HCCH Update (4 March 2022): Council Meeting concludes; Voluntary Agreements Project

On Friday, March 4, 2022, the Hague Conference's Council on General Affairs, the governing body of the organization, concluded its annual meeting. Council reviewed a long standing project at its meeting, and the end product is now publicly available on the Hague Conference's website.

The Council, at its annual meeting in 2012, established an Experts' Group "to carry out further exploratory research on cross-border recognition and enforcement of agreements reached in the course of international child disputes..." It was tasked with identifying the "nature and extent of the legal and practical problems, including jurisdictional issues" and evaluating "the benefit of a new instrument, whether binding or non-binding." This Experts' Group first met in the latter half of 2013 to begin its work. Over the years, its work ended up producing a document, titled "Practitioners' Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children."

The Practitioners' Tool does not cover situations where none of the three Hague Children's Conventions apply (Abduction, Child Protection, Child Support). In that the United States is only a party to two of these three Conventions, and the one that the U.S. has not yet ratified (the Child Protection Convention) plays an integral role in voluntary family agreements, this document may not have significant value for U.S. practitioners, yet.

To the extent helpful, the Practitioners' Tool does provide some interesting thoughts, including some suggestions when negotiating and drafting a voluntary agreement:

• "Including a mechanism for the participation of children in the conclusion of family agreements may help to streamline the process of making such an agreement enforceable, particularly when transformation of the agreement into a measure of protection requires verification that the child was given an opportunity to be heard." para. 64.
• "...when drafting a family agreement, it may be helpful to indicate where the parents consider the child is, or is to be, habitually resident along with recording other relevant facts connecting the child to the place where they regard the child as being, or about to become, habitually resident, subject to the decision of the court with jurisdiction." para. 68. [Note - parents cannot consent to subject matter jurisdiction over the issue of custody, but "habitual residence" has other implications]
• For agreements that may involve custody and support, practitioners need to take care to understand which jurisdiction has authority over each issue. It is possible that a court that has jurisdiction to incorporate a custody agreement into an order does not have jurisdiction over child support, and vice versa. para. 76.
• If you negotiate a custody agreement in a Hague Abduction case, there are added complexities because the court seized with jurisdiction over the Hague return petition may not have jurisdiction to recognize the terms of the custody agreement. para. 82, et. seq.
• Getting legal advice in the appropriate jurisdictions and understanding how to make an agreement enforceable is key, at an early stage. It may be necessary to have proper legal advice in the drafting process, not just in the enforcement process.