UNCLAS SECTION 01 OF 03 THE HAGUE 001558

SIPDIS

DEPARTMENT FOR L/PIL - KOVAR, L/T - DALTON, L/EUR - BLOOM

E.O. 12958: N/A
TAGS: KJUS KOCI HCOPIL CASC CJAN
SUBJECT: HCOPIL - SECOND MEETING OF THE SPECIAL COMMISSION
OF THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW ON THE
INTERNATIONAL RECOVERY OF CHILD SUPPORT AND OTHER FORMS OF
FAMILY MAINTENANCE


1. SUMMARY: The second meeting of the Special Commission of
the Hague Conference on Private International Law (HCOPIL) on
the International Recovery of Child Support and Other Forms
of Family Maintenance took place June 7-June 18, 2004.
Building on the work of the first meeting of the Special
Commission in May 2003 and of the drafting committee formed
at that time, the second session of the Special Commission
made considerable progress. In particular, the European
Commission showed significantly more flexibility this year
than last on the key issues of jurisdiction and scope. The
report of the last year,s activities of the informal
U.S.-led Administrative Cooperation Working Group (ACWG) was
well-received, and the Special Commission gave the ACWG a
mandate to continue its work as a formal group. U.S. Office
of Child Support Commissioner Sherri Z. Heller,s presence at
part of the meeting was welcomed by the members of the
Special Commission as a tangible sign of U.S. support for
international child support. Commissioner Heller stressed
that the U.S. was interested in a practical convention that
will produce results. The Permanent Bureau anticipates that
this project will be concluded in 2006. U.S, delegation is
cautiously optimistic that the final result will be an
instrument that meets U.S. legal and policy concerns. End
summary.


2. U.S. PARTICIPANTS:

Dr. Sherri Heller, Commissioner, Office of Child Support
Enforcement, Administration of Children and Families,
Department of Health and Human Services was the senior U.S.
official on the U.S. delegation. The delegation included
Mary Helen Carlson, (L/PIL), Monica Gaw (CA/OCS/PRI),
Elizabeth Matheson (HHS/ACF/OCSE), Robert Keith (Children,
Families and Aging Division, HHS), Mary Dahlberg, Deputy
Attorney General, California; Margaret Haynes, Director,
State and Local Government, Tier Technologies, Inc;
Profession John J. Sampson, University of Texas School of

Law, and Mariana Silveira, National Law Center for
Inter-American Free Trade. In addition NGOs from the United
States participating in the Special Commission included the
National Child Support Enforcement Association (NCSEA)
represented by Margot Bean, Deputy Commissioner and Director,
CSE, New York Division of Child Support Enforcement; Ms.
Sandra Kay Farley, Director, Government Relations Office,
National Center for State Courts, Alisha Griffin, Assistant
Director, Child Support, New Jersey Department of Health and
Human Services, Elana L. Hatch, Chief Deputy District
Attorney, Clark County, Family Support Division, Las Vegas,
Nevada and Marilyn Ray Smith, IV-D Director, Child Support
Enforcement, Boston, Massachusetts; and from the
International Bar Association, Gloria De Hart and Gary
Caswell.


3. PARTICIPATION OF DR. SHERRI Z. HELLER, COMMISSIONER OF
THE UNITED STATES OFFICE OF CHILD SUPPORT ENFORCEMENT, IN THE
SPECIAL COMMISSION

Dr. Sherri Heller, Commissioner, Office of Child Support
Enforcement, Administration of Children and Families, U.S.
Department of Health and Human Services, actively
participated in the first two days of the Special Commission,
during which the need for and extent of administrative
cooperation among countries was debated. Commissioner Heller
stressed the two principles guiding the U.S. approach to a
multilateral child support convention: parental
responsibility and better tangible results for children. She
stated that those results should ensure financial security
for children and families, independent of government
largesse. She stressed the commitment of government
resources necessary to shift financial responsibility from
states to families and to promote healthy and stable
families. She praised the work of the ACWG coordinated and
financially supported by the United States, as reflecting
thoughtful deliberation and consideration of practical and
flexible approaches essential to the success of a new
convention. The ACWG,s work, and the Special Commission,s
efforts to date, show encouraging signs for the convention to
produce concrete results in the form of more reliable support
for children.

During Commissioner Heller,s participation, she expressed
the need to provide necessary assistance to both creditors
and debtors, to include recoupment of state welfare
expenditures while maximizing support flowing directly to
families and to recognize that within the United States,
child support is an exception to the general rule that family
law is generally a matter of individual state, rather than
federal, law.

The Hague Conference Permanent Bureau hosted a luncheon in
Dr. Heller,s honor, attended by His Excellency Fausto Pocar,
the Chairman of the Special Commission.


4. NCSEA RECEPTION

For the second year, the National Child Support Enforcement
Association sponsored a reception attended by most delegates.
This year it was held in the garden at the residence of the
Deputy Chief of Mission of the U.S. Embassy, Daniel R.
Russel.


5. PARTICIPANTS

Approximately 50 countries participated, which was about 10
more than last year. The increased participation of Latin
American countries was welcome. (The U.S. deserves some
credit for this, as the new convention was a focus of the
U.S.-sponsored Meeting of the Americas on International Child
Support held in August 2003. The U.S. was also one of the
countries that funded Spanish interpretation and
translation.) In addition, broader geographic participation
included the Asian and Pacific countries of China, Korea,
Japan, the Philippines, Vietnam, African nations of South
Africa, Uganda and Zimbabwe and from the Near East and South
Asia: Egypt, Israel and Pakistan.

6.. REPORTS ON ACTIVITIES OF THE MAY 2003 SPECIAL COMMISSION
WORKING GROUPS:

In the intervening twelve months since the meeting of the
First Special Commission, the informal working groups and the
Permanent Bureau of the HCOPIL were hard at work moving the
Special Commission,s agenda forward. The drafting committee
prepared a preliminary draft agreement for consideration.
The U.S.-led informal Administrative Cooperation Working
Group (and its subcommittees: Country Profile Committee,
Forms Committee, and Timelines Committee) and the formal
Applicable Law working group reported on their efforts and
introduced preliminary documents for consideration. (The
informal jurisdiction working group did not present a
substantive report.) The Applicable Law group, headed by
Switzerland, made a proposal to include optional rules on
applicable law. No decision was made on this proposal, but
it was progress that no one is now arguing for mandatory
applicable law rules, which would be unacceptable to the U.S.
The Special Commission asked the ACWG to continue as a
formal group with a mandate to continue consideration of
forms of administrative cooperation in the context of this
negotiation. The U.S. suggested that additional countries
join the U.S. in coordinating the activities of the ACWG, and
it was agreed that the coordinating committee will consist of
Australia, Costa Rica, Hungary and the U.S.


7. ROLE OF THE EUROPEAN COMMISSION

Antoine Buchet has replaced Marie-Odile Baur as the
Commission,s spokesperson at the Special Commission. Both
during the Special Commission and during bilateral meetings
with the U.S., Mr. Buchet was friendly, eager to discuss
possible compromises, and relatively flexible. In
particular, the Commission is no longer arguing for mandatory
rules of jurisdiction that would prevent the U.S. from
joining the convention.


8. ISSUES OF IMPORTANCE TO THE U.S.

SCOPE OF THE CONVENTION: While all experts agreed that the
first focus of the convention should be child support
enforcement, a majority of experts also favored extension of
administrative and judicial remedies to spousal support, and
some favored extending it to other forms of family support.
It was clear that not all countries were prepared to dedicate
resources to forms of family support other than child
support. Experts determined that some form of reservation
allowing states not to apply the convention to support
obligations other than those owed to children (and possibly
spouses) will be necessary.

FUNCTIONS OF CENTRAL AUTHORITIES/TYPES OF REQUESTS COVERED:
The U.S. is one of a number of countries for whom strong
provisions on administrative cooperation are the most
important elements of this convention. There was much debate
over the nature and extent of the Central Authority,s
responsibilities. The U.S. strongly urged that the
convention should apply to a broad range of requests for
services, including requests for establishment of a new
order, establishment of paternity, recognition and
enforcement of orders, modification of orders and limited
assistance requests (such as a request to locate a debtor or
assets). While some countries do not want to include
paternity establishment or requests for limited services as
obligations of the Central Authority, for the most part there
was a consensus that the convention should cover all of the
types of requests just listed.

COSTS: It was readily agreed that Central Authorities should
not charge for administrative services provided to other
Central Authorities. However, there was no agreement on
whether all services, including legal services if necessary,
must be provided to the applicant free of charge. This is a
fundamental principle for the U.S., as the legal right to
collect child support in an international case is an empty
right if the applicant has to retain a lawyer in a foreign
country. Many countries, including both developed and
developing nations, do provide free legal services in child
support cases. But some (including France and Spain) apply a
means test that is so low that virtually no U.S. applicant,
including those below the U.S. poverty line, qualifies for
free services. The U.S. made it clear that a country must
provide our applicants effective access to the procedures
available under the Convention, including by providing free
legal services if necessary. This may be the most difficult
issue to resolve.

BASES FOR RECOGNITION: We had feared that this issue would
be contentious, with some states arguing that "habitual
residence of the child" must be a mandatory ground of
jurisdiction despite the fact that this is inconsistent with
U.S. due process requirements and would prevent the U.S. from
becoming a party to the convention. However, a compromise
was achieved relatively quickly, most likely because the
members of the European Union agreed that a major reason to
negotiate a new child support convention was to produce a
convention the U.S. would join. The compromise is that the
convention will include a list of bases on which one state
will recognize and enforce a decision of another state. The
list will include "habitual residence of the child" as well
as the U.S. fact-based ground; states will be able to make a
reservation with respect to the "habitual residence of the
child."

TRANSMISSION, RECEIPT AND PROCESSING OF APPLICATIONS AND
CASES: There was general consensus that all applications
should be made to the central authority in the requesting
state for services of the central authority in the requested
state. In other words, a foreign applicant cannot apply
directly to the Central Authority of another state, but
instead must work through her own Central Authority. This
should provide some level of quality control over the
applications.

MODIFICATION: There was general consensus that modification
of a support order should be made by the original forum in
the original state of issuance. If the creditor and debtor
have all left the original jurisdiction, and information
about change of circumstances is needed, the new jurisdiction
should confer with the original jurisdiction.

ELECTRONIC FUNDS TRANSFER: A review of pilot projects and
developing technologies for electronic funds transfer was
conducted. This included New Zealand/Australia practices and
U.S./Canada exchanges. Recognizing that the new Convention
will be a modern, future directed instrument, all countries,
with widely varying resources embraced these developments
with a view toward getting funds to children as quickly and
inexpensively as possible. The Permanent Bureau presented a
paper on developments in electronic funds transfer.


9. CONCLUSION

The Drafting Committee (which includes two members of the
U.S. delegation) will meet in October to continue work on the
draft convention. The next plenary session of the Special
Commission will take place in May or June 2005. There will
need to be one (or possibly two) more Special Commissions
before a final Diplomatic
Conference is held. The Permanent Bureau believes that
concluding the draft instrument by the end of 2006 is a
realistic goal.
SOBEL