain concerns about the impact of such a widespread international emergency on the safe movement of children across borders, and how the Hague Child Abduction weathered such an event. Initially, lawyers were concerned that parents would use the pandemic to ignore existing obligations to return children to the other parent’s household. When countries began closing international borders, and consulates stopped issuing visas for travel, matters became even more complicated. In some countries, courts closed for a significant length of time, causing additional concern that when a parent retained a child overseas, there was no legal remedy available to the parent seeking the child’s return. This topic will be vital to understanding how this 40+ year old treaty will function in an ever-changing world.
Another topic of discussion included on the Hague Conference’s tentative agenda is the definition of “habitual residence” in the Hague Conference’s various treaties, specifically the Hague Child Abduction Convention. In 2020, the U.S. Supreme Court, in Monasky v. Taglieri, 140 S.Ct. 719 (2020), finally gave clarity to this un-defined term by opening up pandora’s box with a “totality-of-the-circumstances” analysis. Since the Supreme Court resolved the U.S. Circuit split on this key component of the Hague Abduction Convention, U.S. courts have been finding their footing in how to apply it to cases. Some U.S. courts have continued to apply, or at least prioritize, the standard they previously used. Other courts have distinguished Monasky, opining that it only applies when the parents have no agreement as to their child’s home.
However, perhaps one of the more interesting issues on the Special Commission’s tentative agenda is hearing children’s voices in child abduction and child protection proceedings, including the appointment of lawyers to represent these children. The Hague Conference previously addressed this issue in Special Commission meetings, including the Sixth Special Commission in 2011, where it confirmed that there is no uniform approach to how a child’s views are taken into account, but that it is important to hear a child during proceedings. The tentative agenda for the Eighth Special Commission in 2023 is more specific, focusing not just on the child’s voice as it relates to a specific treaty, but giving that topic its own agenda item, and elaborating on it by having the Special Commission discuss the role of lawyers to represent children and afford them a voice. Some countries consistently appoint lawyers to represent children to protect them and their voices and help minimize the negative impact of stressful litigation on the child. Some countries simply have no ability to do that. Others pick and choose when these lawyers will be provided or appointed. There are no global standards, or even guidance on the role of these lawyers, and no training for these lawyers, either. Given some recent literature on this issue, and some research done in a few European countries, this topic may present itself as one of the more prominently discussed in 2023.