Commonwealth Action in the Field of Private International Law

AuthorCommonwealth Secretariat
Pages291-297

Page 291

Introduction
  1. The Hague Conference is the recognised international agency dealing with this specialist area of law. Commonwealth Law Ministers decided in 1977 that, rather than develop their own competence in intra-Commonwealth private international law, they would work with the Hague Conference. Several Commonwealth countries are Members of the Conference in their own right and the Commonwealth Secretariat is represented by an Observer delegation at the principal meetings in The Hague. The present paper draws the attention of Law Ministers to aspects of the work of the Conference that have important implications for intra-Commonwealth practice.

Child support and family maintenance in international cases
  1. Commonwealth governments are well aware of the increasing mobility of people across national boundaries and of the increasing incidence in many countries of family breakdown. Especially when the child or other person in need of maintenance lives in one country and the person who should provide support is in another, the result can be that children and other family members face severe financial hardship and become a claim on the welfare provision of the state. An adequate system for the enforcement of support obligations across national boundaries is very much in the interests of governments, which will wish to provide help to those in need, so vindicating the rights of the child to which much international attention has been paid in recent years, and to place the burden on those who should properly bear it.

Commonwealth arrangements
  1. This is an area in which there is a distinct Commonwealth interest, not least because of the patterns of movement from one Commonwealth country to another. Most Commonwealth countries have on their statute books legislation reflecting intra-Commonwealth arrangements dating from the 1920s and sometimes referred to as the Reciprocal Enforcement of Maintenance Orders (REMO) arrangements. Some 70 Commonwealth jurisdictions (including states and provinces within federal or composite countries) are party to these arrangements, but some, such as Canada, are moving away from the system.

  2. Under the REMO system, where the maintenance claim is against someone now living in another designated country, a provisional order is made in the claimant's country of residence but needs to be confirmed after a separate hearing in that of the respondent. The complexity of the legislation, the infrequency with which any particular court will encounter it, and the likelihood that the court will be low in the judicial hierarchy, all mean that the practical operation of the REMO system can prove difficult. Two courts are involved and each hears directly from only one party. That is not an ideal arrangement but those who devised the system, in days when international communication was much more difficult than it is today, saw no alternative given the relatively small sums of money involved.

  3. These intra-Commonwealth arrangements are no longer adequate. There are a number of reasons for this.

Page 292

(i) The legislation was drafted with the case of deserted wives in mind; the great majority of cases are now child support cases, and the need for government assistance in handling claims by children is more pressing than in claims between adults. Despite the great scientific advances in ascertaining paternity, many of the older statutes exclude 'affiliation orders', which seems inappropriate in modern conditions. So far as spousal maintenance is concerned, almost all the legislation is limited to orders for the periodical payment of sums of money; lump sum orders, property adjustment orders and other types of financial provision are excluded; those types of orders may have become more frequent as divorcing spouses seek a 'clean break'.

(ii) The legislation requires the recognition and enforcement of an order even if the requested country would not recognise the relationship between the parties as giving rise to a support obligation; given the sharp divergence of opinion as to the status of partnerships outside marriage (and especially of same-sex partnerships) some ability to refuse enforcement on public policy grounds may be thought desirable.

(iii) Perhaps most significantly, several Commonwealth countries have taken child support cases out of the normal courts and entrusted them to an administrative agency which applies a statutory formula to determine the level of support; in some countries these agencies handle only domestic cases, but others handle cases with an international dimension. The effect is that in Australia, for example, the REMO system cannot operate as originally envisaged.

A new Hague Convention
  1. The Hague Conference on Private International Law is drawing up a new Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It is likely that the Convention will be completed and opened for signature by the end of 2006. The latest draft, dated April 2005, sets out the objects of the Convention as being:

  2. to establish a comprehensive system of co-operation between the authorities of the Contracting States for the international recovery of child support and other forms of family maintenance;

  3. to provide for the recognition and enforcement of maintenance decisions.

  4. The core functions of the designated Central Authority under the Convention would be to transit and receive applications for the recognition and enforcement of orders, and to initiate, or facilitate the initiation of, proceedings in respect of such applications or proceedings for the making of an order. The present draft specifies in Article 6(2) other functions, some still the subject of debate:

  5. In relation to such applications they shall take all appropriate measures

    1. where the circumstances require, to provide, or facilitate the provision of legal assistance;

    2. ...

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