Moderator: Mary Dahlberg, Center for Support of Families

The New Convention on the

International Recovery of Child Support

Liza Lowe, Office of Child Support Enforcement, U.S. HHS Senior Policy Program Specialist Division of Policy and Training

eliza.lowe@acf.hhs.gov Robert Keith, Office of the General Counsel, U.S. HHS Associate General Counsel Children, Families and Aging Division

robert.keith@hhs.gov

• The Hague Child Support Convention • Implementation in the U.S. • International Procedures Under UIFSA 2008 • IV-D agency services under the Convention • Applications • Forms • Resources

Overview

Development of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance: • 55 Hague member countries, 15 “observer” (non-Hague-

member) countries and non-Governmental Organizations (e.g., NCSEA)

• 5 years of negotiations (2003 -2007)

• U.S. signed the Hague Convention on November 23, 2007, committing to work toward ratification and implementation in the U.S.

The Hague Child Support

Convention

U.S. Goals in Negotiations • Minimal burden on IV-D agencies

• Procedures that produce results and are accessible, prompt, efficient, cost-effective, responsive, and fair

• Cost-free services in international child support cases

• A convention the U.S. could join

• Emphasized results and parental responsibilities

• AND would be broadly accepted: “It may not be perfect, but it is very good.” Offers amazing advance over the status quo with comprehensive, simple, legal framework

combined with detailed administrative procedures Likely to be the child support convention for the next 50 years

The Hague Child Support

Convention

31 Countries have ratified • Norway*

• Albania

• Bosnia and Herzegovina

• Ukraine

• European Union: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic*, Estonia, Finland*, France, Germany, Greece, Hungary*, Ireland*, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands*, Poland*, Portugal*, Romania, Slovakia*, Slovenia, Spain, Sweden, United Kingdom of Great Britain and Northern Ireland*

* Also a federal Foreign Reciprocating Country, section 459A of the Social Security Act.

The Hague Child Support

Convention

Steps toward Ratification in the U.S.

• All U.S. states have enacted UIFSA 2008, the implementing legislation for the Convention

• The President will sign the instrument of ratification

• The United States will deposit its instrument of ratification in the Netherlands It will take effect for the U.S. on the first day of the first month

that is not less than three months after the date of deposit

Implementation in the U.S.

Approaches for International Cases • Applications through Central Authorities • Direct requests to a competent authority: no

involvement of the IV-D system Procedures may vary depending on the type of

country involved UIFSA definition of “foreign country” includes:

Foreign Reciprocating Country, state reciprocal arrangement, country with substantially similar laws, and Convention country

International Procedures Under

UIFSA 2008

UIFSA 2008, Section 105 – Road map • Tribunal must apply UIFSA articles 1 thru 6 and, as

applicable, article 7, to a support proceeding involving: o A foreign support order;

o A foreign tribunal; or

o An obligee, obligor, or child residing in a foreign country

• Tribunal may apply Articles 1 thru 6 when asked to recognize and enforce a foreign support order on basis of comity

• New Article 7 applies only to Convention proceedings

International Procedures Under

UIFSA 2008

Registration for Enforcement • Procedure for non-Hague foreign support orders

o UIFSA 1996/2001

• Procedure for Hague foreign support orders o New UIFSA Article 7 o Major differences

Documents Timeframes Defenses Role of Central Authority

International Procedures Under

UIFSA 2008

When enacting UIFSA 2008, state legislatures chose between 2 alternatives:

Alternative A: Must, upon request, provide services to all petitioners (current IV-D rule)

or

Alternative B: Must, upon request, provide services to a petitioner residing in a state or requesting services thru a Central Authority (Convention or reciprocity case) AND may, upon request, provide services to an individual petitioner not residing in a state (all other foreign cases)

International Procedures Under

UIFSA 2008

Public Applications through Central Authorities (CAs)

• Children under the age of 21 (some countries may limit to 18 with a reservation when ratifying the Convention)

• Spousal support combined with child support if country has made a declaration to extend scope

• Other maintenance obligations if country has made a declaration to extend scope

IV-D Agency Services under the

Convention

A creditor/custodial parent may apply for:

• recognition or recognition and enforcement of a decision made in the creditor’s country or in the requested/enforcing country

• establishment of a decision in the requested country, including where necessary the establishment of parentage

• establishment of a decision in the requested country where recognition and enforcement of a decision is not possible, or is refused

• modification of a decision

IV-D Agency Services under the

Convention

A debtor/noncustodial parent may apply for:

• recognition of a decision, or an equivalent procedure leading to the suspension, or limiting the enforcement, of a previous decision in the requested country

• modification of a decision

IV-D Agency Services under the

Convention

Modification: U.S. Orders (UIFSA Section 611(f))

A U.S. tribunal retains jurisdiction to modify an order it has issued if:

• (1) one party resides in another U.S. state (as defined by UIFSA); AND

• (2) the other party resides outside the United States

IV-D Agency Services under the

Convention

Modification: Foreign Orders (UIFSA Section 615)

• A U.S. tribunal can modify a foreign support order, even if that country would have Continuing Exclusive Jurisdiction (CEJ), if: o Issuing country cannot or will not modify its order AND

o U.S. tribunal has personal jurisdiction over the parties

o Consent is not necessary

o Residence of petitioner does not matter

• For non-Convention foreign support orders, register for modification under Article 6.

IV-D Agency Services under the

Convention

Modification: Convention Orders (UIFSA Section 711) • Indirect rule of jurisdiction.

• A U.S. tribunal cannot modify a Convention support order if the obligee resides in the issuing country, unless:

o Obligee submits to jurisdiction of U.S. tribunal; or

o Foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.

• Registration for modification will be under new Article 7.

• If U.S. tribunal does not modify Convention order because it does not recognize the order, it must allow time for party to request establishment of new support order.

IV-D Agency Services under the

Convention

New Defense to Registration: “Manifestly incompatible with public policy”

• Ex officio Review by tribunal

Court may vacate, acting on its own motion; neither party may make submissions

Shall promptly notify the parties of the order vacating registration

• Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process

IV-D Agency Services under the

Convention

Limited grounds to refuse recognition and enforcement • The issuing tribunal lacked personal jurisdiction consistent with

UIFSA Section 201

• The order is not enforceable in the issuing country

• The order was obtained by fraud in connection with a matter of procedure

• A record transmitted in accordance with UIFSA Section 706 lacks authenticity or integrity

• A previously filed proceeding is pending before a tribunal of this state (first to be filed)

IV-D Agency Services under the

Convention

Limited grounds to refuse recognition and enforcement (cont.) • The order is incompatible with a more recent support order (same

parties and purpose) entitled to recognition

• Payment in full or in part

• In a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country, he or she did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal or

• The order was made in violation of Section 711

IV-D Agency Services under the

Convention

Effect of Non-recognition If a tribunal of this state does not recognize a Convention support order due to lack of personal jurisdiction in the issuing country, procedural fraud, or lack of notice and opportunity to be heard, 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; and

• the IV-D agency shall take all appropriate measures to request a child-support order for the obligee if the application for recognition and enforcement was received under Section 704

IV-D Agency Services under the

Convention

Limited Services Article 7 of the Child Support Convention – “Request for Specific Measures” • To help complete the application or determine if an

application is necessary; or for information to assist in an existing case in the requesting country

• Types of services include locate services, provide financial information, assist in establishing paternity, service of documents, obtaining evidence, assist with provisional measures

IV-D Agency Services under the

Convention

“Decisions” and “Maintenance Arrangements” • Convention Article 19

(1) This Chapter shall apply to a decision rendered by a judicial or administrative authority in respect of a maintenance obligation. The term “decision” also includes a settlement or agreement concluded before or approved by such an authority. A decision may include automatic adjustment by indexation and a requirement to pay arrears, retroactive maintenance or interest and a determination of costs or expense.

• Convention Article 30 (1) A maintenance arrangement made in a Contracting State [country] shall be entitled to recognition and enforcement as a decision under this Chapter provided that it is enforceable as a decision in the State [country] of origin.

IV-D Agency Services under the

Convention

Other Hague Conventions Hague Child Support Convention does not replace or abrogate other Conventions, such as:

• 1965 Service of Process Abroad Convention (Service Convention)

• 1970 Taking of Evidence Abroad Convention (Evidence Convention)

IV-D Agency Services under the

Convention

Hague Conference on Private International Law (www.hcch.net) Child Support Section: (https://www.hcch.net/en/instruments/conventions/specialised-sections/child-support) • Full text of the Child Support Convention • Forms • Country Profiles • Practical Handbook for Caseworkers • Explanatory Report

Resources

Two Required Forms Under the Convention • Annex 1 to the Convention – Transmittal Form under

Article 12(2) (https://www.hcch.net/en/publications-and-studies/details4/?pid=4224)

• Annex 2 to the Convention – Acknowledgement Form under Article 12(3)(https://www.hcch.net/en/publications-and-studies/details4/?pid=4225)

Forms

Other Convention Forms https://assets.hcch.net/docs/7b1c5829-81a6-46f5-902e-d59b572dff8a.pdf

A: Application for Recognition or Recognition and Enforcement, along with

• Abstract of a Decision

• Statement of Enforceability of a Decision

• Statement of Proper Notice

Forms

Other Forms (cont.)

B: Application for Enforcement of a Decision Made or Recognised in the Requested State

C: Application for Establishment of a Decision

D: Application for Modification of a Decision

E: Financial Circumstances Form Status of Application Report (Article 12) for all applications

Forms

Country Profiles • The Child Support Convention requires countries to provide

specific information about their laws and procedures • Country Profiles on the Hague Conference web site provide

this information (http://hcch.cloudapp.net/smartlets/sfjsp?interviewID=hcchcp2012&t_lang=en)

• For the U.S., there will be links to the Intergovernmental Resource Guide (IRG). All states must complete 17 new questions (OCSE Dear Colleague Letter 15-18)

Resources

Practical Handbook • For caseworkers who process cases, not attorneys and judges

who seek legal information

• Types of applications, forms to use, etc.

https://assets.hcch.net/docs/5f160c92-b560-4b7f-b64c-8423f56c6292.pdf

Resources

Explanatory Report • Detailed information on each article of the Convention

• Serves as a commentary on the convention

• Authors were present for all negotiations

https://assets.hcch.net/upload/expl38.pdf

Resources

OCSE Website (http://www.acf.hhs.gov/programs/css) International resources, top menu bar under “other partners” (http://www.acf.hhs.gov/programs/css/partners/international) • Drop down List of Foreign Reciprocating Countries (FRCs) and

Caseworker’s Guides • Intergovernmental Resource Guide (IRG) with addresses and

contacts for FRCs, top menu bar under “libraries” (http://www.acf.hhs.gov/programs/css/irg-state-map)

• OCSE international inquiries: through web form or ocseinternational@acf.hhs.gov

• Links to Hague Child Support Convention resources

Resources

Questions?