Conclusions and Recommendations from the Eighth Special Commission on the 1980 Hague Child Abduction Convention and 1996 Hague Child Protection Convention.

CFAB Senior Legal Advisor, Maria Wright, has summarised conclusions and recommendations from the recent Hague Special Commission

The Hague Conference of Private International Law (HCCH) has now published the Conclusions and Recommendations from the Eighth Special Commission on the 1980 Hague Child Abduction Convention and 1996 Hague Child Protection Convention.

CFAB were pleased to note that delegates considered several significant international child protection issues which we regularly encounter in our work – both in our capacity undertaking co-operation functions on behalf of the Welsh Government under the 1996 Hague Convention, and our cross-border case work services as the UK Branch of the International Social Service network.  

Here we summarise some of the Conclusions and Recommendations which may be of interest to practitioners and professionals, with a particular focus on the 1996 Hague Convention.

1. Cross-Border Placements of Children – Including International Kinship Care

Vulnerable children living in the UK may have extended family networks overseas. Much of CFAB’s work  involves supporting children’s international family connections through assessments of prospective kinship carers overseas, conducted by our partners in over 130 countries.

In this context, the 1996 Hague Convention can be used to explore potential  kinship care placements in other Contracting States to the Convention via Central Authorities.

However, in the context of cross-border placements, practitioners need to be aware of the potential impact of Article 33 of the Convention. This provision requires that where a placement overseas is contemplated, the receiving state is consulted, and their consent sought to the placement prior to the child moving overseas.

This provision aims to meet the best interest of children who move into some form of alternative care in another Contracting State, ensuring that the overseas authorities are aware of the child’s situation and have themselves considered whether the placement is in the child’s best interests. However, we have observed that different countries take different approaches to the interpretation of Article 33 which can cause confusion and delay.

CFAB have sought to increase awareness of Article 33 (and the 1996 Hague Convention generally) through our Factsheets, including a specific factsheet on Article 33. The provision is important, not least because a failure to follow the Article 33 procedure can be a ground for the receiving state refusing to recognise the order placing the child in that country.

The Permanent Bureau of the HCCH produced a comprehensive preliminary document on Article 33 which was considered at the Special Commission. As a result, key take-home points from the Conclusions and Recommendations on Article 33 are:

• Article 33 applies to the placement of a child in a ‘foster family or in institutional care, or the provision of care by kafala or an analogous institution’ – and that the latter phrase includes ‘alternative care arrangements’.  We therefore take from this that Article 33 will often be engaged where a child is placed with a kinship carer who lives in another Contracting State pursuant to an order made at the end of public law child protection proceedings in the UK.

• The purpose of Article 33 is to ensure that ‘the two States involved in the placement …share the responsibility to protect and assist the child’. This is why Article 33 is a mandatory provision.  

• Certain private arrangements do not require Article 33 consent because they are not placements decided by a competent authority.  These might include

- a foster carer going on holiday to another Contracting State

- agreements for a child to live with a family member in another Contracting State which are not authorized by a competent authority (e.g., a court)

Most importantly, however, CFAB welcomes the proposal that Article 33 be looked at in further detail and a working group will be established to develop a guide and a model form for the provision.  

2. Recognition of Orders between Contracting States

If a child is placed in a kinship care arrangement in another Contracting State under a legal order made in the UK, that order may be recognised in that Contracting State under the 1996 Hague Convention Article 23.

CFAB have highlighted the importance of clearly setting out the nature of an order, to assist with recognition (particularly Special Guardianship Orders). The  Special Commission has confirmed:

• Article 23(1) entails that the effect of a measure is recognised in another Contracting State without the need for any further action or special processes (i.e., automatically).  

• To facilitate the recognition and enforcement of measures of protection (e.g., court orders concerning children) the court should ‘carefully describe those measures in the decision’

• Courts should also set out the jurisdictional basis under the 1996 Hague Convention for any final order made  (e.g., any order placing the child in kinship care in another Contracting State.)

3. Tools to assist with the implementation of the 1996 Child Protection Convention

Any professional with experience of child protection cases with an international element will be aware that there is a significant diversity in global family law systems, as well as procedural aspects of cross-border case work. We often hear of the need for an accessible guide to national systems which will provide an overview of the approach taken in different countries. CFAB are therefore keen to see the development of country profiles and user-friendly co-operation forms under the 1996 Hague Convention, which will no doubt assist with this issue.  

4. Unaccompanied and separated children and the application of the 1996 Child Protection Convention

The war in Ukraine – a Contracting State to the 1996 Hague Convention – has highlighted the impact of the Convention in relation to unaccompanied and separated children. CFAB shared our expertise in this are through our participation in the creation of ‘Frequently asked questions regarding Ukrainian children and young people living in kinship arrangements in England’ to ensure that local authorities were aware of the operation of the 1996 Hague Convention in relation to children who had been displaced from Ukraine, particularly children in kinship and foster care arrangement.

The Permanent Bureau of the HCCH will participate in the Consultation Group on Children of Ukraine (CGU) from the Council of Europe, and we hope that this will see an increased awareness of the operation of the Convention in relation to unaccompanied minors generally.  

Overall, we look forward to seeing the future work of the Permanent Bureau as foreshadowed in the Conclusions and Recommendations from the Eighth Special Commission and are optimistic that this work will improve cross-border practices to protect vulnerable children.