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Explanatory Report by Elisa Perez-Vera

 

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'