The ASIME congress on child relocation in Malaga
From 22-24 November 2023, Sacha Lee attended the ASIME (Asociación de profesionales contra la Sustracción Internacional de Menores en España) congress in Malaga, with Partner Carolina Marin Pedreño, and has provided her insights about the conference.
As a junior lawyer, this was my first international conference experience and something that I felt merited a few written reflections.
This ASIME congress brought together a select cohort of leading international child abduction specialists from around the world (from Chile to New York to London to Spain to Bulgaria to Russia to South Africa to name just a few). It followed hot on the heels of the 8th Reunion of the 1980 Hague Convention. It was a privilege to hear directly from those who had attended that congress what had been discussed there and the action points that arose. Particular areas of focus include: the 1980 Hague Convention and concurrent asylum applications, the use of technology, the mutual cooperation between the 1980 and the 1996 Hague Conventions, the effect of delay, how the voice of the child should be heard and the reaffirmation that 1980 Hague proceedings are summary and not child arrangements proceedings.
Sir Matthew Thorpe
Over the course of two days, there was lively debate and knowledge sharing across the panels. Sir Matthew Thorpe provided his insight and opinion on the impact of Brexit on child abduction proceedings in England and Wales, as well as his vision for the future. We heard statistics from European, South American and African delegations about their rates of child abduction, the countries of their outgoing/incoming abductions and the way each country implements the 1980 Hague Convention, including timescales and rates of return. We also learned about the application of the 1980 Hague Convention in Argentina and the inter-American court, including the close intersectionality of gender-based violence and Article 13b there.
We heard a talk from our Bulgarian colleague about the differing ways the 1980 Hague Convention is implemented there, with particular reference to Article 13b and the lack of available legal enforcement options. This talk sparked widespread knowledge sharing and discussions afterwards, including the entirety of the lunch hour!
Turkey, Spain and Poland
This neatly led into discussions from Turkish, Spanish and Polish colleagues about protective measures and enforceability in their respective countries. The English and Welsh regime is famously hot on returns and protective measures are second nature. However, post Brexit, we have to rely on the 1996 Hague Convention to ensure enforceability. It was therefore very interesting to hear the panel about how Brussels II ter can be best utilised by Member States to ensure the implementation of protective measures that move with the minor child through cross sectional approval.
Despite us only meeting for the first time earlier that morning, I enjoyed a discussion with a Polish lawyer about the differences in our respective jurisdictions regarding the applicability of Article 13b, the enforceability of return orders (if made), the intersectionality of 1980 Hague Convention proceedings and criminal proceedings and the role that nationality and gender of the abducting parent can play in Polish proceedings.
Russia and France
A particular highlight was a very thought-provoking panel about the 1996 Hague Convention from the Russian and French perspective. We were encouraged to hear that foreign orders are capable of being recognised and enforced in Russia under the 1996 Hague Convention, even in the context of the current Ukraine war. It was also noted that our Russian colleagues are hopeful that Russia will not denounce the 1980 and 1996 Hague Conventions, even though they are already no longer part of the European Court of Human Rights and the European Council.
From France, a country which is a Member State to Brussels II ter, fellow Member States were reminded not to neglect careful consideration of the 1996 Hague Convention. For example, if a Spanish mother and Austrian father (unmarried) lived in Austria with their child, the 1996 Hague Convention tells us that the applicable law is Austrian law and therefore, the mother would have sole Parental Responsibility for that child. If she were to remove the child from Austria, that would not class as abduction as the father has no rights of custody for the purposes of the 1980 Hague Convention.
Brussels II ter
Or, if a child moves from one Member State to another (lawfully), jurisdiction will move with the child to the new country which can cause tension between Articles 5 and 10 of the 1996 Hague Convention and Article 23 of Brussels II ter. For example, there had been a case in France where the French court permitted a mother to relocate to Switzerland, the father appealed but because the mother had already left with the child for Switzerland, the Swiss courts refused to enforce the subsequent French orders obtained by the father.
The congress also benefitted from the expertise of international mediators. Reunite and MIKK gave insightful talks which promoted the vital importance of mediation (and early mediation) in international child abduction cases. From an English perspective, it was interesting to see the differences between the European model of international mediation (MIKK) and our own (Reunite).
To achieve our common goal of eradicating international child abduction, it is vital that we work together. We have so much that we can learn from each other as well as inspiration we can draw to effect change in our own jurisdictions. I found the level of international cooperation and willingness to debate and share knowledge at the ASIME conference very impressive.
I was also struck by the genuine friendship of those attending this congress. From the moment we arrived (even before we checked into the hotel!), fellow delegates were greeting Carolina with the enthusiasm and warmth of close friends. I was touched and flattered that this camaraderie was immediately and automatically extended to me throughout the conference and social occasions around it. Indeed, I spent our free time on Friday sightseeing around Malaga’s old town with a new Belgian friend and the Saturday watching the tennis with newfound Spanish and Italian friends!
It was a real privilege to be invited to attend this Congress and I very much look forward to attending the next one in 2025!