International conventions, the United Kingdom and their application to Overseas Territories
Earlier this month, Mr Justice Mostyn, by remote Zoom hearing, determined an application for the return of a child to his country of residence. The child was removed by his mother from their country of residence in Bermuda to live in the United Kingdom (UK). The effect of this relocation was to frustrate the Bermuda court order which gave the Applicant, a Bermuda resident, visiting rights to the child. Bermuda, like the BVI, is an Overseas Territory (OT).
The Court examined the legal mechanisms available to the Applicant to obtain an order from the UK Court for the child’s return. The Court cited the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Convention) as the most efficient and cost-effective way to deal with the application. However, while both the UK and Bermuda are parties to the 1980 Convention, Bermuda is not a contracting state with the UK for the purposes of UK law. For this reason, the 1980 Convention could not be invoked to assist the application. The Court considered this a bizarre consequence of a “colonial anachronism” which treats Bermuda as being a part of the UK for the purpose of Conventions but in fact, Conventions acceded to by the UK, do not automatically apply to OTs. There must first be, in accordance with s2(1) of the UK 1995 Act, the passing of Orders in Council by the UK extending the application of the relevant Convention to the specified OT. The Orders in Council then makes that OT a contracting state with the UK. The Court considered as well that there is no automatic statutory recognition of court orders between the UK and OTs as is available between England and Wales, Scotland and Northern Ireland. In conclusion, the Court had to rely on common law principles to recognise the Bermuda court order.
Mr Justice Mostyn called for a change in the law to either: (i) allow the 1980 Convention to apply between the UK and its OTs or (ii) allow the automatic recognition of orders made within the UK and under the Family Law Act 1986 to be extended to orders made in OTs and Crown Dependencies.
Whether in fact such a change in law should take place, practitioners are reminded, before invoking and relying on a Convention, to ensure that the UK has passed the relevant Orders in Council extending the application of that Convention to that OT.
See a copy of the judgement here.