Parental Rights in Germany, Austria and Switzerland

One of the lessons which I learned from the Anglo-Germanophone Conference was not to pass judgment too swiftly in respect of judicial attitudes to the Hague Convention in these Germanophone countries. Whilst we in England have grown accustomed to the fact that unmarried fathers acquire parental authority by being named on the birth certificate or by a relatively straight-forward application to the court the position for unmarried fathers in the Germanophone countries has only recently begun to change. In Germany as a result of the ECtHR decision in Zaunegger and a Federal Constitutional Court decision the German Constitution is being changed to make it easier for unmarried father's to acquire PR. A similar situation exists in Austria.
So when dealing with a case involving an unmarried father from these countries it would seem wise to pause for a moment to consider the possible implications and to recognise that judges in those countries are applying a laws which are (or were until recently) very different from ours in respect of the rights of unmarried fathers.

Bearing that in mind the suggestion that the 1980 Hague Convention distinction between rights of custody and rights of access is redundant is far from being the case. A far greater alignment of the laws of the signatory states would be required before one could contemplate a change to the Conventions to eradicate that distinction.

Children and Families Bill

The draft Children and Families Bill was published on 3rd September 2012. It can be found at:
http://www.official-documents.gov.uk/document/cm84/8437/8437.pdf

The proposals for shared parenting have not yet been published and will be published later in the autumn.

The Justice Select Committee is calling for evidence and submissions are required by 19th October: see
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/new-inquiry-pre-legislative-scrutiny-of-the--children-and-families-bill/

Bi-cultural mediation in international child disputes

An organisation call MiKK can provide mediation in cross border child disputes which involves co-mediation in two languages. http://www.mikk-ev.de/english/bi-national-projects/. The project is still developing.

X-v-Latvia: ECHR Grand Chamber: Art 13b

The Grand Chamber is hearing X-v-Latvia in October. Surprisinglyu only a few national governments are seeking to intervene (apparently Finland and the Czech Republic are) and the UK charity reunite is filing a written intervention. Issues of EU/national external competence may be getting in the way of other EU governments intervening - budget issues may also be playing a part.
In the UK the the 'Neulinger' issues were definitively settled in Re E and Re S by the UK Supreme Court. Whether the ECtHR will adopt the approach of the UKSC will be seen (assuming someone argues it). If the ECtHR does not adopt that approach then the issue will continue to cause problems within the EU in particular but in reality in all ECHR signatory states. The CJEU has said that the EU Charter on Fundamental Rights and Freedoms is a mirror to the ECHR and that it would follow the jurisprudence of the ECtHR on these issues (JMcB -v-LE 2010). What will happen though if divergent approaches develop between the UK/Ireland and other EU countries (who might follow an ECtHR line of authority? As the UK is not a party to the EU Charter (we entered a derogation in the Lisbon Treaty) a schism could develop. We await the decision of the Grand Chamber with interest.

News from Thun.

The Anglophone -Germanophone Judicial Conference took place on 6-8th September 2012. It was attended by judges, government representatives and practitioners from the UK and Ireland, Germany, Austria, Switzerland, Lichtenstein and Holland.

1996 Hague Convention

The UK deposited its instrument of ratification of the 1996 Hague Protection of Children Convention on Monday 30 July. The Convention will therefore be in force for the UK on 1 November 2012.  The MoJ proposes to make an announcement for entry into force. For further information go to http://www.4pb.com/media/publications/Seminar_Notes/Hague_Seminar_Final_Draft.pdf

Applying to register a BIIR order and obtaining Annex Certificates

There has been some debate about the correct forms to use to make an application to register and enforce an order supported by an Annex II certificate. This arises from the reference to use of the FPR Pt 19 procedure. However the combined effect of PD31A para 1.1, FPR r.19.1(2)(a) and PD5A makes clear it should be done using Form C69.
As an aside when applying for a Certificate to support an English order although FPR 31.18 talks of the 'form' to be used, the PD does not specify one but only refers to a statement or affidavit.
There are standard forms now for the Annex Certificates Annex I (D180), Annex II (C60), Annex III (C61), Annex IV (C62)