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April 01, 2018 Child Support

Ten Things Practitioners Should Know about the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

By: Robert Keith

The views expressed are those of the author and are not necessarily those of the U.S. government.

I. Historical Context and Introduction

Between 2003 and 2007, the United States participated in five Special Commission meetings and a final Diplomatic Conference in The Hague, along with representatives of fifty-five member countries of the Hague Conference on Private International Law and fifteen observer countries, to negotiate the terms of a new multilateral treaty on administrative cooperation and procedures for establishment and enforcement of child support in international cases. On November 23, 2007, the United States was the first country to sign the new Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, and the treaty took effect in the United States on January 1, 2017. Several multilateral agreements were already in effect, but the United States could not join as a party to any of them because of apparently irreconcilable differences between civil and common law countries concerning personal jurisdiction to establish maintenance obligations.

Perhaps the earliest multilateral agreement was sponsored by the United Nations in 1956. It provided for transmission of orders and other documents supporting a claim for family maintenance from one country to a designated agency in another country, and for that agency to take "all appropriate steps for the recovery of maintenance." There was no provision for establishment of orders, and there were no timeframes or any specification of expected actions. Proceedings were governed by the law of the state of the respondent, including exequatur, an administratively cumbersome process  of  registration  of  the  foreign  order  required  as a preliminary step in order to declare that the order was "enforceable." The Hague Conference on Private International Law, focusing upon child support, facilitated two further agreements in 1958 and 1973. All of these agreements operated primarily between European civil law countries.

During this period, in the United States, the National Conference of Commissioners on Uniform State Laws (now known as the Uniform  Law Commission) wrestled with parallel problems. An increasingly mobile society required some uniformity of domestic procedures for the establishment, recognition, modification, andenforcementof support orders as families separated and parties moved from state to state. In 1950, the Uniform Reciprocal Enforcement of Support Act (URESA) was proposed; it was amended in 1952 and 1958. Significant additional amendments in 1968 resulted in the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). The 1968 law, for the first time, defined "state" to include "any foreign jurisdiction in which this or substantially similar reciprocal law is in effect." Some individual states took advantage of this provision to negotiate informal "reciprocity" arrangements with particular foreign countries or Canadian provinces. International child support enforcement was, however, only a minor concern in relation to the substantial problems of interstate enforcement, as multiple duplicative and contradictory orders were entered under URESA/RURESA procedures every time a debtor moved to a new jurisdiction.

In 1975, the cooperative federal-state child support enforcement program was established by Congress under Title IV, part D, of the Social Security Act (the IV-D or Title IV-D program). Originally conceived as a welfare recoupment program and oriented towards addressing the rapid increase in out-of-wedlock births throughout the country, the Title IV-D program provided seventy-five percent funding for state expenditures, resulting in a vast expansion of state and local efforts to establish paternity and to establish and enforce child support orders. Little or no consideration was given at the time to international enforcement.

Improved enforcement of domestic child support obligations, on the other hand, was the focus of new federal legislation and increased state efforts. Congress required states to develop automated data processing systems and to implement interstate wage withholding and a wide range of improvements in state laws. In order to further address the problems of interstate enforcement, there was a growing consensus that the URESA/ RURESA system of laws was out-of-date and warranted a complete revision. The result was the Uniform Interstate Family Support Act of 1992 (UIFSA (1992)). The law was significantly amended in 1996, and that same year Congress mandated, as a condition of funding of state Title IV-D programs, that all states adopt UIFSA (1996). For the first time in the United States, there was a truly uniform system of state laws for the establishment and enforcement of child support.

UIFSA (1992) and UIFSA (1996), as with RURESA, continued to define "state" very broadly to include "a foreign jurisdiction that has established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this [Act]." In effect, the United States had unilaterally established authority and informal case-by-case procedures to recognize and enforce virtually any foreign support order so long as it comported with basic principles of fairness and procedural due process. Most international cases were initiated in other countries and processed in the United States under the Title IV-D program, where services were substantially free of costs. Securing recognition and enforcement of U.S. orders in other countries continued to be burdensome and expensive, and often was impossible.

In  2001,  a  third  iteration  of  UIFSA was  drafted.  It  expanded thedefinition of "state," adding new subsections (i) and (ii) to section 102(21)(B) that included in the definition a foreign country or political subdivision that "i) has been declared to be a foreign reciprocating country. . . ; [or] ii) has established a reciprocal arrangement with . . . [the state]." In 2008, the Uniform Law Commission took one more look at UIFSA with the goal of making revisions to accord with the recently finalized 2007 Family Maintenance Convention, and UIFSA (2001) was revised to become UIFSA (2008). UIFSA (2008) added an entirely new Article 7, titled "Support Proceeding Under Convention," and a fourth definition of "foreign country" recognizing any country in which the Convention was in force with respect to the United States. On September 29, 2014, the President signed legislation requiring all states to adopt UIFSA (2008). On May 3, 2016, the general counsel of the Department of Health and Human Services sent a memorandum to the legal advisor of the Department of State advising that all fifty states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands had enacted UIFSA (2008). The United States was positioned to fulfill its treaty obligations, and the President signed the Instrument of Ratification on August 30, 2016. The document was deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depository of the Convention, on September 7, 2016, and it entered into force in the United States on January 1, 2017.

It is important for practitioners to recognize that, in the United States, international cases will proceed under UIFSA (2008). The Convention is informative, and the United States is bound to fulfill its obligations under the treaty, but the applicable substantive law in this country is UIFSA (2008). There are several features of the Convention, incorporated into domestic substantive law in Article 7 of UIFSA (2008), that practitioners and judges will find to be entirely new. The balance of this article will explore these provisions, explain their importance for purposes of the Convention, and suggest clarifications where there may appear to be some ambiguity. This discussion in no way purports to be a complete review  or explanation of the Convention or a practitioner's guide to routine case processing. For comprehensive and detailed guidance in that regard, one should first consult the Practical Handbook for Caseworkers under the 2007 Child Support Convention published by the Hague Conference on Private International Law Permanent Bureau, available on its website at Other useful references are available on the Office of Child Support Enforcement, HHS International website at http://www.acf.

II. Manifestly Inconsequential: The "Ordre Public" Defense

A. Ex Officio Review by the Tribunal

Perhaps the most perplexing and imponderable provision of the 2007 Convention for attorneys and judges in this country is the one requiring an ex officio preliminary review by the tribunal of an application under the treaty to recognize a foreign support order. The tribunal conducts this preliminary examination of the foreign order without any participation  by either the applicant or the respondent. Article 22(a) provides that "recognition and enforcement . . . may be refused if recognition and enforcement of the decision is manifestly incompatible with the public policy ('ordre public') of the State addressed." It was accordingly necessary for the drafters of UIFSA (2008) to incorporate an opportunity for this novel ex officio review before the order was enforced. This is the only ground for consideration by the tribunal at this stage. It occurs before any contest is filed by the respondent, and neither party may make any submission. UIFSA subsection 706(d) provides that "[a] tribunal of this state may vacate the registration of a Convention support order without the filing of a contest under Section 707 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy."

The Official Comment to this section dryly notes that the unilateral action by the tribunal "may not be available under other state law." Furthermore, the provision "is in tension with the core UIFSA policy of requiring recognition" without preliminary review. Judicial officers, almost certainly, will be unfamiliar with such new responsibility and may be reluctant to exercise it. It should not, however, be a cumbersome or difficult process. On the other hand, it should not be a mere superficial review of the incoming documents. The tribunal must, at a minimum, read the decision (or the abstract or extract), and additional documents may be available to inform the review. Since the tribunal acts within its own largely undefined authority, the consideration could be de minimis, or it could potentially involve somewhat more detailed scrutiny as circumstances warrant.

The UIFSA Official Comments stress that the tribunal should not conduct a review on the merits of the order. A general review on the merits is, in fact, expressly forbidden in regards to a Convention order. The tribunal is also "bound by the findings of fact on which the foreign tribunal based its jurisdiction." The Explanatory Report further stresses that "[a] discrepancy of any kind with the internal law is not sufficient to use this exception" and it should not be used as a possible systematic policy exception (for example, "to refuse to recognise and enforce child support orders on the basis that, under its law, a father has no obligation to maintain a child born out of wedlock").

The fundamental guidance given as to the application of the public policy exception is that it will only apply "under certain exceptional circumstances" and, thus, "should in any case have only a very limited application."

The Explanatory Report describes the ordre public examination as follows: "In its application of this provision, the competent authority should verify whether the recognition and enforcement of a specific decision would lead to an intolerable result in the State addressed."

So then, what conceivable "intolerable result" might the tribunal discover based solely upon its examination of the decision with no input from the parties? The Uniform Law Commission, in its Comment, expressed some frustration at the lack of more definitive guidance in the Convention:

An example would be useful here, but there is none in the Explanatory Report to the Convention, just the negative reference that a country could not use this to enforce a policy against ordering support for a child born out of wedlock.. . . Perhaps an example could be that the court might reject an application to establish support from a biological parent whose rights had been terminated and the child was subsequently adopted.<\/blockquote>

It is difficult to imagine how such termination of parental rights would become apparent to the tribunal doing the ex officio review unless, of course, the same tribunal had conducted the termination of rights in an earlier proceeding and took judicial notice of that fact. Perhaps a more probable and percipient example was set forth in the Department of State's transmittal to the U.S. Senate when the Convention was submitted for Advice and Consent to Ratification:

Pursuant to Article 22(a), the public policy exception, a U.S. competent authority could decline to recognize and enforce a decision against a left- behind U.S. parent in an abduction case where the child had been wrongfully taken or retained, on the grounds that recognition and enforcement of such decision would be manifestly incompatible with the U.S. public policy of discouraging international parental child abduction.<\/blockquote>

Once again, it is difficult to imagine how this fact would come to the attention of the tribunal. There could, of course, be some acknowledgment in the decision itself. If, for example, in a statement of underlying facts it is disclosed that an order issued in the United States to return an abducted child was rejected and custody and child support were awarded to the abducting parent as a part of the same proceeding, then the tribunal in this country could reasonably refuse recognition and enforcement under the public policy exception. Of course, the tribunal may only have an abstract or an extract of the decision dealing solely with the pertinent matter of child support.

B. Public Policy Challenge by the Respondent

It is far more likely that the "public policy defense" will be raised  after the decision has been recognized and the parties themselves have  an opportunity to challenge it. Judges should be especially skeptical of respondents' creative interpretation of this phrase. The identical language was included at Article 5(1) in the 1973 Hague Maintenance Convention. The Explanatory Report for that Convention (1973 ER) begins the discussion of the exception relating to public policy ("ordre public") by observing that "[o]ne does not need to be a prophet to state, without risk of being contradicted by the facts that, of all the clauses of the Convention, the defendant in the recognition and enforcement proceedings will invoke most often . . . the exception relating to public policy." It must be clearly understood and accepted that the exception is to be given a restrictive meaning and to be employed with the greatest possible caution; otherwise the potential for overly broad interpretation and abuse of the public policy exception as a spurious defense ploy is grave.

The Uniform Law Commission (ULC), in drafting Article 7 of UIFSA (2008), most assuredly did not intend the exception to be used except in the most unusual circumstances. In that light, tribunals in the United States should have little difficulty in rejecting most novel "public policy" assertions.

Section 707 provides for a "contest of registered Convention support order" by a party that "may be based only on grounds set forth in Section 708." Section 708 of UIFSA (2008) sets forth those strictly limited bases on which the nonregistering party may raise a challenge to recognition and enforcement of the child support order. This section combines portions of four articles in the Convention to identify all of the permissible defenses that may be raised. Subsection 708(a) states the general rule that, as in domestic cases where full faith and credit would require recognition of another state's order, a support order issued by a Convention country shall likewise be recognized and enforced, unless one of the limited grounds for refusal is asserted and proven. The requesting country will have certified that the decision is enforceable in the country of origin. It is the respondent's burden to assert an available defense.

C. An Argument for a Narrow Reading of the Public Policy Consideration

The very first ground stated in section 708 for refusing recognition and enforcement of a registered Convention support order is subsection 708(b) (1). It restates the Convention public policy exception, but in expanded and more explicit terms: "recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard . . . ."

The highlighted phrases concerning minimum standards of due process and including notice and an opportunity to be heard are not found in Article 22(a) of the 2007 Convention or in UIFSA (2008) subsection 706(b). They are, however, presaged in the explanation of the ordre public defense in the Explanatory Report on the 1973 Hague Convention on Maintenance Obligations: "The Commission felt that this phrase would necessarily cover cases in which the maintenance decision was rendered following proceedings which were incompatible with respect for the rule of 'due process of law' or the rights of the defence." In the United States, an argument can be made that the most likely, and empirically demonstrable, showing of an "intolerable result" due to a public policy violation will be that there has been a denial of due process. The consideration of "minimum standards of due process" and "notice and an opportunity to be heard" is, of course, also subject to broad interpretation, but this is a matter well within the parameters of common law jurisprudence.

To begin, the due process analysis afforded in subsection 708(b)(1), obviously, is supplementary to the grounds for refusing recognition and enforcement set forth in section 708(b)(9):

(A) the [respondent] did not have proper notice of the proceedings and an opportunity to be heard; or (B) the [respondent] did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal.  <\/blockquote>

Examples of situations where minimum standards of due process are not met, even if there was proper notice, could possibly be decisions rendered against unrepresented minors or where proof of cognitive disability or limited language proficiency demonstrated an incapacity to understand and participate in the proceedings. Courts in the United States will be entirely familiar and comfortable ruling on such allegations of a failure to observe minimum standards of due process.

In summary, the public policy exception should not be used "as a pretext for embarking on a general review on the merits," "in relation to issues of personal status" (e.g., born out of wedlock), or when there is merely "[a] discrepancy of any kind with the internal law" of the two countries. Considering its very limited applicability, it is unlikely to be invoked at all by the tribunal following an ex officio review. The tribunal, with only the decision and limited supporting documents to consider, will have very little basis to reject a decision. If raised as a challenge by the respondent, the most plausible basis will be a failure to observe minimal standards of due process. A tribunal in the United States will find nothing novel   or unusual in evaluating this defense. Thus, the public policy exception (ordre public), for all practical purposes in the United States, is an almost inconsequential hurdle for recognition and enforcement of a foreign support order.

III. An Abstract or an Extract in Lieu of the Complete Text of the Decision, Necessary Documents, and the Hague Forms

There are two documents that are required to be transmitted with every Application for Recognition and Enforcement of a Decision: the complete text of the decision and a Statement of Enforceability. In the interests  of cost-effective procedures, and, in particular, noting the high cost of translation of documents, Article 25(3)(b) of the Convention allows a Contracting State to specify

circumstances in which it will accept, in lieu of a complete text of the decision, an abstract or extract of the decision drawn up by the competent authority of the State of origin, which may be made in the form recommended and published by The Hague Conference on Private International Law.<\/blockquote>

As with many well-intentioned and forward-thinking ideas, the concept is almost too good to be true. In fact, to this date, only Estonia, Italy, Luxemburg, Malta, and Romania have indicated in their Country Profiles that they will accept such abbreviated documents in lieu of full text translations.

In contrast, the United States has overwhelmingly endorsed the concept. At least fifty-three jurisdictions have enacted UIFSA (2008) (the fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands), many having elected the optional bracketed language in section 706(b) (1) (in italics, below). A request for registration of a Convention support order must be accompanied by "a complete text of the support order [or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law]."

The Official Comment notes that "the authority to provide an abstract or an extract of an order rather than the complete text of an order" may be unfamiliar. Indeed! But the obvious advantages, and savings  in costs, are indisputable. The Abstract of Decision is a comprehensive eight-page form. It identifies the competent authority that issued the Abstract and provides contact information. The decision is described in pertinent detail (effective date, reference number, parties, and nature of the proceeding). The terms providing for maintenance, including arrears, are further described, including dependents' names, birth dates, and also any maintenance payments that are directed to a public body to whom maintenance is owed or that is entitled to reimbursement for benefits provided in place of maintenance. If indexation of maintenance or interest is applicable, those elements are set forth and, finally, the duration of the order and any costs or expenses are noted. The Abstract is signed by an official of the State of origin and a representative of the requesting Central Authority.

The Abstract of Decision is one of fourteen "Hague Forms" that were the result of extended deliberations of the Forms Working Group and presented for approval at the Special Commission of November 2009 on the Implementation of the 2007 Child Support Convention. Two of the forms--a Transmittal Form under Article 12(2) and an Acknowledgement Form under Article 12(3)--are required to be used in all outgoing and incoming applications to and from Convention countries. They are appended to the Convention as Annex 1 and Annex 2. There are twelve "Recommended Forms." They include Applications for Recognition or Recognition and Enforcement, for Enforcement only, for Establishment of a Decision, and for Modification of a Decision. Each of these four application forms has a section on "Restricted Information on the Applicant" that should be used in appropriate circumstances. There is a Status of Application Report form that can be used by the requested country to update the Central Authority in the requesting country on progress. In addition, as noted above, there is the Abstract of Decision form, Statement of Enforceability and Statement of Proper Notice forms, and, finally, a Financial Circumstances form that can be used with any of the applications under the Convention. The United States has indicated in its Country Profile that it will require all incoming applications under the Convention to use the Hague Forms. Most other Convention countries have similarly indicated in their Country Profile that they will also require use of these forms. Only eight countries have indicated at this point that they will not require the forms: Bulgaria, Czech Republic, France, Lithuania, Luxemburg, Slovak Republic, Spain, and Sweden. The forms are available at forms in a fillable format.

Various supporting  documents  may  be  required.  The  "Statement  of Proper Notice" is only necessary if the respondent did not appear personally and was not represented in the proceedings. Documents showing the amount of any arrears, providing for indexation of orders, and showing the extent of free legal assistance accorded in the State of origin may be necessary depending upon the circumstances. A certified copy of the decision may be requested but is not required except in the event of a challenge or appeal.

IV. Statement of Enforceability

In addition to the complete text of the decision (or an abstract or extract), the application for Recognition or Recognition and Enforcement must also include "a document stating that the decision is enforceable in the State of origin." The "Statement of Enforceability of a Decision" is a simple one-page document signed by an official of the competent authority of the State of origin and by an authorized representative of the Central Authority of the requesting country. It indicates whether a judicial or  an administrative authority issued the decision and provides identifying information (where issued, date, names of parties, and a reference number of the decision).

All child support orders entered in the United States must conform to the due process requirements of the U.S. Constitution. Such orders are, accordingly, recognized and enforced throughout the United States under the Full Faith and Credit for Child Support Orders Act (FFCCSOA). UIFSA (2008) provides simple procedures for recognition and enforcement of another state's order under sections 601-608, as "[c]ritical examination of the sister state order for defects is not called for; it is the responsibility of the respondent to assert any defenses available." The IV-D agency, whether or not its state issued the order, may thus confidently complete the Statement of Enforceability, signing both as the "competent authority" for such certification and as the "authorized Central Authority" representative.

Decisions sent from Convention countries to the United States for recognition and enforcement will be treated substantially the same as U.S. domestic orders. They will be reviewed by the Central Authority in the requesting state to determine that they comply with the requirements of the Convention. The Central Authority (IV-D agency) in this country will also examine the application and decision in order to assure that the requirements of the Convention have been fulfilled. The decision will be accompanied by a Statement of Enforceability from the issuing country. It is not expected that the tribunal will look  behind  the certification from the issuing country's competent authority and Central Authority unless enforceability is raised as a defense under UIFSA (2008) section 708(b)(3). As with any other challenge, it will be the respondent's burden to show that the decision is unenforceable in the issuing country.

There is, however, one possibility for an erroneous Statement of Enforceability that should be considered. In order to warrant recognition in the requested state, the decision must be enforceable in the State of origin. A Central Authority may, under some circumstances, request recognition and enforcement of a decision made in a third Convention country. This is entirely permissible. The Statement of Enforceability in that instance, however, must be made by a competent authority in the country where the decision was issued (the State of origin).

The Caseworkers Handbook suggests one final anomaly:

If the application is for recognition only, the decision does not have to be enforceable in the State of origin; it only has to have effect in that State. The recommended Statement of Enforceability form has a place where the date of effect of the decision is noted, so the requirement can be satisfied with that form.<\/blockquote>

Article 10(1)(a) provides for applications by a creditor either for recognition or for recognition and enforcement of a decision. A debtor can only apply for recognition under Article 10(2)(a).

V. Foreign Support Agreements

There is a detailed definition of the term "foreign support agreement" in subsection 701(6) of UIFSA (2008). As with the ex officio review by the tribunal, the "Statement of Enforceability," and the possibility of an "Abstract or Extract" of the decision, this is a new concept in domestic family law in the United States that begs for explication. The expression itself, "foreign support agreement," is intended "to make more readily understandable for U.S. bench and bar a process that is denominated as   a 'maintenance arrangement' in the Convention." Such instruments, unknown in the United States and many other countries, are common elsewhere, especially in the Scandinavian countries. After considerable discussion, there was consensus in the final Diplomatic Session of November 2007 that it would be a substantial loss for the Convention to exclude these agreements, and Article 30 was unanimously approved.

The Explanatory Report observes that "[g]reat advantages come from the inclusion of these instruments, as there is a growing tendency to pro- mote amicable solutions and to avoid contentious procedures. . . ." The UIFSA (2008) comment to section 708 adds: "In view of the movement towards alternative methods of dispute resolution in the United States, this mechanism provides for recognition and enforcement of a dispute resolu- tion system in some of the likely Convention countries."

What then is this new foreign support agreement that is substantially or entirely negotiated between the parties, rather than the product of adjudication? On first examination, it would appear to be a form of a contract--a contract that has been subject to an official process of authentication in order to be submitted for recognition in the United States. UIFSA (2008) subsection 701(6)(A)(ii) provides that the agreement must have been "(I) formally drawn up or registered as an authentic instrument by a foreign tribunal; or (II) authenticated by, or concluded, registered, or filed with a foreign tribunal. . . ." Subsection 701(6)(A)(iii) requires, as a further condition, that it "may be reviewed and modified by a foreign tribunal."

Most importantly--and this is key--the agreement must be "enforceable as a support order in the country of origin." Therefore,   as with applications for recognition and enforcement of a decision, along with the complete text of the agreement, there must be "a record stating that the foreign support agreement is enforceable as an order of support in the issuing country." The Official Comment to UIFSA (2008) section 710 reinforces this point: "To reiterate, the key to enforcement is that the foreign support agreement must be 'enforceable as a decision' . . . . If such an agreement is enforceable only as a contract, it will not fall within the scope of this section."

A. Challenges to a Foreign Support Agreement

For most practical purposes, the foreign support agreement will be recognized in the United States and enforced as if it were a decision of    a tribunal in a Convention country. There are, however, several notable differences. The agreement is subject  to  challenge,  but  the  grounds  for refusal are limited. Only three of the Article 22 bases for refusing recognition and enforcement apply. The first is incompatibility with the public policy of the state addressed. The second is "fraud or falsification," similar to the principle in Article 22(b). The third parallels the principle of "incompatibility" with a prior decision between the same parties and having the same purpose as found in Article 22(d). Article 30(5)(b)(ii) further permits a challenge or appeal on the grounds of inauthenticity    or lack of integrity of the document as in UIFSA (2008) subsection 708(b)(5).

Understandably, there are no considerations of lack of notice and opportunity to be heard, as the parties presumptively have collaborated jointly in order to enter upon their own voluntary agreement. Similarly, there are no questions concerning the basis for personal jurisdiction over the parties. There is no provision equivalent to UIFSA (2008) subsection 708(c)(1) to delay dismissal of the proceeding in order to allow time for the parties to obtain a new agreement or support order, but a proceeding will be suspended during a challenge or appeal pending in "another state or a foreign country."

There appears to have been one possible oversight in the drafting of UIFSA (2008) section 710--it does not include payment of the debt as a possible challenge or appeal. This is a defense noted generally at subsection 708(b)(8) for challenges to decisions. Although Article 30 does not mention specifically the payment or fulfillment of the debt as a possible challenge or appeal to a maintenance arrangement, there is catch- all language in Article 30(5) that includes mutatis mutandis any provisions for recognition and enforcement under Chapter 5 of the Convention that are not explicitly excluded. It would, thus, follow that the Article 23(8) ("fulfilment of the debt") basis for refusal of recognition of a decision should apply as well to a challenge to a foreign support agreement if there is a claim for arrears.

One notable distinction between a foreign decision and a foreign support agreement is that, whereas both are subject to recognition and enforcement in the United States, the latter cannot be modified in this country. The definition of a foreign support agreement in UIFSA (2008) at subsection 701(6)(A)(iii) specifies that the agreement may be subject to being "reviewed and modified by a foreign tribunal," but there is   no provision under UIFSA (2008) allowing for modification of such an agreement. It does not appear that a foreign support agreement can be modified at all under the Convention; rather, it would have to be treated under the domestic law of the State of origin. Article 30(2) states that "the term 'decision' includes a maintenance arrangement" for purpose of applications under Article 10(1)(a), (1)(b), and (2)(a) for recognition or recognition and enforcement; there is no equivalent provision for allowing applications to modify maintenance agreements to be treated as decisions under Article 10(1)(e), (1)(f), (2)(b), and (2)(c). UIFSA (2008) section 711 similarly only addresses modification of a Convention support order.

B. Public Policy Challenges to a Foreign Support Agreement

Another potentially important distinction in the United States concerning enforcement of foreign support agreements is that there appears to be a broader basis for refusal to recognize and enforce the agreement on public policy grounds. It was argued in the first part of this article that due process considerations were added to UIFSA (2008) subsection 708(b)(1) to deliberately emphasize that the most plausible challenge to a decision in the United States, on public policy grounds, is a failure "to observe minimum standards of due process, which include notice and an opportunity to be heard." This is language that is not found in the Convention, but it was added by the drafters of UIFSA (2008) for some apparent purpose. It was not included, however, in the otherwise identical statements of the public policy exception for recognition of foreign support agreements. This must also have had some logical intention. The Official Comment does not explain the difference, but, as noted above, due process is simply not a pressing concern when the parties negotiate and agree upon their own solution. What, then, does "manifestly incompatible with public policy" mean in this context, without the overarching due process concerns?

Consider, first, the example of a public policy exception suggested by the Department of State:

[A] U.S. competent authority could decline to recognize and enforce a deci- sion against a left-behind parent in an abduction case where the child had been wrongfully taken or retained, on the grounds that recognition and enforcement of such decision would be manifestly incompatible with the U.S. public policy of discouraging international parental abduction.<\/blockquote>

This result may, arguably, be more likely to occur when the parties have entered into their own agreement, without the benefit and oversight of a tribunal's review. It is not difficult to imagine what extrajudicial mischief could occur when one party has an unfair negotiating advantage or introduces an issue wholly unrelated to the provision of child support. For example, a noncustodial parent might agree to drop a custody or visitation dispute in exchange for a severe compromise in the agreement for child support. Would such an agreement, with an egregiously low support amount, be considered to be manifestly incompatible with public policy?

While there are strong arguments for the narrowest interpretation of the public policy defense at UIFSA (2008) subsection 708(b)(1) when challenging a decision, those arguments may not hold up so well when challenging a private agreement negotiated between the parties--although there may be fewer challenges. Paragraph 561 of the Explanatory Report offers little guidance other than to emphasize that "a narrow basis for ex officio review has been adopted, which would permit refusal only for reasons of public policy." It is improbable that the tribunal, acting on its own motion, will refuse recognition of the agreement under UIFSA (2008) subsection 710(c), but perhaps the tribunal will be somewhat more inclined to do so when the respondent raises public policy as a defense under subsection 710(d).

C. Looking Forward--Challenges for State Legislation

This is an entirely new area of jurisprudence in the United States. In theory, the foreign support agreementisanamicable (and equitable) solution voluntarily agreed upon by the parties. There should be few challenges. When it occurs, litigation, for the most part, will be handled substantially the same as when challenging decisions. Unless excluded under Article 30(5), the provisions of Chapter V for recognition and enforcement are applicable as they may be appropriate, but a few disconnects are obvious. For example, Article 27, binding a competent authority to "the findings of fact on which the authority of the State of origin based its jurisdiction," may have no application at all, unless, perhaps, "jurisdiction" for authentication and registration of an agreement requires a finding of residency. Does Article 28's "no review of the merits" have meaning  in this context? Are there "merits" in a maintenance agreement? What is a review on the merits when the parties have made their own agreement to the quantum of support owed? If the tribunal considers that the amount agreed upon is unconscionably small, or large, can the tribunal refuse recognition as an intolerable result in violation of public policy? That would almost certainly be an abuse of authority when conducting a review of a decision entered by a tribunal in another country. It would assuredly not be allowed in the United States when considering the support order entered in another state. As tribunals develop experience in recognizing and enforcing foreign support agreements and litigation ensues, there may eventually be a need to consider further legislation and possibly even a "review and modification" procedure in a forum of this country.

The United States continues to move in the direction of voluntary settlements, online self-help resources for families, and pro se procedures to resolve simple legal matters efficiently and with minimal cost. Perhaps consideration should be given to adopting some form of authenticated "support agreements" in this country. Mandatory state guidelines for setting the amount of support orders are already universally in effect. Standards could be established for permitting some deviation from the guidelines, and simple review procedures might be warranted as part of the authentication and registration process. The hypothetical situation posed in footnote 102 of this article is not unrealistic. An American couple obtaining a divorce in a foreign country, under local laws and procedures, may already be able to enter into a formal maintenance agreement in that country. When one party returns to the United States, that agreement should be subject to recognition and enforcement, although it could only be modified in the country of origin. It may not be long before state legislatures in the United States consider the advantages of such agreements.

VI. Modification

There is only one substantive jurisdictional provision in the Convention, and it is the rule of negative jurisdiction. The rule in Article 18(1) prohibits a debtor from seeking modification of a decision, or entry of a new decision, in any Convention country "as long as the creditor remains habitually resident in the State where the decision was made." The rule applies whether the debtor applies through the Central Authority under the Convention or directly to the competent authority. The Official Comment to UIFSA (2008) section 711 makes the obvious point that "the protection against modification is accorded only to the obligee, and not to the obligor." In other respects, the Comment notes that this limitation placed on seeking modification "strikes a familiar note" for practitioners in the United States. It imposes a requirement very similar to UIFSA (2008) subsection 611(a)(1)(A) barring modification of another state's order if either the obligee or the child continues to reside in the issuing state, but it does not extend the same prohibition if the creditor moves and seeks modification in another country while the debtor continues to reside in the issuing state.

The Convention permits exceptions to the rule that are reflected in UIFSA (2008) subsections 711(a)(1) and (2). The creditor may submit to jurisdiction "either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity" or, if the foreign tribunal that issued the decision cannot or refuses to exercise jurisdiction, a new or modified order may be issued. Subsection 711(b) addresses the exception allowed under Article 18(2)(d) when the tribunal in the United States cannot recognize the foreign decision. The Official Comment states: "Subsection (b) requires a state tribunal to issue a new child-support order if the Convention order was founded on child-based jurisdiction, the foreign tribunal lacked personal jurisdiction over the obligor, and there is a request to establish an order in accordance with Section 708." That statement is correct. If the tribunal in the United States cannot recognize a foreign decision because that tribunal lacked personal jurisdiction over the debtor (i.e., subsection 708(b)(2)), then it is required to take appropriate measures to establish a new order under subsection 708(c)(2). There is, however, a problem in construing the meaning of UIFSA (2008) subsection 708(c) that warrants further explanation.

UIFSA  (2008)  subsection  708(c)  states  that  if  a  Convention order cannot be recognized under subsection 708(b)(2), (4), or (9), then "(1) the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new . . . order; and (2) the [IV-D agency] shall take all appropriate measures to request [the issuance of a new order]." The United States is only obliged under the Convention to take such measures to establish a new decision for the benefit of a creditor when it is unable to recognize a decision where the foreign tribunal lacked personal jurisdiction over the debtor (i.e., subsection 708(b)(2)). If there is a refusal to recognize the decision on other grounds (e.g., subsections 708(b)(4) or (b)(9)), it may be reasonable for the tribunal to delay dismissal under subsection 708(c)(1) to allow the applicant reasonable time to request establishment of a new order, but the governmental agency in this country should not be obliged to proceed automatically to seek an order without communicating with the Central Authority in the requesting  country. The most absurd example of the result of a literal reading of subsection 708(c)(2) would be in a proceeding where the tribunal had refused recognition of the foreign decision because it was obtained by fraud (i.e., subsection 708(b)(4)). "Fraud is deliberate dishonesty or deliberate wrongdoing. Examples would be where the plaintiff deliberately serves the writ, or causes it to be served on the wrong address or where the party seeks to corrupt the authority or conceals evidence, etc." In that situation, "appropriate measures" for the government agency to take would entail sending prompt notice to the Central Authority in the requesting country that the creditor had been found to have made an application for services under the Convention based upon a fraudulent decision.

The first step in seeking modification of a foreign child support order is registration of the order. If it is from a Convention country, the procedures under UIFSA (2008) section 706 will be followed for recognition of  the decision. If the application to modify was made by a creditor, or the creditor submits to the jurisdiction of the requested country, Article 18(1) does not apply.

Modifications, whether permitted and on what terms, are determined by the law of the jurisdiction where the relief is sought. Generally, a change of circumstances is required at a minimum. In the United States, an application to reduce or cancel arrearages would not be granted, but that may not be the rule in other countries. It would not appear to be possible to modify the duration of the period during which arrears may be enforced, as that is determined by either "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." Duration of the period of the obligation to pay current maintenance is determined by the State of origin and, likewise, would not appear to be modifiable. Equivalent rules apply in the United States preventing modification of the duration of obligation under the order of another U.S. state.

Because each country applies its own rules for modification, it should be noted that "[t]he decision to be modified could have been made in a Contracting State or a non-Contracting State, but whether it can be modified depends on the law of the requested State." This would seem, initially, to contradict the rule that "a decision for which recognition, or recognition and enforcement under the  Convention is  sought  must, in accordance with Article 20(1), be a decision made in a Contracting State." The apparent contradiction is explained in footnote 106 in the Explanatory Report. In summary, Article 10(3) specifies that applications to modify (Article 10(1)(e), (1)(f), (2)(b), and (2)(c)) are determined under the law and jurisdictional rules of the requested State. Thus, the law of the requested state applies to modifications, and any decision (including one from a noncontracting state) may be subject to modification if permitted under the law of the local forum. There is a different standard under the Convention for applications for recognition or recognition and enforcement and for enforcement only (Article 10(1)(a) and (b)). Article 20(1) requires that "[a] decision made in one Contracting State . . . shall be recognized and enforced in other Contracting States. . . ." This is a mandatory provision and the only grounds for refusing recognition and enforcement of a Convention country's decision are reflected in UIFSA (2008) section 708.

One final important point of distinction in the 2008 amendments to UIFSA warrants mention. An additional provision was added to section 611, "Modification of Child Support Order of Another State." This change provides a remedy for an inherent disadvantage often confronted by the parties in the United States when both of them leave the state that issued the decision and one of them has moved to another country. Under prior versions of UIFSA, when both parties left the state, the party seeking modification generally was required to "play away" and bring an action in the new state (or country) of residence of the other party (most often the obligor). There was no longer a forum state with continuing exclusive jurisdiction. This presented a serious disadvantage to either moving party if the action was required to be brought in a foreign country. For example, if it was the debtor who moved to another country, the creditor was obliged to seek modification in that country (where arrearages possibly would   be subject to revision). Both parties lost the familiarity and advantages  of proceeding under the UIFSA rules, particularly continuing exclusive jurisdiction. With no U.S. state continuing to assert continuing exclusive jurisdiction, even if there was no desire to seek a modification in the other country, it is possible that the U.S. citizen, visiting his or her child, might be served and be required to litigate in an inconvenient forum.

The 2008 amendments to UIFSA included a new subsection 611(f): "Notwithstanding subsections (a) through (e) and Section 201(b), a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if: (1) one party resides in another state; and (2)  the other party resides outside the United States." The 611(f) rule is elegant in simplicity and practicality. It allows the U.S. state that issued the controlling order to remain an available forum where familiar UIFSA rules will apply. Of course, either party is still entitled to use the play away rule and submit to the jurisdiction of the state or country where the opposing party resides.

VII. Requests for Specific Measures

A. What Services or "Specific Measures" Can Be Requested?

The United States, during the course of the negotiation of the Convention, argued strenuously for this provision. There was resistance initially by some countries that were concerned with costs and the potential abuse of such a system for purposes beyond the scope of the Convention. These concerns were addressed, and the resulting Article 7 is largely discretionary. The procedures to enable a potential applicant to determine whether an application should be made can greatly simplify, or even obviate, the need to apply for full services under the Convention. It is anticipated, and hoped, that Article 7 will be used frequently and to great efficacy.

Requests for specific measures can be made before an application under the Convention is submitted, to assist in making the application, or even as an alternative to proceeding under the Convention. Both of the parties may, in fact, reside in the requesting country! No specific forms or procedures are prescribed, and a wide range of potential services are available depending upon the circumstances. Perhaps the testimony of a foreign witness is required or there may be a practical need to determine whether alleged assets in the other country actually exist before making an application for recognition and enforcement there. This is a form of limited assistance complementing the formal system of administrative cooperation established under the 2007 treaty.

Article 7 has two distinct sections. Paragraph (1) allows a Central Authority in one country to request assistance through the Central Authority in another country "to assist a potential applicant in making an application under Article 10 or in determining whether such an application should  be initiated." Potential services contemplated include determining the location of either the debtor or creditor; obtaining information concerning the income, assets, or other financial circumstances of the debtor or creditor; obtaining documentary or other evidence; providing assistance in establishing parentage; obtaining provisional measures; and facilitating service of documents. The greatest potential utility of Article 7 is in enabling a tribunal in the United States that has personal jurisdiction over a debtor (possibly long-arm jurisdiction) to obtain a support order in the United States. Subsequently, there could be a simpler application for recognition and enforcement in another country where the debtor resides or has assets. The advantages of being able to proceed in the domestic forum for establishment of parentage and a support obligation cannot be gainsaid.

Article 7, paragraph 1, is a mandatory provision with a hook. "The requested Central Authority shall take such measures as are appropriate if satisfied that they are necessary to assist . . . in making an application. . . or in determining whether such an application should be initiated." The request for assistance must be "supported by reasons." The requested Central Authority thus has substantial discretion to determine whether and how to comply, but a well-founded request for services that is clearly within the scope of the Convention should generally be honored.

Article 7, paragraph 2, potentially goes much farther than  Article 7(1), but the requested Central Authority has even greater discretion in determining whether to provide services. The Central Authority "may also take specific measures on the request of another Central Authority in relation to a case having an international element concerning the recovery of maintenance pending in the requesting State." This phrase has two elements: the scope is limited to maintenance recovery actions and the case must have an "international element." The latter appears axiomatic. There would be no need to request assistance from another country's Central Authority unless there was an international aspect to the case.

It is a wide-open question as to what services, beyond those delineated under Article 7(1), might be requested pursuant to Article 7(2). The Explanatory Report suggests that "the specific measures referred to in paragraph 2 could be any of the measures in Article 6(2). . . ." In fact, it appears that specific measures could involve requests beyond those listed in Article 6(2). "The language of Article 7 is forward looking. Countries . . . are not restricted in the range of services that they may provide." Time and experience in the operation of the treaty will tell whether countries will test the limits of Article 7(2) and find creative and innovative opportunities to take advantage of its full potential.

There may be a matter of costs. The essential rule of the Convention  is that each Central Authority bears its own costs, and services for the most part are free of cost to the applicant. That rule applies to requests for specific measures insofar as the Central Authority may not impose a charge for its own services, but there may be a charge for "exceptional costs." An example posed in the Explanatory Report suggested that costs might be imposed if the Central Authority had to request another body to perform services that were not within the normal functions of the Central Authority. For example, if service of a document is requested, the Central Authority likely will not perform that function itself and would require outside assistance. In the event costs are anticipated, they may not be recovered "without the prior consent of the applicant to the provision of those services at such cost."

VIII. Application of the Hague Service and Evidence Conventions

There was considerable and vigorous debate during negotiations concerning the interrelation between the new Convention of 2007 and  the existing Hague Conventions on Service Abroad (1965) and Evidence (1970). Under the 2007 Convention, Central Authorities are required to "take all appropriate measures . . . to facilitate the obtaining of documentary or other evidence" and "to facilitate service of documents" in relation    to applications under Chapter III. A Central Authority shall also take such actions as are appropriate under Article 6(2)(g) and (j) in response to requests for specific measures under Article 7. When do these actions implicate the Service and Evidence Conventions?

The question might better be framed in terms of what is "evidence" and what actions might be requested of the other country concerning "service" of a document. Article 6(2)(g) is considered in detail in the Explanatory Report. Paragraph 166 notes that "the taking of evidence abroad may be subject to another treaty" (i.e., the 1970 Hague Evidence Convention). "However, where no such mechanisms are applicable, sub-paragraph g) could be used on its own to seek evidence abroad in accordance with   the applicable internal laws." Paragraph 168 is most instructive: "The term 'evidence' should be interpreted broadly. It could be any data that  is publicly available in the requested State or it could be a document obtainable upon request, or it could be evidence that can only be obtained through a judicial process." It would appear that only the third category, requiring judicial intervention in the requested country, would possibly require application of the Evidence Convention.

Authorities in this country are most likely to make requests under Article 7 that do not involve formal "evidentiary" proceedings. There may be a need to locate the debtor or determine whether the debtor has property or other assets in another country. Such information can likely be obtained by searching publicly available data sources. There may be a need for parentage testing that could be arranged voluntarily. If the putative father agreed, no judicial intervention would necessarily be warranted. The Central Authority might also be asked to contact the putative father and to determine whether or not he would sign a voluntary acknowledgment of paternity (VAP) form that would enable birth records to be updated. Such a request, when there is no action pending in any tribunal in either country, scarcely can be considered to be "evidentiary." Similarly, a request to another country's Central Authority to facilitate mediation, including delivering explanatory information and providing the putative father with a copy of the VAP form, should in no sense be construed as a "service" request necessitating application of the 1965 Hague Convention. In fact, it is plausible that a bright-line test to determine whether or not either of the Hague Conventions should be invoked could be whether the request is made in relation to pending litigation (judicial or administrative) in the requesting country. If it is, and if the requested country is itself asked to initiate formal legal proceedings to take evidence abroad and transmit it for production in the action pending in the requesting country or to serve documents, then it may be necessary to use the Evidence or the Service Convention.

Service of documents (Article 6(2)(j)) is considered in the Explanatory Report. When a tribunal in one country requires transmission of documents abroad "so that they can be served on the debtor in accordance with legal requirements in the debtor's jurisdiction[,]" it may indeed be necessary to employ the Service Convention procedures. Ultimately, it would appear to depend upon the law of the forum where the action is pending. Look to the Rules of Civil Procedure in the United States concerning service requirements to determine whether or not special rules may apply when the party to be served resides in another country.

Ultimately, the Explanatory Report does not provide any determinative guidance. In footnotes 77 and 86 of the Report, it is expressly noted that "[t]he Report does not address the legal obligations of States" under either the 1970 Hague Evidence Convention or the 1965 Hague Service Convention. There was no agreement during the Special Commission session concerning how, whether, or when these Conventions might apply. Article 50, accordingly, states simply that "[t]his Convention does not affect" the 1954 Convention on civil procedure, the 1965 Service Convention, or the 1970 Evidence Convention. These are matters for the local forum to decide.

IX. Direct Requests to Competent Authorities

Nothing in the 2007 Convention restricts "the possibility of recourse to such procedures as may be available under the internal law of a Contracting State allowing a person (an applicant) to seize directly a competent authority of that State in a matter governed by the Convention.. . ." An individual residing in a Convention country, therefore, does not have to seek assistance from a Central Authority (or, in the United States, the child support enforcement agency), but he or she can file a petition for establishment, recognition, or enforcement of a child support order directly with the tribunal in another Convention country. Subject to the limitations of Article 18 (creditor's continued residence in the issuing country), modification of an existing support order may also be sought.

UIFSA (2008) section 705 explicitly protects this "freedom of choice" for individual applicants. In most respects, the protections of the 2007 Convention apply, with the obvious exceptions of services provided by the Central Authorities and the guarantee of effective access to procedures (free legal assistance). Articles 14(5) (no requirement for security or bond to cover costs and expenses) and 17(b) (legal assistance equivalent to that provided in the state of origin as provided by the law of the state addressed under the same circumstances) are, however, incorporated.

Generally, unless there are "simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement[,]" the individual will require representation by private counsel in such proceedings. With several conforming exceptions, the provisions of Chapters V (Recognition and Enforcement), VI (Enforcement), and VII (General Provisions) apply to requests for recognition and enforcement made directly to a tribunal in a Convention country.

In the very final hours of negotiations during the Diplomatic Session of November 2007, an effort was made by several Latin American countries to broaden the scope of the Convention in respect of "vulnerable persons." The resulting compromise was a provision in Article 37(3) permitting direct requests for recognition and enforcement of certain defined decisions providing support for a vulnerable person. This provision allows an application under the Convention on behalf of a dependent child (now an adult) over the age of twenty-one where a decision "was rendered before the person reached that age and provided for maintenance beyond that age by reason of the impairment."

X. Scope and Personal Jurisdiction

Scope and personal jurisdiction are, of course, the fundamental underpinnings for any proceedings under the Convention. They are equally critical to a determination of whether a support decision can be obtained, or recognized and enforced, under the Convention. It may seem unorthodox to present these crucial matters near the end of this article, but neither should pose difficulty, and they warrant only brief explanation.

A. Scope

An application under the Convention, whether for recognition or recognition and enforcement, for establishment, or for  modification,  will have been thoroughly vetted by the Central Authorities in both the requesting and the requested country. The Article 12(2) review, before transmittal of the application, requires a finding that "the application complies with the requirements of the Convention." That is, primarily, a determination that the request falls within Article 2, Scope.

The Convention applies "(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 [administrative cooperation] and III [applications through Central Authorities], to spousal support." A Convention country may take a reservation limiting its application of the Convention to children under eighteen or a country may declare that it will extend its application, in whole or in part, "to  any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons." The United States neither took a reservation limiting application to persons under eighteen nor declared that it would expand application beyond the parent-child relationship and closely associated spousal support obligations.

Several aspects of Article 2 warrant some expansion. The reference to age twenty-one does not require that a state in the United States establish a new order for a person over the age of majority in that state. If a state recognizes eighteen as the age of majority and does not require support obligations generally to extend beyond that age, it would not be obliged to establish an order for a nineteen-year-old. States are not "obliged to modify internal rules if the limit for according maintenance in respect of children is below 21 years." Establishment of orders, as well as modification of decisions, is governed by the law of the forum.

On the other hand, the Convention requires recognition and enforcement of another Convention country's order if it falls within the bounds of the scope of the Convention. A foreign order providing support to age twenty- one would be recognized and enforced in the United States, notwithstanding a state law that would prohibit establishment of an equivalent order. This is consistent with treatment of enforcement in interstate cases in the United States. Subsection 604(a)(1) provides that "the nature, extent, amount, and duration of current payments under a registered support order" is governed by the law of the issuing state or foreign country. The emphasized language was added in the 2008 UIFSA amendments. Arrears that accrued before the age of twenty-one are also enforceable, and the statute of limitations would be whichever country's provides for the longer period.

It thus appears that a registered foreign support order providing, for example, for payment of "support until the child graduates from law school or turns 25, whichever occurs first," would be enforceable under UIFSA (2008). There is, however, no obligation for the Central Authority to take any action under the Convention. The foreign creditor may have to retain private counsel in that instance.

With regard to spousal support, it is clear that the United States' responsibilities only pertain to recognition and enforcement; there is no capability to establish or to modify a spousal support decision by application through the Central Authorities. It is also clear that the application for enforcement services concerning the spousal support decision must be "made with" a claim for child support. There may be separate decisions, but the requirement is that "both applications can be handled together."

An application under the Convention can also be refused when the Central Authority of the requested country determines that "it is manifest that the requirements of the Convention are not fulfilled." This is a more restrictive consideration than provided by the requesting Central Authority before it transmits the application, but it could also pertain to a matter of scope. It must be "clear on the face of the documents received" that the application does not comply with the requirements of the Convention. If an application for services beyond the scope of the Convention was not rejected by the requesting Central Authority, it would be an abuse of the Convention and would warrant refusal by the requested Central Authority. For example, if the application sought establishment of an order for a twenty-two-year-old or recognition and enforcement of a decision directing an uncle to pay maintenance, the application would be refused as beyond the scope of the Convention.

B. Personal Jurisdiction

The most common basis for jurisdiction to establish a support obligation, in the vast majority of countries, is the country of residence  of the creditor or the country within which the child resides. Orders may be established notwithstanding the debtor's lack of any ties or connection to the country whatsoever. Consequently, there will be many foreign decisions that cannot be recognized and enforced in the United States because there was a lack of personal jurisdiction over the debtor. The grand compromise that enabled the United States to become a party to the 2007 Convention was an accommodation agreed to by the United States. If it was impossible to recognize a foreign decision because it was based upon creditor jurisdiction, then the United States would first consider the factual circumstances to determine if it would have conferred personal jurisdiction over the debtor (under UIFSA (2008) section 201, Bases for Jurisdiction Over Non-Resident). If there was still no basis at all that could be recognized, then appropriate measures would be taken in this country to establish a new decision for the benefit of the creditor. There does not need to be a separate application for establishment. The matter will proceed under U.S. law and procedures (including guidelines for setting an amount of support).

The Convention does not suggest how the jurisdictional analysis will occur, but the Hague Forms should provide most of the information necessary. The most common request will be an "Application for Recognition or Recognition and Enforcement" of a foreign decision. Item number seven on the form provides for a statement of the jurisdictional bases for recognition and enforcement. If the respondent did not submit to the jurisdiction of the foreign tribunal, live with the child and provide support in the other country, or live there him- or herself at the time the proceedings were initiated, then the form provides space for a statement of other factual circumstances that would have conferred jurisdiction. These could include any of the expansive "Bases for Jurisdiction Over Non- Resident" found in UIFSA (2008) section 201. This analysis will likely be done by the IV-D agency when the application is received, but prudent defense counsel will be advised to closely examine the circumstances as well.

XI. Practical Tips and Pitfalls for Practitioners

In conclusion, by way of summary, here is a list of considerations the practitioner should keep in mind when handling a matter under the 2007 Maintenance Convention.

1. Check personal jurisdiction over the respondent in the issuing country. If the respondent did not appear, there should be a "Statement of Proper Notice" with the application; but if there was no personal jurisdiction over the respondent, the decision will not be subject to recognition in   the United States. Caveat: If recognition and enforcement are refused on jurisdictional grounds, the tribunal will not dismiss the action but will allow reasonable time for a request for establishment of a new order, per UIFSA (2008) subsection 708(c)(1). If application was made through the Central Authorities, the child support agency in the United States will proceed automatically to seek establishment of an order. A new order will be entered in accordance with guidelines in the United States. The respondent may be better advised, in some cases, to accept the foreign support order because a new order in the United States could be in a greater amount.

2.   Is the application within the Scope of the Convention? Caveat: In addition to considerations of the parent-child relationship and age of the child, note that the applicant must be in the requesting country and the decision to be recognized must be from a Convention country (and it could be from a third Convention country). A request for modification, however, can be in regard to any country's decision that can be recognized in the United States.

3.  If the applicant seeks to register a decision from a third country, the Statement of Enforceability and the Statement of Proper Notice must each be signed by the authorities of that country, not the requesting country.

4.  If modification is sought by a debtor, it cannot proceed if the creditor is still "habitually resident" in the issuing country. Caveat: This is the only reference to "habitual residence" in the Convention, and the term is not defined. Elsewhere in the Convention, for example, in Article 10(1),  it  is merely required that an applicant for services be made by "a creditor  in a requesting state." It will be for the Central Authority accepting the application to determine what this means in practice, but it is a critical element. A decision made in violation of Article 18 cannot be recognized.

5. Be aware of the new UIFSA (2008) exception to the general "play away" rule for seeking modifications in the United States when both parties have left the issuing state. UIFSA (2008) subsection 611(f) provides that, if one party has left the country and the other party moves to another state, the state that issued the original order retains jurisdiction to modify. Caveat: Jurisdiction in the issuing state is not exclusive and either party may seek jurisdiction in the other party's state or country of residence, subject to that jurisdiction's substantive law and procedures.

6. Consider asking the Central Authority (IV-D agency) to make a Request for Specific Measures to facilitate establishment or enforcement of an order within the United States. Examples of intercountry cooperation might include arranging for genetic testing, encouraging "amicable solutions" through mediation or similar processes (e.g., seeking a voluntary agreement of paternity), searching public records for location of a party or property, and nearly anything else that might "assist a potential applicant in making an application . . . or in determining whether such an application should be initiated." Caveat: Certain countries may insist that some of these measures constitute "taking evidence abroad" and must be facilitated under the Hague Evidence Convention of 1970. The United States argued strongly during negotiations that voluntary and nonjudicial proceedings do not require use of the Evidence Convention. Whether or not a requested Central Authority will provide limited services is, however, largely a matter of discretion in the requested country. Requests must be "supported by reasons"! Counsel may be of great assistance to the IV-D agency in preparing the business case for international cooperation using specific measures. The alternative is to make an application and refer the matter to the other country where substantially more effort and resources will necessarily be expended. A Request for Specific Measures may also be made even when both parties live in this country; the case only needs to have an "international element," and the range of services may be broader under Article 7(2).

7.  Closely review Foreign Support Agreements that can now berecognized under UIFSA (2008) section 710. These "maintenance arrangements" are negotiated by the parties in the other country with no official parameters required for settlement or any overarching guidance from the authorities as to what may be fair and reasonable. In the United States, a settlement agreement negotiated between the parties would generally have to comply with state guidelines and would be subject to court approval. If a negotiated agreement is far out of line with reasonable norms, there is some possibility that recognition could be refused on grounds of public policy. Caveat: The ordre public, or public policy exception, is available only in the most intolerable circumstances. It is primarily reserved for a failure to afford minimum protections of due process when asserted in challenge to a foreign decision. It may, however, have broader applicability when challenging an unjust Foreign Support Agreement.

8.  A Foreign Support Agreement must be subject to review and modification in the issuing country. This is not a Convention rule but a condition for recognition of the agreement in the United States. It does not appear that the agreement can be modified in this country. The agreement is in the form of a contract, but it must be enforceable as if it were a decision. There should be a Statement of Enforceability from the issuing country.

9. The general rule is that costs for Central Authority functions may not be assessed under the Convention, although there are some exceptions. The requesting Central Authority may charge an applicant for the costs of translation of the application and related documents. There also may be a charge to the applicant for "exceptional costs arising from a request for a specific measure under Article 7." Such costs, however, cannot be imposed without the prior consent of the applicant. Costs may also be recovered from an unsuccessful party.

The Convention provides authority to process information so as  to assure confidentiality. There is also a provision for nondisclosure of information if it is determined "that to do so could jeopardise the health, safety or liberty of a person." A power of attorney may be requested by some countries. But the physical presence of the child or the applicant may not be required in any proceeding. Documents and other information are not subject to challenge "by reason only of the medium or means of communication employed between the Central Authorities concerned."

XII. Conclusion

The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance builds upon fifty years of incremental steps towards a truly effective system of intercountry cooperation in establishing  and  enforcing  family  support  obligations. It is a flexible instrument designed to take advantage of improvements in technology, and it has been drafted with an eye towards continuing evolution for decades in the future. The United States strongly supported the efforts of the Permanent Bureau on Private International Law in this endeavor. This is the first multilateral family maintenance agreement the United States has been able to join, and it was the first country to sign the Convention.

Compromises were made. There are no mandatory enforcement measures under the Convention; debtors' services, unfortunately, are limited; and not all countries will be able to provide the same level of services. But the Convention is a vast improvement over the prior multilateral agreements. Most services are without charge to the applicant. Parentage can be established, and the new provisions allowing Requests for Specific Measures have vast potential to allow innovation and cooperative efforts that will often prove to be more efficient than adherence to strict formulaic processing of case referrals.

  • Section of Family Law
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Robert Keith

Associate General Counsel, Children, Families and Aging Division of the Office of the General Counsel, U.S. Department of Health and Human Services. U.S. Delegate and Drafting Committee Members, Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance.