Strategic Review of the Egyptian Goodwill Committee

6. Considering a transition to multilateral governance

Abstract

This chapter provides an overview of the recommendation for the Government of Egypt to review the viability of ratifying the primary multilateral instrument on child abduction, the Hague Convention. The benefits and procedural requirements are discussed, arguing that ratification may provide an effective governance framework, complementary to Goodwill Committee processes.

The purpose of this Strategic Review is to evaluate the mandate, composition and efficiency of the Committee, though in the course of this review it is also relevant to consider whether it may be advantageous for the Government of Egypt (GoE) to consider an expansion of the current governance arrangements, and ratify the primary multilateral framework governing child abduction: the Hague Convention. Egyptian ratification of the Hague Convention would be transformative, and align international parental child abduction governance arrangements with the 103 contracting States, including all 38 OECD Members (HCCH, 1980[1]). Furthermore, ratification would strengthen confidence in the rule of law, reinforce Egypt’s commitment to the considerations of the best interests of the child, exemplify a commitment to rights and demonstrate regional leadership.

If the GoE were to ratify the Hague Convention, the Committee (and the governance recommendations for enhancement proposed in Chapters 3, 4 and 5) would remain essential for managing cases from signatory countries, as a proposed central authority, complementing its role for cases from non-Hague Convention signatory countries.

6.1. Benefits of multilateral ratification

6.1.1. Strengthen the Rule of Law and confidence in the resolution process

While bilateral agreements serve as important foundations for establishing goodwill and communication between States, their practical implementation can often be slow and yield limited success. The complexity and diversity in legal systems and interpretations can introduce a degree of uncertainty, complicating co-operation and stalling dispute resolution. As a result, there have been examples of parents taking extreme measures to reclaim the custody of their children (ABC News, 2016[2]). Such actions not only create significant security concerns (placing children at risk and, at times, requiring national police intervention), but also give rise to diplomatic tensions and strain the rule of law by challenging the enforcement of international agreements, and undermining the foundation of mutual trust between States.

Varied judicial interpretation of bilateral agreements can also raise doubts about the consistency and effectiveness of the legal process. Such discrepancies can result in a fragmented legal landscape, where the same agreement may be enforced differently depending on the discretion of the judiciary. This, in turn, can undermine the rule of law and reliance on the process, as perceptions of unequal treatment can breed scepticism on a judicial system's integrity and impartiality.

By contrast, multilateral frameworks, such as the Hague Convention, provide a consistent governance mechanism, offering a structured process for the prompt and safe return of abducted children to their country of habitual residence. It establishes clear guidelines for judicial and administrative authorities in different States to work together efficiently, minimising the trauma and disruption to the affected children and their families. A structured, consistent approach ensures a predictable and equitable legal process, reinforcing the rule of law and promoting trust by ensuring that all parties are subject to the same standards and expectations.

In turn, trust in public institutions fosters strength in governance, which is necessary for sustaining democracy. The 2024 OECD Survey on Drivers of Trust in Public Institutions found that trust in government can help foster adherence to challenging reform programmes. When people trust that government is acting in their best interests, they are more likely to support and comply with policy changes (OECD, 2024[3]).

6.1.2. Standardise the considerations of the best interests of the child

The Hague Convention has been designed to return children to their habitual residence where a court of proper jurisdiction will determine custody. The Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a standardised process to bring about their prompt return. However, the Hague Convention provides for exceptions where returning the child may not be in their best interests, such as in cases of grave risk of harm or if the child objects, depending on their age and maturity. Therefore, while the primary goal is the return of the child, the exception provisions form a structure to standardise assessments on the child's wishes, well-being and need for protection, implicitly embedding best interest considerations at a policy level.

Return rates (that is the percentage of cases where the return of a child is ordered) under the Hague Convention exemplify the application of exceptions or well-being considerations. In the 2023 Hague Statistical Analysis (drawn from 2021 data) the overall return rate was 39% (Lowe and Stephens, 2023[4]), which was lower than previous studies, with 45% in 2015, 46% in 2008, 51% in 2003 and 50% in 1999.1 The most common judicial reasons (Lowe and Stephens, 2023[4]) for refusing to order a return include:

• grave risk of harm (Article 13(1)(b) – 29%

• child not habitually resident in the requesting state – 13%

• child considered settled in the new state (Article 12) – 10%

• child's objection to return (Article 13(2) – 9%.

The declining trend in return rates may be indicative of a growing emphasis on evaluating the exception provisions and potential risks involved in each child's situation, rather than a blanket enforcement of return policies, recognising the nuanced complexities and protection needs in international parental child abduction cases.

6.1.3. Exemplify commitment to international rights and national strategy

Implementing a multilateral convention within Egypt’s legal framework would significantly enhance the country’s ability to protect children in abduction cases and respond to their needs, aligning its practices with international standards and facilitating co-operation with other States committed to child-friendly justice solutions.

Multilateral ratification may demonstrate the GoE’s commitment to improving human rights, particularly child rights, by advancing the rights outlined in the 2014 Egypt Constitution, and assisting in implementing various international and domestic commitments (OECD, 2023[5]), including:

• Sustainable Development Goal (SDG) 16.3: promoting the rule of law at national and international levels and ensuring access to justice for all

• National Strategy of Human Rights

  • amend national laws to enhance women’s rights, ensure the best interests of the child, and facilitate women’s access to their rights and their children’s rights without delay

  • develop a national mechanism for the immediate enforcement of alimony judgments for women and their dependents.

• National Childhood and Motherhood Strategy: protecting children from physical and psychological violence; ensuring the protection and respect of their core rights to housing, education, participation and protection

• National Human Rights Strategy: promoting legal awareness of children and their protection from abuse, exploitation, negligence and all forms of violence

• Egypt Vision 2030: advocating for children’s rights and prioritising their interests in all matters concerning them. Reinforcing partnerships between all child rights actors and strengthening child protection mechanisms to protect children in danger.

6.1.4. Demonstrate regional leadership

The Hague ratification offers the opportunity for Egypt to assert its leadership in the Middle East and North Africa (MENA) at a critical time when neighbouring states are managing crucial humanitarian crises. By adopting the Hague Convention, Egypt can demonstrate a significant commitment to upholding and protecting human rights, specifically children’s rights, who are most vulnerable during crises.

Tunisia and Morocco have already contracted to the Hague Convention, setting a precedent for regional co-operation in safeguarding children’s rights. By joining this collective of States, Egypt can spearhead initiatives and frameworks within MENA that advocate for the protection and welfare of children. This move would strengthen Egypt’s role as a regional influencer, showcasing its commitment to international legal standards and rights practices – potentially unlocking new avenues for diplomatic and economic partnerships focused on human rights and humanitarian aid.

6.2. Bilateral to multilateral process

Over the past 25 years over 30 new states (HCCH, 1980[1]) have contracted to the Convention, including:

• 2000 Turkey, Trinidad & Tobago, Slovakia, Nicaragua

• 2001 Sri Lanka, Peru, Serbia

• 2002 Thailand, Lithuania, Guatemala

• 2006 Ukraine

• 2007 Montenegro, Armenia

• 2008 Seychelles

• 2010 Gabon, Morocco, Singapore

• 2011 Andorra, Russian Federation, Guinea

• 2012 Republic of Korea, Lesotho

• 2013 Kazakhstan

• 2014 Japan, Zambia, Iraq

• 2016 Philippines, Pakistan

• 2017 Tunisia

• 2019 Guyana

• 2023 Cabo Verde, Botswana

For most States, depositing instruments of accession must be accompanied by the development of individual treaty partnerships with all other contracting States.

Morocco ratified in 2010 and has established treaty partnerships with over 60 States, including Canada, France, Germany, Ireland, Japan, Latvia, Netherlands, New Zealand, Sweden, Switzerland, United Kingdom and United States of America (HCCH, 1980[6]) Tunisia ratified in 2017 and currently has over 30 treaty partners, including France, Germany, Ireland, Japan, Latvia, Netherlands, Sweden and Switzerland (HCCH, 1980[6]).

To ensure the effective implementation of the Convention, States are also required to incorporate provisions into their domestic legislation, and so granting it legal force within their jurisdiction. To operationally manage Convention applications, contracting states must also establish a Central Authority.2 In some OECD countries (France, United Kingdom, United States of America, Canada, Australia) the Central Authority is within the Ministry of Justice or directly within court services). Given their comparatively recent ratification, Egypt may leverage learnings from Tunisia and Morocco’s ratification process, particularly their reviews of internal legislation and development of Central Authorities.

The mechanics of establishing a Central Authority together with other practicalities specific to Hague Convention ratification are explored at the Malta Conferences. The Malta Conferences focus on engaging non-contracting states, facilitating discussions on how domestic legal systems can interact with convention principles, sharing knowledge from recently transitioned states and providing procedural guidance on convention ratification. Refer to Box 6.1 below.

Box 6.1. Malta Conferences

The Malta Conferences were established by The Permanent Bureau of the Hague Convention on Private International Law in 2004 as a forum where valuable insights and knowledge are shared between contracting states to the Convention and non-contracting states, notably those with legal systems based on or influenced by Islamic law (“Shariah”). To date, there have been four significant conferences in 2004, 2006, 2009 and 2016.

At the 2016 Conference, Morocco presented their family law reforms, grounded in Shariah Law, that preceded Morocco’s Hague Convention ratification in 2010. Prior to Hague Convention ratification, Morocco (like Egypt) used bilateral agreements as their primary governance framework for child abduction. In 2016, the Moroccan experience was presented as "a unique model on the Arab and Islamic level for other Islamic states to consider".

The next Malta Conference has been scheduled for September 2024. The GoE may wish to draw on the expertise of the Malta process to review the knowledge learned, and leverage the insights and expertise available.

Source: (HCCH, 2017[7]; Hassan, 2016[8])

6.3. Key recommendations

• The OECD recommends that the Government of Egypt (GoE) undertake a review to assess the viability of multilateral ratification. Multilateral ratification may pave the way for Egypt to establish an efficient legal framework, aligned with OECD standards, that facilitates the swift return of abducted children, enhancing international trust and co-operation.

References

[2] ABC News (2016), Timeline of How Things Went Wrong for Sally Faulkner.

[8] Hassan, B. (2016), An overview of the benefits and key features of the Hague Conventions 1980 and 1996: Moroccan Experience Brahimi Hassan Judge- Moroccan Central Authority Fourth Malta conference On cross-frontier protection and Family Law, Malta,, https://assets.hcch.net/docs/f32457be-013a-4f00-9b2c-76a0f4d9263d.pdf.

[7] HCCH (2017), The 2017 International Hague Network of Judges Conference on Cross-Border Family Relocation, http://www.hcch.net/en/publications-and-studies/details4/?pid=6460&dtid=46.

[6] HCCH (1980), Acceptances of Accessions, http://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=1061 (accessed on 21 February 2024).

[1] HCCH (1980), Status Table, https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (accessed on 12 March 2024).

[4] Lowe, N. and V. Stephens (2023), Global report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention, https://assets.hcch.net/docs/bf685eaa-91f2-412a-bb19-e39f80df262a.pdf.

[3] OECD (2024), OECD Survey on Drivers of Trust in Public Institutions : Building Trust in a Complex Policy Environment, OECD Publishing, Paris, https://doi.org/10.1787/9a20554b-en.

[5] OECD (2023), Towards a Child-friendly Justice System in Egypt: Implementing the Sustainable Development Goals, OECD Publishing, Paris, https://doi.org/10.1787/9f5b0524-en.

Notes

← 1.  Care must be taken with the 2024 Statistical Analysis given the likelihood of impact by the COVID-19 pandemic.

← 2.  HCCH (1980), “Article 6, in Convention on the Civil Aspects of International Child Abduction”, Hague Conference on Private International Law, The Hague.