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PRIL - Part 4: Choice of Law problems - Family Relations, The 2007 Hague…
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The 2007 Hague Convention on the International Recovery of Child Support and other forms of Family Maintenance
Supreme Court Rules on Action for Support and Petitions for Recognition and Enforcement of Foreign decisions on Judgments on Support, AM 21-03-02 (2021)
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Objects (Art. 1) - to ensure the effective international recovery of child support and other forms of family maintenance by:
- a. establishing a comprehensive system of co-operation between the authorities of the Contracting States;
- b. making available applications for the establishment of maintenance decisions;
- c. providing for the recognition and enforcement of maintenance decisions; and
- d. requiring effective measures for the prompt enforcement of maintenance decisions.
Scope (Art. 2) - shall apply to children regardless of the marital status of the parents.
- a) to maintenance obligations arising from a parent-child relationship towards a person under the age of 21 years;
- b) to recognition and enforcement or enforcement of a decision for spousal support when the application is made with a claim within the scope of sub-paragraph a); and
- c) with the exception of Chapters II and III, to spousal support.
Reservations & Extensions (Art. 2)
- Any contracting state may reserve the right to limit the application of the Convention under sub-paragraph 1 a), to persons who have not attained the age of 18 years. A Contracting State which makes this reservation shall not be entitled to claim the application of the Convention to persons of the age excluded by its reservation.
- May also declare that it will extend the application of the whole or any part of the Convention to any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons. Any such declaration shall give rise to obligations between two Contracting States only in so far as their declarations cover the same maintenance obligations and parts of the Convention.
Definitions (art. 3) -
- a) “creditor” means an individual to whom maintenance is owed or is alleged to be owed;
- b) “debtor” means an individual who owes or who is alleged to owe maintenance;
- c) “legal assistance” means the assistance necessary to enable applicants to know and assert their rights and to ensure that applications are fully and effectively dealt with in the requested State. The means of providing such assistance may include as necessary legal advice, assistance in bringing a case before an authority, legal representation and exemption from costs of proceedings;
- d) “agreement in writing” means an agreement recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference;
- e) “maintenance arrangement” means an agreement in writing relating to the payment of maintenance which –
i) has been formally drawn up or registered as an authentic instrument by a competent authority; or
ii) has been authenticated by, or concluded, registered or filed with a competent authority, and may be the subject of review and modification by a competent authority;
- f) “vulnerable person” means a person who, by reason of an impairment or insufficiency of his or her personal faculties, is not able to support him or herself.
Administrative Provisions - Central Authority to discharge the duties that are imposed by the Convention on such an authority.
- Federral states - to appoint more than one Central Authority and shall specify the territorial or personal extent of their functions.
- shall be communicated by a Contracting State to the Permanent Bureau of the Hague Conference on Private International Law at the time when the instrument of ratification or accession is deposited or when adeclaration is submitted in accordance with Article 61. Contracting States shall promptly inform the Permanent Bureau of any changes.
General Functions of Central Authority - Enforcement.
- a) co-operate with each other and promote co-operation amongst the competent authorities in their States to achieve the purposes of the Convention;
- b) seek as far as possible solutions to difficulties which arise in the application of the Convention.
Specific Functions - These may be performed by public bodies, or other bodies subject to the supervision of the competent authorities of that State.
- shall provide assistance in relation to applications under Chapter III. In particular they shall –
a) transmit and receive such applications;
b) initiate or facilitate the institution of proceedings in respect of such applications.
- No judicial Functions - Nothing in this Article or Article 7 shall be interpreted as imposing an obligation on a Central Authority to exercise powers that can be exercised only by judicial authorities under the law of the requested State.
- Shall take appropriate measures to:
- a) where the circumstances require, to provide or facilitate the provision of legal assistance;
- b) to help locate the debtor or the creditor;
- c) to help obtain relevant information concerning the income and, if necessary, other financial circumstances of the debtor or creditor, including the location of assets;
- d) to encourage amicable solutions with a view to obtaining voluntary payment of maintenance, where suitable by use of mediation, conciliation or similar processes;
- e) to facilitate the ongoing enforcement of maintenance decisions, including any arrears;
- f) to facilitate the collection and expeditious transfer of maintenance payments;
- g) to facilitate the obtaining of documentary or other evidence;
- h) to provide assistance in establishing parentage where necessary for the recovery of maintenance;
- i) to initiate or facilitate the institution of proceedings to obtain any necessary provisional measures that are territorial in nature and the purpose of which is to secure the outcome of a pending maintenance application;
- j) to facilitate service of documents.
Recognition and Enforcement (CH. V) -
- Decision - a decision rendered by a judicial or administrative authority in respect of a maintenance obligation. 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 expenses.
Bases for Recognition and Enforcement Art. 20 - Decisions made in one contracting state shall be recognized and enforced in another if either:
- a) the respondent was habitually resident in the State of origin at the time proceedings were instituted;
- b) the respondent has submitted to the jurisdiction either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity;
- c) the creditor was habitually resident in the State of origin at the time proceedings were instituted;
- d) the child for whom maintenance was ordered was habitually resident in the State of origin at the time proceedings were instituted, provided that the respondent has lived with the child in that State or has resided in that State and provided support for the child there;
- e) except in disputes relating to maintenance obligations in respect of children, there has been agreement to the jurisdiction in writing by the parties; or
- f) the decision was made by an authority exercising jurisdiction on a matter of personal status or parental responsibility, unless that jurisdiction was based solely on the nationality of one of the parties.
Partial Recognition/Enforcement - If the State addressed is unable to recognise or enforce the whole of the decision, it shall recognise or enforce any severable part of the decision which can be so recognised or enforced.
- This can always be applied for.
Grounds for Refusal (Art. 22) -
- a) recognition and enforcement of the decision is manifestly incompatible with the public policy (“ordre public”) of the State addressed;
- b) the decision was obtained by fraud in connection with a matter of procedure;
- c) proceedings between the same parties and having the same purpose are pending before an authority of the State addressed and those proceedings were the first to be instituted;
- d) the decision is incompatible with a decision rendered between the same parties and having the same purpose, either in the State addressed or in another State, provided that this latter decision fulfils the conditions necessary for its recognition and enforcement in the State addressed;
- e) in a case where the respondent has neither appeared nor was represented in proceedings in the State of origin –
i) when the law of the State of origin provides for notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
ii) when the law of the State of origin does not provide for notice of the proceedings, the respondent did not have proper notice of the decision and an opportunity to challenge or appeal it on fact and law; or
- f) the decision was made in violation of Article 18.
This is subject to reservations made by the contracting state under Art. 62.
- (4) A Contracting State shall, if recognition of a decision is not possible as a result of a reservation under paragraph 2, and if the debtor is habitually resident in that State, take all appropriate measures to establish a decision for the benefit of the creditor. The preceding sentence shall not apply to direct requests for recognition and enforcement under Article 19(5) or to claims for support referred to in Article 2(1) b).
- (5) A decision in favour of a child under the age of 18 years which cannot be recognised by virtue only of a reservation in respect of paragraph 1 c), e) or f) shall be accepted as establishing the eligibility of that child for maintenance in the State addressed.
- (6) A decision shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin.
Procedure on an Application for Recognition and Enforcement Art. 23 - Governed by the law of the State Addressed.
Alternative Procedure Art. 24 - a State may declare, in accordance with Article 63, that it will apply the procedure for recognition and enforcement set out in this Article, despite Art. 23 procedure.
Principles for Resolution Art. 26 - 28 -
- Art. 26 - This Chapter shall apply mutatis mutandis to an application for recognition of a decision, save that the requirement of enforceability is replaced by the requirement that the decision has effect in the State of origin.
- Art. 27 - Any competent authority of the State addressed shall be bound by the findings of fact on which the authority of the State of origin based its jurisdiction.
- Art. 28 - There shall be no review by any competent authority of the State addressed of the merits of a decision.
- Art. 29 - The physical presence of the child or the applicant shall not be required in any proceedings in the State addressed under this Chapter.
Maintenance Arrangements Art. 30 - (1) A maintenance arrangement made in a Contracting State shall be entitled to recognition and enforcement as a decision under this Chapter provided that it is enforceable as a decision in the State of origin.
- the term “decision” includes a maintenance arrangement.
Enforcement under Internal Law Art. 32 -
- (1) Subject to the provisions of this Chapter, enforcement shall take place in accordance with the law of the State addressed.
- (2) Enforcement shall be prompt.
- (3) In the case of applications through Central Authorities, where a decision has been declared enforceable or registered for enforcement under Chapter V, enforcement shall proceed without the need for further action by the applicant.
- (4) Effect shall be given to any rules applicable in the State of origin of the decision relating to the duration of the maintenance obligation.
- (5) Any limitation on the period for which arrears may be enforced shall be determined either by the law of the State of origin of the decision or by the law of the State addressed, whichever provides for the longer limitation period.
Non unified legal systems Art. 46 -
- GR, reference is made to the specific territorial units.
- XCPN - This Article shall not apply to a Regional Economic Integration Organisation.
Substantive Rules Art. 47
- (1) A Contracting State with two or more territorial units in which different systems of law apply shall not be bound to apply this Convention to situations which involve solely such different territorial units.
- (2) A competent authority in a territorial unit of a Contracting State with two or more territorial units in which different systems of law apply shall not be bound to recognise or enforce a decision from another Contracting State solely because the decision has been recognised or enforced in another territorial unit of the same Contracting State under this Convention.
Relationship with other Treaties Art.49-51
- This Convention replaces, subject to Article 56(2), the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations and the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children in so far as their scope of application as between such States coincides with the scope of application of this Convention.
- this Convention replaces the United Nations Convention on the Recovery Abroad of Maintenance of 20 June 1956, in so far as its scope of application as between such States coincides with the scope of application of this Convention.
- Does not affect the Hague Convention of 1 March 1954 on civil procedure, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.
- Does not affect any international instrument concluded before this Convention to which Contracting States are Parties and which contains provisions on matters governed by this Convention.
Most Effective Rule Art. 52 -
- Convention shall not prevent the application of an agreement, arrangement or international instrument in force between the requesting State and the requested State, or a reciprocity arrangement in force in the requested State that provides for –
- a) broader bases for recognition of maintenance decisions, without prejudice to Article 22 f) of the Convention;
- b) simplified, more expeditious procedures on an application for recognition or recognition and enforcement of maintenance decisions;
- c) more beneficial legal assistance than that provided for under Articles 14 to 17; or
- d) procedures permitting an applicant from a requesting State to make a request directly to the Central Authority of the requested State.
- This Convention shall not prevent the application of a law in force in the requested State that provides for more effective rules as referred to in paragraph 1 a) to c). However, as regards simplified, more expeditious procedures referred to in paragraph 1 b), they must be compatible with the protection offered to the parties under Articles 23 and 24, in particular as regards the rights of the parties to be duly notified of the proceedings and be given adequate opportunity to be heard and as regards the effects of any challenge or appeal.
Uniform Interpretation Art. 53 - In the interpretation of this Convention, regard shall be had to its international character and to the need to promote uniformity in its application.
Entry Into Force Art. 60 -
- The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the second instrument of ratification, acceptance or approval referred to in Article 58.
- Thereafter the Convention shall enter into force –
- a) for each State or Regional Economic Integration Organisation referred to in Article 59(1) subsequently ratifying, accepting or approving it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance or approval;
- b) for each State or Regional Economic Integration Organisation referred to in Article 58(3) on the day after the end of the period during which objections may be raised in accordance with Article 58(5);
- c) for a territorial unit to which the Convention has been extended in accordance with Article 61, on the first day of the month following the expiration of three months after the notification referred to in that Article.
Enforcement Measures Art. 33-34 - Same range of enforcement methods for cases under the Convention as are available in domestic cases. Such as: wage withholding, garnishment, liens on forced sale of proeprty, etc.,
Sec. 4. The Inter-Country Adoption Board. — Inter-Country Adoption Board, ( the Board ) to act as the central authority in matters relating to inter-country adoption. It shall act as the policy-making body for purposes of carrying out the provisions of this Act, in consultation and coordination with the Department, the different child-care and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement activities. As such, it shall:
- (a) Protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child;
- (b) Collect, maintain, and preserve confidential information about the child and the adoptive parents;
- (c) Monitor, follow up, and facilitate completion of adoption of the child through authorized and accredited agency;
- (d) Prevent improper financial or other gain in connection with an adoption and deter improper practices contrary to this Act;
- (e) Promote the development of adoption services including post-legal adoption;
- (f) License and accredit child-caring/placement agencies and collaborate with them in the placement of Filipino children;
- (g) Accredit and authorize foreign adoption agency in the placement of Filipino children in their own country; and
- (h) Cancel the license to operate and blacklist the child-caring and placement agency or adoptive agency involved from the accreditation list of the Board upon a finding of violation of any provision under this Act.
Sec. 5. Composition of the Board. — The Board shall be composed of the Secretary of the Department as ex officio Chairman, and six (6) other members to be appointed by the President for a nonrenewable term of six (6) years:
- Provided, That there shall be appointed:
- one (1) psychiatrist or psychologist,
- two (2) lawyers who shall have at least the qualifications of a regional trial court judge,
- one (1) registered social worker and
- two (2) representatives from non-governmental organizations engaged in child-caring and placement activities.
- The members of the Board shall receive a per diem allowance of One thousand five hundred pesos (P1,500) for each meeting attended by them: Provided, further, That no compensation shall be paid for more than four (4) meetings a month.
Sec. 6. Powers and Functions of the Board. — The Board shall have the following powers and functions:
- (a) to prescribe rules and regulations as it may deem reasonably necessary to carry out the provisions of this Act, after consultation and upon favorable recommendation of the different agencies concerned with the child-caring, placement, and adoption;
- (b) to set the guidelines for the convening of an Inter-country Adoption Placement Committee which shall be under the direct supervision of the Board;
- (c) to set the guidelines for the manner by which selection/matching of prospective adoptive parents and adoptive child can be made;
- (d) to determine a reasonable schedule of fees and charges to be exacted in connection with the application for adoption;
- (e) to determine the form and contents of the application for inter-country adoption;
- (g) to institute systems and procedures to prevent improper financial gain in connection with adoption and deter improper practices which are contrary to this Act;
- (h) to promote the development of adoption services, including post-legal adoption services,
- (i) to accredit and authorize foreign private adoption agencies which have demonstrated professionalism, competence and have consistently pursued non-profit objectives to engage in the placement of Filipino children in their own country: Provided, That such foreign private agencies are duly authorized and accredited by their own government to conduct inter-country adoption: Provided, however, That the total number of authorized and accredited foreign private adoption agencies shall not exceed one hundred (100) a year;
- (j) to take appropriate measures to ensure confidentiality of the records of the child, the natural parents and the adoptive parents at all times;
- (k) to prepare, review or modify, and thereafter, recommend to the Department of Foreign Affairs, Memoranda of Agreement respecting inter-country adoption consistent with the implementation of this Act and its stated goals, entered into, between and among foreign governments, international organizations and recognized international non-governmental organizations;
- (l) to assist other concerned agencies and the courts in the implementation of this Act, particularly as regards coordination with foreign persons, agencies and other entities involved in the process of adoption and the physical transfer of the child; and
(m) to perform such other functions on matters relating to inter-country adoption as may be determined by the President.