Cross-border protection and the CRPD

I spent three days last week at a meeting on the cross-border protection of vulnerable adults convened by the European Commission and the Hague Conference on Private International Law.  The primary purpose of the meeting was to consider what steps could be taken to ensure that more states ratify the 2000 Hague Convention on the International Protection of Adults, a landmark convention designed to secure three goals (1) minimising doubt as to which state has responsibility to take measures of protection in relation to the person or property of an adult, where more than one state might have such responsibility ; (2) securing the effective operation of powers of representation (such as powers of attorney) across borders; and (3) securing the effective operation of protective measures across borders.  The convention, addressed in detail here, is, as yet, sorely under-ratified; the United Kingdom has only ratified in respect of Scotland, although curiously (as described here) it has in essence already adopted its provisions, and has already produced a small but important body of case-law interpreting its provisions (in particular this case).

At the meeting, representatives from states, NGOs, practitioner bodies, and individual practitioners considered the experience of the 2000 Hague Convention to date, what steps might usefully contribute towards greater ratification, and also the question of whether other measures (in particular taken by the EU) might sit alongside the Convention.  The participants agreed a set of conclusions and recommendations, which can be found here.   One concrete action that can be taken by practitioners is to provide STEP (the Society of Estate and Trust Practitioners) with practical examples of the difficulties caused by the fact that the UK has not ratified the Convention in respect of England and Wales: for more details, see here.

I want to pick up, however, upon one aspect that became a running theme throughout the three days, namely the interaction between the 2000 Hague Convention and the 2006 UN Convention on the Rights of Persons with Disabilities.  I think that it is perhaps fair to say that for many present it was first time that they had been exposed to the full force of the approach taken by the Committee on the Rights of Persons with Disabilities.   From the perspective of those steeped in the 2000 Hague Convention, with its emphasis on the better securing of protective measures across borders, it came as an (unwelcome) surprise to learn that many of those measures (such as guardianship in one of its various forms) might, in fact, be contrary to Article 12 of the CRPD. Indeed, and although not discussed at the meeting, many forms of powers of representation would also fall foul of the Committee’s interpretation of Article 12, at least insofar as the trigger for their coming into force is some variant of mental capacity.  As securing cross-border effectiveness of such powers is a central purpose of the 2000 Hague Convention, this interpretation, too, would on its face suggest that the 2000 Hague Convention is a convention pursuing a fundamentally misguided aim.

At one level, the debate represented a crossing of wires.  As the closing conclusions and recommendations make clear, there is nothing to stop a state taking such action as it sees fit in relation to a foreign protective measure (or, equally, a foreign power of representation) to the extent that it considers it is required to do so by application of its own domestic laws.  Those domestic laws could reflect the ‘receiving’ state’s interpretation of the CRPD.

At another level, the debate illuminated a further (hitherto largely unrecognised) piece of evidence in relation to the meaning of Article 12 CRPD.  All the states who have signed the 2000 Hague Convention have also signed the UNCPRD.  Some signed the 2000 Hague Convention first; some signed the UNCRPD first.  The states who signed the UNCRPD first[1] (Austria, Belgium, Cyprus, the Czech Republic, Estonia, Finland, Greece, Italy, Latvia, Luxembourg, Monaco, Poland and Portugal), must be taken to have considered that they were not barred by their obligations[2] under Article 12 CRPD from signing up to a convention which relates to measures such as:[3]

a) the determination of incapacity and the institution of a protective regime;

b) the placing of the adult under the protection of a judicial or administrative authority;

c) guardianship, curatorship and analogous institutions;

d) the designation and functions of any person or body having charge of the adult’s person or property, representing or assisting the adult;

e) the placement of the adult in an establishment or other place where protection can be provided;

f) the administration, conservation or disposal of the adult’s property;

g) the authorisation of a specific intervention for the protection of the person or property of the adult.

Those who are working to advance the principles of ‘autonomy and dignity’[4] which lie at the heart of both conventions undoubtedly share many common aspirations.  They may also, ultimately, diverge as to where their end points might lie in terms of the obligations that they believe are imposed on states.  The interaction at international law level between the two conventions sheds further light on what the true starting point must be.

[1] Not all of these states have both signed and ratified the 2000 Hague Convention; they have all, though, signed it.

[2] Not least as none of them entered any declarations or reservations referable to the 2000 Hague Convention.

[3] Article 3, 2000 Hague Convention.

[4] Preamble to the 2000 Hague Convention.

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