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TRANSLATION BY THE
PERMANENT BUREAU
Introduction
I. Results of the work of
the Hague Conference on private
international law.
1. The Convention on the
Civil Aspects of International Child
Abduction was adopted on
24 October 1980 by the Fourteenth
Session of the Hague
Conference on private international law in
Plenary Session and by
unanimous vote of the States which were
present.1 On 25 October
1980, the delegates signed the Final
Act of the Fourteenth
Session which contained the text of the
Convention and a
Recommendation containing the model form which
is to be used in
applications for the return of children who have
been wrongfully abducted
or retained.
On this occasion, the
Hague Conference departed from its usual
practice, draft
Conventions adopted during the Fourteenth Session
being made available for
signature by States immediately after
the Closing Session. Four
States signed the Convention then
(Canada, France, Greece
and Switzerland), which thus bears the
date 25 October 1980.
2. As regards the starting
point of the proceedings which
resulted in the adoption
of the Convention, as well as the matter
of existing conventions on
the subject of those directly related
to it, we shall refer to
the introduction to the Report of the
Special Commission.2
3. The Fourteenth Session
of the Conference, which took place
between 6 and 25 October
1980, entrusted the task of preparing
the Convention in its
First Commission, the Chairman of which was
Professor A. E. Anton
(United Kingdom) and the Vice-Chairman Dean
Leal (Canada),
respectively of the Special Commission. Professor
Elisa Perez-Vera was
confirmed in her position as Reporter. Mr.
Adair Dyer, First
Secretary of the Permanent Bureau, who had
prepared important
documents for the Conference proceedings, was
in charge of the
scientific work of the secretariat.
4. In the course of
thirteen sittings, the First Commission
gave a first reading of
the Preliminary Draft drawn up by the
Special Commission. At the
same time, it named the members of a
Drafting Committee which
drafted the text concurrently with the
progress of the main
proceedings.3 Seven other sittings were
devoted to a discussion of
the text prepared by the Drafting
Committee,4 as well as of
clauses relating to the application
of the Convention to
States with non-unified legal systems
('Application Clauses')
and of the model form5 drafted by ad hoc
Committees.6 The final
clauses had been suggested by the
Permanent Bureau and were
incorporated into the preliminary draft
Convention drawn up up by
the Drafting Committee.
II Aim and structure of
this Report.
5. The Explanatory Report
on a text which is destined to
become positive law, that
is to say a text which will require to
be cited and applied, must
fulfill at least two essential aims.
On the one hand, it must
throw into relief, as accurately as
possible, the principles
which form the basis of the Convention
and, wherever necessary,
the development of those ideas which led
to such principles being
chosen from amongst existing options.
It is certainly not
necessary to take exhaustive account of the
various attitudes adopted
throughout the period during which the
Convention was being drawn
up, but the point of view reflected in
the Convention will
sometimes be more easily grasped by being set
opposite other ideas which
were put forward.
Now, given the fact that
the preliminary draft Convention
prepared by the Special
Commission enjoyed widespread support7
and that the final text
essentially preserves the structure and
fundamental principles of
the Preliminary Draft, this final
Report and in particular
its first part, repeats certain passages
in the Report of the
Special Commission prepared in April 1980
for the Fourteenth
Session.8
6. This final Report must
also fulfil another purpose, viz.
to supply those who have
to apply the Convention with a detailed
commentary on its
provisions. Since this commentary is designed
in principle to throw
light upon the literal terms of these
provisions, it will be
concerned much less with tracing their
origins than with stating
their content accurately.
7. We can conclude from
the foregoing considerations that
these two objectives must
be clearly distinguished and that even
the methods of analysis
used cannot be the same for each of them.
Nevertheless, the need to
refer in both cases to the one text,
that of the Convention,
implies that a certain amount of
repetition will be
necessary and indeed inevitable. Despite this
risk and in view of the
emphasis which is placed on a double
objective, the Report has
been divided into two parts, the first
being devoted to a study
of the general principles underlying the
Convention, the second
containing an examination of the text,
article by article.
8. Finally, as Professor
von Overbeck emphasized in 1977,9
it would be well to
remember that this Report was prepared at the
end of the Fourteenth
Session, from the proces-verbaux and the
Reporter's notes. Thus it
has not been approved by the
Conference, and it is
possible that, despite the Rapporter's
efforts to remain
objective, certain passages reflect a viewpoint
which is in part
subjective.
First Part - General
characteristics of the Convention
9 The Convention reflects
on the whole a compromise between
two concepts, different in
part, concerning the end to be
achieved. In fact one can
see in the preliminary proceedings a
potential conflict between
the desire to protect factual
situations altered by the
wrongful removal or retention of a
child, and that of
guaranteeing, in particular, respect for the
legal relationships which
may underlie such situations. The
Convention has struck a
rather delicate balance in this regard.
On the one hand, it is
clear that the Convention is not
essentially concerned with
the merits of custody rights (article
19), but on the other hand
it is equally clear that the
characterization of the
removal or retention of a child as
wrongful is made
conditional upon the existence of a right of
custody which gives legal
content to a situation which was
modified by those very
actions which it is intended to prevent.
I OBJECT OF THE CONVENTION
10 The title of this
chapter alludes as much to the problem
addressed by the
Convention as to the objectives by which it
seeks to counter the
increase in abductions. After tackling both
of these points, we shall
deal with other connected questions
which appreciably affect
the scope of the Convention's
objectives, and in
particular the importance which has been
placed on the interest of
the child and on the possible
exceptions to the rule
requiring the prompt return of children
who have been wrongfully
removed or retained.
A Definition of the
Convention's subject-matter
11 With regard to the
definition of the Convention's
subject-matter10 we need
only remind ourselves very briefly that
the situations envisaged
are those which derive from the use of
force to establish
artificial jurisdictional links on an
international level, with
a view to obtaining custody of a child.
The variety of different
circumstances which can combine in a
particular case makes it
impossible to arrive at a more precise
definition in legal terms.
However, two elements are invariably
present in all cases which
have been examined and confirm the
approximate nature of the
foregoing characterization.
Firstly, we are confronted
in each case with the removal from its
habitual environment of a
child whose custody had been entrusted
to and lawfully exercised
by a natural or legal person.
Naturally, a refusal to
restore a child to its own environment
after a stay abroad to
which the person exercising the right of
custody had consented must
be put in the same category. In both
cases, the outcome is in
fact the same: the child is taken out of
the family and social
environment in which its life has
developed. What is more,
in this context the type of legal title
which underlies the
exercise of custody rights over the child
matters little, since
whether or not a decision on custody exists
in no way alters the
sociological realities of the problem.
Secondly, the person who
removes the child (or who is responsible
for its removal, where the
act of removal is undertaken by a
third party) hopes to
obtain a right of custody from the
authorities of the country
to which the child has been taken. The
problem therefore concerns
a person who, broadly speaking,
belongs to the family
circle of the child, indeed, in the
majority of cases, the
person concerned is the father or mother.
14 It frequently happens
that the person retaining the child
tries to obtain a judicial
or administrative decision in the
State of refuge, which
would legalize the factual situation which
he has just brought about.
However, if he is uncertain about the
way in which the decision
will go, he is just as likely to opt
for inaction, leaving it
up to the dispossessed party to take the
initiative. Now, even if
the latter acts quickly, that is to say
manages to avoid the
consolidation through lapse of time of the
situation brought about by
the removal of the child, the abductor
will hold the advantage,
since it is he who has chosen the forum
in which the case is to be
decided, a forum which, in principle,
he regards as more
favourable to his own claims.
15 To conclude, it can
firmly be stated that the problem with
which the Convention deals
- together with all the drama implicit
in the fact that it is
concerned with the protection of children
in international relations
- derives all of its legal importance
from the possibility of
individuals establishing legal and
jurisdictional links which
are more or less artificial. In fact,
resorting to this
expedient, an individual can change the
applicable law and obtain
a judicial decision favourable to him.
Admittedly, such a
decision, especially one coexisting with
others to the opposite
effect issued by the other forum, will
enjoy only a limited
geographical validity, but in any event it
bears a legal title
sufficient to `legalize' a factual situation
which none of the legal
systems involved wished to see brought
about.
B The objectives of the
Convention
16 The Convention's
objects, which appear in article I, can
be summarized as follows:
since one factor characteristic of the
situations under
consideration consists in the fact that the
abductor claims that his
action has been rendered lawful by the
competent authorities of
the State of refuge, one effective way
of deterring him would be
to deprive his actions of any practical
or juridical consequences.
The Convention, in order to bring this
about, places at the head
of its objectives the restoration of
the status guo, by means
of 'the prompt return of children
wrongfully removed to or
retained in any Contracting State'. The
insurmountable
difficulties encountered in establishing, within
the framework of the
Convention, directly applicable
jurisdictional rules11
indeed resulted in this route being
followed which, although
an indirect one, will tend in most cases
to allow a final decision
on custody to be taken by the
authorities of the child's
habitual residence prior to its
removal.
17 Besides, although the
object stated in sub-paragraph 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'
appears to stand by itself, its teleological
connection with the
`return of the child' object is no less
evident. In reality, it
can be regarded as one single object
considered at two
different times; whilst the prompt return of
the child answers to the
desire to re-establish a situation
unilaterally and forcibly
altered by the abductor, effective
respect for rights of
custody and of access belongs on the
preventive level, in so
far as it must lead to the disappearance
of one of the most
frequent causes of child abductions.
Now, since the Convention
does not specify the means to be
employed by each State in
bringing about respect for rights of
custody which exist in
another Contracting State, one must
conclude that, with the
exception of the indirect means of
protecting custody rights
which is implied by the obligation to
return the child to the
holder of the right of custody, respect
for custody rights falls
almost entirely outwith the scope of the
Convention. On the other
hand, rights of access form the subject
of a rule which, although
undoubtedly incomplete, nevertheless is
indicative of the interest
shown in ensuring regular contact
between parents and
children, even when custody has been
entrusted to one of the
parents or to a third party.
18 If the preceding
considerations are well-founded, it must
be concluded that any
attempt to establish a hierarchy of objects
of the Convention could
have only a symbolic significance. In
fact, it would seem almost
impossible to create a hierarchy as
between two objects which
spring from the same concern. For at
the end of the day,
promoting the return of the child or taking
the measures necessary to
avoid such removal amount to almost the
same thing.
Now, as will be seen
below, the one matter which the Convention
has tried to regulate in
any depth is that of the return of
children wrongfully
removed or retained. The reason for this
seems clear: the most
distressing situations arise only after the
unlawful retention of a
child and they are situations which,
while requiring
particularly urgent solutions, cannot be resolved
unilaterally by any one of
the legal systems concerned. Taken as
a whole, all these
circumstances justify, in our opinion, the
Convention's development
of rules for regulating the return of
the child, whilst at the
same time they give in principle a
certain priority to that
object. Thus, although theoretically the
two above-mentioned
objects have to be placed on the same level,
in practice the desire to
guarantee the re-establishment of the
status guo disturbed by
the actions of the abductor has prevailed
in the Convention.
19 In a final attempt to
clarify the objects of the
Convention, it would be
advisable to underline the fact that, as
is shown particularly in
the provisions of article 1, the
Convention does not seek
to regulate the problem of the award of
custody rights. On this
matter, the Convention rests implicitly
upon the principle that
any debate on the merits of the question,
i.e. of custody rights,
should take place before the competent
authorities in the State
where the child had its habitual
residence prior to its
removal; this applies as much to a removal
which occurred prior to
any decision on custody being taken - in
which case the violated
custody rights were exercised ex lege -
as to a removal in breach
of a pre-existing custody decision.
C Importance attached to
the interest of the child
20 Above all, one has to
justify the reasons for including an
examination of this matter
within the context of a consideration
of the Convention's
objects. These reasons will appear clearly if
one considers, on the one
hand, that the interests of the child
are often invoked in this
regard, and on the other hand, that it
might be argued that the
Convention's object in securing the
return of the child ought
always to be subordinated to a
consideration of the
child's interests.
21 In this regard, one
fact has rightly been highlighted,
viz. that 'the legal
standard `the best interests of the child'
is at first view of such
vagueness that it seems to resemble more
closely a sociological
paradigm than a concrete juridical
standard. How can one put
flesh on its bare bones without delving
into the assumptions
concerning the ultimate interests of a child
which are derived from the
moral framework of a particular
culture? The word
'ultimate' gives rise to immediate problems
when it is inserted into
the equation since the general statement
of the standard does not
make it clear whether the 'interests' of
the child to be served are
those of the immediate aftermath of
the decision, of the
adolescence of the child, of young
adulthood, maturity,
senescence or old age'.12
22 On the other hand, it
must not be forgotten that it is by
invoking `the best
interests of the child' that internal
jurisdictions have in the
past often finally awarded the custody
in question to the person
who wrongfully removed or retained the
child. It can happen that
such a decision is the most just, but
we cannot ignore the fact
that recourse by internal authorities
to such a notion involves
the risk of their expressing particular
cultural, social etc.
attitudes which themselves derive from a
given national community
and thus basically imposing their own
subjective value judgments
upon the national community from which
the child has recently
been snatched.
23 For these reasons,
among others, the dispositive part of
the Convention contains no
explicit reference to the interests of
the child to the extent of
their qualifying the Convention's
stated object, which is to
secure the prompt return of children
who have been wrongfully
removed or retained. However, its
silence on this point
ought not to lead one to the conclusion
that the Convention
ignores the social paradigm which declares
the necessity of
considering the interests of children in
regulating all the
problems which concern them. On the contrary,
right from the start the
Signatory States declare themselves to
be 'firmly convinced that
the interests of children are of
paramount importance in
matters relating to their custody'; it is
precisely because of this
conviction that they drew up the
Convention, 'desiring to
protect children internationally from
the harmful effects of
their wrongful removal or retention'.
24 These two paragraphs in
the preamble reflect quite clearly
the philosophy of the
Convention in this regard. It can be
defined as follows: the
struggle against the great increase in
international child
abductions must always be inspired by the
desire to protect children
and should be based upon an
interpretation of their
true interests. Now, the right not to be
removed or retained in the
name of more or less arguable rights
concerning its person is
one of the most objective examples of
what constitutes the
interests of the child. In this regard it
would be as well to refer
to Recommendation 874 (1979) of the
Parliamentary Assembly of
the Council of Europe, the first
general principle of which
states that `children must no longer
be regarded as parents'
property, but must be recognised as
individuals with their own
rights and needs'.13
In fact, as Mr Dyer has
emphasized, in the literature devoted to
a study of this problem,
`the presumption generally stated is
that the true victim of
the `childnapping' is the child himself,
who suffers from the
sudden upsetting of his stability, the
traumatic loss of contact
with the parent who has been in charge
of his upbringing, the
uncertainty and frustration which come
with the necessity to
adapt to a strange language, unfamiliar
cultural conditions and
unknown teachers and relatives'.14
25 It is thus legitimate
to assert that the two objects of
the Convention - the one
preventive, the other designed to secure
the immediate
reintegration of the child into its habitual
environment - both
correspond to a specific idea of what
constitutes the `best
interests of the child'. However, even when
viewing from this
perspective, it has to be admitted that the
removal of the child can
sometimes be justified by objective
reasons which have to do
either with its person, or with the
environment with which it
is most closely connected. Therefore
the Convention recognizes
the need for certain exceptions to the
general obligations
assumed by States to secure the prompt return
of children who have been
unlawfully removed or retained. For the
most part, these
exceptions are only concrete illustrations of
the overly vague principle
whereby the interests of the child are
stated to be the guiding
criterion in this area.
26 What is more, the rule
concerning access rights also
reflects the concern to
provide children with family
relationships which are as
comprehensive as possible, so as to
encourage the development
of a stable personality. However,
opinions differ on this, a
fact which once again throws into
relief the ambiguous
nature of this principle of the interests of
the child. In fact, there
exists a school of thought opposed to
the test which has been
accepted by the Convention, which
maintains that it is
better for the child not to have contact
with both parents where
the couple are separated in law or in
fact. As to this, the
Conference was aware of the fact that such
a solution could sometimes
prove to be the most appropriate.
Whilst safeguarding the
element of judicial discretion in
individual cases, the
Conference nevertheless chose the other
alternative, and the
Convention upholds unequivocally the idea
that access rights are the
natural counterpart of custody rights,
a counterpart which must
in principle be acknowledged as
belonging to the parent
who does not have custody of the child.
D Exceptions to the duty
to secure the prompt return of
children
27 Since the return of the
child is to some extent the basic
principle of the
Convention, the exceptions to the general duty
to secure it form an
important element in understanding the exact
extent of this duty. It is
not of course necessary to examine in
detail the provisions
which constitute these exceptions, but
merely to sketch their
role in outline, while at the same time
stressing in particular
the reasons for their inclusion in the
Convention. From this
vantage point can be seen those exceptions
which derive their
justification from three different principles.
28 On the one hand,
article 13a accepts that the judicial or
administrative authorities
of the requested State are not bound
to order the return of the
child if the person requesting its
return was not actually
exercising, prior to the allegedly
unlawful removal, the
rights of custody which he now seeks to
invoke, or if he had
subsequently consented to the act which he
now seeks to attack.
Consequently, the situations envisaged are
those in which either the
conditions prevailing prior to the
removal of the child do
not contain one of the elements essential
to those relationships
which the Convention seeks to protect
(that of the actual
exercise of custody rights), or else the
subsequent behaviour of
the dispossessed parent shows his
acceptance of the new
situation thus brought about, which makes
it more difficult for him
to challenge.
29 On the other hand,
paragraphs 1b and 2 of the said article
13 contain exceptions
which clearly derive from a consideration
of the interests of the
child. Now, as we pointed out above, the
Convention invests this
notion with definite content. Thus, the
interest of the child in
not being removed from its habitual
residence without
sufficient guarantees of its stability in the
new environment, gives way
before the primary interest of any
person in not being
exposed to physical or psychoLogical danger
or being placed in an
intolerable situation.
30 In addition, the
Convention also provides that the child's
views concerning the
essential question of its return or
retention may be
conclusive, provided it has, according to the
competent authorities,
attained an age and degree of maturity
sufficient for its views
to be taken into account. In this way,
the Convention gives
children the possibility of interpreting
their own interests. Of
course, this provision could prove
dangerous if it were
applied by means of the direct questioning
of young people who may
admittedly have a clear grasp of the
situation but who may also
suffer serious psychological harm if
they think they are being
forced to choose between two parents.
However, such a provision
is absolutely necessary given the fact
that the Convention
applies, ratione personae, to all children
under the age of sixteen;
the fact must be acknowledged that it
would be very difficult to
accept that a child of, for example,
fifteen years of age,
should be returned against its will.
Moreover, as regards this
particular point, all efforts to agree
on a minimum age at which
the views of the child could be taken
into account failed, since
all the ages suggested seemed
artificial, even
arbitrary. it seemed best to leave the
application of this clause
to the discretion of the competent
authorities.
31 Thirdly, there is no
obligation to return a child when, in
terms of article 20, its
return `would not be permitted by the
fundamental principles of
the requested State relating to the
protection of human rights
and fundamental freedoms'. Here, we
are concerned with a
provision which is rather unusual in
conventions involving
private international law, and the exact
scope of which is
difficult to define. Although we shall refer to
the commentary on article
20 for the purpose of defining such
scope, it is particularly
interesting to consider its origins
here. This rule was the
result of a compromise between those
delegations which favoured,
and those which were opposed to, the
inclusion in the
Convention of a `public policy' clause.
The inclusion of such a
clause was debated at length by the First
Commission, under
different formulations. Finally, after four
votes against inclusion,
the Commission accepted, by a majority
of only one, that an
application for the return of a child could
be refused, by reference
to a reservation which took into account
the public policy
exception by way of a restrictive formula
concerning the laws
governing the family and children in the
requested State. The
reservation provided for was formulated
exactly as follows:
`Contracting States may reserve the right not
to return the child when
such return would be manifestly
incompatible with the
fundamental principles of the law relating
to the family and children
in the State addressed'.15 The
adoption of this text
caused a serious breach in the consensus
which basically had
prevailed up to this point in the Conference
proceedings. That is why
all the delegations, aware of the fact
that a solution commanding
wide acceptance had to be found,
embarked upon this road
which provided the surest guarantee of
the success of the
Convention.
32 The matter under debate
was particularly important since
to some extent it
reflected two partly different concepts
concerning the
Convention's objects as regards the return of the
child. Actually, up to now
the text drawn up by the First
Commission (like the
Preliminary Draft drawn up by the Special
Commission) had limited
the possible exceptions to the rule
concerning the return of
the child to a consideration of factual
situations and of the
conduct of the parties or to a specific
evaluation of the
interests of the child. On the other hand, the
reservation just accepted
implicitly permitted the possibility of
the return of a child
being refused on the basis of purely legal
arguments drawn from the
internal law of the requested State, an
internal law which could
come into play in the context of the
quoted provision either to
`evaluate' the fight claimed by the
dispossessed parent or to
assess whether the action of the
abductor was well-founded
in law. Now, such consequences would
alter considerably the
structure of the Convention which is based
on the idea that the
forcible denial of jurisdiction ordinarily
possessed by the
authorities of the child's habitual residence
should be avoided.
33 In this situation, the
adoption by a comforting majority
16of the formula which
appears in article 20 of the Convention
represents a laudable
attempt to compromise between opposing
points of view, the role
given to the internal law of the State
of refuge having been
considerably diminished. On the one hand,
the reference to the
fundamental principles concerning the
protection of human rights
and fundamental freedoms relates to an
area of law in which there
are numerous international agreements.
On the other hand, the
rule in article 20 goes further than the
traditional formulation of
'public policy' clauses as regards the
extent of incompatibility
between the right claimed and the
action envisaged. In fact,
the authority concerned, in order to
be able to refuse to order
the return of the child by invoking
the grounds which appear
in this provision, must show not only
that such a contradiction
exists, but also that the protective
principles of human rights
prohibit the return requested.
34 To conclude our
consideration of the problems with which
this paragraph deals, it
would seem necessary to underline the
fact that the three types
of exception to the rule concerning the
return of the child must
be applied only so far as they go and no
further. This implies
above all that they are to be interpreted
in a restrictive fashion
if the Convention is not to become a
dead letter. In fact, the
Convention as a whole rests upon the
unanimous rejection of
this phenomenon of illegal child removals
and upon the conviction
that the best way to combat them at an
international level is to
refuse to grant them legal recognition.
The practical application
of this principle requires that the
signatory States be
convinced that they belong, despite their
differences, to the same
legal community within which the
authorities of each State
acknowledge that the authorities of one
of them - those of the
child's habitual residence - are in
principle best placed to
decide upon questions of custody and
access. As a result, a
systematic invocation of the said
exceptions, substituting
the forum chosen by the abductor for
that of the child's
residence, would lead to the collapse of the
whole structure of the
Convention by depriving it of the spirit
of mutual confidence which
is its inspiration.
II NATURE OF THE
CONVENTION
A A convention of
co-operation among authorities
35 By defining the ends
pursued by the Contracting States, a
convention's objects in
the final analysis determine its nature.
Thus, the Convention on
the Civil Aspects of International Child
Abduction is above all a
convention which seeks to prevent the
international removal of
children by creating a system of close
co-operation among the
judicial and administrative authorities of
the contracting States.
Such collaboration has a bearing on the
two objects just examined,
viz, on the one hand, obtaining the
prompt return of the child
to the environment from which it was
removed, and on the other
hand the effective respect for rights
of custody and access
which exist in one of the Contracting
States.
36 This description of the
Convention can also be drawn in a
negative way. Thus, it can
be said at the outset that the
Convention is not
concerned with the law applicable to the
custody of children. In
fact, the references to the law of the
State of the child's
habitual residence are of limited
significance, since the
law in question is taken into
consideration only so as
to establish the wrongful nature of the
removal (see, for example,
article 3). Secondly, the Convention
is certainly not a treaty
on the recognition and enforcement of
decisions on custody. This
option, which gave rise to lengthy
debates during the first
meeting of the Special Commission, was
deliberately rejected. Due
to the substantive consequences which
flow from the recognition
of a foreign judgment, such a treaty is
ordinarily hedged around
by guarantees and exceptions which can
prolong the proceedings.
Now, where the removal of a child is
concerned, the time factor
is of decisive importance. In fact,
the psychological problems
which a child may suffer as a result
of its removal could
reappear if a decision on its return were to
be taken only after some
delay.
37 Once it is accepted
that we are dealing with a convention
which is centred upon the
idea of co-operation amongst
authorities, it must also
be made clear that it is designed to
regulate only those
situations that come within its scope and
which involve two or more
Contracting States. Indeed, the idea of
a `universalist'
convention (i.e. a convention which applies in
every international case)
is difficult to sustain outwith the
realm of conventions on
applicable law. In this regard, we must
remember that the systems
which have been designed either to
return children or to
secure the actual exercise of access
rights, depend largely on
cooperation among the Central
Authorities, a
co-operation which itself rests upon the notion of
reciprocal rights and
duties. In the same way, when individuals,
by invoking the provisions
of the Convention, apply directly to
the judicial or
administrative authorities of a Contracting
State, the applicability
of the Convention's benefits will itself
depend on the concept of
reciprocity which in principle excludes
its being extended to
nationals of third countries.
What is more, although the
Convention attains its objectives in
full only as among the
Contracting States, the authorities in
each of those States have
the absolute right to be guided by the
provisions of the
Convention when dealing with other, similar
situations.
B The autonomous nature of
the Convention
38 The Convention, centred
as it is upon the notion of
Co-operation among
authorities with a view to attaining its
stated objects, is
autonomous as regards existing conventions
concerning the protection
of minors or custody rights. Thus, one
of the first decisions
taken by the Special Commission was to
direct its proceedings
towards the drawing up of an independent
Convention, rather than
the preparation of a protocol to the
Hague Convention of 5
October 1961 concerning the powers of
authorities and the law
applicable to the protection of minors.
Seen from this
perspective, the Convention could not possibly be
confined within the
framework provided by the conventions on the
recognition and
enforcement of custody decisions, including that
of the Council of Europe
Convention.17
39 This autonomous
character does not mean that the
provisions purport to
regulate all the problems arising out of
international child
abductions. On the contrary, to the extent
that the Convention's
aims, although ambitious, are given
concrete expression, the
basic problem of custody rights is not
to be found within the
scope of the Convention. The Convention
must necessarily coexist
with the rules of each Contracting State
on applicable law and on
the recognition and enforcement of
foreign decrees, quite
apart from the fact that such rules are
derived from internal law
or from treaty provisions.
On the other hand, even
within its own sphere of application, the
Convention does not
purport to be applied in an exclusive way. It
seeks, above all, to carry
into effect the aims of the Convention
and so explicitly
recognizes the possibility of a party invoking,
along with the provisions
of the Convention, any other legal rule
which may allow him to
obtain the return of a child wrongfully
removed or retained, or to
organize access rights (article 34).
C Relations with other
conventions
40 The Convention is
designed as a means for bringing about
speedy solutions so as to
prevent the consolidation in law of
initially unlawful factual
situations, brought about by the
removal or retention of a
child. In as much as it does not seek
to decide upon the merits
of the rights of parties, its
compatibility with other
conventions must be considered.
Nonetheless, such
compatibility can be achieved only by ensuring
that priority is given to
those provisions which are likely to
bring about a speedy and,
to some extent, temporary solution. In
fact it is only after the
return of the child to its habitual
residence that questions
of custody rights will arise before the
competent tribunals. On
this point, article 34 states that `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.' Moreover,
since one is trying to
avoid delays in the application of the
Convention's provisions
caused by claims concerning the merits of
custody rights, the
principle in article 34 ought to be extended
to any provision which has
a bearing upon custody rights,
whatever the reason. On
the other hand, as has just been
emphasized in the
preceding paragraph, the parties may have
recourse to any rule which
promotes the realization of the
Convention's aims.
D Opening of the
Convention to States not Members of the
Hague Conference
41 On this point also, by
virtue of the decision that it be
of a 'semi-open' type, the
Convention is shown to be one of
Co-operation. In
principle, any State can accede to the
Convention, but its
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'
(article 38). The
Contracting States, by this means, sought to
maintain the requisite
balance between a desire for universality
and the belief that a
system based on co-operation could work
only if there existed
amongst the Contracting Parties a
sufficient degree of
mutual confidence.
What is more, the choice
of a system based on the express
acceptance of accession by
each Member State, by which such
acceptance becomes
effective as amongst themselves,18 in
preference to a more open
system by which accession has effect
except as regards Member
States which raise objections thereto
within a certain period of
time,19 demonstrates the importance
which the States attached
to the selection of their
co-signatories in those
questions which form the subject-matter
of the Convention.
III INSTRUMENTS FOR
APPLYING THE CONVENTION
A The Central Authorities
42 A convention based on
co-operation such as the one which
concerns us here can in
theory point in two different directions:
it can impose direct
co-operation among competent internal
authorities, in the sphere
of the Convention's application, or it
can act through the
creation of Central Authorities in each
Contracting State, so as
to coordinate and `channel' the desired
co-operation. The
Preliminary Draft drawn up by the Special
Commission expressed quite
clearly the choice made in favour of
the second option, and the
Convention itself was also built in
large measure upon the
intervention and powers of Central
Authorities.
43 Nevertheless, the
unequivocal acceptance of the
possibility or individuals
to apply directly to the judicial or
administrative authorities
which have power to apply the
provisions of the
Convention (article 29), increases the
importance of the duty of
co-operation laid upon them, so much so
that the system adopted by
the Convention could be characterized
as a `mixed system', due
to the fact that, aside from the duties
imposed upon the Central
Authorities, it creates other
obligations which are
peculiar to judicial or administrative
authorities.
44 What is more, it would
be a mistake to claim to have
constructed a convention
to counter international child abduction
without taking account of
the important role played by the
internal judicial or
administrative authorities in all matters
concerning the protection
of minors. In this context, references
to administrative
authorities must be understood as a simple
reflection of the fact
that, in certain Member States, the task
in question is entrusted
to such authorities, while in the
majority of legal systems
jurisdiction belongs to the judicial
authorities. In fine, it
is for the appropriate authorities
within each State to
decide questions of custody and protection
of minors; it is to them
that the Convention has entrusted the
responsibility of solving
the problems which arise, whether they
involve the return of a
child wrongfully removed or retained or
organizing the exercise of
access rights. Thus, the Convention
adopts the demand for
legal certainty which inspires all internal
laws in this regard. In
fact, although decisions concerning the
return of children in no
way prejudge the merits of any custody
issue (see article 19),
they will in large measure influence
children's lives; such
decisions and such responsibilities
necessarily belong
ultimately to the authorities which ordinarily
have jurisdiction
according to internal law.
45 However, the
application of the Convention, both in its
broad outline and in the
great majority of cases, will depend on
the working of the
instruments which were brought into being for
this purpose, i.e. the
Central Authorities. So far as their
regulation by the
Convention is concerned, the first point to be
made is that the
Conference was aware of the profound differences
which existed as regards
the internal organization of the
Contracting States. That
is why the Convention does not define
the structure and capacity
to act of the Central Authorities,
both of which are
necessarily governed by the internal law of
each Contracting State.
Acceptance of this premise is shown in
the Convention by its
recognition of the fact that the tasks
specifically assigned to
Central Authorities can be performed
either by themselves, or
with the assistance of intermediaries
(article 7). For example,
it is clear that discovering a child's
whereabouts may require
the intervention of the police;
similarly, the adoption of
provisional measures or the
institution of legal
proceedings concerning private relationships
may fall outwith the scope
of those powers which can be devolved
upon administrative
authorities in terms of some internal laws.
Nonetheless, the Central
Authority in every case remains the
repository of those duties
which the Convention imposes upon it,
to the extent of its being
the `engine' for the desired
co-operation which is
designed to counter the wrongful removal of
children. On the other
hand, it is so as to take account of the
peculiarities of different
legal systems that the Convention
allows a Central Authority
to require that applications addressed
to it be accompanied by a
'written authorization empowering it to
act on behalf of the
applicant, or to designate a representative
so to act' (article 28). "
46 In other respects, the
Convention follows a
long-established tradition
of the Hague Conference,20 by
providing that States with
more than one system of law or which
have autonomous
territorial organizations, as well as Federal
States, are free to
appoint more than one Central Authority.
However, the problems
encountered in the practical application of
those Conventions which
provide for several Central Authorities
within the territory of a
single State, as well as, in
particular, the special
characteristics of the subject matter of
this Convention, led the
Conference to adopt the text previously
established by the Special
Commission and take a step towards
creating a sort of
`hierarchy' of Central Authorities in those
States. In fact, by
confining our discussion to the latter point,
we can see that if the
person responsible for the removal or
retention of a child
avails himself of the excellent means of
communication within a
particular State, the applicant or Central
Authority of the
requesting State could be forced to re-apply
several times in order to
obtain the return of the child.
Moreover, it is still
possible that, even if there are valid
reasons for believing that
the child is in a Contracting State,
the territorial unit of
the child's residence will be ignored.
47 The Convention supplies
a solution to these and other
situations by providing
that States which establish more than one
Central Authority should
at the same time designate `the Central
Authority to which
applications may be addressed for transmission
to the appropriate Central
Authority within that State' (article
6). The matter is
important, because the Convention imposes a
time-limit upon the duty
of judicial or administrative
authorities in the
requested State for the prompt return of the
child;21 a mistaken choice
as to the requested Central
Authority could therefore
have decisive consequences for the
claims of the parties.
Now, so as to prevent a factor which was
not provided for in the
Convention modifying the Convention's
normal application, this
type of 'super-Central Authority'
envisaged in article 6
will have to adopt a positive approach. As
a matter of fact, if it is
to act as a bridge between on the one
hand the Central Authority
of its own State which has
jurisdiction in each
particular case, and on the other hand the
Central Authorities of the
other Contracting States, it will find
itself obliged to choose
between proceeding to locate a child in
order to transmit the
matter to the appropriate Central
Authority, and
transmitting a copy of the application to all the
Central Authorities of the
State concerned, which would
inevitably cause a great
increase in administrative duties.
However it is undoubtedly
the case that such a Central Authority
will play a fundamental
role in the application of the Convention
in regard to relations
effecting the aforementioned States.
B The model form
48 Following the decision
taken by the Special Commission at
its second meeting, the
Fourteenth Session - of the Conference
adopted simultaneously
with its adoption of the Convention, a
Recommendation containing
a model form for applications for the
return of children
wrongfully removed or retained. Two comments
are appropriate here. The
first concerns the legal force of this
Recommendation, In drawing
it up, it seemed advisable to have
recourse to the general
law governing international
organizations. Now, viewed
from this perspective, a
recommendation is in
substance a non-obligatory invitation
addressed by one
international organization to one, several or
all Member States.
Consequently, States are not strictly required
to make use of the model
form contained in the Recommendation;
indeed, the Commission
took care to avoid presenting the form as
an annex to the
Convention.
The reasons for this are
clear. Most importantly, given the lack
of prior international
experience in this field. it can well be
imagined that, after a
number of years, the practical application
of the Convention's
provisions will result in certain
modifications to the
present form being thought advisable. Now,
it seems better not to
subject future revisions of the text to
the formalities required
by public international law for the
revision of international
treaties. Besides, it could be said, in
connection with any future
concerted action by the Conference in
this regard, that
adaptation of the form which was recommended to
States should also be a
matter for bilateral negotiations between
Central Authorities, in
implementation of their general
obligation contained in
article 7(2)(i).
On the other hand, a
direct consequence of the decision not to
make the use of the model
form obligatory is the catalogue of
details which every
application to a Central Authority must
contain (article 8).
49 The second comment
bears upon the sphere of application
and the terms of the
recommended form. Although the Convention
also governs important
matters concerning access rights, the
mode] form proposed is
merely a model application for the return
of the child. This
demonstrates the concentration of interest
within the Conference on
the resolution of problems arising out
of the removal of a child,
whilst at the same time throwing into
relief the novelty of the
means chosen to resolve them. It is
precisely because the
means are new that it was thought advisable
to include some indication
of the way in which they should be
used.
50 The actual terms of the
form narrate precisely those
points required by the
Convention itself. We should however like
to draw attention to two
minor points. Firstly, the phrase `date
and place of marriage' of
the parents of the child in question:
in as much as it is not
followed, in parentheses, by the words
`if any', it would seem to
treat natural children in an
exceptional and
discriminatory fashion. Moreover, the absence of
the same phrase alongside
the reference to the date and place of
birth of the child
compares badly with the precision shown by
article 8 of the
Convention which adds, referring to the date of
birth, the words 'where
available'.
51 Secondly, there is an
inconsistency between the French and
English texts regarding
the `information concerning the person
alleged to have removed or
retained the child'. It would be
advisable to follow the
English text here, since it is more
comprehensive, especially
as regards its reference to the
nationality of the alleged
abductor, a fact which will sometimes
prove decisive in efforts
to locate the child.
IV STRUCTURE AND
TERMINOLOGY
A The structure of the
Convention
52 Articles 1 , 2, 3 and 5
define the Convention's scope with
regard to its
subject-matter, by specifying its aims and the
criteria by which the
removal or retention of a child can be
regarded as wrongful.
Article 4 concerns the persons to whom the
Convention applies, while
article 35 determines its temporal
application. Articles 6
and 7 are devoted to the creation of the
Central Authorities and
their duties. Articles 8, 27 and 28 are
concerned with
applications to Central Authorities and the
documents which may
accompany or supplement an application to
them. Articles 9 to 12,
and 14 to 19, deal with the various means
established for bringing
about the return of a child, as well as
the legal significance of
a decree to that effect. Articles 13
and 20 concern the
exceptions to the general rule for the return
of the child. Article 21
lays down the specific duties which the
States have taken upon
themselves with regard to access rights.
Articles 22 to 26 and 30
(like the aforementioned articles 27 and
28) deal with certain
technical matters regarding proceedings and
the costs which can result
from applications submitted pursuant
to the provisions of the
Convention. Articles 29 and 36 reflect
the 'non-exclusive' view
which prevailed during the preparation
of the Convention in
stating, on the one hand, that applications
may be submitted directly
by individuals to the judicial or
administrative authorities
of the Contracting States, outwith the
framework of the
provisions of the Convention, and on the other
hand that Contracting
States have the acknowledged right to
derogate by agreement from
the restrictions which the present
Convention allows to be
imposed upon the return of the child.
Articles 31 to 34 refer to
States with more than one system of
law and to the
Convention's relations with other conventions.
Lastly, articles 37 to 45
contain the Final Clauses.
B Terminology used in the
Convention
53 Following a
long-established tradition of the Hague
Conference, the Convention
avoided defining its terms, with the
exception of those in
article 5 concerning custody and access
rights, where it was
absolutely necessary to establish the scope
of the Convention's
subject-matter. These will be examined in
their context. At this
point we wish merely to consider one
aspect of the terminology
used which in our opinion merits a
brief comment. It has to
do with lack of correspondence between
the title of the
Convention and the terms used in the text.
Whilst the former uses the
phrase 'international child
abduction', the provisions
of the Convention avail themselves of
circumlocutions or at any
event of less evocative turns of
phrase, such as 'removal'
or 'retention'. The reason for this is
quite in keeping with the
Convention's limited scope. As was
stressed above (see Nos 12
to 16), studies of the topic with
which the Convention deals
show clearly that, with regard both to
the relationship which
normally exists between `abductor' and
`child' and to the
intentions of the former, we are far removed
from the offenses
associated with the terms `kidnapping',
`enlevement' or `secuestro'.
Since one is far removed from
problems peculiar to the
criminal law, the use in the text of the
Convention of possibly
ambiguous terms was avoided.
On the other hand, it was
felt desirable to keep the term
'abduction' in the title
of the Convention. owing to its habitual
use by the `mass media'
and its resonance in the public mind.
Nonetheless, so as to
avoid any ambiguity, the same title, as in
the Preliminary Draft,
states clearly that the Convention only
aims to regulate the
`civil aspects' of this particular
phenomenon. If, in the
course of this Report, expressions such as
`abduction' or `abductor'
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