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Chapter I Scope of the Convention
Chapter II Central Authorities
Chapter III Return of Children
Chapter V General Provisions
28. CONVENTION ON THE CIVIL
ASPECTS OF INTERNATIONAL CHILD ABDUCTION
(Concluded 25 October 1980)
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 <Back to Top>
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 <Back to Top>
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 organisations 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 States 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 organising
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 <Back to Top>
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 recognised 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 <Back to Top>
Article 21
An application to make arrangements for organising 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 organising or protecting these rights and securing respect for the
conditions to which the exercise of these rights may be subject.
CHAPTER V GENERAL PROVISIONS <Back to Top>
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 legalisation 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 authorisation 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 organising 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 <Back to Top>
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.
Signatory States <Back to Top>
The
Hague Convention on the Civil Aspects of International Child Abduction is a
multilateral treaty developed by the Hague Conference on Private International
Law that provides an expeditious method to return a child taken from one member
nation to another. The Convention was drafted to ensure the prompt return of
children who have been abducted from their country of habitual residence or
wrongfully retained in a contracting state not their country of habitual
residence. The primary intention of the Convention is to preserve whatever
status quo child custody arrangement existed immediately before an alleged
wrongful removal or retention thereby deterring a parent from crossing
international boundaries in search of a more sympathetic court. The Convention
applies only to children under the age of 16.
Signatory states include: Albania,
Argentina, Armenia, Australia, Austria, Bahamas, Belarus, Belgium, Belize,
Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China
(Hong Kong), China (Macao), Colombia, Costa Rica, Croatia, Cyprus, Czech
Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji,
Finland, France, FYR of Macedonia, Georgia, Germany, Greece, Guatemala,
Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania,
Luxembourg, Malta, Mauritius, Mexico, Moldova, Monaco, Netherlands, New
Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania,
Saint Kitts and Nevis, San Marino, Serbia, Slovakia, Slovenia, South Africa,
Spain, Sri Lanka, Sweden, Switzerland, Thailand, Trinidad and Tobago, Turkey,
Turkmenistan, Ukraine, United Kingdom, Uruguay, USA, Uzbekistan, Venezuela, and
Zimbabwe.
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