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
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
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
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
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
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
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.
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