|
|
|
CONVENTION ON THE CIVIL ASPECTS OF
INTERNATIONAL CHILD ABDUCTION
(Concluded 25 October
1980)
(Entered into force 1 December 1983
The States signatory to the present
Convention,
Firmly
convinced that the interests of children are of paramount importance
in matters relating to their custody,
Desiring
to protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual residence, as well
as to secure protection for rights of access,
Have
resolved to conclude a Convention to this effect, and have agreed upon
the following provisions –
CHAPTER I
– SCOPE OF THE CONVENTION
Article
1
The
objects of the present Convention are –
a) to
secure the prompt return of children wrongfully removed to or retained
in any Contracting State; and
b) to
ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting
States.
Article
2
Contracting
States shall take all appropriate measures to secure within their
territories the implementation of the objects of the Convention. For
this purpose they shall use the most expeditious procedures
available.
Article
3
The
removal or the retention of a child is to be considered wrongful where
–
a) it is in
breach of rights of custody attributed to a person, an institution or
any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal
or retention; and
b) at the
time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the
removal or retention.
The
rights of custody mentioned in sub-paragraph a) above, may
arise in particular by operation of law or by reason of a judicial or
administrative decision, or by reason of an agreement having legal
effect under the law of that State.
Article
4
The
Convention shall apply to any child who was habitually resident in a
Contracting State immediately before any breach of custody or access
rights. The Convention shall cease to apply when the child attains the
age of 16 years.
Article
5
For the
purposes of this Convention –
a) "rights
of custody" shall include rights relating to the care of the person of
the child and, in particular, the right to determine the child's place
of residence;
b) "rights
of access" shall include the right to take a child for a limited
period of time to a place other than the child's habitual
residence.
CHAPTER
II – CENTRAL AUTHORITIES
Article
6
A
Contracting State shall designate a Central Authority to discharge the
duties which are imposed by the Convention upon such
authorities.
Federal
States, States with more than one system of law or States having
autonomous territorial organizations shall be free to appoint more
than one Central Authority and to specify the territorial extent of
their powers. Where a State has appointed more than one Central
Authority, it shall designate the Central Authority to which
applications may be addressed for transmission to the appropriate
Central Authority within that State.
Article
7
Central
Authorities shall co-operate with each other and promote co-operation
amongst the competent authorities in their respective State to secure
the prompt return of children and to achieve the other objects of this
Convention.
In
particular, either directly or through any intermediary, they shall
take all appropriate measures –
a) to
discover the whereabouts of a child who has been wrongfully removed or
retained;
b) to
prevent further harm to the child or prejudice to interested parties
by taking or causing to be taken provisional
measures;
c) to
secure the voluntary return of the child or to bring about an amicable
resolution of the issues;
d) to
exchange, where desirable, information relating to the social
background of the child;
e) to
provide information of a general character as to the law of their
State in connection with the application of the
Convention;
f) to
initiate or facilitate the institution of judicial or administrative
proceedings with a view to obtaining the return of the child and, in a
proper case, to make arrangements for organizing or securing the
effective exercise of rights of access;
g) where
the circumstances so require, to provide or facilitate the provision
of legal aid and advice, including the participation of legal counsel
and advisers;
h) to
provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the
child;
i) to keep
each other informed with respect to the operation of this Convention
and, as far as possible, to eliminate any obstacles to its
application.
CHAPTER
III – RETURN OF CHILDREN
Article
8
Any
person, institution or other body claiming that a child has been
removed or retained in breach of custody rights may apply either to
the Central Authority of the child's habitual residence or to the
Central Authority of any other Contracting State for assistance in
securing the return of the child.
The
application shall contain –
a)
information concerning the identity of the applicant, of the child and
of the person alleged to have removed or retained the
child;
b) where
available, the date of birth of the child;
c) the
grounds on which the applicant's claim for return of the child is
based;
d) all
available information relating to the whereabouts of the child and the
identity of the person with whom the child is presumed to
be.
The
application may be accompanied or supplemented by
–
e) an
authenticated copy of any relevant decision or
agreement;
f) a
certificate or an affidavit emanating from a Central Authority, or
other competent authority of the State of the child's habitual
residence, or from a qualified person, concerning the relevant law of
that State;
g) any
other relevant document.
Article
9
If the
Central Authority which receives an application referred to in Article
8 has reason to believe that the child is in another Contracting
State, it shall directly and without delay transmit the application to
the Central Authority of that Contracting State and inform the
requesting Central Authority, or the applicant, as the case may
be.
Article
10
The
Central Authority of the State where the child is shall take or cause
to be taken all appropriate measures in order to obtain the voluntary
return of the child.
Article
11
The
judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of
children.
If the
judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement of the
proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central Authority of
the requesting State, shall have the right to request a statement of
the reasons for the delay. If a reply is received by the Central
Authority of the requested State, that Authority shall transmit the
reply to the Central Authority of the requesting State, or to the
applicant, as the case may be.
Article
12
Where a
child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings before the
judicial or administrative authority of the Contracting State where
the child is, a period of less than one year has elapsed from the date
of the wrongful removal or retention, the authority concerned shall
order the return of the child forthwith.
The
judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one year referred
to in the preceding paragraph, shall also order the return of the
child, unless it is demonstrated that the child is now settled in its
new environment.
Where the
judicial or administrative authority in the requested State has reason
to believe that the child has been taken to another State, it may stay
the proceedings or dismiss the application for the return of the
child.
Article
13
Notwithstanding
the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order
the return of the child if the person, institution or other body which
opposes its return establishes that –
a) the
person, institution or other body having the care of the person of the
child was not actually exercising the custody rights at the time of
removal or retention, or had consented to or subsequently acquiesced
in the removal or retention; or
b) there is
a grave risk that his or her return would expose the child to physical
or psychological harm or otherwise place the child in an intolerable
situation.
The
judicial or administrative authority may also refuse to order the
return of the child if it finds that the child objects to being
returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.
In
considering the circumstances referred to in this Article, the
judicial and administrative authorities shall take into account the
information relating to the social background of the child provided by
the Central Authority or other competent authority of the child's
habitual residence.
Article
14
In
ascertaining whether there has been a wrongful removal or retention
within the meaning of Article 3, the judicial or administrative
authorities of the requested State may take notice directly of the law
of, and of judicial or administrative decisions, formally recognized
or not in the State of the habitual residence of the child, without
recourse to the specific procedures for the proof of that law or for
the recognition of foreign decisions which would otherwise be
applicable.
Article
15
The
judicial or administrative authorities of a Contracting State may,
prior to the making of an order for the return of the child, request
that the applicant obtain from the authorities of the State of the
habitual residence of the child a decision or other determination that
the removal or retention was wrongful within the meaning of Article 3
of the Convention, where such a decision or determination may be
obtained in that State. The Central Authorities of the Contracting
States shall so far as practicable assist applicants to obtain such a
decision or determination.
Article
16
After
receiving notice of a wrongful removal or retention of a child in the
sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it
has been retained shall not decide on the merits of rights of custody
until it has been determined that the child is not to be returned
under this Convention or unless an application under this Convention
is not lodged within a reasonable time following receipt of the
notice.
Article
17
The sole
fact that a decision relating to custody has been given in or is
entitled to recognition in the requested State shall not be a ground
for refusing to return a child under this Convention, but the judicial
or administrative authorities of the requested State may take account
of the reasons for that decision in applying this
Convention.
Article
18
The
provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any
time.
Article
19
A
decision under this Convention concerning the return of the child
shall not be taken to be a determination on the merits of any custody
issue.
Article
20
The
return of the child under the provisions of Article 12 may be refused
if this would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and
fundamental freedoms.
CHAPTER
IV – RIGHTS OF ACCESS
Article
21
An
application to make arrangements for organizing or securing the
effective exercise of rights of access may be presented to the Central
Authorities of the Contracting States in the same way as an
application for the return of a child.
The
Central Authorities are bound by the obligations of co-operation which
are set forth in Article 7 to promote the peaceful enjoyment of access
rights and the fulfilment of any conditions to which the exercise of
those rights may be subject. The Central Authorities shall take steps
to remove, as far as possible, all obstacles to the exercise of such
rights.
The
Central Authorities, either directly or through intermediaries, may
initiate or assist in the institution of proceedings with a view to
organizing or protecting these rights and securing respect for the
conditions to which the exercise of these rights may be
subject.
CHAPTER V
– GENERAL PROVISIONS
Article
22
No
security, bond or deposit, however described, shall be required to
guarantee the payment of costs and expenses in the judicial or
administrative proceedings falling within the scope of this
Convention.
Article
23
No
legalization or similar formality may be required in the context of
this Convention.
Article
24
Any
application, communication or other document sent to the Central
Authority of the requested State shall be in the original language,
and shall be accompanied by a translation into the official language
or one of the official languages of the requested State or, where that
is not feasible, a translation into French or
English.
However,
a Contracting State may, by making a reservation in accordance with
Article 42, object to the use of either French or English, but not
both, in any application, communication or other document sent to its
Central Authority.
Article
25
Nationals
of the Contracting States and persons who are habitually resident
within those States shall be entitled in matters concerned with the
application of this Convention to legal aid and advice in any other
Contracting State on the same conditions as if they themselves were
nationals of and habitually resident in that
State.
Article
26
Each
Central Authority shall bear its own costs in applying this
Convention.
Central
Authorities and other public services of Contracting States shall not
impose any charges in relation to applications submitted under this
Convention. In particular, they may not require any payment from the
applicant towards the costs and expenses of the proceedings or, where
applicable, those arising from the participation of legal counsel or
advisers. However, they may require the payment of the expenses
incurred or to be incurred in implementing the return of the
child.
However,
a Contracting State may, by making a reservation in accordance with
Article 42, declare that it shall not be bound to assume any costs
referred to in the preceding paragraph resulting from the
participation of legal counsel or advisers or from court proceedings,
except insofar as those costs may be covered by its system of legal
aid and advice.
Upon
ordering the return of a child or issuing an order concerning rights
of access under this Convention, the judicial or administrative
authorities may, where appropriate, direct the person who removed or
retained the child, or who prevented the exercise of rights of access,
to pay necessary expenses incurred by or on behalf of the applicant,
including travel expenses, any costs incurred or payments made for
locating the child, the costs of legal representation of the
applicant, and those of returning the child.
Article
27
When it
is manifest that the requirements of this Convention are not fulfilled
or that the application is otherwise not well founded, a Central
Authority is not bound to accept the application. In that case, the
Central Authority shall forthwith inform the applicant or the Central
Authority through which the application was submitted, as the case may
be, of its reasons.
Article
28
A Central
Authority may require that the application be accompanied by a written
authorization empowering it to act on behalf of the applicant, or to
designate a representative so to act.
Article
29
This
Convention shall not preclude any person, institution or body who
claims that there has been a breach of custody or access rights within
the meaning of Article 3 or 21 from applying directly to the judicial
or administrative authorities of a Contracting State, whether or not
under the provisions of this Convention.
Article
30
Any
application submitted to the Central Authorities or directly to the
judicial or administrative authorities of a Contracting State in
accordance with the terms of this Convention, together with documents
and any other information appended thereto or provided by a Central
Authority, shall be admissible in the courts or administrative
authorities of the Contracting States.
Article
31
In
relation to a State which in matters of custody of children has two or
more systems of law applicable in different territorial units
–
a) any
reference to habitual residence in that State shall be construed as
referring to habitual residence in a territorial unit of that
State;
b) any
reference to the law of the State of habitual residence shall be
construed as referring to the law of the territorial unit in that
State where the child habitually resides.
Article
32
In
relation to a State which in matters of custody of children has two or
more systems of law applicable to different categories of persons, any
reference to the law of that State shall be construed as referring to
the legal system specified by the law of that
State.
Article
33
A State
within which different territorial units have their own rules of law
in respect of custody of children shall not be bound to apply this
Convention where a State with a unified system of law would not be
bound to do so.
Article
34
This
Convention shall take priority in matters within its scope over the
Convention of 5 October 1961 concerning the powers of authorities and
the law applicable in respect of the protection of minors, as between
parties to both Conventions. Otherwise the present Convention shall
not restrict the application of an international instrument in force
between the State of origin and the State addressed or other law of
the State addressed for the purposes of obtaining the return of a
child who has been wrongfully removed or retained or of organizing
access rights.
Article
35
This
Convention shall apply as between Contracting States only to wrongful
removals or retentions occurring after its entry into force in those
States.
Where a
declaration has been made under Article 39 or 40, the reference in the
preceding paragraph to a Contracting State shall be taken to refer to
the territorial unit or units in relation to which this Convention
applies.
Article
36
Nothing
in this Convention shall prevent two or more Contracting States, in
order to limit the restrictions to which the return of the child may
be subject, from agreeing among themselves to derogate from any
provisions of this Convention which may imply such a
restriction.
CHAPTER
VI – FINAL CLAUSES
Article
37
The
Convention shall be open for signature by the States which were
Members of the Hague Conference on Private International Law at the
time of its Fourteenth Session.
It shall
be ratified, accepted or approved and the instruments of ratification,
acceptance or approval shall be deposited with the Ministry of Foreign
Affairs of the Kingdom of the Netherlands.
Article
38
Any other
State may accede to the Convention.
The
instrument of accession shall be deposited with the Ministry of
Foreign Affairs of the Kingdom of the
Netherlands.
The
Convention shall enter into force for a State acceding to it on the
first day of the third calendar month after the deposit of its
instrument of accession.
The
accession will have effect only as regards the relations between the
acceding State and such Contracting States as will have declared their
acceptance of the accession. Such a declaration will also have to be
made by any Member State ratifying, accepting or approving the
Convention after an accession. Such declaration shall be deposited at
the Ministry of Foreign Affairs of the Kingdom of the Netherlands;
this Ministry shall forward, through diplomatic channels, a certified
copy to each of the Contracting States.
The
Convention will enter into force as between the acceding State and the
State that has declared its acceptance of the accession on the first
day of the third calendar month after the deposit of the declaration
of acceptance.
Article
39
Any State
may, at the time of signature, ratification, acceptance, approval or
accession, declare that the Convention shall extend to all the
territories for the international relations of which it is
responsible, or to one or more of them. Such a declaration shall take
effect at the time the Convention enters into force for that
State.
Such
declaration, as well as any subsequent extension, shall be notified to
the Ministry of Foreign Affairs of the Kingdom of the
Netherlands.
Article
40
If a
Contracting State has two or more territorial units in which different
systems of law are applicable in relation to matters dealt with in
this Convention, it may at the time of signature, ratification,
acceptance, approval or accession declare that this Convention shall
extend to all its territorial units or only to one or more of them and
may modify this declaration by submitting another declaration at any
time.
Any such
declaration shall be notified to the Ministry of Foreign Affairs of
the Kingdom of the Netherlands and shall state expressly the
territorial units to which the Convention
applies.
Article
41
Where a
Contracting State has a system of government under which executive,
judicial and legislative powers are distributed between central and
other authorities within that State, its signature or ratification,
acceptance or approval of, or accession to this Convention, or its
making of any declaration in terms of Article 40 shall carry no
implication as to the internal distribution of powers within that
State.
Article
42
Any State
may, not later than the time of ratification, acceptance, approval or
accession, or at the time of making a declaration in terms of Article
39 or 40, make one or both of the reservations provided for in Article
24 and Article 26, third paragraph. No other reservation shall be
permitted.
Any State
may at any time withdraw a reservation it has made. The withdrawal
shall be notified to the Ministry of Foreign Affairs of the Kingdom of
the Netherlands.
The
reservation shall cease to have effect on the first day of the third
calendar month after the notification referred to in the preceding
paragraph.
Article
43
The
Convention shall enter into force on the first day of the third
calendar month after the deposit of the third instrument of
ratification, acceptance, approval or accession referred to in
Articles 37 and 38.
Thereafter
the Convention shall enter into force –
(1) for
each State ratifying, accepting, approving or acceding to it
subsequently, on the first day of the third calendar month after the
deposit of its instrument of ratification, acceptance, approval or
accession;
(2) for
any territory or territorial unit to which the Convention has been
extended in conformity with Article 39 or 40, on the first day of the
third calendar month after the notification referred to in that
Article.
Article
44
The
Convention shall remain in force for five years from the date of its
entry into force in accordance with the first paragraph of Article 43
even for States which subsequently have ratified, accepted, approved
it or acceded to it.
If there
has been no denunciation, it shall be renewed tacitly every five
years.
Any
denunciation shall be notified to the Ministry of Foreign Affairs of
the Kingdom of the Netherlands at least six months before the expiry
of the five year period. It may be limited to certain of the
territories or territorial units to which the Convention
applies.
The
denunciation shall have effect only as regards the State which has
notified it. The Convention shall remain in force for the other
Contracting States.
Article
45
The
Ministry of Foreign Affairs of the Kingdom of the Netherlands shall
notify the States Members of the Conference, and the States which have
acceded in accordance with Article 38, of the following
–
(1) the
signatures and ratifications, acceptances and approvals referred to in
Article 37;
(2) the
accessions referred to in Article 38;
(3) the
date on which the Convention enters into force in accordance with
Article 43;
(4) the
extensions referred to in Article 39;
(5) the
declarations referred to in Articles 38 and 40;
(6) the
reservations referred to in Article 24 and Article 26, third
paragraph, and the withdrawals referred to in Article
42;
(7) the
denunciations referred to in Article 44.
In
witness whereof the undersigned, being duly authorised thereto, have
signed this Convention.
Done at
The Hague, on the 25th day of October, 1980, in the English and French
languages, both texts being equally authentic, in a single copy which
shall be deposited in the archives of the Government of the Kingdom of
the Netherlands, and of which a certified copy shall be sent, through
diplomatic channels, to each of the States Members of the Hague
Conference on Private International Law at the date of its Fourteenth
Session.