THE HAGUE CONVENTION ON THE CIVIL ASPECTS
OF INTERNATIONAL CHILD ABDUCTION
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Official English Text:
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 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 attaint 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 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 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 other 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 of 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 authorites 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 of 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 the 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 determination on the merits of any custody issue.
Article 20
The return of the child under the provision 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 VI - 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 fulfillment of any conditions to which the exercise of such 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.
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 State,
in order to limit the restrictions to which the return of the child may
be subject, from agreeing among themselves to derogate from any provision
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 reservations shall be permitted.
Any State may at any time withdraw a reservation it has made. The withdraw
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 form 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 accession 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 withdrawls referred to in Article 42;
7- the denunciation referred to in Article 44.
In witness whereof the undersigned, being duly authorized 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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