Agrégateur de flux

This note addresses the question whether there is a common law basis for the recognition of foreign declarations of parentage. It appears that this issue has not received much attention in common law jurisdictions, but it was the subject of a relatively recent Privy Council decision (C v C [2019] UKPC 40).

The issue arises where a foreign court or judicial authority has previously determined that a person is, or is not, a child’s parent, and the question of parentage then resurfaces in the forum (for example, in the context of parentage proceedings or maintenance proceedings). If there is no basis for recognition of the foreign declaration, the forum court will have to consider the issue de novo (usually by applying the law of the forum: see, eg, Status of Children Act 1969 (NZ)). This would increase the risk of “limping” parent-child relationships (that is, relationships that are recognised in some countries but not in others) – a risk that is especially problematic in the context of children born by way of surrogacy or assisted human reproduction technology.

The following example illustrates the problem. A baby is born in a surrogacy-friendly country to a surrogate mother domiciled and resident in that country, as the result of a surrogacy arrangement entered into with intending parents who are habitually resident in New Zealand. The courts of the foreign country declare that the intending parents are the legal parents of the child. Under New Zealand law, however, the surrogacy arrangement would have no legal effect, and the surrogate mother and her partner would be treated as the child’s legal parents upon the child’s birth. Unless the foreign judgment is capable of recognition in New Zealand, the only way for the intending parents to become the child’s legal parents in New Zealand is to apply for adoption (see, eg, Re Cobain [2015] NZFC 4072, Re Clifford [2016] NZFC 1666, Re Henwood [2015] NZFC 1541, Re Reynard [2014] NZFC 7652, Re Kennedy [2014] NZFLR 367, Re W [2019] NZFC 2482, Re C [2019] NZFC 1629).

So what is the relevance of a foreign declaration on parentage in common law courts? In C v C [2019] UKPC 40, [2019] WLR(D) 622, the Privy Council decided that there was a basis in the common law for recognising such declarations, pursuant to the so-called Travers v Holley principle. This principle, which has traditionally been applied in the context of divorce and adoption, calls for recognition of foreign judgments on the basis of “jurisdictional reciprocity” (at [44]). The Privy Council applied the principle to recognise a declaration of parentage made in Latvia, in relation to a child domiciled and habitually resident in Latvia, for the purposes of maintenance proceedings in the forum court of Jersey. Lord Wilson emphasised that, although foreign judgments may, in some cases, be refused on grounds of public policy, recognition will not be refused lightly: “a court’s recognition of a foreign order under private international law does not depend on any arrogant attempt on that court’s part to mark the foreign court’s homework” (at [58]).

As a matter of policy, my first impression is that the Privy Council’s decision is to be welcomed. Common law jurisdictions have traditionally taken a conservative, relatively “closed” approach to the recognition of foreign laws and judgments on parentage (see Hague Conference on Private International Law A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements (Prelim Doc No 3C, 2014)). Such an approach has become increasingly indefensible in a world that is witnessing unprecedented levels of cross-border mobility and migration. The conflict of laws should, as a matter of priority, avoid limping parent-child relationships: for example, a child who was declared by the courts of their place of birth to be the child of the intending parents, but who is nevertheless treated as the surrogate mother’s child under New Zealand law. The ability to recognise foreign judgments on parentage may not amount to much progress, given that it can apply only where the foreign court has, in fact, made a declaration of parentage: it would have no application where the relevant parent-child relationship simply arises by operation of law or through an administrative act (such as entry of the intending parents in the birth register). There is no doubt that an international solution must be found to the problem as a whole. But it is surely better than nothing.

Another question is what to make of the Privy Council’s reliance on the Travers v Holley principle. Based on the decision in Travers v Holley [1953] P 246 (CA), the principle enables recognition of foreign judgments by virtue of reciprocity: the forum court will recognise a foreign judgment if the forum court itself would have had jurisdiction to grant the judgment had the facts been reversed (ie had the forum court been faced with the equivalent situation as the foreign court). In the context of divorce, the principle has since been subsumed within a wider principle of “real and substantial connection” (Indyka v Indyka [1969] 1 AC 33 (HL)). In the context of adoption, the principle has been applied to recognise “the status of adoption duly constituted … in another country in similar circumstances as we claim for ourselves” (Re Valentine’s Settlement [1965] Ch 831 (CA) at 842).

Perhaps it is not a big step from adoption to parentage more generally. The Privy Council recognised that the latter primarily represents “a conclusion of biological fact”, while adoption “stamps a person with a changed legal effect” (at [39]). But the Privy Council did not seem to consider that this distinction should warrant a different approach in principle. In C v C, the issue of parentage involved a relatively straightforward question of paternity. Had the case involved a question of surrogacy or human assisted reproduction, the answer might well have been different. There is an argument that a parent-child relationship created under foreign law can only be recognised in the forum if the foreign law is substantially similar to forum law. Thus, in the context of adoption, it has been asked whether the concept of adoption in the foreign country “substantially conform[s] to the English concept” (Re T & M (Adoption) [2010] EWHC 964, [2011] 1 FLR 1487 at [13]). This requirement might not be made out where, for example, the law of the forum does not recognise parentage by way of surrogacy (as is the case in New Zealand).

The Privy Council cautioned that the Board did not receive full argument on the issue and that the reader “must bear the lack of it in mind” (at [34]). It seems especially important, then, for conflict of laws scholars to give the issue further consideration. This note may serve as a careful first step – I would be interested to hear other views. Perhaps the most encouraging aspect of the Board’s reasoning, in my mind, is its openness to recognition. The Board’s starting point was that the declaration could be recognised. Arguably, this was because counsel seemed to have largely conceded the point. But to the extent that it cuts through an assumption that questions of parentage are generally left to the law of the forum, it nevertheless strikes me as significant – even more so since the UK Supreme Court’s previous refusal to extend the Travers v Holley principle beyond the sphere of family law (Rubin v Eurofinance SA [2012] UKSC 46, [2012] 3 WLR 1019 at [110], [127]).

Vendredi 7 février, un avocat pénaliste et ancien bâtonnier du barreau d’Aix-en-Provence, Jean-Louis Keita, était écroué et mis en examen pour violation du secret professionnel (C. pén., art. 226-13). Une audience référé-liberté devrait avoir lieu aujourd’hui à 17 heures.

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L’article 529-2 du code de procédure pénale n’apporte aucune restriction au pouvoir général de représentation de l’avocat, lequel peut donc valablement introduire, au nom de son client destinataire d’un avis de contravention, la contestation prévue par ce texte.

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Deux confirmations de jurisprudence relatives à l’interruption de la prescription de l’action publique ressortent de ces arrêts. D’abord, le délai de prescription de l’action publique est interrompu par tout jugement, même non définitif, s’il n’est pas entaché de nullité. Tel est le cas de l’ordonnance pénale. Ensuite, le titre exécutoire de l’amende forfaitaire majorée interrompt, lui aussi, la prescription.

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Can a foreign marriage be recognised in the UK if the State where it was celebrated is not recognised as a State? This was the question which the High Court of Justice (Family Division) had to answer in MM v NA: [2020] EWHC 93 (Fam).

The Court distilled two questions: was the marriage validly celebrated and if so, can it be recognised in the UK? If the answers to both questions were affirmative, the court could give a declaratory order; if one of them were negative, the parties could celebrate a new marriage in the UK.

In assessing the first question, the court considered issues of formal and essential validity. It took account of the various systems of law in Somaliland: formal law (including the Somali civil code, which is still in force in Somaliland on the basis of its continuation under the Somaliland constitution), customary law and Islamic law. In matters of marriage, divorce and inheritance, the latter applies. On the basis of the facts, the Court came to the conclusion that the parties were validly married according to the law of Somaliland.

Although this would normaly be the end of the matter, the Court had to consider what to do with a valid marriage emanating from a State not recognised by the UK (the second question). The Court referred to the one-voice principle, implying that the judiciary cannot recognise acts by a State while the executive branch of the UK refuses to recognise the State. It then considered exceptions and referred to cases concerning the post-civil war US, post-World War II Eastern Germany, the Turkish Republic of Northern Cyprus, Ciskei (one of the ‘States’ created by Apartheid-era South Africa), and Southern Rhodesia.

It also referred to the ICJ Advisory Opinion of 21 June 1971 on the continued presence of South Africa in Namiba, particularly its §125, which states:

“while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”

The Court found that an exception to the one-voice doctrine is acceptable in matters of private rights. The Court also explained that it had conferred with the Foreign and Commonwealth Office of the UK Government, who would not object to the recognition of a Somaliland marriage even though that State is not recognised.

It thus gave the declaration of recognition of the marriage.

(Thanks to Prakash Shah for the tip.)

After Chukwuma Okoli’s, recent post, on this blog, on African Private International Law, Lise Theunissen, who is currently a legal intern at the Hague Conference, now has a blogpost at afronomicslaw on the harmonization of Private International Law in the African Union. Add to that Justin Monsepwo’s recent articles on legal unification at OHADA  and on the impact of the Hague Principles of Choice of Law on OHADA, and you start gaining the impression that interest in African private international law is growing – a good thing, undoubtedly.

Pourvoi c/Cour d'appel de Metz, 9 août 2019

Pourvoi c/Juridiction de proximité d'Arras, 16 décembre 2016

Pourvoi c/Cour d'appel de Paris, 24 octobre 2019

Pourvoi c/Cour d'appel de Paris, 29 juin 2016

Pourvoi c/Tribunal d'instance de Gap, 14/02/2019

Pourvoi c/Cour d'appel de Montpellier, 18 novembre 2019

Pourvoi c/Cour d'appel d'Aix-en-Provence, 26 septembre 2019

Cour d'appel de Toulouse, 15/01/2020

Pourvoi c/Cour d'appel de Rouen, 9 septembre 2019

The annual governance meeting of the Hague Conference on Private International Law (HCCH) will take place from 3 to 6 March 2020. The list of documents that have been submitted to the HCCH governance body (i.e. the Council on General Affairs and Policy) is available here.

Recent documents that have not yet been mentioned in this blog that are worthy of note are the following:

• Recommended Form under the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Prel. Doc. 4 of December 2019 –for approval) –  drafted by the Permanent Bureau (PB) of the HCCH which “was in constant consultation with the Chair of the Drafting Committee, the Chair of the Commission on Judgments, and Members interested in this particular issue.” The PB took forms contained in international and regional instruments into account, including Brussels Ia Regulation.
• Development of the Legal Guide to Uniform Legal Instruments in the area of international commercial contracts (with a focus on sales) (Prel. Doc. 16 of January 2020 – for info only)
• Overview of the findings of the Experts’ Group on cross-border recognition and enforcement of agreements in family matters involving children in relation to the development of a normative instrument (Info. Doc. 2 of January 2020 – for info only)
• The HCCH and the United Nations Sustainable Development Goals (Info. Doc. 3 of January 2020 – for info only)

A few meetings of the Special Commission (i.e. global meetings of experts) to review the practical operation of HCCH Conventions are in the pipeline and have been submitted for approval to Council concerning the following Conventions: the HCCH Apostille Convention, the HCCH Adults Convention, the HCCH Child Support Convention and the HCCH Maintenance Obligations Protocol. For the last three, if approved, it will be the first global meeting ever on their practical operation. See Prel. Docs 9, 10 and 12.

Participation in these meetings is restricted, as they are open only to delegates or experts designated by the Members of the HCCH, invited non-Member States and International Organisations that have been granted observer status.