Why Nigeria should welcome the value and feasibility of acceding to the Hague Conference Children’s Conventions

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Why Nigeria should welcome the value and feasibility of acceding to the Hague Conference Children’s Conventions

Onyója Momoh

12 Aug 2020

6min min read
  • Children's rights
  • Human rights
  • Youth and war

he mechanism for protecting the interests of Nigerian children caught in disputes across frontiers, including those with dual or other nationalities with a connection to Nigeria, has room for improvement. The next step must be progressive and impactful, and this ought to include concrete actions towards Nigeria becoming a contracting party to the Hague Conference on Private International Law's (HCCH) "big four" Children’s Conventions: the 1980 Child Abduction, 1993 Intercountry Adoption, 1996 Child Protection and 2007 Maintenance conventions. The HCCH is a global inter-governmental organisation with the purpose of progressing the unification of the rules of private international law. It meets to negotiate and adopt Conventions and to decide upon future work with the aim of finding solutions and fostering cross-border cooperation in civil and commercial matters.

It is no secret that the Hague Conference has, for some time now, sought to promote the implementation of the Children's Conventions in Africa. This was reiterated at African Regional Conference on the HCCH Children’s Conventions that was held in April 2019 at the University of the Western Cape, and again at the 23rd Annual Family Law Conference in March 2020 in Cape Town, which I was fortunate to have attended.

Nigeria was represented at the African Regional Conference and would no doubt have absorbed the wisdom and experiences of the many countries – both Hague and non-Hague Conference members – who were present. The conclusions and recommendations of the conference reported that participants affirmed their commitment to the principles upheld by the 1990 African Charter on the Rights and Welfare of the Child and the 1989 United Nations Convention on the Rights of the Child. Indeed, Nigeria’s Child’s Rights Act 2003 (2003 Act) is a comprehensive and pioneering piece of legislation with the utmost intention of strengthening the aim of the protection of children. The 2003 Act upholds the principle of the best interests of the child being the paramount consideration, in line with the UN Convention on the Rights of the Child (UNCRC). Notably, the drafters of the 2003 Act were unafraid to tackle salient humanitarian issues such as child trafficking and child labour within this piece of legislation.

At a meeting of the National Council on Women Affairs and Social Development in October 2019, Nigeria's Federal Ministry of Women Affairs (FMWA) set out its goals for reviewing and working progressively towards gender equality and social inclusion. The ministry explored key issues aligned to its mandate for eliminating all forms of discrimination against women and gender-based violence in Nigeria. Amongst these, the FMWA made known its robust view on ensuring implementation of the Child Rights Act 2003 and the establishment of a State Child Trust Fund to enhance the welfare of children; the adopting of the ‘HeforShe’ campaign to prioritise women empowerment programmes; addressing the trend in child trafficking; and the impact of climate change on women, children and vulnerable Nigerians (especially those whose livelihoods are vested in agri-business). One of the organisational units of the FMWA is the Child Development Department of FMWA. In accordance with the mission statement and mandate of this department, its key objective is promoting and protecting children, whilst delivering these aims through structured sub-divisions and interventions, including through the implementation of the Child’s Rights Act 2003.

"Redefining the way Nigeria sees the solutions to the urgent private international law issues that it faces needs to gain traction within the government."

With this in mind, the aims of the HCCH Children’s Conventions and that of Nigeria’s domestic laws surely align themselves. As summarised at the African Regional Conference, through the legal framework of the Conventions, children will be protected across borders: children who are victims of sale, trafficking or abduction, children caught up in international parental disputes, children who would benefit from financial support, children who have endured improper placements abroad or are internationally displaced, unaccompanied, separated or refugees, and children who have been subjected to unethical and unlawful intercountry adoptions.

The successes of the HCCH Children’s Conventions in unifying the rules of private international law, and as a global solution, are unparalleled. The term ‘big four’ refers to these four Conventions, namely:

(i) the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
(ii) the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption;
(iii) 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 (the 1996 Child Protection Convention); and
(iv) the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

African members of the Hague Conference are Burkina Faso, Egypt, Morocco, South Africa, Tunisia and Zambia. States that have acceded to one or more of the Children’s Conventions are Lesotho, Guinea, Benin, Congo, Côte d’Ivoire, Mali, Namibia, Rwanda, Senegal, Togo, Ghana and Zimbabwe.

Nigeria is not a member of the Hague Conference, nor is it a contracting state to any of these Conventions. Redefining the way Nigeria sees the solutions to the urgent private international law issues that it faces needs to gain traction within the government. Sadly, the political clout to advocate for, lobby, drive and sustain momentum on this issue is lacking. Whilst the country continues to address key issues around women and children’s rights through, for example, the National Agency for the Prohibition of Trafficking in Persons, implementing the 'big four' is now all too necessary and now long overdue.

Accession to the 1993 Adoption Convention would reinforce articles 3 and 21 of the UNCRC and help prevent abduction, the sale of or trafficking of children. The 1993 Adoption Convention seeks to promote and uphold the best interests of the child in the context of inter-country adoption and is also instrumental in the recognition of foreign adoption orders. Further, where it concerns the UK, under the English Law on intercountry adoption, the Schedule to the Adoption (Recognition of Overseas Adoptions) Order 2013 (England & Wales) provides that an “overseas adoption” outside of the scope of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercounty Adoption may be recognised as an ‘adoption’ under English law. As Nigeria is not a contracting party to the Convention, the only route available is that which can be seen in Re V (A Child) (Recognition of Foreign Adoption) [2017] EWHC 1733 (Fam) and ELO v CLO (Recognition of a Nigerian Adoption Order) [2017] EWHC 3574 (Fam) wherein both cases, the English high court had to determine the issue of the recognition of a Nigerian adoption order at common law under the inherent jurisdiction.

Similarly, there are important arguments to be made in relation to the enforcement of child maintenance orders for Nigerian children by their absent parent who lives abroad or vice-versa through the 2007 Maintenance Convention; or ameliorating the harmful effects of parental child abduction via the 1980 Child Abduction Convention. In 2010, Nigeria made the news in the UK as one of five non-Hague Convention countries that had the largest number of new parental child abductions in the preceding year. 2008 statistics from Reunite, an international child abduction centre, placed Nigeria as the third highest ranking non-Hague Convention abduction cases of children being removed from the UK to Nigeria.

In terms of protection, the 1996 Child Protection Convention has the primary aim of protecting children in international situations and covers a wide range of civil measures of protection concerning children (e.g. orders concerning parental responsibility and contact) as well as public measures of protection or care. It can be helpful also in situations involving unaccompanied minors, including refugees, asylum seekers and internationally displaced children. Not less importantly, the 1996 Protection Convention complements the 1980 Child Abduction Convention, which inter alia touches on the problem of gender-based violence in circumstances where women flee from abusive relationships and rely on the Article 13(1) (b) grave risk of harm exception to return (under the 1980 Child Abduction Convention), arguing that the return would expose the child to a grave risk of physical, psychological harm or an otherwise intolerable situation. In the context of parental child abduction, the majority of taking parents are mothers (see Lowe and Stephens HCCH statistical analysis 2017 and 2018), of which almost 70% (see Reunite Research Unit 2003) seek to evoke the Article 13(1)b) grave risk of harm.

Though Nigeria has demonstrated its commitment to fulfilling its international obligations in respect of the rights of a child, there is a clear argument for the country to adopt the 'big four' Children's Conventions to improve inter-state cooperation for the protection of children, provide better protection of children in cross-border situations under civil law and ameliorate issues of conflict of laws.

(Main image: Rights activists march in Lagos, Nigeria on 18 March 2017 to to protest child abuse, trafficking, violence and other forms of human degradation to mark the International Day of Prayer and Awareness against Vices. - Pius Utomi Epkei/AFP via Getty Images)

The opinions expressed in these article(s) are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.