Enhancing International Family Support: The Hague Convention and UIFSA 2008

1. The Hague Convention and UIFSA 2008 Margot Bean Deloitte Consulting LLP Meg Haynes Center for the Support of Families Anne Miller Federal Office of Child Support Enforcement

2. The Hague Convention Presented by: Margot Bean

3. Background to the 2007 Hague Convention Review of existing Conventions carried out at The Hague in 1995 and 1999 The problems: Too many instruments 1956 New York Convention no longer adequate Existing international process Not meeting needs Not geared to reforms in national systems Not exploiting the opportunities presented by new technologies

4. The Mandate Elaboration of a new worldwide international instrument Provisions relating to administrative co-operation an essential element Comprehensive, building upon the best features of existing Conventions Taking into account future needs and new technologies

5. The Mandate (Cont) Combining maximum efficiency with the flexibility necessary to achieve widespread ratification In co-operation with other relevant International Organizations Inclusive Process

6. The Process Ongoing research and monitoring by HCCH Secretariat Questionnaires to States and InterestedOrganizations: 1998 and 2002 Consultations / informal discussions 2001 / 2002 Background Reports 2003 Negotiation sessions: May 2003, June 2004,April 2005, June 2006 and May 2007

7. The Process(Cont) • Meetings held between sessions by: (1) Drafting Committee (2) Applicable Law Working Group(3) Administrative Cooperation Working Group (4) Forms Committee • Diplomatic Conference November 2007 • States were responsible for the process • The Secretariat of HCCH facilitated

8. Key Features of New Convention Universality Accessibility Simplicity & Flexibility Speed & Efficiency Cost-effectiveness Responsive and fair Non-discrimination Co-operation and compliance

9. Scope of Application of the Convention Mandatory to cases of persons under the age of 21(possible to reserve for persons under the age of 18) Covers spousal support but its provision on administrative co-operation will only apply to spousal support where States have made a declaration

10. Scope of Application of the Convention (Cont) Can extend to other maintenance obligations arising from a family relationship, parentage, marriage or affinity if a reciprocal declaration is made Can be extended to vulnerable adults Convention applies to children regardless of the marital status of the parents

11. Administrative Cooperation • Administrative co-operation implemented using Central Authorities (CAs) • CAs are the focal point in relation to specific functions: • Transmitting and receiving applications • Initiating or facilitating proceedings • Convention will provide for specific applications using recommended forms:

12. Administrative Cooperation (Cont.) • Recognition and enforcement of Contracting States decisions • Enforcement of requested State decision • Establishment of decision in requested State when no existing decision or when enforcement of existing decision impossible • Modification of decisions either by creditor or debtor • Recovery of arrears • Time lines and responsiveness • Means of communication

13. Recognition and Enforcement • Applies to judicial & administrative decisions, settlements, “maintenance agreements” (authentic instruments) • Main bases for recognition and enforcement (indirect jurisdiction) • Respondent habitually resident in the State of origin • Respondent submitted to the jurisdiction • Creditor habitually resident in the State of origin (reservation possible) • Child resident in the State of origin when proceedings instituted and respondent lived with the child there or resided there and provided support for the child there • Agreement to the jurisdiction by the parties except in the case of child support (reservation possible) • Authority exercising jurisdiction on a matter of personal status or parental responsibility (reservation possible)

14. Recognition and Enforcement (Cont.) • Grounds for refusing recognition and enforcement • Decision manifestly incompatible with public policy • Decision obtained by fraud relating to procedure • Competition between pending case and foreign decision • Conflicting decisions (res judicata) • No proper notice or opportunity to be heard • Debtor exceeded limits on proceedings (Article 18)

15. Procedures for Recognition and Enforcement • Registration for enforcement • Grounds for refusal are limited • No submissions from the parties • Challenge or appeal within limited time and on limited grounds • Further appeal if permitted by law of State addressed, without staying the enforcement of the decision • Alternative procedure • Linkage with national enforcement procedures • Direct applications to competent authorities (typically courts) are possible

16. Effective Access to Procedures Contracting States obliged to provide effective access to procedures, including enforcement and appeal procedures. (Art. 14(1)) Effective access = Providing ALL services virtually cost-free. Convention provides for completely cost-free services in child support cases processed through Central Authorities, with narrow exceptions.

17. Effective Access to Procedures (Cont.) Cost-free services is key to the success of the Convention. Why a means test doesn’t work. Why this issue was so difficult to resolve.

18. Main Elements of Effective Access Package Services of Central Authorities shall be provided without cost to applicant, with rare exceptions. (Art. 8) Free legal assistance to creditors for all child support applications, including establishment and recognition and enforcement of decisions, with rare exceptions. (Arts. 14 and 15) No need to provide free legal assistance if the State has simple procedures that do not require such assistance, and the Central Authority provides any necessary services free of charge. (Art. 14(3))

19. Main Elements of Effective Access Package (Cont.) Alternatively, a State may declare that it will make the provision of free legal assistance in applications for establishment of a child support order subject to a means test based on the means of the child. (Art. 16) For other applications (non-child support, or applications by a debtor) processed through Central Authorities, the provision of free legal assistance may be made subject to means or merits test. (Art. 17)

20. Central Authorities Each state shall designate a Central Authority (Federalized States) Central Authorities shall cooperate and promote cooperation Central Authorities shall seek resolution to difficulties May be performed by public bodies or other bodies subject to laws of state and competent supervision

21. Central Authorities (Cont.) Shall not exercise power that can only be exercised by a judicial authority in a regulated state Each Central Authority shall bear it’s own costs May not impose and charge applicants for services under Convention (except under Article 7) and then only with prior consent and notice of cost

22. Central Authority Functions • Transmit and receive applications • Initiate or facilitate proceedings in response to an application • Take all appropriate measures • Provide or facilitate provision legal assistance • Verify/obtain income or financial circumstances including assets of debtor or creditor • Facilitate amicable solutions / voluntary payments

23. Central Authority Functions (Cont.) Facilitate enforcement Facilitate payments and expeditious transfer of funds Facilitate obtaining documentary or other evidence Provide assistance in establishing parentage Initiate or facilitate proceedings to obtain necessary provisional measures Facilitate service of documents

24. Translation • Incoming cases • Section 713 of UIFSA – record must be in original language, accompanied by an English translation. • Outgoing cases • UIFSA silent • Hague Convention – Articles 44, 45 • Application + related documents = original language + official language of requested country

25. Translation (cont’d) • Other communication – official language of requested country, or English or French (unless objection) • If requesting country unable to make translation, can ask requested country to do translation. • Requesting country bears cost. • Requesting country can charge applicant.

26. Permanent Bureau(Hague Conference on Private International Law) Follow-Up activities to 2009 Special Commission Country Profile Completed version to be posted on Permanent Bureau website (www.hcch.net) in 2011 Forms Recommended Forms completed and translated Available on Permanent Bureau website Practical Handbook Will be finalized after Forms are completed Final draft circulated for consultation in *** Expected completion – ****

27. UIFSA 2008 Presented by: Meg Haynes

28. Goals • Implement the Hague Convention • Address international cases in general • Build upon UIFSA 2001

29. Discussion Points • Hague Convention is not exclusive remedy for international orders. • UIFSA already contained provisions re: bilateral agreements and state reciprocity arrangements. • A tribunal may also recognize a foreign order on basis of comity. • UIFSA is “bigger” than child support agency IV-D world. • UIFSA covers spousal and child support. • Some concepts – CEJ and DCO – do not fit neatly in international arena.

30. New Definition of Foreign Country • UIFSA 2001 incl. “qualified” foreign countries within definition of State • UIFSA 2008 has separate definition that incl. many, but not all, foreign nations:

31. Foreign Country Definition A country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and: (A) has been declared under US law to be a foreign reciprocating country; (B) Has established a state reciprocal arrangement for child support; (C) Has law or procedures for the issuance and enforcement of support orders which are substantially similar to UIFSA procedures; or (D) In which the Convention is in force with respect to the United States.

32. New Definition of State • State – a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under US jurisdiction. Term includes an Indian nation or tribe.

33. Road Map • Articles 1 – 6, and as applicable Article 7, apply to a support proceeding involving: • A foreign support order; • A foreign tribunal; or • An obligee, obligor, or child residing in a foreign country. • Articles 1 – 6 may be applied by a tribunal recognizing and enforcing a support order on basis of comity • Article 7 applies only to Convention proceedings.

34. Establishment under UIFSA 2008 • No changes to processing of international cases

35. Enforcement under UIFSA 2008 • Direct income withholding only for support orders issued by a state. No longer requires US employers to honor DIWs from foreign countries. • Administrative enforcement available to enforce state and foreign support orders.

36. Art. 7 Recognition and Enforcement • Registration procedure very similar to Art. 6 Recognition and Enforcement • Differences from Art. 6 • Documents • Time frames • Defenses • In some cases, if can’t enforce, must attempt to establish new order

37. Documents Required Hague Foreign Support Orders Transmittal Letter Complete text of order [or abstract by issuing foreign tribunal] Record that order is enforceable in issuing country If default order, a record attesting to due process re: notice & opportunity to be heard Record re: arrears Record re: automatic adjustment of support If necessary, a record re: receipt of free legal assistance in issuing country

38. Time Frame to Contest Non-Hague Foreign Support Orders Within [20] days after notice of registration Hague Foreign Support Orders Not later than 30 days after notice of registration Not later than 60 days after notice if contesting party does not reside in US

39. “New” Defenses Hague Foreign Support Orders Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process; Issuing tribunal lacked personal jurisdiction consistent with Section 201; Order is not enforceable in issuing country; If default order, there was a lack of due process re: notice & opportunity to be heard

40. Registration for Enforcement (cont’d) Hague Foreign Support Orders If a tribunal of a state does not recognize a Convention support order because There was a lack of personal jurisdiction There was procedural fraud A proceeding between same parties with same purpose is pending before a tribunal of that state and that proceeding was filed first The order is a default order but the notice and opportunity to challenge did not satisfy due process Then the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order.

41. Registration for Enforcement (cont’d) Hague Foreign Support Orders And the [governmental entity] must take all appropriate measures to request a child-support order for the obligee if the application for recognition and enforcement was received through the Central Authority system.

42. Modification under UIFSA 2008 • Sections 609 – 614 limited to modification of orders issued by a State (as newly defined) • Section 611(f) is new. Provides that an issuing state tribunal retains jurisdiction to modify its order if: • One party resides in another state; and • Other party resides outside the United States.

43. Modification of Foreign Support Order • Section 615 applies where foreign country lacks or refuses to exercise its jurisdiction to modify under its laws • State tribunal may modify • Regardless of consent • Regardless of residence of petitioner • Article 7 governs modification in Hague proceedings • State tribunal may not modify if obligee remains resident of issuing country • Exceptions

44. Currency Conversion Hague Convention does not address. UIFSA 2001 provisions remain in UIFSA 2008.

45. Practical Advice for Working International Support Cases • Remember English is usually not the official language • Avoid jargon • Provide your e-mail address • Allow extra processing time • Recognize that the Central Authority may not be the entity processing the case • Take advantage of network

46. Federal Update Presented by: Anne Miller

47. Federal Update Current Status of U.S. Ratification Ratification in Other Countries Bilateral agreements Resources

48. Current Status of U.S. Ratification UIFSA 2008 amendments approved by Uniform Law Commissioners – July 2008 Implementing IV-D legislation transmitted to the Congress – Summer 2008 to the present The President submitted the Convention to the Senate for advice and consent - September 2008 Several briefings held for Hill staff - Fall 2008 - Present ABA House of Delegates approved UIFSA 2008 - February 2009

49. Current Status of U.S. Ratification The Senate Foreign Relations Committee: Voted to approve the Hague Family Maintenance Convention on November 17, 2009; and, Submitted the report on the Hague Family Maintenance Convention to the Senate and recommended that the Senate give its advice and consent to ratification on January 22, 2010.

50. What needs to happen? The Senate gave advice and consent to ratify the Convention on September 29, 2010. Congress must approve the implementing legislation. States must adopt UIFSA 2008. The President must deposit documentation with the Hague Conference on Private International Law ratifying the Convention.