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Hague Convention 1996

11 am

Sir John Stanley (Tonbridge and Malling) (Con): I am very glad to be able to initiate this debate on the 1996 Hague convention on the international protection of children. I start with a point of curiosity, which I hope that the Minister for the Middle East, the hon. Member for Pontypridd (Dr. Howells), who is responding to the debate, will not take personally. The debate is on a human rights issue, and I am curious to know why the Minister for Trade, the right hon. Member for Makerfield (Mr. McCartney), is not replying to the debate. After last Thursday’s human rights debate in Westminster Hall, I had the opportunity to mention to him that I had secured this debate, and he said that he expected that he would reply to it. He is, as the Minister is aware, not only the Minister with responsibility for human rights but a previous Chair of the all-party group on child abduction, which I currently have the privilege of co-chairing with the hon. Member for Nuneaton (Mr. Olner). He would, therefore, have been extremely well qualified to respond to the debate and I hope that that is not the reason why the Foreign and Commonwealth Office has decided that he should not do so. Having said that, may I, as always, welcome the Minister for the Middle East. I know that, with his usual diligence, he will have burned the midnight oil and got himself fully up to speed on the convention.

The non-ratification by EU member states—apart from a small handful, which ratified it before becoming EU member states—is regrettably one of the worldwide scandals from a human rights standpoint. I use the phrase advisedly. It is a scandal and it is having serious human rights repercussions. It would be a scandal wherever it happened, and one might expect such a thing to occur in a part of the world that was conspicuous for violations of human rights. However, one would not expect such a situation to arise in an area such as the EU, which prides itself on the fundamental importance that it attaches to human rights—including children’s rights—and which makes them a centrepiece of its architecture. However, that is the position.

I shall come on to why EU states have still to ratify the 1996 Hague convention, but I want to highlight at the outset why its ratification is critical. Its significance was well summarised in a letter from the Secretary-General of the Hague Conference on Private International Law, Mr. Hans van Loon, to the then EU President, Mr. Luc Frieden, on 25 February 2005, in which he appealed to him to achieve EU ratification of the convention during the Luxembourg presidency. Mr. van Loon wrote as follows:

That passage from the letter to the then EU president shows all too clearly what is at stake in ratifying the convention. The specific rights of children and the opportunities that the convention presents to give them additional protection were extremely well summarised by the deputy Secretary-General of the Hague conference, Professor William Duncan, in the conference’s judges’ newsletter of last autumn. Professor Duncan wrote of the benefits to children that will arise from the ratification of the 1996 convention:

The 1996 Hague convention is of the most profound importance to vulnerable, needy, exploited and sexually abused children all over the world. Its non-ratification denies all those categories of children the benefits of the legal protection that it would afford.

I appreciate that the position is not 100 per cent. black worldwide, and that the EU has taken it upon itself—quite unnecessarily, in my view—to introduce its own parallel provision to the 1996 Hague convention in its 2005 parental responsibility regulation. However, although that effectively gives children in the EU the protection afforded by the 1996 Hague convention, it provides that protection only in cases of abduction and so on between EU member states. It does not provide any protection in abduction and other cases involving an EU member state and a state outside the EU, or to children who are involved in such cases between two states that are both outside the EU. The protection provided so far for children by the EU 2005 parental responsibility regulation is very limited geographically.

I come to the key issue: why has the 1996 Hague convention, a vital convention for the protection of children, not been ratified so far by the EU? The answer is one word, and that word, extraordinarily and reprehensibly, is Gibraltar. It is because the British Government and the Spanish Government are unable to agree on how the 1996 convention should be operated within Gibraltar that children throughout the world are being denied the crucial protection and fundamental rights that they would otherwise have under the 1996 Hague convention.

It is because of the dispute over Gibraltar and how the convention should be operated in Gibraltar that, although the Hague convention came into force in January 2002, now—four and a half years later—we still have no EU ratification. It is a completely unacceptable position and I must say that both the British Government and the Spanish Government should be hanging their heads in shame that such an
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important issue to benefit children throughout the world is not available because they are unable to deal with the Gibraltar dimension.

I say straight away that I understand the significance of the sovereignty of Gibraltar issue. Indeed, as a Member of Parliament individually and as a member of the Foreign Affairs Committee, I have been consistently robust in defending and upholding the right of the people of Gibraltar to determine their own future and to do so by a legitimate and democratic process of self-determination. They should not have their sovereignty removed against their will. The issue that the Spanish and the British Governments should be attempting to resolve and which should have been resolved ages ago is how to disentangle the Gibraltar sovereignty issue from the equally imperative issue—in this context, I would say more imperative—of getting the 1996 Hague convention ratified. That is not difficult, given good will and common sense.

I say to the Minister that the British Government have been here before, well within living memory. I shall give him a precedent. We were in the same position when dealing with sovereignty vis- -vis Argentina after the end of the Falklands war. The British Government had to normalise their relations with the Argentine Government. They had to do business with them, sort out the limits of fishery zones, fishery protection issues, the resumption of civil flights between the Falkland Islands and Argentina and the resumption of sensible commercial relations between them. That was done successfully in the obvious, simple way of the British Government and the Argentine Government agreeing to put the sovereignty issue on one side, take it off the table and concentrate on reaching common-sense, responsible solutions that were in the interests of the Falkland islanders and the people of Argentina. That is how the issue was solved. It seems wholly negotiable to achieve a similar solution to the issue between the Spanish Government and the British Government.

What I question about the British Government is whether they are putting the amount of effort into solving the matter that it requires. We are talking about the denial to children throughout the world of the protection afforded by the 1996 Hague convention. To establish what degree of priority the British Government and Ministers have given to the issue, I recently tabled a question in anticipation of eventually being successful with this Adjournment debate. It stated:

First of all, for some unknown reason the question that I tabled was transferred by the Foreign Office to the Department for Constitutional Affairs. I fail to see why the Foreign Office ducked answering the question. On 8 May, however, I received a reply from the Minister of State, Department for Constitutional Affairs, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), who said:


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So the shocking answer, and I did find it truly shocking, is that Ministers have raised this issue three times, and three times only, since the convention came into force in January 2002—four and a half years ago. I appreciate that work has been going on at official level, but what priority have Ministers been giving this key issue when they have raised it just three times in the past four and a half years? The Government are giving this key human rights and child protection issue an unacceptably inadequate level of priority.

We had a golden opportunity to crack the problem during the British presidency last year, because the presidency gave us influence and the ability to prioritise the agenda. Mr. Hans van Loon returned to the charge and wrote to the Prime Minister, who was then President of the EU, drawing attention to the incredibly negative effects that non-ratification was having on the prospects of ratification around the world. He said:

Well, the Prime Minister replied on 22 November 2005, and hon. Members will draw their own conclusions about his reply, although I think that it is very disappointing. It is brief, so I shall read it out in full. Mr. Blair wrote to Mr. van Loon:

And progress on this issue during the British presidency there was none. As far as I am aware, there has been none since. However, the issue has been selected for debate today, so perhaps the telephone wires have been humming and a deal has been done over the weekend. With good will, it would have been perfectly possible to do a deal over the weekend, and perhaps the Minister will announce that the problem has been solved. That would be wonderful. Should that not be the case, however, the British and Spanish Governments will continue to be censured by all the other EU member states, and by international groups
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around the world concerned with child protection, for failing to resolve this issue and for preventing the ratification of the 1996 Hague convention on the international protection of children. In my view, such censure will be richly deserved.

11.20 am

The Minister for the Middle East (Dr. Kim Howells): I congratulate the right hon. Member for Tonbridge and Malling (Sir John Stanley) on securing the debate. I know from his distinguished record in this field how strongly he feels, as indeed do you, Mr. Bercow, about the subject. He is right that there can be few subjects of greater importance. I shall try to explain why this extremely regrettable impasse continues.

There was quite a debate in the Foreign Office about who should deal with this subject. The right hon. Gentleman is right to question why I am answering the debate and not my right hon. Friend the Minister for Trade, who is the Minister with responsibility for human rights, or my right hon. Friend the Minister for Europe. The reason is precisely because of some of the issues that the right hon. Gentleman raised when he described the importance of the Hague convention. Such issues stray into my responsibilities, and they include human trafficking. These are very serious issues and I hope that he will accept my answer to his debate, which I am glad he raised.

May I begin by saying that the Government are well aware of the 1996 Hague convention on the protection of children and its significance, and remain committed to securing its ratification? I sympathise with the right hon. Gentleman’s frustration that this has not so far happened.

Before dealing with specific concerns, I shall take the opportunity to make a few comments to set the context for my response. Both the 1996 Hague convention and the new EU parental responsibility regulation are intended to reinforce the operation of the 1980 Hague child abduction convention, one of the most widely adopted and most effective Hague conventions worldwide.

The 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children is one of a number of international instruments that are intended to work together to secure better outcomes for children in circumstances where cross-border arrangements have to be made for residence and contact—known as custody and access internationally—following family breakdown.

The revised Brussels II regulation—EC regulation No. 2201/2003—which came into force on 1 March 2005, was drafted to take account of the provisions on jurisdiction, recognition and enforcement of decisions relating to children contained in the 1996 Hague convention.

EU member states signed the 1996 Hague convention on the protection of children on 1 April 2003. It is intended that they will ratify the convention simultaneously. Several EU member states will need legislation in order to ratify. The revised Brussels II
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regulation gives partial Community competence in this field, which means that ratification must take place on an EU-wide basis. As matters stand, the UK will need primary legislation in order to ratify the 1996 Hague convention on the protection of children.

As the right hon. Gentleman is aware, Spain is currently blocking the EU from making decisions on the signature or ratification of international instruments that involve a degree of EU competence unless special provision is made for their application to Gibraltar. The most prominent case to date has been the 1996 Hague convention on the protection of children.

Spain wants to limit the extent of direct contact between the competent authorities in Gibraltar and those of other parties to such instruments, including states outside the EU. We understand that the Spanish view such contact as recognition of the 1969 Gibraltar constitution, which the right hon. Gentleman hinted at. However, they have never acknowledged that constitution because the preamble makes clear the principle of Gibraltarian consent to any change in sovereignty, and we do not consider the 1969 constitution to have any sovereignty implications.

That problem held up EU business in the late 1990s. The UK therefore entered into detailed negotiations with Spain, in consultation with Gibraltar; and in April 2000 we agreed a system that allows for indirect communication between EU member states and the competent authorities in Gibraltar, via the FCO—the so-called “post-box” system. That covers business within the EU, and a limited number of international treaties. What Spain wants represents a significant move beyond those arrangements—that any country that is party to an international instrument to which the EU is party must communicate with Gibraltar via the FCO post-box.

In 2003, as a compromise on the Hague convention on parental responsibility, the UK offered to consider using the post-box between EU member states and Gibraltar. Spain refused to accept that solution, and more recently the broader issue of post-boxing was raised by the Government in the trilateral forum—a dialogue between Spain, Gibraltar and the UK that was established in 2004. That forum is precisely what the right hon. Gentleman spoke of when he mentioned arrangements made after the Falklands war. It is about putting sovereignty to one side and making progress on co-operation between Spain, the UK and Gibraltar, which is what we want to see happen.

Sir John Stanley: Will the Minister say why the British and Spanish Governments were able to agree over the operation in Gibraltar of the EU’s parental responsibility regulation, but could not agree to a similar arrangement that would enable the 1996 Hague convention to be settled?

Dr. Howells: As I understand it, the Hague convention is of an altogether different order. It is not an EU provision; it is an international treaty and it is therefore treated differently within the EU.


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I will answer the right hon. Gentleman’s questions about what we have been trying to do about it recently, but since the establishment of the trilateral forum, representatives of the UK, Spain and Gibraltar have been sitting at the same table, each with an equal voice. The post-box is an anachronism. It impedes the development of better and more efficient communication.

So far, the Spanish Government have not been able to offer an acceptable proposal. However, we will continue, through the trilateral forum, to find a way forward acceptable to all three parties that will enable the EU to ratify the 1996 Hague convention. Indeed my right hon. Friend the Minister for Europe was in Madrid on Monday and in Gibraltar on Tuesday for discussions in the context of the trilateral forum.

A special commission will discuss the work of the 1980 Hague convention from 30 October to 9 November 2006; and the Hague conference intends to devote one and a half days to discussing the implementation of the 1996 Hague convention. I hope that we can arrive at a solution. I agree entirely with the right hon. Gentleman that it is urgent. Indeed, my right hon. Friend the Minister for Europe has been dealing with the matter over the past couple of days.

Member states are being canvassed about what issues should be raised at the special commission, and the questionnaire includes questions on the 1996 convention. We recognise that the United Kingdom will probably be criticised at the special commission—the right hon. Gentleman has criticised us, and so will Spain—for holding up implementation of the 1996 convention. It is a serious matter.

John Bercow (in the Chair): Order. I apologise for having to interrupt the Minister.


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