[Senate Treaty Document 110-21]
[From the U.S. Government Publishing Office]
110th Congress Treaty Doc.
2d Session SENATE 110-21
_______________________________________________________________________
HAGUE CONVENTION ON INTERNATIONAL RECOVERY OF CHILD SUPPORT AND FAMILY
MAINTENANCE
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
HAGUE CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND
OTHER FORMS OF FAMILY MAINTENANCE, ADOPTED AT THE HAGUE ON NOVEMBER 23,
2007, AND SIGNED BY THE UNITED STATES ON THAT SAME DATE
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 8, 2008.--Treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, September 8, 2008.
To the Senate of the United States:
I transmit herewith the Hague Convention on the
International Recovery of Child Support and Other Forms of
Family Maintenance, adopted at The Hague on November 23, 2007,
and signed by the United States on that same date, with a view
to receiving the advice and consent of the Senate to
ratification, subject to the reservations and declaration set
forth in the report of the Secretary of State. The report of
the Secretary of State, which includes an overview of the
Convention, is enclosed for the information of the Senate.
The United States supported the development of the
Convention as a means of promoting the establishment and
enforcement of child support obligations in cases where the
custodial parent and child are in one country and the non-
custodial parent is in another. The Convention provides for a
comprehensive system of cooperation between the child support
authorities of contracting states, establishes procedures for
the recognition and enforcement of foreign child support
decisions, and requires effective measures for the enforcement
of maintenance decisions. It is estimated that there are over
15 million child support cases in the United States and that an
increasing number of these cases will involve parties who live
in different nations. United States courts already enforce
foreign child support orders, while many countries do not do so
in the absence of a treaty obligation. Ratification of the
Convention will thus mean that more U.S. children will receive
the financial support they need from both their parents.
The Department of State and the Department of Health and
Human Services, which leads the Federal child support program,
support the early ratification of this Convention. The American
Bar Association and the National Child Support Enforcement
Association have also expressed support for the Convention.
Although some new implementing legislation will be required,
the proposed Convention is largely consistent with current U.S.
Federal and State law. Cases under the Convention will be
handled through our existing comprehensive child support
system, which involves both Federal and State law. The
Departments of State and Health and Human Services have been
working on preparation of the necessary amendments to Federal
law to ensure compliance with the Convention, and that
legislation will soon be ready for submission to the Congress
for its consideration. The National Conference of Commissioners
on Uniform State Laws has worked closely with the Departments
of State and Health and Human Services to develop the necessary
amendments to uniform State child support legislation.
The Convention requires only two contracting states for
entry into force. No state has yet ratified the Convention.
Early U.S. ratification would therefore likely hasten the
Convention's entry into force. This would be in the interests
of U.S. families, as it would enable them to receive child
support owed by debtors abroad more quickly and reliably. I
therefore recommend that the Senate give prompt and favorable
consideration to the Convention and give its advice and consent
to ratification, subject to the reservations and declaration
described in the accompanying report of the Secretary of State,
at the earliest possible date.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, June 27, 2008.
The President,
The White House.
The President: I have the honor to submit to you, with a
view to its transmittal to the Senate for advice and consent to
ratification, the Hague Convention on the International
Recovery of Child Support and Other Forms of Family
Maintenance, subject to the reservations and declaration set
forth in the enclosed overview of the Convention. The
Convention was adopted at The Hague on November 23, 2007, and
signed by the United States on that same date.
The United States supported the development of the
Convention to promote the establishment and enforcement of
child support obligations in international cases. The
Department of State and the Department of Health and Human
Services, which leads the federal child support program,
support the early ratification of this Convention by the United
States. All relevant interests have expressed support for the
Convention. The Convention will require implementing
legislation, which is being drafted and will soon be ready for
submission to the Congress for its consideration.
I recommend, therefore, that you transmit the Convention on
the International Recovery of Child Support and Other Forms of
Family Maintenance to the Senate for advice and consent to
ratification with the reservations and declaration described in
the enclosed overview.
Respectfully submitted.
Condoleezza Rice.
Enclosures: As stated.
Overview of the Hague Convention on the International Recovery of Child
Support and Family Maintenance
This Convention contains numerous groundbreaking provisions
that will, for the first time on a worldwide scale, establish
uniform, simple, fast, and inexpensive procedures for the
processing of international child support cases. While similar
procedures already are the norm in the United States,
establishing them as the internationally agreed global standard
represents a considerable advance on prior child support
conventions, which leave many of these procedures to be
regulated largely by each country's national law. The United
States is not a party to any of these prior conventions.
A major benefit of ratification for the United States will
be reciprocity: U. S. courts and child support agencies already
recognize and enforce foreign child support obligations in many
cases whether or not the United States has a child support
agreement with the foreign country. Many foreign countries will
not process foreign child support requests in the absence of a
treaty obligation. Thus, ratification of the Convention will
mean that more children residing in the United States will
receive the financial support they need from their parents,
whether the parents reside in the United States or in a foreign
country that is a party to the Convention.
The Convention will not affect intrastate or interstate
child support cases in the United States. It will only apply to
cases where the custodial parent and child live in one country
and the non-custodial parent in another. International child
support cases within the scope of the Convention are already
processed under existing federal and state law and practice.
The Convention will be implemented through a combination of
existing law and practice and certain necessary conforming
amendments to federal legislation and relevant uniform state
law (the Uniform Interstate Family Support Act (UIFSA)). It is
expected that the United States would not deposit its
instrument of ratification until such changes to federal law
have been enacted and the UIFSA amendments have been adopted by
all states. The Convention is considered to be non-self-
executing. It will not impose additional financial or
administrative burdens.
ARTICLE-BY-ARTICLE ANALYSIS \1\
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\1\ A Protocol on the Law Applicable to Maintenance Obligations was
adopted at The Hague on November 23, 2007, the same day as the
Convention. There is no support within the United States for the
Protocol and there is thus no plan for the United States to become a
party to the Protocol.
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Chapter I (Articles 1-3) of the Convention addresses the
object and scope of the Convention and key definitions. Article
1 identifies the main object of the Convention, which is to
ensure the effective international recovery of child support
and other forms of family maintenance. The Article then lists
four main measures by which the Convention is to achieve the
Convention's objective: (a) establishing a comprehensive system
of cooperation between Central Authorities of Contracting
States;\2\ (b) making available applications for the
establishment of maintenance decisions; (c) providing for the
recognition and enforcement of maintenance decisions; and (d)
requiring effective measures for the prompt enforcement of
maintenance decisions.
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\2\ In this Analysis, ``Contracting State'' or ``State'' refers to
a country. Lower case ``state'' refers to an individual United States
state.
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Article 2 defines the scope of the Convention. The
Convention applies to maintenance obligations arising from a
parent-child relationship towards a child under the age of 21.
This does not mean that a Contracting State must change its
internal law if the duration of support under that law is below
age 21; nor does it require a State to establish a support
obligation for a child who is under 21 years of age. Article
2(1) merely requires a State to recognize and enforce a foreign
child support decision in favor of a child under the age of 21.
Pursuant to Article 2(2), a Contracting State may reserve the
right to limit the application of the Convention with regard to
child support to persons who have not reached the age of 18. It
is not recommended that the United States make such a
reservation because in many U.S. states a support obligation
continues until age 21, and all U.S. states (even those in
which a support obligation ends at age 18) will recognize and
enforce a decision from another state or State for a child up
to the age of 21. The Convention also applies to the
recognition and enforcement of spousal support when the
application is made in conjunction with a claim for child
support. This is consistent with the scope of the U.S. Title
IV-D program,\3\ which requires state child support agencies
(which will perform most of the Central Authority
responsibilities in cases under the Convention, and which are
often referred to as the ``IV-D agencies'') also to provide
services to applicants seeking spousal support if there is also
a request for child support from the same applicant involving
the same debtor. In addition, with the exceptions of Chapters
II and III (which require certain services by Central
Authorities), the Convention applies to the establishment and
modification of spousal support even in cases where there is
not a related request for child support. This is also
consistent with Title IV-D, as the Title IV-D agencies are not
required to provide services for applicants requesting spousal
support in cases where there is not also a request for child
support by the same applicant against the same debtor. Thus, a
foreign applicant seeking establishment or modification of
spousal support (with no related request for child support) in
the United States will need to do so through a direct request
to the competent authority,\4\ rather than by an application to
the IV-D agency.
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\3\ The existing federal child support program, included in Title
IV-D of the Social Security Act (42 U.S.C. Sec. 651 et seq.),
establishes a comprehensive set of requirements with which states must
comply as a condition for receiving federal funds for a state's child
support program. This program is administered by the Office of Child
Support Enforcement in the Department of Health and Human Services
(HHS/OCSE). All 50 states, plus the District of Columbia, Puerto Rico,
the U.S. Virgin Islands, and Guam, participate in the Title IV-D
program and comply with its requirements.
\4\ In this Analysis, ``competent authority'' refers to the
judicial or administrative body that makes the relevant decision.
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Under Article 2(3), a Contracting State may declare that it
will extend the entire Convention, or any part of it, to any
maintenance obligation arising from other types of family
relationships, including obligations in respect to vulnerable
persons. Any such declaration gives rise to obligations between
two Contracting States only to the extent that each State's
declarations cover the same maintenance obligations and parts
of the Convention. It is not recommended that the United States
make a declaration under this provision, given that there is no
uniform federal or state program with regard to support
obligations for other types of family relationships. In the
absence of a declaration, state courts will continue to have
discretion to accept such applications if permitted under the
law of the individual state.
Finally, Article 2(4) makes clear that the Convention
applies to children regardless of the marital status of their
parents.
Article 3 contains definitions. A particularly important
definition is the one of ``legal assistance'' (Article 3(c)).
This term is defined to mean the assistance necessary to enable
applicants to know and assert their rights and to ensure that
applications are fully and effectively processed in the
requested State. It is broader than the concept of legal
representation in that it also includes legal advice,
assistance in bringing a case before an authority, and
exemption from costs of proceedings. The definition of legal
assistance is critically important in terms of understanding
Articles 14-17, which require free legal assistance in most
cases covered by the Convention.
Chapter II (Articles 4-8) contains the provisions outlining
the administrative cooperation requirements of the Convention.
Article 4 addresses the designation of Central Authorities.
Each Contracting State must designate a Central Authority to
discharge the duties imposed on it by the Convention. Federal
States and States with more than one system of law, or having
autonomous territorial units, may appoint more than one Central
Authority, but must designate one as the Central Authority to
which communications may be addressed for onward transmission
to the other Central Authorities. In order to ensure more
effective implementation of the Convention, Contracting States
are required to inform the Hague Conference Permanent Bureau of
their Central Authority or Authorities, their contact details,
and, where appropriate, the extent of their functions. The
United States intends to designate the Secretary of the
Department of Health and Human Services as the Central
Authority under this Convention, although most of the Central
Authority responsibilities for individual cases will be
delegated to the state child support agencies.
Article 5 lists the general, non-delegable functions of
Central Authorities (i.e., those functions which HHS, as the
U.S. Central Authority, may not delegate to individual U.S.
state child support agencies), which are to (1) cooperate with
each other and promote cooperation among their State competent
authorities to achieve the Convention's purposes; and (2) seek
as far as possible solutions to difficulties arising in the
application of the Convention.
Article 6 lists specific functions that Central Authorities
must perform with respect to applications under Chapter III of
the Convention. These functions are essential to ensure that
children receive the support contemplated under the Convention.
In particular, under Article 6(1), Central Authorities are
responsible for transmitting and receiving applications under
Chapter III (applications made through Central Authorities),
and initiating or facilitating the institution of proceedings
relative to such applications. With regard to such
applications, Article 6(2) provides that Central Authorities
must also take all appropriate measures to: (a) where
circumstances require, provide or facilitate the provision of
legal assistance; (b) help locate the debtor or creditor; (c)
help obtain relevant income and, if necessary, other financial
information of the debtor or creditor, including the location
of assets; (d) encourage amicable solutions, such as mediation;
(e) facilitate the ongoing enforcement of maintenance decisions
including any arrears; (f) facilitate the collection and
expeditious transfer of maintenance payments; (g) facilitate
the obtaining of documentary or other evidence; (h) provide
assistance in establishing parentage where necessary for the
recovery of maintenance; (i) initiate or facilitate the
institution of proceedings to obtain any necessary provisional
measures that are territorial in nature and the purpose of
which is to secure the outcome of a pending maintenance
application; and (j) facilitate the service of documents.
Article 6(3) provides that the Article 6 Central Authority
functions may be performed by other public bodies or certain
other bodies. A Contracting State must inform the Permanent
Bureau of the Hague Conference on Private International Law of
its designation of any such bodies, as well as their contact
details and the extent of their functions. The Department of
Health and Human Services intends to delegate most of its
Article 6 responsibilities to individual U.S. state child
support agencies, which have day-to-day responsibility for
managing the Title IV-D child support caseload in the United
States.
Article 7 authorizes requests for specific measures made by
one Central Authority to another when no application under
Article 10 of the Convention is pending, i.e., when there is no
application for the recovery of maintenance pending before the
Central Authority in the requested State. Such requests must be
supported by reasons, and the specific measure(s) requested
must be certain ones listed in Article 6, i.e., assistance with
location, the obtaining of income and other financial
information, the obtaining of documentary information,
parentage establishment, taking provisional measures, and
service of documents. Under Article 7(1), the requested Central
Authority is directed to take such measures if satisfied that
they are necessary to assist a potential applicant in making an
Article 10 application or in determining whether such an
application should be initiated. An example would be where a
U.S. creditor is not certain where the debtor resides, but has
reason to believe that he or she resides in the requested
State. Under Article 7(1), the Central Authority of the
requested State would be required to take appropriate measures
to determine whether the debtor was in the State so that the
creditor could then make an application in the requested State
for the recovery of maintenance. Under Article 7(2), a
requested Central Authority may, but is not required to, take
specific measures on the request of another Central Authority
in relation to a maintenance case having an international
element that is pending in the requesting State. An example
would be a United States proceeding where the court has
personal jurisdiction over the debtor, who lives or derives
income in the requested State. If the U.S. Central Authority
asked the requested Central Authority for assistance in
obtaining income information about the debtor, Article 7 would
authorize the requested Central Authority to provide such
assistance.
Article 8 makes clear that each Central Authority must bear
its own administrative costs in applying the Convention, and
that a Central Authority may not impose any charge on an
applicant for the provision of its services under the
Convention. The one exception where costs may be imposed by a
Central Authority is for exceptional costs or expenses arising
from a request for a specific measure under Article 7. In such
a case, the requested Central Authority must first obtain the
prior consent of the applicant before providing the services
for a cost.
Chapter III (Articles 9-17) sets out the rules governing
applications made under the Convention through Central
Authorities. Chapter III applications would be those made
through the Title IV-D child support agencies in the United
States. Article 9 provides that an applicant wishing to use the
Central Authority services of the requested State must make the
application through the Central Authority of the Contracting
State in which the applicant resides.
Article 10(1) lists the types of applications available to
a creditor seeking to recover maintenance under the Convention:
(a) recognition or recognition and enforcement of an existing
decision; (b) enforcement of a decision made or recognized in
the requested State; (c) establishment of a decision in the
requested State where there is no existing decision, including
where necessary the establishment of parentage; (d)
establishment of a decision in the requested State where
recognition and enforcement of a decision is not possible or is
refused because of the lack of a basis for recognition and
enforcement; (e) modification of a decision made in the
requested State; and (f) modification of a decision made in a
State other than the requested State. Pursuant to Article
10(2), the types of applications under the Convention that are
available to a debtor in a requesting State, against whom there
is an existing maintenance decision, are: (a) recognition of a
decision that suspends, or limits the enforcement of, a
previous decision in the requested State; (b) modification of a
decision made in the requested State; and (c) modification of a
decision made in a State other than the requested State. Except
as otherwise provided in the Convention, the law of the
requested State governs applications under the Convention.
Article 11 details the minimum contents of applications
under the Convention. Pursuant to Article 11(1), all
applications, at a minimum, must include: (a) a statement of
the nature of the application(s); (b) contact information and
date of birth of the applicant; (c) the name and, if known,
address and date of birth of the respondent; (d) the name and
date of birth of any person for whom maintenance is sought; (e)
the grounds upon which the application is based; (f) where the
creditor is the applicant, information on where payments should
be sent; (g) with the exception of applications for recognition
and enforcement, any information or document specified by the
requested State in a declaration made pursuant to Article 63;
and (h) the name and contact details of the Central Authority
person or entity in the requesting State who is responsible for
processing the application. It is not recommended that the
United States make a declaration under Article 11(1)(g)
requiring other information or documentation in applications to
the United States.
In addition, Article 11(2) provides that, as appropriate
and to the extent known, the application must also include the
financial circumstances of the creditor and debtor, the name
and address of the debtor's employer, the nature and location
of assets of the debtor, and any information that would help
locate the respondent. The application must be accompanied by
any necessary supporting information, including documentation
concerning the entitlement of the applicant to free legal
assistance However, if the application is for recognition and
enforcement of a decision, a requested State cannot require any
documents other than those listed in Article 25. This is an
important provision, as a limited and uniform number of
required documents will speed up the processing of these
applications.
The Hague Conference will publish recommended forms for
applications and other supporting documents which States may
use. These forms have been developed by a working group
composed of various country representatives, including
representatives from the United States. While only two of these
forms will be mandatory,\5\ all of the forms will likely be
used in nearly all cases and should result in faster, more
efficient, and more accurate processing of applications.
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\5\ Under Article 12(2) and (3), the transmittal and acknowledgment
forms annexed to the Convention are mandatory.
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Article 12 describes the process Central Authorities must
use in transmitting, receiving, and processing applications and
cases. The Central Authority in the requesting State has three
main responsibilities. First, under Article 12(1), it must
assist the applicant in ensuring that the application is
accompanied by all the information and documents known to be
needed for the application's consideration. Second, under
Article 12(2), when satisfied that the application complies
with the Convention requirements, the requesting Central
Authority must transmit the application on behalf of and with
the consent of the applicant to the Central Authority in the
requested State. The application must include the transmittal
form set out in Annex 1 to the Convention. Third, Article 12(2)
also provides that the Central Authority of the requesting
State must--upon request--provide the Central Authority in the
requested State with a complete certified copy of certain
documents specified in Articles 16, 25, and 30 (documents that
have to be submitted with applications under various
circumstances). This last provision is important because it
establishes as the default rule that documentation under the
Convention does not need to be certified, which will reduce the
cost and time required to process most cases.
In order to ensure timely processing of applications,
Article 12 also contains several timeframes for status reports.
Article 12(3) provides that within six weeks from receipt of
the application, the requested Central Authority must
acknowledge receipt using the form set forth in Annex 2 to the
Convention, inform the requesting Central Authority of the
initial steps that have been or will be taken, request any
additional documents or information needed, and provide contact
information for future inquiries about the application. Article
12(4) provides that within three months of the acknowledgment,
the requested Central Authority must inform the requesting
Central Authority of the status of the application. Both the
requested and requesting Central Authorities are required to
keep each other informed of the person or unit responsible for
a particular case, and of the progress of the case. They must
also provide timely responses to communication. Article 12(6)
and (7) address the importance of speedy processing of cases,
requiring that Central Authorities process a case quickly and
that they use the most rapid and efficient means of
communication at their disposal. A requested Central Authority
may refuse to process an application only if it is manifest
(i.e., clear on the face of the documents received) that the
requirements of the Convention are not fulfilled. In such a
case, it must promptly inform the requesting Central Authority
of its reasons for refusal. A requested Central Authority
cannot reject an application solely because additional
information is needed. However, if the requested Central
Authority requests additional information and the requesting
Central Authority does not produce the needed information
within three months of the request (or a longer time period if
specified by the requested Central Authority), the requested
Central Authority may inform the requesting Central Authority
that it will no longer process the application.
Article 13 provides that the admissibility of documents
cannot be challenged solely on the basis of the medium or means
of communication used between the Central Authorities.
Articles 14 through 17 address the key issue of the cost of
services, including legal assistance. Most child support
applicants who use government child support programs are people
of modest means, who would simply be unable to pursue recovery
of child support if they had to pay high fees, including for
legal services. This is especially true in international cases
where the costs for court and attorney fees and enforcement
actions can often be greater than the amounts collected.
Enabling creditors to collect child support is in the interest
of many governments worldwide as in many countries the
government (ultimately the taxpayer) will support a child if
the parents do not. Cost-free services in child support cases,
in particular free legal assistance, is therefore a key to the
success of the Convention.
Article 14 establishes the general standard for access to
services under the Convention: a requested State must provide
applicants with effective access to procedures, including
enforcement and appeal procedures, arising from applications
processed by Central Authorities. Where necessary, such access
to procedures must include free legal assistance in accordance
with Articles 14 through 17, unless legal assistance is not
required because the State has simple procedures designed to
allow an applicant to make a case without the need for such
assistance, and the Central Authority provides whatever
services are necessary for free. (An example would be a
requested State that uses administrative procedures to
establish and enforce maintenance decisions, thus making legal
assistance unnecessary.)
Article 15(1) goes on to state that legal assistance with
respect to child support applications made through Central
Authorities, as opposed to applications for other forms of
family maintenance that may be covered by the Convention, must
be provided free of charge. Notwithstanding Article 15(1),
Article 15(2) provides that free legal assistance may be
refused in requests to establish a child support decision (but
not requests for recognition and enforcement of a foreign
decision) if the application is on the merits manifestly
unfounded.
Article 16 provides that, as an exception to Article 15(1),
a State may declare that it will make the provision of free
legal assistance in applications for establishment and
modification of a child support decision subject to a means
test based on the means of the child. The requested State may
not look behind the applicant's statement that the child meets
that State's means test unless it reasonably believes that
statement is inaccurate. It is not recommended that the United
States make a declaration under Article 16.\6\
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\6\ Many States would have preferred that all requests for free
legal assistance be made subject to a means test based on the means of
the creditor (i.e., the custodial parent). This is the test many States
apply to requests for free legal assistance in domestic cases, and they
argued that it would be discriminatory to have a different standard in
international cases. The response is that treating foreign applicants
differently than domestic applicants is justified because the two are
in fact different: foreign applicants face many more difficulties than
domestic applicants. Many States, including the United States, objected
to a means test based on the means of the creditor because the likely
result would have been that virtually all of their applicants would
have been denied free legal assistance. The child-centered means test
was agreed to as a compromise in order to encourage the widest possible
ratification. The result should be the same (i.e., free legal
assistance) in virtually all child support cases.
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Article 17 provides that for all other applications (i.e.,
applications for forms of family maintenance other than child
support, or applications by a debtor) processed through Central
Authorities, the provision of free legal assistance may be made
subject to a means or merits test.
Note that Articles 14 through 17 govern applications under
Chapter III, which are applications processed through Central
Authorities. There is no requirement for free legal assistance
in cases where the petitioner makes a request directly to a
competent authority, either through a private attorney or pro
se.
Chapter IV (Article 18) deals with modification of existing
orders. While it is impossible to eliminate completely the
possibility of multiple support orders in the same case, the
Convention, and in particular Article 18, should reduce to the
greatest extent possible the number of such conflicting,
multiple support orders. Where a Contracting State has made a
decision and the creditor is habitually resident in that State,
Article 18 requires that the debtor initiate, in that State of
origin, any proceeding to modify the decision or establish a
new decision, as long as the creditor continues to reside in
the State. This provision is similar to UIFSA, which is in
effect in all states. Article 18 sets forth four exceptions:
(1) where, except in child support cases, the parties have
agreed in writing to the jurisdiction of another Contracting
State; (2) where the creditor submits to the jurisdiction of
the other Contracting State; (3) where the competent authority
in the State of origin cannot, or refuses to, exercise
jurisdiction to modify the decision or make a new decision; or
(4) where the decision made in the State of origin cannot be
recognized in the Contracting State where proceedings to modify
the decision or make a new decision are contemplated.
Chapter V (Articles 19-31) deals with the recognition and
enforcement of maintenance decisions, providing an efficient
procedure for the widest recognition of existing decisions.
Along with the rules for effective (i.e., cost-free) access to
procedures, the recognition and enforcement rules are key to
the success of the Convention. Currently, in many countries
international cases can take many months, if not years, to
resolve because of the cumbersome recognition and enforcement
procedures. The Convention provides for a streamlined,
transparent process that is very similar to the process under
UIFSA.
Article 19 provides that Chapter V applies to applications
transmitted between Central Authorities, as well as to requests
sent directly to a competent authority, such as requests for
recognition and enforcement filed by private attorneys directly
with a court. It further provides that the Chapter applies to
both judicial and administrative decisions, so long as the
administrative decision is subject to review by a judicial
authority and has similar force and effect as a judicial
decision. The term ``decision'' also includes settlements or
agreements approved by a judicial or an administrative
authority. In addition to current support, the decision may
include automatic adjustment by indexation; a requirement to
pay arrears, retroactive maintenance, or interest; and a
determination of costs or expenses. The Chapter also applies to
maintenance arrangements (i.e., a certain form of private
agreements) in accordance with Article 30. Although such
maintenance arrangements are common in many States, they are
not used in the United States.
Article 20(1) requires the recognition and enforcement of a
decision made by a Contracting State if it is enforceable in
the State of origin and if one of the following listed bases
for jurisdiction is present: (a) the respondent was habitually
resident \7\ in the State of origin at the time proceedings
were instituted; (b) the respondent has submitted to
jurisdiction; (c) the creditor was habitually resident in the
State of origin at the time proceedings were instituted; (d)
the child for whom maintenance was ordered was habitually
resident in the State of origin, provided that the respondent
has lived with the child in that State or has resided in that
State and provided support for the child there; (e) except in
child maintenance matters, the parties have made a written
agreement to jurisdiction; or (f) the decision was made by an
authority exercising jurisdiction on a matter of personal
status or parental responsibility, unless that jurisdiction was
based solely on the nationality of one of the parties.
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\7\ The term ``habitually resident'' is used in a number of private
international law conventions, and is not defined in any of them. Its
meaning is determined on a case-by-case basis by the practice and case
law of each country. In the United States and elsewhere there is no
consistent interpretation of the term by the courts considering it in
the context of the 1980 Hague Convention on the Civil Aspects of
International Child Abduction. The negotiators of the 2007 Child
Support Convention made it clear that case law on the meaning of
``habitually resident'' in the child abduction context should not
automatically be applied to child support cases. That is because the
effect of the use of ``habitual residence'' in the 1980 Convention is
to restrict the ability of a person to obtain a new custody order
shortly after going to another country. In fact, one of the objects of
the 1980 Convention is to limit the ability of a parent unhappy with
the custody order of one court to ``forum shop'' by moving to another
country and seeking a new order. In the 2007 Convention, on the other
hand, the object is to make it easier for a person to recover
maintenance in international cases, not to restrict the ability of a
person to apply for maintenance.
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Under Article 20(2), a State may make a reservation with
respect to three of the bases of jurisdiction set forth under
Article 20(1): creditor-based jurisdiction, jurisdiction based
on a written agreement, or jurisdiction based on a matter of
personal status or parental responsibility. If a State makes
such a reservation, it must nevertheless, pursuant to Article
20(3), recognize and enforce a decision if its law would, in
similar factual circumstances, confer jurisdiction on its
authorities to make a decision in that case. If a Contracting
State cannot recognize a decision because of a reservation, and
the debtor is habitually resident in that State, Article 20(4)
provides that the State must, with rare exceptions, take all
appropriate measures to establish a new decision in favor of
the creditor. If a maintenance decision for a child under the
age of 18 cannot be recognized solely because of a reservation
under this Article, Article 20(5) provides that the decision
must be accepted as establishing the eligibility of that child
for maintenance in the requested State. The term
``eligibility'' does not refer to the amount of maintenance,
which will be determined pursuant to the law of the requested
State. In this context, the United States interprets
``eligibility'' to refer to the child's entitlement to initiate
a maintenance proceeding in the requested State.
It is recommended that the United States make a reservation
in respect of Article 20(1)(c), (e), and (f) because those
provisions are not consistent with U.S. law on the minimum
contacts required for jurisdiction in order to satisfy
constitutional due process requirements. The 20(1)(c) basis for
jurisdiction--the fact that the creditor resides in the forum
State--is a common one in nearly all countries, but not the
United States. In the United States, under current Supreme
Court jurisprudence, the mere fact that the creditor resides in
the forum does not give the forum jurisdiction over the debtor
in a child support case. In order to satisfy our due process
standards, there must be a nexus between the debtor and the
forum in order to give the forum jurisdiction over the debtor.
In other words, it is the respondent's (debtor's) contacts with
the forum, not the petitioner's (creditor's), that are
determinative. Kulko v. Superior Court, 436 U.S. 84 (1978).
Article 20(1)(e) requires a competent authority to
recognize and enforce a support decision, other than one for
child support, if the parties have agreed in writing to the
issuing State's jurisdiction. In the United States, the general
state-law rule is that forum selection clauses in divorce,
spousal support and child support cases are unenforceable if
the chosen forum has no nexus with either party. Finally,
Article 20(f) requires a competent authority to recognize and
enforce a support decision where the issuing authority
exercised jurisdiction on a matter of personal status or
parental responsibility. In the United States, a competent
authority must have personal jurisdiction over the parties. The
fact that a court has in rem jurisdiction over a marriage, for
example, does not mean that the court has personal jurisdiction
over the parties. Without the requisite minimum contacts for
personal jurisdiction, a U.S. court cannot issue a valid order.
Article 21 allows partial recognition or enforcement of a
decision, which is consistent with U.S. law.
Article 22 lists the limited grounds for refusing
recognition and enforcement of a maintenance decision: ( a)
recognition and enforcement is manifestly incompatible with the
public policy of the requested State; (b) the decision was
obtained by fraud in connection with a matter of procedure; (c)
proceedings between the same parties with the same purpose are
pending before an authority in the requested State and those
other proceedings were begun first; (d) the decision is
incompatible with a decision between the same parties for the
same purpose, provided that this latter decision fulfils the
conditions necessary for its recognition and enforcement in the
requested State; (e) in a case where the respondent neither
appeared nor was represented in the proceeding in the State or
origin: (1) when the law of the State of origin provides for
advance notice of the proceedings, the respondent did not have
proper notice and an opportunity to be heard; or (2) when the
law of the State of origin does not require advance notice of
the proceedings, the respondent did not have proper notice of
the decision and an opportunity to challenge it; or (f) the
decision was made in violation of Article 18 regarding the
limitations on a modification proceeding. These grounds are
consistent with current U.S. law.
Pursuant to Article 22(a), the public policy exception, a
U.S. competent authority could decline to recognize and enforce
a decision against a left-behind U.S. parent in an abduction
case where the child had been wrongfully taken or retained, on
the grounds that recognition and enforcement of such a decision
would be manifestly incompatible with the U.S. public policy of
discouraging international parental child abduction.
Article 23 sets forth the procedural steps involved in an
application for recognition and enforcement of a maintenance
decision. This process minimizes ex officio review and for the
most part places the burden of raising objections to
recognition and enforcement on the respondent (usually the
debtor). Given that most applications for recognition and
enforcement are likely to be uncontested, this leads to a much
expedited procedure. This process is similar to the process
used in the United States under UIFSA. One of the problems with
the prior child support conventions (to which the United States
is not a party) is that none of them provides a uniform set of
procedures for recognition and enforcement. The result has been
lengthy delays in the enforcement of the foreign decision in
the many countries that do not have a streamlined system such
as that established by UIFSA. Article 23 should result in much
quicker enforcement in those countries. Pursuant to Article
23(2), where the application has been made through Central
Authorities, the requested Central Authority must promptly
either refer the application to the competent authority, which
must, without delay, declare the decision enforceable or
register the decision for enforcement; or take such steps
itself where the Central Authority is the competent authority.
In the United States, upon receipt of an application for
recognition and enforcement, a state child support agency would
comply with Article 23 by promptly referring the application to
the competent authority for registration for enforcement.
Article 23(3) provides that where the request is made directly
to a competent authority, rather than an application through
Central Authorities, the competent authority must, without
delay, declare the decision enforceable or register the
decision for enforcement.
Article 23(4) specifies the very limited ground on which a
competent authority in the requested State may review ex
officio the application for recognition and enforcement of a
decision. It provides that a declaration of enforceability or
registration for enforcement may be refused only for the reason
listed in Article 22(a), i.e., recognition and enforcement of
the decision is manifestly incompatible with the public policy
of the requested State. At this stage, neither the applicant
nor the respondent may submit evidence. Under Article 23(5),
the applicant and respondent must be promptly notified of the
decision regarding recognition and enforcement, and have the
right to challenge or appeal the decision. Article 23(6)
provides that such challenge or appeal must be made within 30
days of notification of the decision. That time period is
extended to 60 days if the contesting party is a nonresident of
the Contracting State in which the authority made the decision.
Article 23(7) lists the only permissible bases for an
applicant or respondent to challenge or appeal the decision by
the competent authority: (a) the grounds for refusing
recognition and enforcement set out in Article 22; (b) the
bases for recognition and enforcement under Article 20; and (c)
the authenticity or integrity of any document transmitted in
accordance with Article 25(1)(a), (b), or (d), or Article
25(3)(b). Under Article 23(8), if the application for
recognition and enforcement relates to payments that are past-
due, a challenge or appeal may also be founded on the
fulfillment of the maintenance debt. Article 23(9) provides
that the applicant and respondent must be promptly notified of
the decision on any appeal or challenge. Further appeal is
governed by the law of the requested State. However, under
Article 23(10), any such further appeal cannot stay the
enforcement of the decision unless there are exceptional
circumstances. The rule that further appeal should not have the
effect of staying enforcement will correct an unfortunate
situation in many countries where appeals often take many years
and the creditor receives no support during all those years.
Finally, Article 23(11) provides that the competent authority
must act expeditiously in making any decision on recognition
and enforcement, including any appeal.
The procedures set forth in Article 23 are familiar to the
United States, Canada, Australia, New Zealand, and many western
European countries. However, they are not known in some other
countries, in particular China, where applications for
recognition and enforcement go directly to the court for
decision (rather than having almost automatic recognition and
enforcement if the respondent raises no objections). In order
to achieve wide ratification of the new Convention, Article 24
provides an alternative procedure on an application for
recognition and enforcement, which Contracting States may opt
for by declaration. Article 24 skips the registration for
enforcement or declaration of enforceability procedures.
Instead, the application must be promptly referred to the
competent authority which must decide on the request. Article
24(4) provides broader bases for ex officio review than what is
allowed under Article 23(4). However, as with the Article 23
procedures, appeals cannot stay the enforcement of the decision
unless there are exceptional circumstances; and the competent
authority must act expeditiously in making its decision. It is
not recommended that the United States make a declaration with
respect to Article 24.
Article 25 seeks to simplify the process for an application
for recognition and enforcement by addressing the number and
type of documents needed. Currently, this is left to national
law, and practices vary widely. In some States, the document
requirements are quite onerous and costly. Article 25(1) lists
the only documents that are required to accompany an
application for recognition and enforcement. One such document
applies only with respect to decisions of administrative
tribunals. Article 25(1)(b) provides that in the case of such a
decision, the application must include a document stating that
the requirements of Article 19(3) (the administrative decision
is subject to judicial review and has the same force and effect
as a judicial decision) are met, unless the requesting State
has specified in accordance with Article 57 that its
administrative decisions always meet these requirements. It is
recommended that the United States make this specification in
accordance with Article 57(1)(e), as all child support
decisions in the United States made by administrative tribunals
are subject to judicial review and have the same force and
effect as a court decision.
Pursuant to Article 25(2), certified documents are not
initially required. However, upon a challenge, an appeal under
Article 23(7)(c), or a request by the competent authority in
the requested State, a complete copy of the document concerned,
certified by the competent authority in the State of origin,
must be promptly provided. This provision will result in more
rapid and less costly case processing, as there is unlikely to
be a need for certified documents in uncontested cases, which
constitute the majority of recognition and enforcement cases.
Article 25(3) provides several additional, optional
mechanisms for simplifying the documentation process. Because
even States that accept uncertified copies of other documents
may require a certified copy of the decision, Article 25(3)(a)
provides that a Contracting State may specify that it always
requires a certified copy of the decision. As child support
decisions are often only a few paragraphs of a lengthy divorce
decision, Article 25(3)(b) provides that a State may specify
the circumstances in which it will accept, in lieu of a
complete text of the decision, an abstract or extract of the
decision. As many States are very comfortable with treating
administrative decisions the same as judicial decisions,
Article 25(3)(c) provides that a State may specify that it does
not require a document in each case stating that the
requirements of Article 19(3) concerning administrative
decisions are met. As UIFSA, which all U.S. states have adopted
as a condition for continued receipt of federal funding, treats
administrative child support decisions the same as judicial
orders, it is recommended that the United States make the
Article 25(3)(c) specification, in accordance with Article
57(1)(e).
It is not recommended that the United States make the other
specification, as practices regarding the need for a certified
copy of a decision may vary from state to state.
Article 26 provides that the entire Chapter also applies to
an application for recognition (rather than recognition and
enforcement) of a decision, save that the requirement of
enforceability is replaced with a requirement that the decision
has effect in the State of origin. An application for
recognition only would be unusual. An example would be an
application for recognition by a debtor of an order that has
terminated because the child has passed the age specified for
termination in the order.
Under Article 27 a competent authority in the requested
State is bound by the findings of fact on which the authority
of the State of origin based its jurisdiction.
Article 28 prohibits the competent authority in the
requested State from reviewing the merits of a decision that it
has been asked to recognize and enforce. This is a standard
provision in conventions on recognition and enforcement of
decisions.
Article 29 states that the physical presence of the child
or applicant may not be required in any recognition and
enforcement proceedings in the requested State. Some States
currently do require such physical presence; obviously the
entire purpose of the Convention would be frustrated if the
child or custodial parent had to travel to the requested State.
Article 30(1) and (2) provide that maintenance
arrangements, which are defined in Article 3(e), are entitled
to recognition and enforcement under Chapter V so long as they
are enforceable as decisions in the State of origin.
Maintenance arrangements are not decisions because they are not
rendered by a competent authority; but nor are they merely
private agreements because they are registered or filed by or
with such an authority and are subject to review. Such
arrangements, which are sometimes known as ``authentic
instruments,'' are not used in the United States but they are
very common in many States, including States, such as Canada,
Norway, and Sweden, with which the United States has many child
support cases.
As not all of Chapter V's rules for recognition and
enforcement of a decision would make sense when applied to
maintenance arrangements, Article 30(3)-(8) sets forth some
special rules for such arrangements, including bases for
recognition and enforcement, grounds for refusing recognition
and enforcement, bases for a challenge or appeal, and required
documentation. Because maintenance arrangements are not
initially reviewed by a competent authority, Article 30(6)
provides an important safeguard. It states that proceedings for
recognition and enforcement of a maintenance arrangement must
be suspended if a challenge to the arrangement is pending
before a competent authority of a Contracting State. This means
that if a creditor from State A wishes to enforce a maintenance
arrangement in the United States and the debtor wants to
contest the validity of the arrangement, the proceeding in the
United States will be suspended while the debtor challenges the
arrangement in State A or any other Contracting State with
jurisdiction to consider the arrangement. Article 30(7)
provides that a Contracting State may declare that applications
for recognition and enforcement of maintenance arrangements
cannot be made directly to a competent authority, but must be
made through Central Authorities. Article 30(8) permits a
Contracting State to reserve the right not to recognize and
enforce a maintenance arrangement. As many States with which
the United States has had successful bilateral child support
agreements for years use maintenance arrangements and U.S.
states have been recognizing and enforcing these arrangements
without any problems, it is not recommended that the United
States make the declaration or reservation.
Article 31 addresses provisional and confirmation orders
that some States, such as members of the British Commonwealth,
produce. Where a decision is produced by the combined effect of
a provisional order made in one State and a confirming order
made in another State, each of those States are considered
States of origin for the purpose of Chapter V. The requirements
of Article 22(e) (notice and opportunity to be heard) are
deemed met if the respondent had proper notice of the
proceedings in the confirming State and an opportunity to
oppose the confirmation of the provisional order. The
requirement of Article 20(6) that a decision be enforceable in
the State of origin is met if the decision is enforceable in
the confirming State. Article 31 further provides that Article
18 does not prevent proceedings for the modification of the
decision being commenced in either State.
Chapter VI (Articles 32-35) addresses the enforcement of a
decision by the requested State. Article 32 provides that,
subject to the provisions of Chapter VI, enforcement takes
place in accordance with the law of the requested State.
Enforcement must be prompt. Where an application was filed
through Central Authorities, once a decision is declared
enforceable or registered for enforcement, enforcement is to
proceed without further action by the applicant. This is
important because in some States recognition and enforcement,
and actual enforcement (i.e., efforts by the State to collect
the debt) are two separate proceedings, and an applicant who
has succeeded in getting a tribunal to declare that his or her
decision is recognized and is enforceable, must initiate, at
considerable expense, a separate action in order to get actual
enforcement (i.e., payment of the amount ordered). Duration of
the maintenance obligation is governed by the law of the State
of origin. Any limitation on the period for which arrears may
be enforced is determined by the law of the State of origin of
the decision or the law of the requested State, whichever has
the longer limitation period. This choice of law provision is
identical to one in UIFSA.
Article 33 directs a requested State to provide at least
the same range of enforcement methods for cases under the
Convention as are available in domestic cases.
Article 34 requires States to have effective measures for
prompt enforcement of decisions under the Convention. While the
practice in other child support conventions (to which the
United States is not a party) has been to leave enforcement to
national law, the importance of the topic, and the serious
problems that exist currently in obtaining prompt and effective
enforcement, prompted the negotiators to address the topic in
the Convention. While no specific measures are required,
Article 34 lists examples of effective measures, such as wage
withholding; garnishment of bank accounts; deductions from
social security payments; liens on or forced sales of property;
tax refund withholding; withholding or attachment of pension
benefits; credit bureau reporting; denial, suspension or
revocation of various licenses; arid the use of mediation,
conciliation, or similar processes to bring about voluntary
compliance. U.S. states employ all of these enforcement
measures. It is hoped that these provisions will serve an
educational purpose.
Consistent with the Convention goal of making the recovery
of maintenance easier, Article 35 focuses on the prompt
transfer of funds. Article 35 encourages Contracting States to
promote the most cost-effective and efficient methods for
transferring maintenance payments. If a Contracting State has a
law restricting the transfer of funds, Article 35(2) directs
the State to accord the highest priority to the transfer of
funds under the Convention.
Chapter VII (Article 36) governs public bodies as
applicants under the Convention. It places some limits on the
situations in which a public body can be an applicant. The
first limitation is the type of application. Public bodies may
only act as creditors for the purpose of applications for
recognition and enforcement of a decision and for cases covered
by Article 20(4). The second limitation is that the public body
can only be a creditor for such applications so long as the
public body is acting in place of an individual to whom
maintenance is owed or the body is one to which reimbursement
is owed for benefits provided in lieu of maintenance. The third
limitation is the type of decision for which the public body
can seek recognition and/or enforcement. Pursuant to Article
36(3), a public body may seek recognition or claim enforcement
of (a) a decision rendered against a debtor on the application
of a public body which claims payment of benefits provided in
place of maintenance; and (b) a decision rendered between a
creditor and debtor to the extent of the benefits provided to
the creditor in place of maintenance. The consequence of
Article 36(3) is that, within the United States, a state child
support agency may be an applicant for the purpose of
recognition and enforcement of a decision in cases where the
custodial party is currently receiving public assistance, or
has received public assistance in the past, and the benefits
were provided in lieu of maintenance.
Chapter VIII (Articles 37-57) contains general provisions.
Article 37 recognizes that, while most cases under the
Convention will be processed through Central Authorities, an
individual may also seek relief directly from a competent
authority of a Contracting State under the internal law of that
State. The Article specifies which provisions of the Convention
apply to such direct requests.
Articles 38 through 40 set forth rules on protection of
personal information, confidentiality, and disclosure of
information.
Article 41 provides that no legalization or similar
formality may be required in the context of the Convention.
Article 42 restricts the authority of the requested State
to require a power of attorney from the applicant to situations
where its Central Authority acts on the applicant's behalf. In
the United States, state child support agencies usually do not
represent the applicant in the technical legal sense and thus
do not require a power of attorney.
Article 43 authorizes the recovery of costs from an
unsuccessful party, as long as the recovery of costs does not
take precedence over the recovery of maintenance. In other
words, the requested Central Authority may not deduct from the
debtor's child support payments funds to cover the costs
incurred in handling the case.
Articles 44 and 45 address language requirements and
translation costs. Pursuant to Article 44, the general rule is
that all documentation must be in the original language,
accompanied by a translation into the official language of the
requested State or into another language that it has declared
is acceptable, unless the competent authority in the requested
State dispenses with translation. Unless otherwise agreed by
the Central Authorities, any other communications (e.g., e-
mails) between Central Authorities must be in an official
language of the requested State or in either English or French.
(These are the two official languages of the Hague Conference.)
However, a Contracting State may, by making a reservation,
object to the use of either French or English. It is
recommended that the United States make a reservation objecting
to the use of French. Under Article 45, the general rule is
that the cost of translation is borne by the requesting State.
Article 45 also provides circumstances in which the translation
may actually be done by the requested State, although the
requesting State still bears the cost.
Articles 46 and 47 address non-unified legal systems. Under
Article 46, if a State has two or more systems of law, that
apply in different territorial units, any reference to a law,
procedure, decision, or judicial or an administrative authority
in that State shall be construed as referring, where
appropriate, to the same thing in the relevant territorial
unit. Similarly, any reference to competent authorities, public
bodies, other bodies of that State other than Central
Authorities, residence or habitual residence in that State, the
location of assets in that State, reciprocity arrangements in
force in the State, free legal assistance, a maintenance
arrangement made in the State, or recovery of costs by the
State shall be construed as referring, where appropriate, to
the same thing in the relevant territorial unit.
Under Article 47, a State, with more than one territorial
unit in which different systems of law apply, is not required
to apply the Convention to situations solely between such
different territorial units; a competent authority in one
territorial unit is not bound to recognize or enforce a
decision solely because another territorial unit of the same
State has recognized or enforced the decision.
Articles 48 and 49 provide that in relations between
Contracting States to this Convention, this Convention replaces
three prior child support conventions in so far as their scope
of application coincides with this Convention's scope of
application.\8\ The United States is not a party to any of the
three prior conventions.
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\8\ The three conventions are the Hague Convention of 2 October
1973 on the Recognition and Enforcement of Decisions Relating to
Maintenance Obligations, the Hague Convention of 15 April 1958
Concerning the Recognition and Enforcement of Decisions Relating to
Maintenance Obligations Towards Children, and the United Nations
Convention on the Recovery Abroad of Maintenance of 20 June 1956.
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Article 50 states that this Convention does not affect the
Hague Convention of 11 March 1954 on civil procedure, the Hague
Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters and the Hague Convention of 18 March 1970 on the Taking
of Evidence Abroad in Civil or Commercial Matters. The United
States is a party to the 1965 and 1970 Service and Evidence
Conventions, but is not a party to the 1954 Convention.
Article 51 discusses coordination of the Convention with
other international instruments and supplementary agreements.
Article 51(1) declares that the Convention does not affect any
international instrument concluded before the Convention to
which Contracting States are Parties and which contain
provisions on matters governed by this Convention. Therefore,
existing bilateral child support agreements between the United
States and other countries will continue in force. Article
51(2) provides that a Contracting State may enter into
agreements with other Contracting States, which contain
provisions on matters governed by the Convention, with a view
toward improving the application of the Convention between such
States, provided such agreements are consistent with the
objects and purpose of the Convention and do not affect the
application of the Convention to Contracting States not party
to such agreements. Therefore, the United States may continue
to enter into bilateral agreements that may provide for even
closer cooperation than does the Convention. Article 51(4)
addresses child support instruments (e.g., mandatory
regulations) of a Regional Economic Integration Organization
(REIO) as applied between members of that Organization.
Currently, the term REIO as defined in Article 59(1) only
applies to the European Community.
Article 52(1) clarifies that the Convention permits the
application of a bilateral or multilateral instrument that
provides for more effective enforcement of maintenance
obligations to the extent that such an instrument provides:
broader bases for recognition of maintenance decisions;
simplified, more expeditious procedures for recognition or
enforcement of maintenance decisions; more beneficial legal
assistance than that provided under Articles 14 through 17; or
procedures permitting an applicant from a requesting State to
make an application directly to the Central Authority of the
requested State. Article 52(2) provides that the Convention
does not prevent a State from unilaterally applying to
proceedings in its territory a law that provides for more
effective enforcement under the same circumstances as described
in Article 52(1), provided that any simplified and more
expeditious recognition and enforcement procedures must be
compatible with the protection offered to parties under
Articles 23 and 24, in particular, the rights of the parties to
notice of the proceedings and an adequate opportunity to be
heard, and with regards to the effects of any challenge or
appeal.
Article 53 provides that in the interpretation of the
Convention, regard shall be had to the importance of uniform
application of this international Convention.
Article 54 requires the Secretary General of the Hague
Conference on Private International Law to convene at regular
intervals a Special Commission to review the practical
operation of the Convention and to encourage the development of
good practices. States must cooperate with the Permanent Bureau
in the gathering of statistics and case law concerning the
practical operation of the Convention.
Article 55 provides a special amendment process for the
mandatory forms annexed to the Convention. (There are two
mandatory forms, the Transmittal form required under Article
12(2) and the Acknowledgement form required under Article
12(3). All other forms related to the Convention will be
recommended, but not required.)
Article 56 contains transitional provisions. Article 56(1)
provides that the Convention applies to requests received after
entry into force of the Convention between the requesting State
and the requested State, even where the request is for
recognition and enforcement of a decision that was handed down
in the requesting State before entry into force of the
Convention. Article 56(2) provides that, with regard to the
recognition and enforcement of decisions between Contracting
States that are also Parties to either of the Hague Maintenance
Conventions mentioned in Article 48, if a decision was given
prior to entry into force of this Convention and cannot be
recognized under this Convention but can be recognized under
one of those other Conventions, then that other Convention
shall apply. Article 56(3) provides that, in cases other than
child support cases, the Convention does not require the
enforcement of a decision for payments falling due prior to
entry into force of the Convention between the State of origin
and the State addressed.
Article 57(1) is an important provision to help ensure
transparency and effective implementation of the Convention. It
requires a Contracting State to provide the Permanent Bureau
with key information, including a description of its laws and
procedures concerning maintenance obligations; a description of
the measures it will take to meet the obligations under Article
6 (Specific functions of Central Authorities); a description of
how it will provide applicants with effective access to
procedures as required under Article 14; a description of its
enforcement rules and procedures, and any specification
referred to in Article 25(1)(b) and (3).
Under Article 57(2), States may use a Country Profile form,
as may be recommended and published by the Hague Conference, to
provide this information. (The Country Profile was developed by
a group of States, including the United States, that
participated in the negotiation of the Convention. It is
designed to allow a State to check appropriate tick boxes
describing its laws and procedures, as well as provide
narrative explanations.
Chapter IX (Articles 58-65) sets out the usual types of
provisions concerning signature and ratification of the
Convention, accession to the Convention, when the Convention
shall enter into force, how a Contracting State may make
declarations and reservations, how the Convention may be
denounced, and the notification requirements to be met by the
depositary--the Ministry of Foreign Affairs of the Kingdom of
the Netherlands. The Chapter also addresses ratification of the
Convention and accession to the Convention by REIOs, i.e., by
the European Community.
According to Article 58, the Convention is open for
signature and ratification, acceptance, or approval by States
that were members of the Hague Conference on Private
International Law at the time of its Twenty-First (2007)
Session and by the other States that participated in that
Session. Any other State or REIO may accede to the Convention
after it has entered into force. Such accessions will have
effect only as regards the relations between the acceding State
and such Contracting States that have not objected to its
accession within 12 months of notification of such accession.
An objection to accession may also be raised by States at the
time when they ratify, accept, or approve the Convention after
such an accession.
Article 59 provides that a REIO, which is constituted
solely by sovereign States and has competence over some or all
of the matters governed by the Convention, may similarly sign,
accept, approve, or accede to this Convention. Currently, only
the European Community qualifies as a REIO. Such an REIO will
have the rights and obligations of a Contracting State, to the
extent of its competence over matters governed by the
Convention. The REIO must notify the depositary in writing of
the matters governed by the Convention in respect of which
competence has been transferred to the REIO by its member
States. The REIO must promptly notify the depositary of any
changes to its competence. At the time of signature,
acceptance, approval, or accession, a REIO may--pursuant to
Article 59(3)--declare that it exercises competence over all
the matters governed by the Convention, and that its members
that have transferred competence to it, shall be bound by the
Convention by virtue of the REIO's signature, acceptance,
accession, or approval. Article 59(4) provides that, for the
purposes of the entry into force of the Convention, any
instrument deposited by a REIO shall not be counted unless the
REIO declares in accordance with Article 59(3) that its members
will be bound by the Convention. Article 59(5) states that,
where appropriate, any reference to a ``Contracting State'' or
``State'' in the Convention applies equally to a REIO that is a
party to it. In the event that a declaration is made by the
REIO pursuant to Article 59(3), any reference to a
``Contracting State'' or ``State'' in the Convention applies
equally to the member States of the REIO, where appropriate.
Article 60 provides that the Convention will enter into
force on the first day of the month following the expiration of
three months after the deposit of the second instrument of
ratification, acceptance, or approval. For each State or REIO
subsequently ratifying, accepting, or approving the Convention,
the Convention enters into force on the first day of the month
following the expiration of three months after the deposit of
its instrument of ratification, acceptance, or approval. The
Convention will enter into force for each State or REIO that
accedes to the Convention after it has entered into force on
the day after the end of the period during which objections may
be raised in accordance with Article 58(5). Article 60(2)(c)
details when the Convention shall enter into force for a
territorial unit to which the Convention has been extended in
accordance with Article 61.
Article 61 establishes that if a State has two or more
territorial units in which different systems of law are
applicable in relation to maintenance matters under the
Convention, it may declare that the Convention will extend to
all of its territorial units, or only to one or more of those
units. The declaration may be modified at any time. Article
61(3) further directs that if a State makes no declaration
under this Article, the Convention shall presumptively extend
to all territorial units of the State. Article 61(4) clarifies
that this Article does not apply to a REIO. It is recommended
that the United States declare that the Convention will extend
to the jurisdictions participating in Title IV-D of the Social
Security Act (i.e., all 50 states, the District of Columbia,
Guam, Puerto Rico, and the United States Virgin Islands). The
Convention would therefore not extend to American Samoa, the
Northern Marianas or any other U.S. territory that does not
participate in Title IV-D.
Article 62 governs reservations. A State may make one or
more reservations provided for in Articles 2(2) (limiting the
application of the Convention to children under the age of 18);
20(2) (excluding certain bases of mandatory jurisdiction for
recognition and enforcement, such as creditor's residence and
private agreement); 30(8) (reserving the right not to recognize
and enforce maintenance arrangements); 44(3) (objecting to the
use of either French or English in certain communications
between Central Authorities; and 55(3) (objecting to the
amendment of a mandatory form). No other reservation is
permitted. Article 62(4) provides that reservations have no
reciprocal effect with the exception of the reservation
provided for in Article 2(2) (limitation of Central Authority
cooperation to persons under the age of 18).
It is recommended that the United States ratify the
Convention subject to the following reservations:
``Pursuant to Articles 20(2) and 62, the United
States makes a reservation to Article 20(1)(c), (e),
and (f).''
``Pursuant to Article 44(3), the United States makes
a reservation objecting to the use of French.''
Article 63 governs declarations. A State may make a
declaration referred to in Articles 2(3) (extending of the
Convention to maintenance obligations other than child
support); 11(1)(g) (specifying additional information or
documentation to be included with an application); 16(1)
(declaring that it will subject the provision of free legal
assistance to a means test based on the means of the child);
24(1) (declaring that it will apply Article 24's alternative
procedure for recognition and enforcement); 30(7) (declaring
that applications for recognition and enforcement must be made
through Central Authorities); 44(1) (stating that no
translation of documents is required), and (2) (declaring, for
States with more than one official language, which language
must be used for which parts of its territory); 59(3) (a REIO
declaring that it exercises sole competence over all matters
governed by the Convention and that the REIO speaks for all of
its Members that have transferred competency with respect to
the matter in question); and 61(1) (a non-unified State
specifying the territorial units to which the Convention
applies).
It is recommended that the United States ratify the
Convention subject to the following declaration:
``Pursuant to Articles 61 and 63, the United States
declares that the Convention shall extend to all 50
U.S. states, the District of Columbia, Guam, Puerto
Rico, and the United States Virgin Islands.''
Article 64 provides that a Contracting State may denounce
the Convention by a notification in writing to the depositary.
Such denunciation shall take effect on the first day of the
month following the expiration of 12 months after the
notification is received by the depositary, unless the
denunciation specifies a longer period of time.
Article 65 explains that the depositary must notify the
members of the Hague Conference on Private International Law,
and other Contracting States of the following: (a) the
signatures, ratifications, acceptances, and approvals referred
to in Articles 58 and 59; (b) the accessions and objections
raised to accessions referred to in Article 58(5); (c) the date
on which the Convention enters into force in accordance with
Article 60; (d) the declarations referred to in Articles 2(3),
11(1)(g), 16(1), 24(1), 44(1) and (2), 58(5), 59(3), and 61(1);
(e) the agreements referred to in Article 51(2); (f) the
reservations referred to in Articles 2(2), 20(2), 30(8), 44(3),
and 55(3), and the withdrawals referred to in Article 62(2);
and (g) the denunciations referred to in Article 64.
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