¹ The Hague Convention of 24 October 1956 on the Law Applicable to Maintenance Obligations Towards Children and the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children.

² 268 UNTS 3.

³ The Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance (hereinafter the 1973 Hague (Enforcement) Convention) and the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations (hereinafter the 1973 Hague (Applicable Law) Convention).

⁴ This decision was taken by the 1999 Special Commission meeting and was mainly in response to disappointment at the lack of progress made in improving the operation of the existing Conventions. See Report and Conclusions of the Special Commission on Maintenance Obligations of April 1999; A Borrás and J Degeling, ‘Draft Explanatory Report on the Hague preliminary draft Convention on the international recovery of child support and other forms of family maintenance’ Prel Doc No 32 of August 2007, 3–4.

⁵ The mandate can be found in: Final Act of the Nineteenth Session, 2002, Proceedings of the Nineteenth Session, Tome I, Miscellaneous Matters. In addition, the mandate specified that there should be an attempt to increase the inclusiveness of the negotiations by ensuring participation of non-Member States of the Conference, in particular signatory States to the New York Convention, and by providing Spanish translation and interpretation where possible.

⁶ It was attended by representatives from 41 States and nine organizations.

⁷ The decision to exclude uniform direct rules of jurisdiction was based on the view that any practical benefits to be derived from uniform rules were far outweighed by the cost of embarking on a long, complex and possibly futile attempt to reach a consensus. See A Borrás and J Degeling, ‘Draft Explanatory Report on the Hague preliminary draft Convention on the international recovery of child support and other forms of family maintenance’ Prel Doc No 32 of August 2007, 10–12.

⁸ Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2002] OJ L 12, 1–23 (hereinafter the Brussels I Regulation).

⁹ Art 2(1)(b).

¹⁰ Art 2(1)(c).

¹¹ Art 26.

¹² Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, COM(2005) 649, Brussels 15 Dec 2005 (hereinafter the proposed Maintenance Regulation).

¹³ Art 48.

¹⁴ Art 49.

¹⁵ As stated in Art 49 of the proposed Maintenance Regulation itself.

¹⁶ Where there was no mention of Central Authorities. There are also no Central Authorities provided for under the Brussels I Regulation system.

¹⁷ In particular, the work of the Administrative Cooperation Working Group concentrated on this aspect. See ‘Report of the Administrative Cooperation Working Group’ Prel Doc No 34 of October 2007. Among the areas receiving attention was the question of translations, and how the need for them could be avoided, Art 25(3)(b) envisages a form for abstracts of decisions that can be easily understandable in all languages. See also ‘Report of the Forms Working Group’ Prel Doc No 31 of July 2007.

¹⁸ Art 5. These are the same general functions as found in other Hague Conventions such as the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Hague Convention of 19 October 1889 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children. Similar Central Authority roles can also be seen in Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (the new Brussels II Regulation).

¹⁹ Art 6.

²⁰ Art 8.

²¹ Art 37 provides that nothing in the Convention prevents the making of a direct application and also lists the articles that will apply to such an application.

²² See A Borrás and J Degeling, ‘Draft Explanatory Report on the Hague preliminary draft Convention on the international recovery of child support and other forms of family maintenance’ Prel Doc No 32 of August 2007, 64.

²³ Chapter III.

²⁴ Art 10.

²⁵ Arts 11–12. It is worth noting here that as part of the approach of ensuring that the Convention would accommodate the use of information technology solutions, the system put in place ensures as a first step the swift transmission of applications and accompanying documents, by whatever medium available, between Central Authorities. However, the possibility of a requirement for the transfer of complete certified copies is also recognised and can be carried out at a later stage if necessary.

²⁶ However, under Art 16(4) if the most favourable legal assistance provided for by the law of the requested State in respect of applications concerning maintenance obligations arising from a parent-child relationship towards a child is more favourable than that provided for following the declaration, the most favourable legal assistance shall be provided.

²⁷ It must be noted that these provisions apply only to applications that are made through the Central Authority system; for direct applications only the rules that no bond is required (Art 14(5)) and that the applicant is entitled to benefit from legal assistance in the foreign State to the same extent as he or she has benefited from in his or her State of origin (Art 17(b)). The reason for this reflects the variety of methods that may be used to ensure effective access to procedures, such as setting up the system in such a way that simplified procedures not requiring legal aid apply to Central Authority applications.

²⁸ Although some exceptions apply.

²⁹ See A Borrás and J Degeling, ‘Draft Explanatory Report on the Hague preliminary draft Convention on the international recovery of child support and other forms of family maintenance’ Prel Doc No 32 of August 2007, 76.

³⁰ Permanent Bureau, ‘Note on the Operation of Hague Conventions relating to maintenance obligations and of the New York Convention on the Recovery Abroad of Maintenance’ Prel Doc 1 of 1995, 23–25.

³¹ Although the reference to parental responsibility is more specific in the proposed Maintenance Regulation, with Art 3(c) referring to a State which has jurisdiction to entertain proceedings concerning parental responsibility under the Brussels II Regulation.

³² Art 20(2), reservations can be made for the third, fifth and sixth of these grounds.

³³ Art 20(3).

³⁴ Art 20(4).

³⁵ Art 5(4).

³⁶ Art 34(4).

³⁷ See Art 20 ‘Revised Preliminary Draft Convention on the International Recovery of Child Support and other forms of Family Maintenance’, Prel Doc 29 of June 2007, 16.

³⁸ Although the challenge had to be lodged within 30 days of the notification of the decision to declare or register, or 60 days if the contesting party is not resident in the State.

³⁹ This proposal is currently found in Art 25 of the proposed Maintenance Regulation and was agreed on by the Justice and Home Affairs Council at the meeting of 5–6 June 2008.

⁴⁰ Found in Art 24, this applies in a State if it makes a declaration to that effect.

⁴¹ Art 23(8) and Art 24(5).

⁴² Art 23(10) Art 24(6).

⁴³ Art 28.

⁴⁴ Art 29.

⁴⁵ Reflected in Art 32(2).

⁴⁶ In addition, the law of the State of origin of the decision controls the duration of the maintenance obligation (Art 32(4)) and the limitation period for which arrears may be enforced are to be determined by whichever of the two States provides for a longer period (Art 32(5)).

⁴⁷ Art 33.

⁴⁸ Art 34.

⁴⁹ Representatives of some States expressed concern during the negotiations that some of these methods conflicted with their constitutional provisions and questioned the necessity of including such a non-mandatory list.

⁵⁰ Art 57.

⁵¹ See the definition of maintenance arrangements found in Art 3(e).

⁵² The desire to ensure that the Convention as a whole was technologically medium neutral is reflected in the definition of ‘agreement in writing’ found in Article 3(d) which states that it means an agreement recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference.

⁵³ There are also different requirements as to what should accompany the application for recognition and enforcement of a maintenance agreement (Art 30(3)). In addition, States may make a declaration that applications for the recognition and enforcement of maintenance agreements shall only be made through Central Authorities.

⁵⁴ Art 30(7).

⁵⁵ Case C-271/00 Gemeente Steenbergen v Baten [2002] ECR I-10489 and Case C-433/01 Freistaat Bayern v Blijdenstein [2004] ECR I-981 both recognised that when a public authority action for recovery was similar to a private action in subrogation it would be covered by the scope of the Brussels I Regulation. However, the former case emphasised that the Regulation does not apply if no action would have been permissible if the individual creditor had been the applicant.

⁵⁶ Although the new Convention is more precise and restrictive providing that only benefits paid in place of maintenance may be sought, rather than simply benefits paid to a maintenance creditor as in Art 18 of the 1973 Hague (Enforcement) Convention.

⁵⁷ Art 36(3), the public body can rely on a decision rendered against the creditor on the application of either the public body itself claiming payments of benefits provided in place of maintenance, or a creditor to whom the public body has provided benefits.

⁵⁸ Case C-433/01 Freistaat Bayern v Blijdenstein [2004] ECR I-981 which held that public bodies could not take advantage of the more favourable jurisdictional rules provided for maintenance creditors.

⁵⁹ Art 36(2).

⁶⁰ Art 36(4).

⁶¹ Bonomi, Preliminary Draft Protocol on the law applicable to maintenance obligations—Explanatory Report, Prel Doc No 32 of August 2007, 4–5.

⁶² Art 2. In addition, renvoi is excluded by Art 12.

⁶³ Art 3.

⁶⁴ Art 4.

⁶⁵ Art 9 provides that a State which has the concept of ‘domicile’ as a connecting factor in family matters may inform the Permanent Bureau of the Hague Conference on Private International Law that, for the purpose of cases which come before its authorities in these instances, the word ‘nationality’ is replaced by ‘domicile’ as defined in that State.

⁶⁶ Art 5 and 6.

⁶⁷ Art 8.

⁶⁸ Art 13.

⁶⁹ Although the European Parliament adopted a legislative resolution on 13 Dec 2007 which recommends a different approach (T6-0620/2007), found at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2007-0620.

⁷⁰ Art 5.

⁷¹ Art 8. This also applies to legal separations and marriages that were annulled.

⁷² Art 6.

⁷³ Once again States can, under Art 9, indicate that this will be used to refer to common domicile in cases before competent authorities in their States.

⁷⁴ Art 7.

⁷⁵ Art 7. In this case they can only choose the law of the forum.

⁷⁶ Art 8. In both cases, the agreement must be signed by both parties and be in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference.

⁷⁷ Art 8(1): the law of the State of which either party is a national at the time of the designation, the law of the State in which either party is habitually resident at the time of the designation, the law designated by the parties as applicable, or the law in fact applied, to their property regime, or the law designated by the parties, or the law in fact applied, to their divorce or legal separation.

⁷⁸ Art 10.

⁷⁹ Except for issues relating to procedural capacity and representation in the proceedings.

⁸⁰ Art 11.

⁸¹ Art 17.

⁸² This rule was taken from Art 11 of the 1973 Hague (Applicable Law) Convention and can also be found in Art 17 of the proposed Maintenance Regulation.

⁸³ Art 13.

⁸⁴ Apart from in relation to its application to territorial units within a State or as regards Regional Economic Integration organisations.

⁸⁵ The clear engagement with and dedication to the negotiation process on the part of many States would indicate that there will at least be serious consideration of its ratification. It may be noted that the United States of America signed the Convention on the date it was concluded.