International Families
Money, Children & Long-Term Planning
CHILD SUPPORT WORKSHOP
PROGRAM PRODUCER: Ms. Rhiannon Lewis (UK)
PRESENTERS:
Hannah Roots (Canada)
Gary Caswell (U.S.)
Margaret Campbell Haynes (U.S.)
Philippe Lortie (The Hague)
1
Establishment & Enforcement Abroad
Recognition & Enforcement of Foreign Orders
Speakers
Hannah Roots
Managing Director
British Columbia Maintenance Enforcement Program
Gary Caswell, Esq.
Nuñez & Caswell
2
Overview
 Establishment of a child support order



US Law
Canadian law and processes
Incoming requests for establishment in United
States
 Enforcement of an existing Child Support order


Canadian processes
Recognition and enforcement of a foreign order in
US
 Other Issues
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
Duration of child support
Currency Conversion
Modification of orders
3
Establishment of Parentage & Child
Support in a Foreign Country – U.S. View
 IV-D Federal Level Reciprocity

http://www.acf.hhs.gov/programs/cse/international/
index.html
 IV-D State Level Reciprocity


TX-Germany, CA-New Zealand, VA-Quebec
See, OCSE Intergovernmental Referral Guide for
State Level Reciprocity & Other helpful information
 Forms & Procedures
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

Give Foreign Tribunals what they want! (Documents,
certificates, translation, foreign currency
equivalence)
UIFSA 2001 § 304 (b) – Duties of Initiating Tribunal
Future: Hague Transmittal & Country Profiles
4
Establishment of Parentage & Child Support in a
Foreign Country – U.S. View Cont’d
 Make IV-D Agency do its job! Case Closure Criteria
applicable when respondent is in a foreign country
 45 CFR CH.III 303.11(B)4: Can close if NCP locate
unknown and have made diligent Efforts using Multiple
Sources over 3 yrs via Automated Locate (if sufficient
info to do Auto-Locate) & 1 yr if only have info for NonAuto-Locate
 45 CFR CH.III 303.11(B)6:The NCP is a citizen of , and
lives in, a foreign country, does not work for the
Federal government or a company with headquarters or
offices in the United States, and has no reachable
domestic income or assets; and the State has been
unable to establish reciprocity with the country (focus
on citizenship, not Reciprocity) If US Citizen, can’t
close for lack of reciprocity alone.
5
Establishment of Parentage & Child Support in a
Foreign Country – U.S. View Cont’d
 If No Reciprocity - Long Arm Factors


Is there a Jurisdictional basis for VA to establish
support or determine parentage over a Nonresident
Respondent (NR)?
 UIFSA 2001 §201 bases: NR was personally served
in VA; voluntarily submits to VA Jurisdiction; resided
with the child in this state; resided in the state and
supported the child; the child resides in this state
because of NR’s acts or directives (DV cases?); sex in
VA & child may have been conceived as a result; and
any other basis which is “constitutional”.
Is Enforcement of resultant Order in U.S. possible?
 (wage withholding, license revocation, property lien
(cost & logistics of PAT);
6
Establishment of Parentage & Child Support in a
Foreign Country – U.S. View Cont’d
 Child vs. Debtor-Based Jurisdiction Stalemate


Kulko, 436 U.S. 84; 98 S. Ct. 1690
Spring Break Affair in Cancun; CP in TX; AF in Quebec &
never in TX; No TX-QU reciprocity; QU Local Counsel
says no Jurisdiction to Establish PAT in QU = Stalemate!
(File in TX, Child in TX as a result of AF Acts or
Directives? Ask TX IV-D to ask VA IV-D (VA –QU
Reciprocity to initiate to QU?)
 No Reciprocity + No Long Arm = Foreign
Attorney(s)

DOS Link for Retaining Foreign Attorneys
 Non-Judicial Remedies

ADR & Cultural Pressure (Japanese Corps, Ball Clubs)
7
MEXICO
 No Federal Reciprocity (despite Fernando Solana
‘92 Declaration re all MX states & URESA/RURESA
 No Effective Central Authority Assistance
 Enforcement Limited
 Wage Withholding (specific to employer)
 Abandonment
 Service of Process:
 New Developments Hague vs Inter-American;
Exclusivity; PFI; Local Counsel
 See, Gary Caswell “Judicial Assistance
Conventions in Effect for Mexico and the USA”
in course materials.
8
Canadian Family Law
Framework
 In Canada – family law is area of shared responsibility for federal
government and provinces/territories
 Federal law (Divorce Act ) governs family matters including
child support for parents that were married
 Provincial law governs all issues arising out of family
breakdown outside marriage (never married, or interim orders
before divorce) and property division
 Enforcement of child support is exclusively a provincial
responsibility (although federal government will enforce against
federally regulated assets/income at request of a province)
 Provincial/Territorial Interjurisdictional Support Order (ISO)
Acts govern cases where one party resides outside province

ISO is similar to UIFSA (but not uniform across Canada)
 Result is a patchwork of similar but not identical laws respecting
family breakdown in Canada
9
Establishing Child Support in
Canada
 In terms of substantive law – there are a lot of
similarities between Canadian and American
family law
 Some differences to be aware of:
 In Canada – jurisdiction to establish a child support order
can be based on the residence of the custodial parent
and the child only (no need for NCP to have had any
contact with Canada)
 In Canada - Paternity does not have to be specifically
established before a child support order can be made. It
is up to NCP to raise the issue of paternity if he wants
that issue determined, otherwise the support application
may proceed without consideration of paternity
10
Forum Considerations :
Establishment in Canada or US?
Considerations
 Cost
Very unlikely that legal assistance would available in Canada for
establishment if CP retains local counsel
 Use of IV-D Agency is cost-free to custodial parent
 Time to obtain order
 Domestic US processes may be faster than Canadian process as
Courts in some provinces are quite backed up
 A Canadian lawyer may be able to bring the application in a superior
court – which can be much faster than a lower court process in
Canada ( Many provincial/ territorial ISO processes use lower court)
 Enforceability of order
 As long as US Court had jurisdiction under US law, the resulting US
order can be enforced in Canada – but it will still have to go through
a recognition process in Canada (discussed later)
 An order obtained in Canada (whether through IV-D process or
through local counsel) can be immediately enforced

11
Paternity Establishment
 ISO legislation does not allow a “stand-alone”
paternity determination at request of a foreign
applicant – it must be part of an application to
establish child support
 If request to establish a child support order
comes through the IV-D system and NCP
challenges paternity (or CP specifically requests
establishment of paternity)
 Designated authority will coordinate paternity testing
 Processes vary but genetic testing can be done by
agreement or Court order
12
Child Support Order
 All Canadian child support guideline tables use NCP income
to determine child support amount, but provincial/territorial
order amounts vary slightly because income tax is taken
into account
 Order will be made in CANADIAN dollars
 If establishment request comes through the IV-D system
the order will be sent to local child support program for
enforcement if the custodial parent requests
 In private cases – the resulting Canadian order can usually
be enrolled with the local enforcement program
 However – some enforcement programs may be reluctant
to let a foreign creditor directly register – check first
13
Establishment in Quebec
 Quebec has not proclaimed its ISO legislation yet
(anticipated in 2013-2014)
 Current legislation ( REMO Act) does not allow a
foreign creditor (CP) to request establishment of a
child support order
 Parent must retain lawyer in Quebec and bring an
application before Court in Quebec
 May be a consideration in determining whether it
would be better to use domestic (US) law to
establish the order, and then send the order for
enforcement
14
Establishment of PAT & Child Support in
U.S. for Foreign Petitioner
 IV-D Policy on Direct Applications PIQ 99-01 As of today,
Anybody Anywhere can apply for IV-D services
 Legal Basis: Why not? Status of the place from which a cp
applies for services is irrelevant in an establishment case
filed under UIFSA” People ex rel. A.K., 2003 WL NCP = CO, CP
= Russia HELD: CO can EST for applicant residing in Russia; CO
guidelines may need deviation.
 Practice Tip: Verify with DOS that providing legal assistance
and facilitating the transfer of money to a N. Korean, Iranian,
or Cuban CP does not constitute trading with the enemy
or violation of an economic boycott.
 Law Applicable: Lex fori & Petitioner need not travel to U.S.
UIFSA 2001 § 316(a) & rules of evidence & inter-tribunal
communications apply
15
Enforcement of Child Support in a
Foreign Country – U.S. View
 Federal or State IV-D Reciprocity;
 Forms & Procedures
 Give them what they want: Documents,
Certificates, Translation, Foreign Currency
Equivalence etc
 Long Arm
 Local Counsel;
 DOS Websites & Judicial Assistance Circulars –
not so helpful for Child Support if Nonreciprocating Country
16
Enforcement of Foreign
Orders in Canada
 A foreign support order (child or spousal) must be
registered before it can be enforced
 Registration process comes under ISO Act and is similar to
UIFSA process
 Registration must be done by designated authority (no private
process) but applicant can send order directly to designated
authority
 The order is registered by filing it with the Court
 Notice of the registration is given to the respondent
 Respondent can object to registration on basis he/she did not
have notice, the order is contrary to public policy, or the Court
that made it did not have jurisdiction (long arm could arise
here)
 If registration is set aside – order is treated as if it were a
request to establish a new order
17
Enforcement Remedies
 Enforcement of child support is rarely done
privately in Canada
 Private enforcement can be costly and in many
provinces/territories there are enforcement
remedies that are only available to child support
program
 Provincial/territorial enforcement programs use
same type of enforcement measures as in US
 Garnishment, liens, interception of funds and income
 Passport denials, drivers licence suspension
 Contempt-type court applications
18
Recognition & Enforcement of
Foreign Orders in U.S.
 Legal Basis - Federal Law & Policy
 42 USC 659a Secretary of State and HHS
designate a country to be a Foreign
Reciprocating Country (FRC)
 42 USC 659a(d) U.S. States can make
reciprocity arrangements with foreign countries
until superseded by FRC
 Federal Policy: “Request” from FRC shall be
treated the same as a request from a U.S. state
19
State –Foreign Country Arrangements Constitutional? Yes!
 Article II, Sec. 2, Clause 2
 Grants the President the power to make Treaties
with the concurrence of 2/3 of the Senate
 Article I, Sec 10 Clause 1
 provides no state can enter into a treaty
 Article I, Sec. 10, Clause 3
 provides no state can enter into “an agreement or
compact ...with a foreign power” without the
Consent of Congress = 42 USC 659a(d)
20
Other State Law Providing Legal Basis
 UIFSA 2001 § 102 (21) (B) … (in addition to
reciprocating countries) a country which has
 “Enacted a law or established procedures
for issuing and enforcing support orders that
are substantially similar to UIFSA
procedures”
 UIFSA 2001 § 104 (Remedies Cumulative/Not
Exclusive) Recognition of foreign orders on the
basis of other law OK, including comity (can’t
register but can use UIFSA evidentiary & intertribunal communications provisions
21
State? Comity?
 Grave v Schubert, 2000 WL1221343 (Minn.App.) UK order
modifying MN order not recognized by MN because UK modified
MN CEJ order. If UK does not recognize concept of CEJ, then
it is not a “state””
 Foreman v. Foreman, 144 N.C.App. 582, 550 S.E.2d 792
(N.C.App., Jul 03, 2001) NC has jurisdiction to enforce England
order since England is a “state” per a unilateral reciprocity
extension agreement
 Haker, 143 N.C.App. 688, 547 S.E.2d 127 Swiss Order not
enforced because no reciprocity, no substantial similarity
and not recognized under comity because no requirement
of personal jurisdiction over respondent
 Desselberg v. Peele, 523 S.E.2d Neither full faith and credit nor
Full Faith and Credit for Child Support Orders Act apply to foreign
orders, but NC will honor German order on the basis of
comity
22
Recognition & Enforcement of
Foreign Orders in U.S. – Cont’d
 Indigent Clients have IV-D Agency Option
 OCSE PIQ 99-01 – Direct Applications
 Law Applicable
 G/R Lex Fori

UIFSA 2001 § 303(1) Use local procedural and
substantive law
 Choice of Law

UIFSA 2001 § 604 (a)(1) law of issuing state governs
nature, extent, duration and amount of current support
 Statute of Limitation

UIFSA 2001 § 604(b) in an action for arrears,
whichever statute (issuing or responding state) is
longer
23
Duration of Child Support
 In most provinces/territories child support will continue past
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
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
the age of majority (18 or 19 years of age)
Will continue for so long as the child is “unable to withdraw
from parent’s charge” or “unable to obtain the necessaries
of life because of illness, disability or other cause...”
“Other cause” includes continuing in post-secondary
education, inability to find gainful employment and
generally a continuing dependency upon the custodial
parent
Custodial parent will have to establish that the child
continues to be dependent
Some provinces/territories may require a Court order to
stop child support (unless the parents agree)
24
Recognition & Enforcement of
Foreign Orders in U.S. – Cont’d
 Currency Conversion
 Judgment Date – G/R
 Breach Date – ameliorates fluctuating rates

Aker Verdal, 828 P.2d 610
 Payment Date
 See, Barry J. Brooks “International Family
Support: Currency Conversion” paper in materials
25
Currency Conversion
 Under ISO – orders expressed in US dollars will be converted for
enforcement to Canadian dollars using exchange rate in effect on
date the order was made or last varied
 ISO Acts have no provision to modify or update this conversion
rate
 Can result in discrepancies between what is owing in US dollars
(under a US order) and the converted amount in Canadian dollars
 Recommended solution is to obtain an order in a US Court
confirming the outstanding arrears - this can then be registered
and will convert the arrears to the current equivalent amount
 The currency conversion done under ISO does not modify the
underlying foreign order – it simply states an Canadian dollar
equivalent for enforcement purposes
26
Recognition & Enforcement of
Foreign Orders in U.S. – Cont’d
 Modification
 UIFSA 2001 § 611 if issuing foreign court can not
or will not modify its own order, U.S. state can
modify & bind all subject to its jurisdiction
 Cannot modify duration of foreign order UIFSA
2001 § 604
 Cannot modify spousal support order of another
state UIFSA 2001 § 211
27
Modification of orders Canada
 Yes - Canadian courts may reduce or eliminate arrears of child
support under foreign (and domestic) child support orders!
 Legal basis is generally that there has been a significant change in
circumstances and that it would be grossly unfair not to vary the
arrears
 A request by a party in Canada will be made under ISO, and that
request will be transmitted to the jurisdiction where the other
party lives
 Hearing will take place in the other jurisdiction
 UIFSA provisions are available to initiate a modification of a
Canadian order being enforced in the United States BUT
 Orders made under the Canadian Divorce Act cannot be varied outside
Canada
 A modification request must be made directly to the Court in Canada
 If initiated by the Canadian party – other parent will be served ex-juris
28
Recognition & Enforcement of
Foreign Orders in U.S. – Cont’d
 Defenses
 Not an Order



Commonwealth Provisional Order
German Youth Welfare Office Executable deed
May be better for NCP than local order
 Due Process & Public Policy



See, Schuber, supra
Israeli Case
Reciprocity does not supersede
29
Resources
 OCSE Caseworkers Guides (available on OCSE





website)
Canadian Federal Department of Justice website
Canadian Provincial Enforcement Program
websites
Gary’s paper “Judicial Assistance Conventions in
Effect for Mexico and the USA” (in materials)
Handout – Completing USM Forms to send to
Mexico
List of Helpful Websites (in materials)
30
Speaker Contact Information
Hannah Roots
British Columbia Maintenance Enforcement Program
2nd Floor 609 Broughton Street
Victoria , British Columbia
Canada
(250) 220 – 4031
hroots@fmep.ag.gov.bc.ca
Gary Caswell, Esq.
318 Sumner Drive
San Antonio, Texas 78209 USA
Telephone: 210-414-1645
gcaswell@nunezcaswell.com
31
UIFSA 2008
Speaker
Margaret Campbell Haynes
Senior Associate
Center for the Support of Families
32
Goals of UIFSA 2008
 Implement the Hague Convention
 Address international cases in general
 Build upon UIFSA 2001
33
International Case
Processing
 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.
 Some concepts – CEJ and DCO – do not fit
neatly in international arena.
34
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:
35
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.
36
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.
37
Article 7
 Definitions
 Central Authority
 Foreign support agreements (maintenance
arrangements)
 Procedure for registration, recognition and
enforcement
 Limited modification
38
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.
39
Registration for Enforcement
 Procedure for non-Hague Foreign Support
Orders
 UIFSA 2001
 Procedure for Hague Foreign Support Orders
 New Article 7
 Major difference
 Documents
 Time frames
 Defenses
40
Documents Required
 Non-Hague Foreign Support Orders
 Transmittal Letter
 Two copies of order, incl. one certified copy
 Sworn or certified statement re: arrears
 Certain obligor information
 Certain obligee information
 If applicable, name and address of person to
whom support payments are to be sent
 Request for DCO, if appropriate
41
Documents Required (cont’d)
 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
42
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
43
“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;
44
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.
45
Registration for Enforcement
(cont’d)
 In fact, in a recognition and enforcement case
that the IV-D child support agency is handling,
the agency must take all appropriate measures
to request a child-support order for the obligee.
46
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.
47
Status of Bilateral Agreements
 The U.S. currently has bilateral
reciprocity agreements with 15
countries and 11 Canadian Provinces.
 Convention does not affect any
bilateral agreements.
48
Foreign Reciprocating Countries
• Australia
• Canadian Provinces/Territories
– Alberta, British Columbia, Manitoba, New
Brunswick, Northwest Territories, Nunavut,
Newfoundland/Labrador, Nova Scotia, Ontario,
Saskatchewan, Yukon
• Czech Republic
• El Salvador
• Finland
49
Foreign Reciprocating Countries
(cont’d)
 Hungary
 Ireland
 Israel
 Netherlands
 Norway
 Poland
 Portugal
 Slovak Republic
 Switzerland
 The United Kingdom of Great Britain and Northern
Ireland
50
2007 Hague Child Support Convention
International Families – Money, Children and Long
Term Planning
ABA Section of International Law
Washington D.C., 25 May 2012
Philippe Lortie, First Secretary
Hague Conference on Private International Law
51
STATES INVOLVED IN THE NEGOTIATIONS FROM 2003 UNTIL
2007
52
KEY FEATURES
CHILD SUPPORT CONVENTION
 Universality
 Accessibility
 Simplicity & Flexibility
 Speed & Efficiency
 Cost-effectiveness
 Responsive and fair
 Non-discrimination
 Co-operation and compliance
53
PRINCIPAL COMPONENTS
OF NEW CONVENTION
 System of administrative co-operation (efficient, responsive,







flexible, accessible)
Procedures available in States for establishment, recognition
and enforcement, modification of decisions and recovery of
arrears
Effective access to procedures
Recognition and enforcement of foreign decisions / orders
(maximum recognition, simple procedures)
Swift and effective enforcement
Compliance – Monitoring and review
Direct requests to competent authorities
Applicable law rules – set out in an optional Protocol
54
SCOPE OF APPLICATION OF
CONVENTION
 Entire Convention applies on a mandatory basis to maintenance
cases of persons under the age of 21
(possible to reserve for persons under the age of 18)
 Convention covers recognition and enforcement of spousal support
when combined with child support - its provision on administrative
co-operation will only apply to spousal support where States have
made a declaration to extend application of Convention
 Application of any part of the Convention could be extended by
way of declaration (with reciprocal effect) to other maintenance
obligations arising from a family relationship, parentage, marriage
or affinity
 Convention could be extended to vulnerable adults
 Convention applies to children regardless of the marital status of
the parents
55
TWO TRACKS
 1)
Applications through Central Authorities (CAs)
 Children under the age of 21 (or 18 reservation)
 Spousal support combined with child support if
State
has made a declaration to extend scope
 Other maintenance obligations if State has made a
declaration to extend scope
 2)
Direct request to a competent authority
Direct requests possible for any procedure available
under internal law including, subject to Article 18, for
establishment and modification

Convention procedures for recognition and
enforcement available subject to some limitations

56
ADMINISTRATIVE CO-OPERATION
APPLICATIONS THROUGH CAs
 Administrative co-operation implemented
using Central Authorities (CAs)
 CAs focal point in relation to specific
functions:
 Transmitting and receiving applications
 Initiating or facilitating proceedings
 Time lines and responsiveness
 Means of communication
57
ADMINISTRATIVE COOPERATION (cont.)
 Convention will provide for specific applications
using recommended forms:
 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
58
OTHER CENTRAL AUTHORITY
FUNCTIONS
 Help locate debtor / creditor
 Help obtain information about financial circumstances
 Encourage amicable solutions
 Facilitate enforcement
 Facilitate transfer of payments
 Facilitate obtaining of documentary and other evidence and
service of documents
 Assistance in establishing parentage
 Help in obtaining provisional measures
 Requests for specific measures (limited service requests)
59
EFFECTIVE ACCESS TO
PROCEDURES
 All Contracting States obliged to provide effective access
 to procedures, including enforcement and appeal
 procedures, by providing:
 Simple procedures with the assistance of CAs allowing the
applicant to proceed without further assistance
 Free legal assistance for applications for establishment and
for recognition and enforcement of child support decisions
(with some exceptions)
 A State may, as an alternative, declare that it will apply a
“child-centred” means test, in cases involving establishment
of child support
 For all other applications processed through CAs under the
Convention legal assistance may be subject to a means or
merits test
60
DIRECT REQUESTS (Art. 37)
 Direct requests possible for any procedure available under
internal law including, subject to Article 18, for
establishment and modification
 Certain provisions of the Convention apply to direct requests
for recognition and enforcement
- Article 14(5) – no security, bond or deposit required
- Article 17(2) – national treatment re legal aid
- Chapter V (Recognition and enforcement)
- Chapter VI (Enforcement)
- Chapter VII (Public Bodies)
- Chapter VIII (General Provisions) with the exception of
Articles 40(2) (non-disclosure determination by CA), 42
(power of attorney), 43(3) (recovery of costs from State),
44(3) (CA language requirement), 45 (translations costs)
and 55 (amendment of forms).
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RECOGNITION AND ENFORCEMENT
 Convention applies to judicial and 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)
62
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)
63
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
64
ENFORCEMENT MEASURES
 Weakness under existing child support systems has been a
lack of effective enforcement mechanisms
 While choice of specific enforcement measures are left to
the requested State, States are required to make available
effective enforcement measures
 Convention provides a list of possible measures that a State
might, at its option, use, including
 Wage withholding
 Garnishment
 Deductions from social security payments
 Lien on or forced sale of property
 Tax refund withholding
 License denial or suspension
65
NEW ROLE FOR ATTORNEYS
 Advise clients on best track (CA or Direct Request)
 Legal tradition differences and language barriers
CA services v. domestic attorney
 Cost issues (access to procedures / legal aid)
 Speed of procedures

 Advise clients on available applications
Domestic or foreign establishment?
 Any reservation on recognition and enforcement?

 What is the most favourable law?
 Domestic establishment + foreign service +
recognition and enforcement abroad
 Foreign establishment + domestic service +
direct enforcement abroad?
66
FUTURE COMING INTO FORCE
 USA signed the Convention on 23-XI-2007
 Burkina Faso signed the Convention on 7-I-2009
 Ukraine signed the Convention on 7-VII-2010
 EU approved the Protocol on 8-IV-2010 and




signed the Convention on 6-IV-2011
Norway ratified the Convention on 6-IV-2011
Albania signed the Convention on 21-X-2011
Bosnia and Herzegovina signed the Convention on
5-VII-2011
Other States to join soon: Brazil
67
Questions
Permanent Bureau
Hague Conference on Private International Law
6, Scheveningseweg
2517 KT The Hague
The Netherlands
Tel.: + 31 (70) 363 3303
Fax: + 31 (70) 360 4867
E-mail: secretariat@hcch.net
Website: www.hcch.net
68
Thank You
-Gary
-Hannah
-Meg
-Philippe
-Rhiannon
69