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European Communities (Definition of Treaties) (1996 Hague Convention on Protection of Children etc.) Order 2009

In debating this draft order on 8 December, my colleague in the other place explained its purpose and outlined some of the provisions of the 1996 Hague convention. I hope it will be helpful if I do the same today. The 1996 Hague convention on the protection of children applies between contracting states across the world. It established uniform rules on jurisdiction, choice of law and the recognition and enforcement of judgments in relation to measures for the protection of children. We believe that the convention will improve outcomes when orders are made for the better protection of children. That is why the Government decided in favour of ratification. The draft European Communities (Definition of Treaties) (1996 Hague Convention on Protection of Children etc.) Order 2009 will declare that the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children is to be regarded as a Community treaty as defined in Section 1(2) of the European Communities Act 1972. Section 2(2) of the Act provides that an international agreement specified as a community treaty may be implemented by regulations. The 1996 Hague protection of children convention can be specified because it is a treaty entered into by the UK as ancillary to the Community treaties. There is European Union legislation which partly covers the same subject matter, known as Brussels 2a, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. This overlap gives the European Union competence over certain provisions of the convention, and this power is shared with member states. However, the convention can be ratified or acceded to only by states parties. The European Community cannot ratify the convention in its own right and, therefore, by Council decision, has authorised member states to ratify the convention on its behalf, in the interests of the Community. The draft order does not implement the detailed provisions of the convention. It is an enabling measure. The order will specify the 1996 Hague convention as a Community treaty, enabling detailed secondary legislation to be introduced, implementing all aspects of the convention. The draft order was approved in the other place last week. Subject to approval of the draft order by both Houses of Parliament, the order will be made by Her Majesty in the Privy Council. We shall then bring forward next year a statutory instrument to implement the convention for England and Wales, and Northern Ireland. The Scottish Government have indicated that they are preparing their own statutory instrument to implement the convention under Section 2(2) of the 1972 Act. The Government decided in 2001, following public consultation, that the UK should ratify the 1996 Hague convention whenever it was brought forward for implementation by the European Community. The EU Council decision in 2003 was the subject of scrutiny in both Houses at that time. The UK signed the convention in April 2003. If all the EU member states which have not already done so are ready to ratify by June 2010, the convention could be in force in the UK as early as October 2010. All member states need to be ready at the same time for ratification to proceed. We intend that the UK should be ready to ratify the convention in June next year. What does the convention do? Measures for the protection of children which may be dealt with under the 1996 Hague convention include residence, contact, and care orders. The main basis for jurisdiction is the child’s habitual residence. As noble Lords will understand well, the court in the state of the child’s habitual residence will generally know more about the child’s situation and is, therefore, best able to take decisions about the child. Uniform rules of jurisdiction should achieve this and ensure that decisions on children properly made in one country are respected in others, so that there is no need to go to court again about the same issues in cases with an international element. Jurisdiction can be transferred by agreement if this is in the child’s best interests. The convention will also lead to an enhancement of existing mechanisms for administrative co-operation between courts and public authorities in different countries concerned with the protection of a child. The 1996 Hague protection of children convention will complement and strengthen the operation of the 1980 Hague child abduction convention between states which have ratified both conventions. The 1996 convention is in force between the countries which have ratified it. We hope that ratification en bloc, by the 17 EU member states which are yet to do so, will send a powerful signal to other countries that the convention merits signature and ratification. This is certainly the expectation of the secretary-general of the Hague Conference on Private International Law. Community rules for recognition and enforcement of judgments are at least as favourable as the rules laid down in the 1996 Hague convention. A declaration made by the UK and other EU member states in 2003 has the effect that relevant internal rules of Community law will apply for the recognition and enforcement of judgments between EU member states. Where a child is habitually resident in an EU member state, Community rules will also apply to determine jurisdiction. As some noble Lords will know, the decision of the European Council in June last year to authorise certain member states, which have yet to do so, to ratify the 1996 Hague convention was not issued sooner because of disagreement relating to communications between Gibraltar and other contracting parties. Following resolution of this issue in December 2007, the European Union was able to proceed with its approval of this and other conventions. In coming before the Committee today, I am glad to be able to highlight the fact that the decision of the European Council in June 2008 has enabled us to make progress towards UK implementation of this important instrument. I commend the order to the Committee. I beg to move.