HCCH — Conclusions and Recommendations of the First Special Commission on the 2007 Child Support Convention and Maintenance Protocol (17–19 May 2022)

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1. par. 28 · forma din 24 mai 2022 · textul original, în limba engleză

   28. In order to assist with the enforcement of a decision, the SC encouraged requesting States not to set maintenance as a percentage of the debtor’s income but rather to set it as a fixed amount. If this is not possible, requesting States are encouraged to, at least, indicate whether the percentage of income relates to the gross or net income of the debtor.

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2. par. 29 · forma din 24 mai 2022 · textul original, în limba engleză

   29. The SC highlighted that, if maintenance is set as a percentage, a document specifying the amount to be collected and, where possible, the basis for such calculation could be transmitted by the requesting Central Authority at the time of the application for recognition and enforcement.

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3. par. 30 · forma din 24 mai 2022 · textul original, în limba engleză

   30. The SC encouraged Central Authorities to co-operate to establish the financial circumstances of the debtor in order to set a fixed amount of maintenance.

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4. par. 31 · forma din 24 mai 2022 · textul original, în limba engleză

   31. The SC noted that, in cases where it is not possible for the requesting State to set a fixed amount of maintenance in the decision and, as a result, it is not possible to recognise and enforce the decision in the requested State, the requesting State can make an application for the establishment of a decision in the requested State in accordance with Article 10(1)(d). Alternatively, the requested State can seek to arrange a voluntary solution with the debtor, in accordance with Article 6(2)(d), for a fixed amount of maintenance based on the decision from the State of origin and the financial circumstances declared by the debtor.

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5. Anexa II, secțiunea II, paragraful B · forma din 24 mai 2022 · textul original, în limba engleză

   B. The EG acknowledged the diversity of models for child support recovery such as direct transfers from the debtor to the creditor, transfers through an institution in the requested State (e.g., bailiff and other enforcement authorities, court and / or Central Authorities) and sometimes through an institution in the requesting State (e.g., public body and / or Central Authorities). It was recognised that the involvement of Central Authorities and the degree of centralisation of payments vary according to different legal systems, domestic and regional banking systems and available means.

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6. Anexa II, secțiunea III, recomandarea 10 · forma din 24 mai 2022 · textul original, în limba engleză

   10. A good practice should be to promote transparency of currency conversion costs.

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7. Anexa II, secțiunea III, recomandarea 11 · forma din 24 mai 2022 · textul original, în limba engleză

   11. It was noted that bundled payments do result in savings on transfer costs, but may involve some delay resulting from processing time. It was noted that automation, also in the context of single payments, can alleviate these delays and could require fewer resources.

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8. Anexa II, secțiunea III, recomandarea 2 · forma din 24 mai 2022 · textul original, în limba engleză

   2. All participants agreed that there is a need to find solutions for the international transfer of funds which would result in increased transparency and cost reduction. Creditors should not bear the costs related to the transfer of funds and should receive the full amount in accordance with the maintenance decision. Since the ultimate objective is to eliminate all costs relating to the transfer of maintenance funds, an interim solution could be for courts to stipulate, where possible, in their maintenance decisions, whether the creditor or the debtor is to cover these costs. When these costs are stipulated in the decision, they should be reflected under item 5.1.1. of the Abstract of the Decision.

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9. Anexa II, secțiunea III, recomandarea 3 · forma din 24 mai 2022 · textul original, în limba engleză

   3. A good practice is for the requested Central Authority to have arrangements with their bank to cover the fees (“details of charges: OUR”) and for the requested Central Authority to obtain confirmation from the requesting Central Authority that the amount received is the same as the amount sent and, where applicable, information on the reasons for any difference. The EG also noted that some States have made arrangements with government financial institutions for the cost-free transfer of funds. Members of the EG recalled Article 35 of the 2007 Child Support Convention and noted that both the Requesting and Requested States should work bilaterally to reduce the transfer costs.

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10. Anexa II, secțiunea III, recomandarea 6 · forma din 24 mai 2022 · textul original, în limba engleză

    6. The monitoring of payments could: – ensure an accurate payment record; – assist with the enforcement of payments; – support communication between Central Authorities to reconcile the amounts sent and received; – help establish statistical reports, e.g., to measure efficiency and increase understanding about money flows. Experts acknowledged that not all Central Authorities are directly involved with the transfer of maintenance payments and, therefore, may not have systematic monitoring or communication in place. They noted, however, that another option in this situation would be to adopt a system where the provision of the collection and expeditious transfer of maintenance payments could be delegated to public bodies and / or other bodies, in accordance with Article 6(3) of the 2007 Child Support Convention. Experts also noted the possibilities afforded by the iSupport software in terms of monitoring of payments.

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11. Anexa II, secțiunea III, recomandarea 7 · forma din 24 mai 2022 · textul original, în limba engleză

    7. Consideration should be given to using unique case references, known to both the requesting and requested State, attached to each transfer of funds. Such unique case references would link the transfer to an existing case. Consideration should be given, where possible, to use the iSupport case number. This number will be evaluated against banking norms. Experts encouraged the evaluation and adoption of standards which allow for more information to be sent with each payment, such as the ISO-20022 format for electronic data interchange between financial institutions.

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12. Anexa II, secțiunea III, recomandarea 8 · forma din 24 mai 2022 · textul original, în limba engleză

    8. Reference was made to the Practical Handbook for Caseworkers under the 2007 Child Support Convention13 (hereinafter Caseworkers Practical Handbook) which states that a good practice is for the currency conversion of payments to be done by the relevant authority in the requested State at the time of transfer. Members of the EG agreed that over time, due to exchange rate fluctuations, paying the amount stated in a maintenance decision in a different currency may result in under or over payment. To address this, one option could be that the enforcement authority notifies the debtor that the amount to be paid in the debtor’s currency will vary from one month to another, based on the exchange rate. Another option could be that, when the maintenance decision is registered for enforcement in another State in that State’s currency, the State in question may periodically adjust the amount to be paid by the debtor, in order to avoid the build-up of arrears, which may lead to improper enforcement. The EG also noted that consideration could be given to obtaining the agreement of the debtor (e.g., via a monthly notification) that the amount owed in the foreign currency be directly withdrawn from the debtor’s account, with the objective of ensuring the amount paid matches the amount owed. In some cases, this could be the subject of a court decision.

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13. Anexa II, secțiunea III, recomandarea 9 · forma din 24 mai 2022 · textul original, în limba engleză

    9. Reference was also made to the Caseworkers Practical Handbook in which it is stated that “[t]he maintenance debt is not paid in full until the full amount owing in the currency set out in the maintenance decision has been paid”.14

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14. Concluzii și recomandări, punctul 37 · forma din 24 mai 2022 · textul original, în limba engleză

    37. Recalling paragraph 726 of the Practical Handbook for Caseworkers, the SC noted that any conversion of the maintenance amount into a different currency does not modify or vary the underlying decision. The SC also acknowledged the practice of Contracting Parties, which shows that currency conversion of the amount owed takes place at the time of transfer, utilising the exchange rate of that date, with a view to ensuring the creditor receives the full amount required under the decision.

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15. Concluzii și recomandări, punctul 38 · forma din 24 mai 2022 · textul original, în limba engleză

    38. To address the issue of under or over payment of maintenance, the SC noted that one option could be that the enforcement authority notifies the debtor that the amount to be paid in the debtor’s currency will vary from one month to another, based on the exchange rate. The SC acknowledged the existing practice of some requesting Central Authorities or public bodies which have opened bank accounts in the requested States.

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16. Concluzii și recomandări, punctul 72 · forma din 24 mai 2022 · textul original, în limba engleză

    72. The SC highlighted that the contents of the ITMF EG report are to be construed as examples of good practices.

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