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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' are used from time to time, and one

will find them also in the model form, that is because they

sometimes permit of easier drafting; but at all events, they will

have to be understood to contain nuances which their application

to the specific problem with which the Convention deals may call

for.

Second Part - Commentary on the specific articles of the

Convention

CHAPTER ONE - SCOPE OF THE CONVENTION

54 The first chapter defines the scope of the Convention as

regards its subject-matter and the persons concerned (its scope

ratione materiae and ratione personae). However, so as to have an

overall picture of the Convention's scope. one must consider also

article 34 which deals with the Convention's relationship with

other conventions, article 35 which concerns the Convention's

temporal application, and articles 31 to 33 which relate

totheapplicationoftheConvention in States with more than one

legal system.

Article I - The Aims of the Convention

a General observations

55 This article sets out in two paragraphs the objects of the

Convention which were discussed in broad terms in the first part

of this Report. It is therefore clear that the lack of

correspondence between the title and the specific provisions of

the Convention is more than merely a matter of terminology.22 In

any event, it must be realized that the terms used in the title,

while lacking legal exactitude, possess an evocative power and

force which attract attention, and this is essential.

56 As for the nature of the matters regulated by the

Convention, one general comment is required. Although the

Convention does not contain any provision which expressly states

the international nature of the situations envisaged, such a

conclusion derives as much from its title as from its various

articles. Now, in the present case, the international nature of

the Convention arises out of a factual situation, that is to say

the dispersal of members of a family among different countries. A

situation which was purely internal to start with can therefore

come within the scope of the Convention, for example, one of the

members of the family going abroad with the child, or through a

desire to exercise access rights in a country other than that in

which the person who claims those rights lives. On the other hand

the fact that the persons concerned hold different nationality

does not necessarily mean that the international type of case to

which the Convention applies automatically will arise, although

it would clearly indicate the possibility of its becoming

`international' in the sense described.

b Sub-paragraph a

57 The aim of ensuring the prompt return of children

wrongfully removed or retained has already been dealt with at

length. Besides, the Fourteenth Session in no way altered the

literal meaning of the wording devised by the Special Commission.

Thus only two brief points by way of explanation will be put

forward here. The first concerns the characterization of the

behaviour which the realization of this objective seeks to

prevent. To sum up, as we know, the conduct concerned is that

which changes the family relationships which existed before or

after any judicial decision, by using a child and thus turning it

into an instrument and principal victim of the situation. In this

context, the reference to children `wrongfully retained' is meant

to cover those cases where the child, with the consent of the

person who normally has custody, is in a place other than its

place of habitual residence and is not returned by the person

with whom it was staying. This is the typical situation which

comes about when the removal of the child results from the

wrongful exercise of access rights.

58 Secondly, the text states clearly that the children whose

return it is sought to secure are those who have been removed to,

or retained in, `any Contracting State'. This wording is doubly

significant. On the one hand, the provision in article 4 limits

the scope of the Convention ratione personae to those children

who, while being habitually resident in one of the Contracting

States, are removed to or retained in, the territory of another

Contracting State.

59 But these same words also have a quite deferent meaning.

In fact, through this formulation this particular object of the

Convention, whether considered in its own right or in relation to

article 2, becomes indirectly a general one, applicable to all

children who, in the circumstances set forth, are in any

Contracting State. However, there will always be a difference

between the legal position of those children who, prior to their

removal, were habitually resident in another Contracting State,

and that of other children. The position of the former will have

to be resolved by the direct application of the provisions of the

Convention. On the other hand, the duty of States towards the

other children is less clear (leaving aside provisions of

internal law) in so far as it derives from the obligation stated

in article 2, which could be described as a duty to take

appropriate measures to prevent their territory being turned into

a place of refuge for potential `abductors'.

c Sub-paragraph b

60 The aim of the Convention contained in this sub-paragraph

was clarified in the course of drafting at the Fourteenth

Session.23 So far as its scope is concerned, it is now clear

that the situations under consideration are the same as those to

which the Convention applies, that is to say international

situations which involve two or more Contracting States. It

should not be thought that precision in this matter is

unnecessary, especially when one considers that the text of the

Preliminary Draft allowed of other interpretations, and in

particular a reference to internal situations.

61 As for knowing the desired meaning of the aim stated

therein, it is necessary to draw a distinction between custody

rights and access rights. With regard to custody rights, it can

be said that the Convention has not attempted to deal with them

separately. It is thus within the general obligation stated in

article 2, and the regulation governing the return of the child

-- which is based, as we shall see in the commentary on article

3, upon respect for custody rights actually exercised and

attributed under the law of the child's habitual residence --

that one must look in order to find the consequences of the

provision which concerns us here. On the other hand, access

rights are treated more favourably, and the foundations upon

which respect for their effective exercise seem fixed, at least

in broad outline, within the context of article 21.

Article 2 - General obligation of Contracting States

62 Closely related to the objects stated in broad and

flexible fashion in article 16 is the fact that this article sets

forth a general duty incumbent upon Contracting States. It is

thus a duty which, unlike obligations to achieve a result which

are normally to be found in conventions, does not require that

actual results be achieved but merely the adoption of an attitude

designed to lead to such results. In the present case, the

attitude and behaviour required of States is expressed in the

requirement to 'take all appropriate measures to secure within

their territories the implementation of the objects of the

Convention'. The Convention also seeks, while safeguarding the

`self-executing' character of its other articles, to encourage

Contracting States to draw inspiration from these rules in

resolving problems similar to those with which the Convention

deals, but which do not fail within its scope ratione personae or

ratione temporis. On the one hand, this should lead to careful

examination of the Convention's rules whenever a State

contemplates changing its own internal laws on rights of custody

or access; on the other hand, extending the Convention's objects

to cases which are not covered by its own provisions should

influence courts and be shown in a decreasing use of the public

policy exception when questions concerning international

relations which are outwith the scope of the Convention fall to

be decided.

63 Moreover, the last sentence of the article specified one

of the particular means envisaged, while stressing also the

importance placed by the Convention on the use of speedy

procedures in matters of custody or access rights. However, this

provision does not impose an obligation upon States to bring new

procedures into their internal law, and the correspondence now

existing between the French and English texts rightly seeks to

avoid such an interpretation, which the original French text made

possible. It is therefore limited to requesting Contracting

States, in any question concerning the subject-matter of the

Convention, to use the most expeditious procedures available in

their own law.

Article 3 - The unlawful nature of removal or retention

a General observations

64 Article 3 as a whole constitutes one of the key provisions

of the Convention, since the setting in motion of the

Convention's machinery for the return of the child depends upon

its application. In fact, the duty to return a child arises only

if its removal or retention is considered wrongful in terms of

the Convention. Now, in laying down the conditions which have to

be met for any unilateral change in the status guo to be regarded

as wrongful, this article indirectly brings into clear focus

those relationships which the Convention seeks to protect. Those

relationships are based upon the existence of two facts, firstly,

the existence of rights of custody attributed by the State of the

child's habitual residence and, secondly, the actual exercise of

such custody prior to the child's removal. Let us examine more

closely the import of these conditions.

b. The juridical element

65 As for what could be termed the juridical element present

in these situations, the Convention is intended to defend those

relationships which are already protected, at any rate by virtue

of an apparent right to custody in the State of the child's

habitual residence, i.e. by virtue of the law of the State where

the child's relationships developed prior to its removal. The

foregoing remark requires further explanation in two respects.

The first point to be considered concerns the law, a breach of

which determines whether a removal or retention is wrongful, in

the Convention sense. As we have just said, this is a matter of

custody rights. Although the problems which can arise from a

breach of access rights, especially where the child is taken

abroad by its custodian, were raised during the Fourteenth

Session, the majority view was that such situations could not be

put in the same category as the wrongful removals which it is

sought to prevent.24

This example, and others like it where breach of access rights

profoundly upsets the equilibrium established by a judicial or

administrative decision, certainly demonstrate that decisions

concerning the custody of children should always be open to

review. This problem however defied all efforts of the Hague

Conference to co-ordinate views thereon. A questionable result

would have been attained had the application of the Convention,

by granting the same degree of protection to custody and access

rights, led ultimately to the substitution of the holders of one

type of right by those who held the other.

66 The second question which should be examined concerns the

law which is chosen to govern the initial validity of the claim.

We shall not dwell at this point upon the notion of habitual

residence, a well-established concept in the Hague Conference,

which regards it as a question of pure fact, differing in that

respect from domicile. Moreover, the choice of the law of

habitual residence as the factor which is to determine the

lawfulness of the situation flouted by the abduction is logical.

In actual fact, to the arguments in favour of its being accorded

a pre-eminent role in the protection of minors, as in the Hague

Convention of 1961, must be added the very nature of the

Convention itself, viz, its limited scope. In this regard, two

points must be made: on the one hand, the Convention does not

seek to govern definitively questions concerning the custody of

children, a fact which weakens considerably those arguments

favouring the application of national law; on the other hand, the

rules of the Convention rest largely upon the underlying idea

that there exists a type of jurisdiction which by its nature

belongs to the courts of a child's habitual residence in cases

involving its custody.

From a different viewpoint, our attention should also be drawn to

the fact that the Convention speaks of the 'law' of the State of

habitual residence, thus breaking with a long established

tradition of Hague Conventions on applicable law since 1955,

which refer to a particular internal law to govern the matters

with which they deal. Of course, in such cases, the word `law'

has to be understood in its widest sense, as embracing both

written and customary rules of law - whatever their relative

importance might be - and the interpretations placed upon them by

case-law. However, the adjective `internal' implies the exclusion

of all reference to the conflict of law rules of the particular

legal system. Therefore, since the Convention has abandoned its

traditional formulation by speaking of `the law of the habitual

residence', this difference cannot be regarded as just a matter

of terminology. In fact, as the preliminary proceedings of the

Commission demonstrate,25 it was intended right from the start

to expand considerably the range of provisions which have to be

considered in this context. Actually, a proposal was made during

the Fourteenth Session that this article should make it clear

that the reference to the law of the habitual residence extends

also to the rules of private international law. The fact that

this proposal was rejected was due to the Conference's view that

its inclusion was unnecessary and became implicit anyway once the

text neither directly nor indirectly excluded the rules in

question.26

67 The foregoing considerations show that the law of the

child's habitual residence is invoked in the widest possible

sense. Likewise, the sources from which the custody rights which

it is sought to protect derive, are all those upon which a claim

can be based within the context of the legal system concerned. In

this regard, paragraph 2 of article 3 takes into consideration

some - no doubt the most important - of those sources, while

emphasizing that the list is not exhaustive. This paragraph

provides that `the rights of custody mentioned in sub-paragraph a

above may arise in particular', thus underlining the fact that

other sorts of rights may exist which are not contained within

the text itself. Now, as we shall see in the following

paragraphs, these sources cover a vast juridical area, and the

fact that they are not exhaustively set out must be understood as

favouring a flexible interpretation of the terms used, which

allows the greatest possible number of cases to be brought into

consideration.

68 The first source referred to in article 3 is law, where it

is stated that custody `may arise . . . by operation of law'.

That leads us to stress one of the characteristics of this

Convention, namely its application to the protection of custody

rights which were exercised prior to any decision thereon. This

is important, since one cannot forget that, in terms of

statistics, the number of cases in which a child is removed prior

to a decision on its custody are quite frequent. Moreover, the

possibility of the dispossessed parent being able to recover the

child in such circumstances, except within the Convention's

framework, is practically non-existent, unless he in his turn

resorts to force, a course of action which is always harmful to

the child. In this respect, by including such cases within its

scope, the Convention has taken a significant step towards

resolving the real problems which in the past largely escaped the

control of the traditional mechanisms of private international

law.

As for knowing the legal system which, according to the

Convention, is to attribute the custody rights, which it is

desired to protect, it is necessary to go back to the consider

actions developed in the previous paragraph. Thus, custody ex

lege can be based either on the internal law of the State of the

child's habitual residence, or on the law designated by the

conflict rules of that State. The scope of the first option is

quite clear; the second implies, for example, that the removal by

its French father of a child born out of wedlock which had its

habitual residence in Spain where it lived with its mother, both

mother and child being of French nationality, should be

considered wrongful in the Convention sense, by means of the

application of French law designated as applicable by the Spanish

conflict rule on questions of custody, quite independently of the

fact that application of internal Spanish law would probably have

led to a different result.

69 The second source of custody rights contained in article 3

is a judicial or administrative decision. Since the Convention

does not expand upon this, it must be deemed, on the one hand,

that the word `decision' is used in its widest sense, and

embraces any decision or part of a decision (judicial or

administrative) on a child's custody and, on the other hand, that

these decisions may have been issued by the courts of the State

of the child's habitual residence as well as by the courts of a

third country.27 Now, in the latter case, that is to say when

custody rights were exercised in the State of the child's

habitual residence on the basis of a foreign decree, the

Convention does not require that the decree had been formally

recognized. Consequently, in order to have the effect described,

it is sufficient that the decision be regarded as such by the

State of habitual residence, i.e. that it contain in principle

certain minimum characteristics which are necessary for setting

in motion the means by which it may be confirmed or recognized.

28This wide interpretation is moreover confirmed by the whole

tenor of article 14.

70 Lastly, custody rights may arise according to article 3.

'by reason of an agreement having legal effect under the law of

that State'. In principle, the agreements in question may be

simple private transactions between the parties concerning the

custody of their children. The condition that they have 'legal

effect' according to the law of the State of habitual residence

was inserted during the Fourteenth Session in place of a

requirement that it have the 'force of law', as stated in the

Preliminary Draft. The change was made in response to a desire

that the conditions imposed upon the acceptance of agreements

governing matters of custody which the Convention seeks to

protect should be made as clear and as flexible as possible. As

regards the definition of an agreement which has 'legal effect'

in terms of a particular law, it seems that there must be

included within it any sort of agreement which is not prohibited

by such a law and which may provide a basis for presenting a

legal claim to the competent authorities. Now, to go back to the

wide interpretation given by article 3 to the notion of 'the law

of the State of the child's habitual residence', the law

concerned can equally as well be the internal law of that State

as the law which is indicated as applicable by its conflict

rules. It is for the authorities of the State concerned to choose

between the two alternatives, although the spirit of the

Convention appears to point to the choice of the one which, in

each particular case, would recognize that custody had actually

been exercised. On the other hand, the Convention does not state,

in substance or form, the conditions which these agreements must

fulfil, since these will change according to the terms of the law

concerned.

71 Leaving aside a consideration of those persons who can

hold rights of custody, until the commentary on article 4 which

concerns the scope of the Convention ratione personae, it should

be stressed now that the intention is to protect all the ways in

which custody of children can be exercised. Actually, in terms of

article 3, custody rights may have been awarded to the person who

demands that their exercise be respected, and to that person in

his own right or jointly. It cannot be otherwise in an era when

types of joint custody, regarded as best suited to the general

principle of sexual non-discrimination, are gradually being

introduced into internal law. Joint custody is, moreover, not

always custody ex lege, in as much as courts are increasingly

showing themselves to be in favour, where circumstances permit,

of dividing the responsibilities inherent in custody rights

between both parents. Now, from the Convention's standpoint, the

removal of a child by one of the joint holders without the

consent of the other, is equally wrongful, and this wrongfulness

derives in this particular case, not from some action in breach

of a particular law, but from the fact that such action has

disregarded the rights of the other parent which are also

protected by law, and has interfered with their normal exercise.

The Convention's true nature is revealed most clearly in these

situations: it is not concerned with establishing the person to

whom custody of the child will belong at some point in the

future, nor with the situations in which it may prove necessary

to modify a decision awarding joint custody on the basis of facts

which have subsequently changed. It seeks, more simply, to

prevent a later decision on the matter being influenced by a

change of circumstances brought about through unilateral action

by one of the parties.

c. The factual element

72 The second element characterizing those relationships

protected by the Convention is that the custody rights which it

is claimed have been breached by the child's removal were

actually exercised by the holder. In fact, as soon as an approach

to the subject-matter of the Convention was adopted which

deviated from the pure and simple international recognition of

custody rights attributed to parents, the Convention put its

emphasis on protecting the right of children to have the

stability which is so vital to them respected. In other words,

the Convention protects the right of children not to have the

emotional, social etc. aspects of their lives altered, unless

legal arguments exist which would guarantee their stability in a

new situation. This approach is reflected in the scope of the

Convention, which is limited to custody rights actually

exercised. What is more, such a notion is justified within the

framework of international relations by a complementary argument

which concerns the fact that contradictory decisions arise quite

frequently in this particular context, decisions which are

basically of little use in protecting the stability of a child's

life.

73 Actually, this idea was not opposed to any extent.

However, several proposals29 were put forward for the deletion

from article 3 of any reference to the actual exercise of custody

rights. The reason for this was that its retention could place on

the applicant the burden of proving a point which would sometimes

be difficult to establish. The situation became even more

complicated when account was taken of the fact that article 13,

which concerns the possible exceptions to the obligation to order

the return of the child, requires the `abductor' this time to

prove that the dispossessed party had not actually exercised the

custody rights he now claims. Now, it is indeed by considering

both provisions together that the true nature of the condition

set forth in article 3 can be seen clearly. This condition, by

defining the scope of the Convention, requires that the applicant

provide only some preliminary evidence that he actually took

physical care of the child, a fact which normally will be

relatively easy to demonstrate. Besides, the informal nature of

this requirement is highlighted in article 8 which simply

includes, in sub-paragraph c, 'the grounds on which the

applicant's claim for return of the child is based', amongst the

facts which it requires to be contained in applications to the

Central Authorities.

On the other hand, article 13 of the Convention (12 in the

Preliminary Draft) shows us the real extent of the burden of

proof placed upon the `abductor'; it is for him to show, if he

wishes to prevent the return of the child, that the guardian had

not actually exercised his rights of custody. Thus, we may

conclude that the Convention, taken as a whole, is built upon the

tacit presumption that the person who has care of the child

actually exercises custody over it. This idea has to be overcome

by discharging the burden of proof which has shifted, as is

normal with any presumption (i.e. discharged by the 'abductor' if

he wishes to prevent the return of the child).

74 However, there is expressly included amongst the matters

which the Convention is intended to protect the situation which

arises when actual custody cannot be exercised precisely because

of the removal of the child; that is the situation envisaged in

the last alternative set out in article 3b. Theoretically, the

underlying idea is perfectly in keeping with the spirit of the

Convention, and it is therefore from a practical point of view

that it may be wondered whether such a provision needed to be

added.30 From this viewpoint, the hypothetical situations which

this provision is designed to protect are of two types, one of

which falls clearly within the scope of the Convention, while the

other, failing this rule, would probably require too strained an

interpretation of its provisions. On the one hand, there are

cases where an initial decision on custody is rendered worthless

by the removal of the child. In so far as such a description

follows the disruption of normal family life after a reasonable

lapse of time, the holder of the rights could be regarded as

having exercised them from the outset, so that the situation

described fulfills all the conditions laid down within the scope

of the Convention. However, if a decision on custody by the

courts of the child's habitual residence is considered, which

modifies a prior decision and cannot be enforced because of the

action of the abductor, it could be that the new holder of the

right to custody has not exercised it within the extended

time-limit. The difficulties which would be encountered in

seeking to apply the Convention to such situations and perhaps to

others not herein mentioned, are obvious, To conclude, although

this provision must not be expected to come into play very often,

it has to be said finally that its inclusion in the Convention

might prove to be useful.

Article 4 - Convention's scope ratione personae

75 This article concerns only the Convention's scope ratione

personae as regards the children who are to be protected.

However, for the sake of completeness, we shall also deal with

the other aspects of the problem in their proper context, that is

to say those potential holders of custody and access rights and

those who could be regarded as 'abductors', within the terms of

the Convention.

a The children protected

76 The Convention applies to children of less than sixteen

years of age, who were `habitually resident in a Contracting

State immediately before any breach of custody or access rights'.

As regards the requirement that they be habitually resident,

reference must again be made to those considerations previously

expressed about the nature of the Convention, which lead to the

conclusion that a convention based on co-operation among

authorities can only become fully operational after the

relationships envisaged come into existence as among Contracting

States.

77 The age limit for application of the Convention raises two

important questions. Firstly, the matter of age in the strict

sense gave rise to virtually no dispute. The Convention kept the

age at sixteen, and therefore held to a concept of 'the child'

which is more restrictive than that accepted by other Hague

Conventions.31 The reason for this derives from the objects of

the Convention themselves; indeed, a person of more than sixteen

years of age generally has a mind of his own which cannot easily

be ignored either by one or both of his parents, or by a judicial

or administrative authority.

As for deciding upon the point at which this age should exclude

the Convention's application, the most restrictive of the various

options available was retained by the Convention. Consequently,

no action or decision based upon the Convention's provisions can

be taken with regard to a child after its sixteenth birthday.

78 The second problem deals with the situation of children

under sixteen years of age who have the right to choose their own

place of residence. Considering that this right to choose one's

residence generally forms part of the right to custody, a

proposal was put forward to the effect that the Convention should

not apply in such cases.32 However, this proposal was rejected

on various grounds, inter alia the following: (]) the difficulty

of choosing the legal system which should determine whether such

a possibility exists, since there are at least three different

laws which could be applicable, namely, national law, the law of

habitual residence prior to the child's removal, and the law of

the State of refuge; (2) the excessive restriction which this

proposal would place upon the scope of the Convention,

particularly with regard to access rights; (3) the fact that the

right to decide a child's place of residence is only one possible

element of the right to custody which does not itself deprive it

of all content.

On the other hand, the decision taken in this regard cannot be

isolated from the provision in article 13, second paragraph,

which allows the competent authorities to have regard to the

opinion of the child as to its return, once it has reached an

appropriate age and degree of maturity. Indeed, this rule leaves

it open to judicial or administrative authorities, whenever they

are faced with the possibility of returning a minor legally

entitled to decide on his place of residence, to take the view

that the opinion of the child should always be the decisive

factor. The point could therefore be reached where an optional

provision of the Convention becomes automatically applicable, but

such a result seems preferable to an overall reduction in the

Convention's scope.

b The holders of custody and access rights

79 The problems raised by both of these rights in this regard

are quite different. Firstly, as regards access rights, it is

obvious, by the very nature of things, that they will always he

held by individuals, whose identity will depend on the law which

applies to the organizing of these rights. These persons will as

a rule be close relatives of the child, and normally will be

either its father or mother.

80. On the other hand, legal persons can also, in terms of the

Convention, hold rights of custody. Article 3 envisages the

possibility of custody rights being attributed to "an institution

or any other body", and is expressed in deliberately vague and

wide terms. In fact, during the Fourteenth Session, the

inclusion within the scope of the Convention of situations in

which the child is entrusted to an institution was not

challenged. Now, since there are bodies other than institutions

which have children in their care, the term used was extended so

as to apply equally to those bodies with legal personality and to

those which, as an are of the State, lack separate personality.

c The potential 'abductors'

81 The Convention contains no express provision on this

matter. Nevertheless, two comments may be drawn from the text as

a whole, which shed light upon this question in relation to the

Convention's scope ratione personae. The first concerns the

physical persons who may be responsible for the removal or

retention of a child. On this, the Convention upholds the point

of view adopted by the Special Commission by not attributing such

acts exclusively to one of the parents.33 Since the idea of

'family' was more or less wide, depending on the different

cultural conceptions which surround it, it was felt better to

hold a wide view which would, for example, allow removals by a

grandfather or adoptive father to be characterized as child

abduction, in accordance with the Convention's use of that term.

82 The second comment relates to the possibility of an

'institution or any other body' acting as an 'abductor'. In this

regard, it is difficult to imagine how any body whatever could

remove, either by force or by deception, a child from a foreign

country to its own land. On the other hand, if a child were

entrusted, by virtue of a judicial or administrative decision

(i.e. compulsory placement of the child) to such a body in the

country of its habitual residence, the parent who sought to

obtain the actual enjoyment of custody rights would stand little

chance of being able to invoke the provisions of the Convention.

In fact, by virtue of the fact that such bodies would as a rule

exercise jurisdiction, except as regards the possible recognition

of parental authority,34 such a claim would not come within the

scope of the Convention, since custody, in the sense understood

by the Convention, would belong to the body in question.

Article 5 -- Certain terms used in the Convention

83 The Convention, following a long-established tradition of

the Hague Conference, does not define the legal concepts used by

it. However, in this article, it does make clear the sense in

which the notions of custody and access rights are used, since an

incorrect interpretation of their meaning would risk compromising

the Convention's objects.

84 As regards custody rights, the Convention merely

emphasizes the fact that it includes in the term 'rights relating

to the care of the person of the child', leaving aside the

possible ways of protecting the child's property. It is therefore

a more limited concept than that of 'protection of minors',35

despite attempts made during the Fourteenth Session to introduce

the idea of `protection' so as to include in particular those

cases where children are entrusted to institutions or bodies. But

since all efforts to define custody rights in regard to those

particular situations failed, one has to rest content with the

genera] description given above. The Convention seeks to be more

precise by emphasizing, as an example of the `care' referred to,

the right to determine the child's place of residence. However,

if the child, although still a minor at law, has the right itself

to determine its own place of residence, the substance of the

custody rights will have to be determined in the context of other

rights concerning the person of the child.

On the other hand, although nothing is said in this article about

the possibility of custody rights being exercised singly or

jointly, such a possibility is clearly envisaged. In fact, a

classic rule of treaty law requires that a treaty's terms be

interpreted in their context and by taking into account the

objective and end sought by the treaty,36 and the whole tenor of

article 3 leaves no room for doubt that the Convention seeks to

protect joint custody as well. As for knowing when joint custody

exists, that is a question which must be decided in each

particular case, and in the light of the law of the child's

habitual residence.

85 As regards access rights, sub-paragraph 6 of this article

merely points out that they include `the right to take a child

for a limited period of time to a place other than the child's

habitual residence'. Clearly, therefore, it is not intended that

the Convention exclude all other ways of exercising access

rights. Quite simply, it seeks to emphasize that access rights

extend also to what is called `residential access', that aspect

of access rights about which the person who has custody of the

child is particularly apprehensive. Moreover, since this

explanatory provision in no way qualifies this `other place' to

which the child may be taken, one must conclude that access

rights, in terms of the Convention, also include the right of

access across national frontiers.

86 A proposal was made to include in this article a

definition of the judicial or administrative authorities

mentioned throughout the Convention's rules.37 The difficulties

encountered as much in reaching a systematic viewpoint on this as

in devising a definition wide enough to encompass all possible

contingencies made for its exclusion. Now, as was mentioned

earlier,38 it is clear that these are the authorities who have

the power, according to the internal law of each Contracting

State, to determine questions concerning a child's custody or

protection. Besides, it is precisely because of differences

amongst these laws that reference is always made to `judicial or

administrative' authorities, so as to embrace all authorities

which have jurisdiction in the matter, without regard to their

legal characterization in each State.

CHAPTER II - CENTRAL AUTHORITIES

Article 6 - Creation of Central Authorities

87 The role played by the Central Authorities, crucial

factors as they are in the application of the Convention, has

already been dealt with at length.39

As for those States which may appoint more than one Central

Authority, the idea which prevailed was that the determining

factor should be the existence of several territorial

organizations for the protection of minors. Thus there was added

to those cases of Federal States and States with more than one

system of law that of States `having autonomous territorial

organizations', a term which is to be interpreted broadly.

Article 7 -- Obligations of Central Authorities

88 This article summarizes the role played by Central

Authorities in bringing into play the system established by the

Convention. The article is structured in two paragraphs, the

first of which, drafted in general terms, sets out an overall

duty of co-operation, while the second lists, from sub-paragraphs

a to i, some of the principal functions which the Central

Authorities have to discharge. Both result from a compromise

between, on the one hand, those delegations which wanted strong

Central Authorities with wide-ranging powers of action and

initiative, and on the other hand those which saw these

Authorities as straightforward administrative mechanisms for

promoting action by the parties. Now, since these diverse

attitudes reflected most of the deep differences which existed

amongst the systems represented at the Conference, the ultimate

solution had to be flexible, and such as would allow each Central

Authority to act according to the law within which it has to

operate. Therefore, although the Convention clearly sets out the

principal obligations laid upon the Central Authorities, it lets

each Contracting State decide upon the appropriate means for

discharging them. And it is in this sense that the sentence

occurring at the beginning of the second paragraph must be

understood, which states that the Central Authorities are to

discharge their listed functions 'either directly, or through any

intermediary'. It is for each Central Authority to choose one or

the other options, while working within the context of its own

internal law and within the spirit of the general duty of

co-operation imposed upon it by the first paragraph.

89 As we have just said, the rule in the first paragraph sets

out the general duty of Central Authorities to co-operate, so as

to ensure the Convention's objects are achieved. Such

Co-operation has to develop on two levels: the Central

Authorities must firstly co-operate with each other; however, in

addition, they must promote co-operation among the authorities

competent for the matters dealt with within their respective

States. Whether this co-operation is promoted effectively will

depend to a large extent on the freedom of action which each

internal law confers upon the Central Authorities.

90 The functions listed in the second paragraph seek to

trace, in broad outline, the different stages of intervention by

Central Authorities in the typical case of child removal.

Nonetheless, it is clear that this list is not exhaustive. For

example, since the intervention of Central Authorities

necessarily depends on their having been initially seized of the

matter, either directly by the applicant or by the Central

Authority of a Contracting State, then in the latter case the

Central Authority initially seized will have to send the

application to the Central Authority of the State in which the

child is thought to be. Now, this obligation is not spelled out

in article 7, but later, in the context of article 9. On the

other hand, it is also clear that the Central Authorities are not

obliged to fulfil, in every specific case, all the duties listed

in this article. In fact, the circumstances of each particular

case will dictate the steps which are to be taken by the Central

Authorities; for example, it cannot be maintained that every

Central Authority must discover the whereabouts of a child when

the applicant knows full well where it is.

91 In addition to finding the whereabouts of the child, where

necessary (sub-paragraph a), the Central Authority must take or

cause to be taken any provisional measures which could help

prevent 'further harm to the child or prejudice to interested

parties' (sub-paragraph a). The drafting of this sub-paragraph

clearly brings out once again a fact which was emphasized above,

namely, that the ability of Central Authorities to act will vary

from one State to another. Basically, the provisional measures

envisaged are designed in particular to avoid another removal of

the child.

92 Sub-paragraph c sets out the duty of Central Authorities

to try to find an extrajudicial solution. In actual fact, in the

light of experience as spoken to by some delegates, a

considerable number of cases can be settled without any need to

have recourse to the courts. But, once again, it is the Central

Authorities which, in those stages preceding the possible

judicial or administrative proceedings, will direct the

development of the problem; it is therefore for them to decide

when the attempts to secure the `voluntary return' of the child

or to bring about an `amicable resolution', have failed.

93 Sub-paragraph d relates to the exchange of information

about the social background of the child. This duty is made

subject to the criteria adopted by the Central Authorities

involved in a particular case. Indeed, the insertion of the

phrase 'where desirable' demonstrates that there is no wish to

impose an inflexible obligation here: the possibility of there

being no information to provide, as well as the fear that

reference to this provision might be used by the parties as a

delaying tactic, are some of the arguments which prompted this

approach. On the other hand, a proposal which would have made the

transmission of certain information conditional upon its

remaining confidential, was rejected.40

94 The obligation laid upon Central Authorities to provide

information on the content of the law in their own States for the

application of the Convention appears in sub-paragraph e. This

duty applies in particular to two situations. Firstly, where the

removal occurs prior to any decision as to the custody of the

child, the Central Authority of the State of the child's habitual

residence is to produce, for the purposes of the Convention's

application, a certificate on the relevant law of that State.

Secondly, the Central Authority must inform the individuals about

how the Convention works and about the Central Authorities, as

well as about the procedures available. On the other hand, the

possibility of going further, by obliging the Central Authorities

to give legal advice in individual cases, is not envisaged by

this rule.

95 When it is necessary, in order to obtain the child's

return, for the judicial or administrative authorities of the

State in which it is located to intervene, the Central Authority

must itself initiate proceedings (if that can be done under its

internal law) or facilitate the institution of proceedings. This

duty also extends to proceedings which prove to be necessary for

organizing or securing the effective exercise of rights of access

(sub-paragraph f).

96 Where the Central Authority is not able to apply directly

to the competent authorities in its own State, it must provide or

facilitate the provision of legal aid and advice for the

applicant, in terms of article 25 (sub-paragraph g). It is

appropriate to point out here very briefly that the phrase 'where

the circumstances so require' in this sub-paragraph refers to the

applicant's lack of economic resources, as determined by the

criteria laid down by the law of the State in which such

assistance is sought, and that it does not therefore refer to

abstract considerations as to the convenience or otherwise of

granting legal aid.

97 Following the method adopted by this paragraph,

sub-paragraph h includes among the Central Authorities'

obligations the bringing into play in each case of such

administrative arrangements as may be necessary and appropriate

to secure the safe return of the child.

98 Finally, sub-paragraph i sets forth an obligation on the

part of Central Authorities which does not directly concern

individuals but only the Convention itself. It is the duty 'to

keep each other informed with respect to the operation of the

Convention, and, as far as possible, to eliminate any obstacles

to its application'. This obligation is to operate on two

complementary levels, firstly at the level of bilateral relations

between States which are Party to the Convention, and secondly on

a multilateral level, through participating when required in

commissions called for this purpose by the Permanent Bureau of

the Hague Conference.

CHAPTER III - RETURN OF THE CHILD

Article 8 -- Applications to Central Authorities

99 In terms of the first paragraph, an application for the

return of a child can be addressed to any Central Authority

which, from that point, will be bound by all the obligations laid

down by the Convention. This demonstrates that the applicant is

free to apply to the Central Authority which in his opinion is

the most appropriate. However, for reasons of efficiency, the

Central Authority of the child's habitual residence is expressly

mentioned in the text, but this must not be understood as

signifying that applications directed to other Central

Authorities are to be regarded as exceptional.

100 Since use of the model form is merely recommended, it was

necessary to include in the text of the Convention the elements

which any application submitted to a Central Authority must

contain in order to be admissible, as well as the optional

documents which may accompany or supplement such an application.

The elements which every application to a Central Authority must

contain, in this context, are those listed in the second

paragraph of article 8. in particular, they are facts which allow

the child and interested parties to be identified, such as those

which may be able to help in locating the child (sub-paragraphs

a, b, and d). As regards information on the child's date of

birth, the Convention makes it clear that this should be supplied

only 'where available'. This provision is intended to favour

action by an applicant who is ignorant of such a fact but who

will, however, always have to supply precise information on the

age of the child, since the provisions of article 4 may result in

his application being rejected, in terms of article 27.

Moreover, the application must contain `the grounds on which the

applicant's claim for return of the child is based'

(sub-paragraph c). This requirement is logical, in that it allows

the application of article 27 concerning the right of Central

Authorities to reject applications which are clearly not

well-founded. The grounds must in principle refer to the two

elements, legal and factual, contained in article 3. Now, since

the legal element in particular may depend on the provisions of

the law of the child's habitual residence, or upon a decision or

agreement, it might have been expected that documentary support

would be required at this initial stage. However, the Convention

chose to follow a different route and placed this evidence

amongst those documents which may, optionally, accompany or

supplement the application. The reason for this is that obtaining

the documents in question is sometimes difficult and, what is

more, could take up precious time better spent in speedily

discovering the whereabouts of the child. Moreover, whenever a

Central Authority succeeds in bringing about the voluntary return

of the child or an amicable resolution of the affair, such

requirements may seem merely accessory.

101 Understood thus, the first two sub-paragraphs of the third

paragraph, dealing with the optional provision of documents which

may accompany or supplement applications, are seen to refer to

documents which are fundamental to a claim for the return of the

child. It must be emphasized firstly that the requirement that

copies of any decision or agreement be authenticated in no way

contradicts the provision in article 23 that 'no legalization or

similar formality may be required in the context of this

Convention'. It is simply a matter of verifying what were

originally copies or private documents so as to guarantee that

they correspond to the originals and thus to secure their

free circulation.

Secondly, proof of the substantive law of the State of the

child's habitual residence may be established by either

certificates or affidavits, that is to say documents which

include solemn statements for which those who make them assume

responsibility. As regards those persons who may adduce such

statements, the Convention chose to define them widely, a fact

which must make the task of the applicant easier (sub-paragraph

f). Thus, they may emanate from any qualified person - for

example, an attorney, solicitor, or barrister or research

institution - as well as from the Central Authorities and the

other competent authorities of the State of the child's habitual

residence.

On the other hand, it should be stressed that at a later stage,

when the judicial or administrative authorities of the State of

refuge have been called upon to intervene, they may, in terms of

article 15, request the production of certain documents which

were considered to be optional at the time of application to the

Central Authorities.

Lastly, the Convention acknowledges that the application may be

accompanied or supplemented by 'any other relevant document'

(sub-paragraph g). In theory, since it is the dispossessed

guardian of the child who brings the application, it is for him

to provide these supplementary documents. This does not preclude

the Central Authority to which the application was originally

made, where the application is sent to another Central Authority,

from accompanying the application by, inter alia, information

concerning the social background of the child (if it has such

information at its disposal and considers it to be useful), by

virtue of the task laid upon it by article 7, paragraph 2d.

Article 9 - Transmission of the application to the Central

Authority of the State where the child is located.

102 A direct consequence of the applicant's right to apply to

the Central Authority of his choice is the duty imposed on the

latter to transmit the application to the Central Authority of

the State in which it has reason to believe the child is located;

this duty arises also when the Central Authority which is

informed of a case by another Central Authority reaches the

conclusion that the child is in fact located in a different

country. This is a task which supplements the framework of duties

outlined in article 7, since it relates directly to the duty of

co-operation amongst Central Authorities established by the first

paragraph of that article.

Now, although the meaning of article 9 may be clear, it has not

been very artfully drafted. The `requesting Central Authority' to

which this article refers exists only where the application

submitted in accordance with article 8 has been transmitted to

another Central Authority in terms of article 9 itself.

Consequently, the duty to inform a 'requesting Central Authority'

exists only when the application has been transmitted to a third

Central Authority, the child not being located in the State of

the second Central Authority to which the application was sent.

But on the other hand, the duty to transmit an application in

terms of this article devolves upon any Central Authority,

independently of the fact that it was seized of the matter either

directly or through the intervention of another Central

Authority, since this provision must be understood as applying to

both of the cases it is meant to cover.

Article 10 -- Voluntary return of the child

103 The duty of Central Authorities, stated in article

7(2)(c), to 'take all appropriate measures to secure the

voluntary return of the child', is given preferential treatment

in this article, which highlights the interest of the Convention

in seeing parties have recourse to this way of proceeding. The

phrase 'before the institution of any legal or administrative

proceedings' which preceded this provision in the Preliminary

Draft, and restricted the duty included within it to a particular

point in time, was deleted from the text of the Convention. The

reason for this deletion is the difficulty experienced by some

legal systems in accepting that a public authority, such as a

Central Authority, could act before an application had been

brought before the competent authorities; however, the whole

tenor of the provision shows that the Central Authorities of

other States are not precluded from acting in that way. On the

other hand, it is in no way an inflexible obligation, for two

reasons: firstly, efforts to secure the voluntary return of the

child which were begun prior to the referral of the matter to the

judicial or administrative authorities may be pursued thereafter,

and secondly, in so far as the initiative for the return of the

child has not been transferred to those authorities, it is for

the Central Authority to decide whether the attempts to achieve

this objective have failed. Moreover, the measures envisaged in

this article are not intended to prejudice the efforts of Central

Authorities to prevent further removals of the child, pursuant to

article 7(2)(b).

Article 11 -- The use of expeditious procedures by judicial or

administrative authorities.

l04 The importance throughout the Convention of the time

factor appears again in this article. Whereas article 2 of the

Convention imposes upon Contracting States the duty to use

expeditious procedures, the first paragraph of this article

restates the obligation, this time with regard to the authorities

of the State to which the child has been taken and which are to

decide upon its return. There is a double aspect to this duty:

firstly, the use of the most speedy procedures known to their

legal system; secondly, that applications are, so far as

possible, to be granted priority treatment.

105 The second paragraph, so as to prompt internal authorities

to accord maximum priority to dealing with the problems arising

out of the international removal of children, lays down a

non-obligatory time-limit of six weeks, after which the applicant

or Central Authority of the requested State may request a

statement of reasons for the delay. Moreover, after the Central

Authority of the requested State receives the reply, it is once

more under a duty to inform, a duty owed either to the Central

Authority of the requesting State or to the applicant who has

applied to it directly. in short, the provision's importance

cannot he measured in terms of the requirements of the

obligations imposed by it, but by the very fact that it draws the

attention of the competent authorities to the decisive nature of

the time factor in such situations and that it determines the

maximum period of time within which a decision on this matter

should be taken.

Articles 12 and 18 - Duty to return the child

106 These two articles can be examined together since they

complement each other to a certain extent, despite their

different character.

Article 12 forms an essential part of the Convention, specifying

as it does those situations in which the judicial or

administrative authorities of the State where the child is

located are obliged to order its return. That is why it is

appropriate to emphasize once again the fact that the compulsory

return of the child depends, in terms of the Convention, on a

decision having been taken by the competent authorities of the

requested State. Consequently, the obligation to return a child

with which this article deals is laid upon these authorities. To

this end, the article highlights two cases; firstly, the duty of

authorities where proceedings have begun within one year of the

wrongful removal or retention of a child and, secondly, the

conditions which attach to this duty where an application is

submitted after the aforementioned time-limit.

107 In the first paragraph, the article brings a unique

solution to bear upon the problem of determining the period

during which the authorities concerned must order the return of

the child forthwith. The problem is an important one since, in so

far as the return of the child is regarded as being in its

interests, it is clear that after a child has become settled in

its new environment, its return should take place only after an

examination of the merits of the custody rights exercised over it

- something which is outside the scope of the Convention. Now,

the difficulties encountered in any attempt to state this test of

`integration of the child' as an objective rule resulted in a

time-limit being fixed which, although perhaps arbitrary,

nevertheless proved to be the 'least bad' answer to the concerns

which were voiced in this regard.

108 Several questions had to be faced as a result of this

approach: firstly, the date from which the time-limit was to

begin to run; secondly, extension of the time-limit; thirdly, the

date of expiry of the time-limit. As regards the first point,

i.e. how to determine the date on which the time-limit should

begin to run, the article refers to the wrongful removal or

retention. The fixing of the decisive date in cases of wrongful

retention should be understood as that on which the child ought

to have been returned to its custodians or on which the holder of

the right of custody refused to agree to an extension of the

child's stay in a place other than that of its habitual

residence. Secondly, the establishment of a single time-limit of

one year (putting on one side the difficulties encountered in

establishing the child's whereabouts) is a substantial

improvement on the system envisaged in article 11 of the

Preliminary Draft drawn up by the Special Commission. In fact,

the application of the Convention was thus clarified, since the

inherent difficulty in having to prove the existence of those

problems which can surround the locating of the child was

eliminated. Thirdly, as regards the terminus ad quem, the article

has retained the date on which proceedings were commenced,

instead of the date of decree, so that potential delays in acting

on the part of the competent authorities will not harm the

interests of parties protected by the Convention.

To sum up, whenever the circumstances just examined are found to

be present in a specific case, the judicial or administrative

authorities must order the return of the child forthwith, unless

they aver the existence of one of the exceptions provided for in

the Convention itself.

109 The second paragraph answered to the need, felt strongly

throughout the preliminary proceedings,41 to lessen the

consequences which would flow from the adoption of an inflexible

time-limit beyond which the provisions of the Convention could

not be invoked. The solution finally adopted42 plainly extends

the Convention's scope by maintaining indefinitely a real

obligation to return the child. In any event, it cannot be denied

that such an obligation disappears whenever it can be shown that

`the child is now settled in its new environment'. The provision

does not state how this fact is to be proved, but it would seem

logical to regard such a task as falling upon the abductor or

upon the person who opposes the return of the child, whilst at

the same time preserving the contingent discretionary power of

internal authorities in this regard. In any case, the proof or

verification of a child's establishment in a new environment

opens up the possibility of longer proceedings than those

envisaged in the first paragraph. Finally, and as much for these

reasons as for the fact that the return will, in the very nature

of things, always occur much later than one year after the

abduction, the Convention does not speak in this context of

return `forthwith' but merely of return.

110 One problem common to both of these situations was

determining the place to which the child had to be returned. The

Convention did not accept a proposal to the effect that the

return of the child should always be to the State of its habitual

residence before its removal. Admittedly, one of the underlying

reasons for requiring the return of the child was the desire to

prevent the 'natural' jurisdiction of the courts of the State of

the child's residence being evaded with impunity, by force.

However, including such a provision in the Convention would have

made its application so inflexible as to be useless. In fact, we

must not forget that it is the right of children not to be

removed from a particular environment which sometimes is a

basically family one, which the fight against international child

abductions seeks to protect. Now, when the applicant no longer

lives in what was the State of the child's habitual residence

prior to its removal, the return of the child to that State might

cause practical problems which would be difficult to resolve. The

Convention's silence on this matter must therefore be understood

as allowing the authorities of the State of refuge to return the

child directly to the applicant, regardless of the latter's

present place of residence.

111 The third paragraph of article 12 introduces a perfectly

logical provision, inspired by considerations of procedural

economy, by virtue of which the authorities which are acquainted

with a case can stay the proceedings or dismiss the application,

where they have reason to believe that the child has been taken

to another State. The reasons by which they may come to such a

conclusion are not stated in the article, and will therefore

depend on the internal law of the State in question.

112 Finally, article 18 indicates that nothing in this chapter

limits the power of a judicial or administrative authority to

order the return of the child at any time. This provision, which

was drafted on the basis of article 15 of the Preliminary Draft,

and which imposes no duty, underlines the non-exhaustive and

complementary nature of the Convention. In fact, it authorizes

the competent authorities to order the return of the child by

invoking other provisions more favourable to the attainment of

this end. This may happen particularly in the situations

envisaged in the second paragraph of article 12, i.e. where, as a

result of an application being made to the authority after more

than one year has elapsed since the removal, the return of the

child may be refused if it has become settled in its new social

and family environment.

Articles 13 and 20 - Possible exceptions to the return of the

child

113 In the first part of this Report we commented at length

upon the reasons for, the origins and scope of, the exceptions

contained in the articles concerned.43 We shall restrict

ourselves at this point to making some observations on their

literal meaning. In general, it is appropriate to emphasize that

the exceptions in these two articles do not apply automatically,

in that they do not invariably result in the child's retention;

nevertheless, the very nature of these exceptions gives judges a

discretion - and does not impose upon them a duty - to refuse to

return a child in certain circumstances.

114 With regard to article 13, the introductory part of the

first paragraph highlights the fact that the burden of proving

the facts stated in sub-paragraphs a and a is imposed on the

person who opposes the return of the child, be he a physical

person, an institution or an organization, that person not

necessarily being the abductor. The solution adopted is indeed

limited to stating the general legal maxim that he who avers a

fact (or a right) must prove it, but in making this choice, the

Convention intended to put the dispossessed person in as good a

position as the abductor who in theory has chosen what is for him

the most convenient forum.

115 The exceptions contained in a arise out of the fact that

the conduct of the person claiming to be the guardian of the

child raises doubts as to whether a wrongful removal or

retention, in terms of the Convention, has taken place. On the

one hand, there are situations in which the person who had the

care of the child did not actually exercise custody rights at the

time of the removal or retention. The Convention includes no

definition of `actual exercise' of custody, but this provision

expressly refers to the care of the child. Thus, if the text of

this provision is compared with that of article 5 which contains

a definition of custody rights, it can be seen that custody is

exercised effectively when the custodian is concerned with the

care of the child's person, even if, for perfectly valid reasons

(illness, education, etc.) in a particular case, the child and

its guardian do not live together. It follows from this that the

question of whether custody is actually exercised or not must be

determined by the individual judge, according to the

circumstances of each particular case.

Moreover, by relating this paragraph to the definition of

wrongful removal or retention in article 3, one must conclude

that proof that custody was not actually exercised does not form

an exception to the duty to return the child if the dispossessed

guardian was unable actually to exercise his rights precisely

because of the action of the abductor. In fact, the

categorization of protected situations, contained in article 3,

governs the whole Convention, and cannot be contradicted by a

contrary interpretation of any of the other articles.

On the other hand, the guardian's conduct can also alter the

characterization of the abductor's action, in cases where he has

agreed to, or thereafter acquiesced in, the removal which he now

seeks to challenge. This fact allowed the deletion of any

reference to the exercise of custody rights `in good faith', and

at the same time prevented the Convention from being used as a

vehicle for possible 'bargaining' between the parties.

116 The exceptions contained in b deal with situations where

international child abduction has indeed occurred, but where the

return of the child would be contrary to its interests, as that

phrase is understood in this sub-paragraph. Each of the terms

used in this provision is the result of a fragile compromise

reached during the deliberations of the Special Commission and

has been kept unaltered. Thus it cannot be inferred, a contrario,

from the rejection during the Fourteenth Session of proposals

favouring the inclusion of an express provision stating that this

exception could not be invoked if the return of the child might

harm its economic or educational prospects,44 that the

exceptions are to receive a wide interpretation.

117 Nothing requires to be added to the preceding commentary

on the second paragraph of this article (notably in No 31,

supra.)

The third paragraph contains a very different provision which is

in fact procedural in nature and seeks on the one hand to

compensate for the burden of proof placed on the person who

opposes the return of the child, and on the other hand to

increase the usefulness of information suppLied by the

authorities of the State of the child's habitual residence. Such

information, emanating from either the Central Authority or any

other competent authority, may be particularly valuable in

allowing the requested authorities to determine the existence of

those circumstances which underlie the exceptions contained in

the first two paragraphs of this article.

118 It is significant that the possibility, acknowledged in

article 2O, that the child may not be returned when its return

'would not be permitted by the fundamental principles of the

requested State relating to the protection of human rights and

fundamental freedoms' has been placed in the last article of the

chapter: it was thus intended to emphasize the always clearly

exceptional nature of this provision's application. As for the

substance of this provision, two comments only are required.

Firstly, even if its literal meaning is strongly reminiscent of

the terminology used in international texts concerning the

protection of human rights, this particular rule is not directed

at developments which have occurred on the international level,

but is concerned only with the principles accepted by the law of

the requested State, either through general international law and

treaty law, or through internal legislation. Consequently, so as

to be able to refuse to return a child on the basis of this

article, it will be necessary to show that the fundamental

principles of the requested State concerning the subject matter

of the Convention do not permit it; it will not be sufficient to

show merely that its return would be incompatible, even

manifestly incompatible, with these principles. Secondly, such

principles must not be invoked any more frequently, nor must

their invocation be more readily admissible than they would be in

their application to purely internal matters. Otherwise, the

provision would be discriminatory in itself, and opposed to one

of the most widely recognized fundamental principles in internal

laws. A study of the case law of different countries shows that

the application by ordinary judges of the laws on human rights

and fundamental freedoms is undertaken with a care which one must

expect to see maintained in the international situations which

the Convention has in view.

Article 14 - Relaxation of the requirements of proof of foreign

law.

119 Since the wrongful nature of a child's removal is made to

depend, in terms of the Convention on its having occurred as the

result of a breach of the actual exercise of custody rights

conferred by the law of the child's habitual residence, it is

clear that the authorities of the requested State will have to

take this law into consideration when deciding whether the child

should be returned. In this sense, the provision in article 13

the preliminary draft Convention,45 that the authorities 'shall

have regard to' the law of the child's habitual residence, could

be regarded as superfluous. However, such a provision would on

the one hand underline the fact that there is no question of

applying that law, but merely of using it as a means of

evaluating the conduct of the parties, while on the other hand,

in so far as it applied to decisions which could underlie the

custody rights that had been breached, it would make the

Convention appear to be a sort of lex specialis, according to

which those decisions would receive effect in directly in the

requested State, an effect which would not be made conditional on

the obtaining of an exequatur or any other method of recognition

of foreign judgments.

Since the first aspect of article 14 necessarily derives from

other provisions of the Convention, the actual purport of article

14 is concerned only with the second. The article therefore

appears as an optional provision for proving the law of the

child's residence and according to which the authority concerned

`may take notice directly of the law of, and of judicial or

administrative decisions, formally recognized or not in the State

of habitual residence of the child, without recourse to the

specific procedures for the proof of that law or for the

recognition of foreign decisions which would otherwise be

applicable'. There is no need to stress the practical importance

this rule may have in leading to the speedy decisions which are

fundamental to the working of the Convention.

Article 15 - The possibility of requesting a decision or other

determination from the authorities of the child's habitual

residence.

120 This article answers to the difficulties which the

competent authorities of the requested State might experience in

reaching a decision on an application for the return of a child

through being uncertain of how the law of the child's habitual

residence will apply in a particular case. Where this is so, the

authorities concerned can request 'that the applicant obtain from

the authorities of the State of the habitual residence of the

child a decision or other determination'. Only two comments will

be made here. The first concerns the voluntary nature of the

request, in the sense that the return of the child cannot be made

conditional upon such decision or other determination being

provided. This conclusion arises in fact as much from the actual

terms of the article (which speaks of 'requesting' and not

'requiring') as from the fact acknowledged in the same provision,

that it may be impossible to obtain the requested documents in

the State of the child's residence. Now, with regard to this last

point, the duty which the article places upon Central Authorities

to help the applicant obtain the decision or determination must

make his task easier, since the Central Authority can provide a

certificate concerning its relevant law in terms of article

8(3)(f). Secondly, the contents of the decision or certificate

must have a bearing upon the wrongful nature, in the Convention

sense, of the removal or retention. This means, in our opinion,

that one or the other will have to contain a decision on the two

elements in article 3, and thus establish that the removal was in

breach of custody rights which, prima facie, were being exercised

legitimately and in actual fact, in terms of the law of the

child's habitual residence.

Article 16 -- Prohibition against deciding upon the merits of

custody rights.

121 This article, so as to promote the realization of the

Convention's objects regarding the return of the child, seeks to

prevent a decision on the merits of the right to custody being

taken in the State of refuge. To this end, the competent

authorities in this State are forbidden to adjudicate on the

matter when they have been informed that the child in question

has been, in terms of the Convention, wrongfully removed or

retained. This prohibition will disappear when it is shown that,

according to the Convention, it is not appropriate to return the

child, or where a reasonable period of time has elapsed without

an application under the Convention having been lodged. The two

sets of circumstances which can put an end to the duty contained

in the article are very different, both in the reasons behind

them and in their consequences. In fact, it is perfectly logical

to provide that this obligation will cease as soon as it is

established that the conditions for a child's return have not

been met, either because the parties have come to an amicable

arrangement or because it is appropriate to consider on the

exceptions provided for in articles 13 and 20. Moreover, in such

cases, the decision on the merits of the custody rights will

finally dispose of the case.

On the other hand, since the 'notice' which may justify the

prohibition against deciding upon the merits of the case must

derive either from an application for the return of the child

which is submitted directly by the applicant, or from an official

communication from the Central Authority of the same State, it is

difficult to see how cases in which the notice is not followed by

an application would not be contained within the first

hypothesis. Moreover, if such situations do exist, the ambiguity

in the phrase `reasonable time' could lead to decisions being

taken before the period of one year, contained in article 12,

first paragraph, has expired; in such a case, this decision would

coexist alongside the duty to return the child, in accordance

with the Convention, thus giving rise to a problem which is dealt

with in article 17.

Article 17 -- The existence of a decision on custody in the

requested State.

122 The origins of this article clearly demonstrate the end

pursued. The First Commission initially adopted a provision which

gave absolute priority to the application of the Convention, by

making the duty to return the child prevail over any other

decision on custody, which had been issued or was likely to be

issued in the requested State. At the same time, it accepted the

possibility of a reservation allowing the return of the child to

be refused, when its return was shown to be incompatible with a

decision existing in the State of refuge, prior to the

`abduction'.46 The current text is therefore the result of a

compromise which was reached in order to eliminate a reservation

in the Convention, without at the same time reducing the extent

of its acceptability to the States.47 In this way, the original

provision was recast by emphasizing that the sole fact that a

decision existed would not of itself prevent the return of the

child, and by allowing judges to take into consideration the

reasons for this decision in coming to a decision themselves on

the application for the child's return.

123 The solution contained in this article accords perfectly

with the object of the Convention, which is to discourage

potential abductors, who will not be able to defend their action

by means either of a 'dead' decision taken prior to the removal

but never put into effect, or of a decision obtained

subsequently, which will, in the majority of cases, be vitiated

by fraud. Consequently, the competent authority of the requested

State will have to regard the application for the child's return

as proof of the fact that a new factor has been introduced which

obliges it to reconsider a decision which has not been put into

effect, or which was taken on the basis of exorbitant grounds of

jurisdiction, or else failed to have regard to the right of all

the parties concerned to state their case. Moreover, since the

decision on the return of the child is not concerned with the

merits of custody rights, the reasons for the decision which may

be taken into consideration are limited to those which concern

`the application of the Convention'. A situation brought about by

a decision issued by the authorities of the State of a child's

habitual residence prior to its 'abduction' and which granted

custody to the 'abductor', would normally be resolved by applying

article 3 of the Convention, since the existence of a claimed

right to custody must be understood in accordance with the law of

that State.

Article 19 - Scope of the decisions on the return of the child

124 This provision expresses an idea which underlies the whole

of the Convention; as a matter of fact. in this Report we have

already been concerned on several occasions as much with the

reasons for it as with commenting upon it. This article is

restricted to stating the scope of decisions taken regarding the

return of the child which the Convention seeks to guarantee, a

return which, so as to be 'forthwith' or 'speedy', must not

prejudge the merits of custody rights; this provision seeks to

prevent a later decision on these rights being influenced by a

change of circumstances brought about by the unilateral action of

one of the parties.

CHAPTER IV - RIGHTS OF ACCESS

Article 21

125 Above all, it must be recognized that the Convention does

not seek to regulate access rights in an exhaustive manner; this

would undoubtedly go beyond the scope of the Convention's

objectives. Indeed, even if the attention which has been paid to

access rights results from the belief that they are the normal

corollary of custody rights, it sufficed at the Convention level

merely to secure co-operation among Central Authorities as

regards either their organization or the protection of their

actual exercise. In other respects, the best indication of the

high level of agreement reached regarding access rights is the

particularly short amount of time devoted to them by the First

Commission.

126 As we have just pointed out, the article as a whole rests

upon co-operation among Central Authorities. A proposal which

sought to insert a provision in a new paragraph that both the

authorities and the law of the State of the child's habitual

residence should have exclusive jurisdiction in questions of

access rights, was rejected by a large majority.48 The

organizing and securing of the actual exercise of access rights

was thus always seen by the Convention as an essential function

of the Central Authorities. Understood thus, the first paragraph

contains two important points; in the first place, the freedom of

individuals to apply to the Central Authority of their choice,

and secondly the fact that the purpose of the application to the

Central Authority can be either the organization of access

rights, i.e., their establishment, or the protection of the

exercise of previously determined access rights. Now, recourse to

legal proceedings will arise very frequently, especially when the

application seeks to organize rights which are merely claimed or

when their exercise runs up against opposition from the holder of

the rights of custody. With this in view, the article's third

paragraph envisages the possibility of Central Authorities

initiating or assisting in such proceedings, either directly, or

through intermediaries.

127 The nature of the problems tackled in the second paragraph

is very different. Here it is a question of securing the peaceful

enjoyment of access rights without endangering custody rights.

This provision therefore contains important elements for the

attainment of this end, once again, co-operation among Central

Authorities is placed, of necessity, in the very centre of the

picture, and it is a co-operation designed as much to promote the

exercise of access rights as to guarantee the fulfillment of any

conditions to which their exercise may be subject.

Of all the specific ways of securing the exercise of access

rights, article 21 contains only one, where it points out that

the Central Authority must try 'to remove, as far as possible,

all obstacles to the exercise of such rights', obstacles which

may be legal ones or may originate in possible criminal

liability. The rest is left up to the co-operation among Central

Authorities, which is regarded as the best means of ensuring

respect for the conditions imposed upon the exercise of access

rights. In fact, such respect is the only means of guaranteeing

to the custodian that their exercise will not harm his own

rights.

128 The Convention gives no examples of how Central

Authorities are to organize this co-operation so as to secure the

'innocent' exercise of access rights, since such examples could

have been interpreted restrictively. Mention could however be

made purely indicatively as in the Report of the preliminary

draft Convention,49 of the fact that it would be advisable that

the child's name not appear on the passport of the holder of the

right of access, whilst in `transfrontier' access cases it would

be sensible for the holder of the access rights to give an

undertaking to the Central Authorities of the child's habitual

residence to return the child on a particular date and to

indicate also the places where he intends to stay with the child.

A copy of such an undertaking would then be sent to the Central

Authority of the habitual residence of the holder of the access

rights, as well as to the Central Authority of the State in which

he has stated his intention of staying with the child. This would

enable the authorities to know the whereabouts of the child at

any time and to set in motion proceedings for bringing about its

return, as soon as the stated time-limit has expired. Of course,

none of the measures could by itself ensure that access rights

are exercised properly, but in any event we believe that this

Report can go no further: the specific measures which the Central

Authorities concerned are able to take will depend on the

circumstances of each case and on the capacity to act enjoyed by

each Central Authority.

CHAPTER V - GENERAL PROVISIONS

129 This chapter contains a series of provisions which differ

according to the topics with which they deal, and which had to be

dealt with outside the framework of the foregoing chapters. On

the one hand, there are certain procedural provisions common both

to the proceedings for the return of the child and to the

organization of access rights, and on the other hand there are

provisions for regulating the problems arising out of the

Convention's application in States with more than one system of

law, as well as those which concern its relationship with other

conventions and its scope ratione temporis.

Article 22 - `Cautio judicatium solvi'

l30 Following a marked tendency to favour the deletion

from the Convention of procedural measures which discriminated

against foreigners, this article declares that no security, bond

or deposit, however described, shall be required within the

context of the Convention. Two short comments are in order here.

The first concerns the scope of the stated prohibition ratione

personae; on this point, an extremely liberal solution was

arrived at, such as was required by a convention built upon the

basic idea of protecting children.50 Secondly, the security,

bond or deposit from which foreigners are exempt are those which,

in any legal system and howsoever described, are meant to

guarantee respect for decisions on the payment of costs and

expenses arising out of legal proceedings. The article, in its

concern for coherence, states that the rule will apply only to

those 'judicial or administrative proceedings falling within the

scope of the Convention', and avoids a wider formulation which

could have been interpreted as applicable, for example, to

proceedings raised directly for a decision on the merits of

custody rights. On the other hand, it can clearly be inferred

from the preceding observations that it does not prevent other

types of security, bond or deposit being required, particularly

those which are imposed so as to guarantee the proper exercise of

access rights.

Article 23 - Exemption from legalization

131 This article repeats word for word the text of the

equivalent article in the preliminary draft Convention, which

merely set forth in a separate provision an idea which is to be

found in all Hague Conventions, involving the transmission of

documents among Contracting States. The fact that it has been

drafted in wide terms means that not only `diplomatic

legalization', but also any other similar sort of requirement, is

forbidden. However, any requirement of the internal law of the

authorities in question that copies or private documents be

authenticated remains outside the scope of this provision.

Article 24 - Translation of documents

132 As regards the languages which are to be used as among

Central Authorities, the Convention upheld the approach in the

Preliminary Draft, by which documents are to he sent in their

original language, accompanied by a translation into one of the

official languages of the requested State or, where that is not

feasible, a translation into French or English.51 In this

matter, the Convention also allows a reservation to be made in

terms of article 42, under which a Contracting State can object

to the use of one or other of the substitute languages, but this

reservation cannot of course exclude the use of both. Finally, it

must be emphasized firstly that the scheme which has been chosen

offers only a minimal facility and may be improved upon by other

conventions which exclude any requirement of translation as among

States which are Party to them, and secondly that it governs only

communications among Central Authorities. Consequently,

applications and other documents sent to internal judicial or

administrative authorities will have to conform to the rules

regarding translation laid down by the law of each State.

Article 25 - Legal aid and advice

133 The relevant provision here enlarges the scope of legal

aid in two respects. Firstly, it includes among the possible

beneficiaries persons habitually resident in a Contracting State

as well as that State's own nationals. Secondly, the legal aid

available is extended to cover legal advice as well, which is not

invariably included in the various systems of legal aid operated

by States.52

Article 26 - Costs arising out of the Convention's application.

134 The principle enunciated in the first paragraph, under

which each Central Authority hears its own costs in applying the

Convention, met no opposition. Quite simply, it means that a

Central Authority cannot claim costs from another Central

Authority. It must however be admitted that the costs envisaged

will depend on the actual services provided by each Central

Authority, according to the freedom of action conferred upon it

by the internal law of the State concerned.

135 On the other hand, the second paragraph refers to one of

the most controversial matters dealt with by the Fourteenth

Session, a matter which in the end had to be resolved by

accepting the reservation in the third paragraph of the same

article. In fact, the argument between those delegations which

wanted the applicant to be exempt from all costs arising out of

the application of the Convention (including exemption from all

costs and expenses not covered by the legal aid and advice system

such as those which arise out of legal proceedings or, where

applicable, the participation of counsel or legal advisors), and

those which favoured the opposite solution adopted by the

preliminary draft Convention,53 was resolved only by including

a reservation favouring the latter's point of view. The reason

for this was that, since different criteria for the granting of

legal aid were rooted in the very structure of the legal systems

concerned, any attempt to make one approach prevail absolutely

over the others would have led to the automatic exclusion of

certain States from the Convention, a result which no one wanted.

54However, there was total agreement as regards the rule

contained in the last sentence of the second paragraph,

authorizing the Central Authorities to `require the payment of

the expenses incurred or to be incurred in implementing the

return of the child'.

136 The fourth paragraph contains a quite different type of

provision, by which the competent internal authorities may direct

the 'abductor' or the person who prevented the exercise of access

rights, to pay necessary expenses incurred by or on behalf of the

applicant, including 'travel expenses, any costs incurred or

payments made for locating the child, the costs of legal

representation of the applicant, and those of returning the

child'. But since this rule is only an optional provision, which

recognizes the discretion which may be exercised by the courts in

each case, its scope would seem to be particularly symbolic, a

possible deterrent to behaviour which is contrary to the objects

of the Convention.

137 Common sense would indicate that Central Authorities

cannot be obliged to accept applications which belong outside the

scope of the Convention or are manifestly without foundation. In

such cases, the only duty of Central Authorities is to `inform

forthwith the applicant or the Central Authority through which

the application was submitted, as the case may be, of its

reasons'. This means that an application may be rejected by the

Central Authority to which the applicant applied directly as well

as by a Central Authority which was initially brought into the

case by another Central Authority.

Article 28 - Authorization required by the Central Authority

138 The provision in this article is merely another example of

the Convention's attitude to the organization and powers of

Central Authorities. Since the aim is to avoid requiring States

to change their own law in order to be able to accept the

Convention, the Convention takes into consideration the fact

that, in terms of the law of various Member States of the

Conference the Central Authority would have the power to require

some authorization from the applicant. As a matter of fact, the

`model form', as an example of the documents which might be

attached to an application (see note to No IX), brings in a

reference to 'the authorization empowering the Central Authority

to act on behalf of the applicant', an authorization which, every

time it is required by a Central Authority, will have to

accompany those matters listed in article 8 and the applications

submitted under article 21.

Article 39 - Direct application to competent internal

authorities.

139 The Convention does not seek to establish a system for the

return of children which is exclusively for the benefit of the

Contracting States. It is put forward rather as an additional

means for helping persons whose custody or access rights have

been breached. Consequently, those persons can either have

recourse to the Central Authorities - in other words, use the

means provided in the Convention - or else pursue a direct action

before the competent authorities in matters of custody and access

in the State where the child is located. In the latter case,

whenever the persons concerned opt to apply directly to the

relevant authorities, a second choice is open to them in that

they can submit their application 'whether or not under the

provisions of this Convention'. In the latter case the

authorities are not of course obliged to apply the provisions of

the Convention, unless the State has incorporated them into its

internal law, in terms of article 2 of the Convention.

Article 30 - Admissibility of documents

140 This provision was intended to resolve the problem which

existed in some Member States regarding the admissibility of

documents. it merely seeks to facilitate admission before the

judicial or administrative authorities of Contracting States of

applications submitted either directly or through the

intervention of a Central Authority, as well as documents which

may be attached or supplied by the Central Authorities. in fact,

this article must not be understood to contain a rule on the

evidential value which is to be placed on these documents, since

that problem falls quite outwith the scope of the Convention.55

Articles 31 to 33 - Application of the Convention in relation to

States with more than one system of law.

141 These three articles govern the Convention's application

to States with non-unitary legal systems. As in recent

conventions of the Hague Conference, a distinction has been drawn

between States which have several systems of law applicable in

different territorial units, and those with several systems of

law applicable to different categories of persons. To be more

precise, the solution adopted received its inspiration from that

reached by the conventions drawn up during the Thirteenth Session

of the Conference.56

As regards the first group of States, article 31 explains how

references to the child's habitual residence and to the law of

the State of its habitual residence are to be understood.

As regards the second type, article 32 leaves the determination

of the applicable law to the rules in force in each State.

Finally, it must be emphasized that the substantive provisions of

these two articles are not restricted to the States directly

concerned. In actual fact, the relevant rules are to be taken

into consideration by all Contracting States in their relations

with each other, for example whenever a child is removed from one

of those States to another State with a unified or non-unified

legal system.

142 On the other hand, article 33 limits the occasions where

States with more than one system of law are obliged to apply the

Convention, by excluding those in which a State with a unified

system of law would not be bound to do so. Put shortly, this

article merely states that the Convention applies only at the

international level and at the same time characterizes as

internal all those relationships which arise within a State,

whether or not that State has more than one system of law.

Article 34 - Relationship to other conventions

143 This article was commented upon in the first part of the

Report (Nos 39 and 40).

Article 35 - Scope of the Convention ratione temporis

l44 The question as to whether the Convention should apply to

abductions involving two States and which occurred prior to its

entry into force or only to those occurring thereafter, was met

with different proposed solutions during the Fourteenth Session.

The first proposal was undoubtedly the most liberal, since it

envisaged the Convention's applying to all 'abductions',

irrespective of when it came into effect.57 However, this

decision was followed by acceptance of the idea that any

contracting State could declare that the Convention would apply

only to `abductions' which occurred after its entry into force in

that State...'58 The situation therefore remained largely

unresolved, with each State, where it deemed this necessary,

being able to limit the Convention's application. it was clear

that the operation of such declarations within a convention which

is clearly bilateral in its application would create some

technical problems, to alleviate which the First Commission

finally pronounced itself in favour of the opposite solution to

that first adopted, i.e. the more restrictive. It is seen

therefore in article 35, by which the Convention is to apply as

among Contracting States `only to wrongful removals or retentions

occurring after its entry into force in those States'.59 On the

other hand, the inference must be drawn from the Convention's

provisions as a whole (and in particular article 12, second

paragraph) that no time-limit is imposed on the submission of

applications, provided the child has not reached sixteen years of

age, in terms of article 4. In fact, the commencement of an

action after the expiry of the one year period stated in the

first paragraph of article 12, merely lessens the obligation to

cause the child to be returned, whilst it is recognized that the

obligation will not arise if the child is shown to have become

settled in its new environment.

145 The provision certainly has the merit of being clear.

However, it cannot be denied that its application is fated to

frustrate the legitimate expectations of the individuals

concerned. But since in the last resort it is a limitation on the

duty to return the child, it in no way prevents two or more

States agreeing amongst themselves to derogate from it in terms

of article 36, by agreeing to apply the Convention retroactively.

Moreover, the provision concerns only those provisions in the

Convention regarding the return of the child. In actual fact, the

provision of the Convention governing access rights can, in the

nature of things, only be invoked where their exercise is refused

or continues to be refused after the Convention has come into

force,

Article 36 - Possibility of limiting by agreement the restricts

on the return of the child.

146 This article, conform to the general principles underlying

the Convention, which are based on the experience derived from

other Hague Conventions,60 allows two or more Contracting

States to agree to derogate as amongst themselves from any of the

Convention's provisions which may involve restrictions on the

return of the child, in particular those contained in articles 13

and 20. This demonstrates, on the one hand, the compromise

character of some of the Convention's provisions and the

possibility that criteria more favourable to the principal object

of the Convention may be adopted to govern relationships among

States which share very similar legal concepts, while on the

other hand, as we have emphasized on several occasions throughout

this Report, the Convention is not to be regarded as in any way

exclusive in its scope, Now, if such supplementary conventions

see the light of day, one negative consequence, feared by some

delegations, will have to be avoided, namely that beyond the

geographical limits of such agreements, the States concerned will

be tempted to interpret the limitations contained in the

Convention in a wide sense, thus weakening its scope.61

147 The final clauses in articles 37 to 45 of the Convention

have been drafted in accordance with similar provisions adopted

by the most recent sessions of the Hague Conference. No detailed

commentary is therefore necessary and we shall make only a few

brief comments on them.

Firstly, the adaptation of the final clauses to the decision

which was taken on the conditional opening of the Convention to

non-Member States. This point has been dealt with earlier,62 and

it is sufficient merely to emphasize here that the 'semi-closed'

character of the Convention derives from the means by which

States Parties may declare their acceptance and not from any

restriction placed on the States which may accede to it (article

38).

148 With regard to the `degree' of acceptance of the

Convention by States which contain two or more territorial units

in which different systems of law are applicable to matters dealt

with in this Convention, article 40 provides that they may

declare - at the time of signature, ratification, acceptance,

approval or accession - that the Convention shall extend to all

its territorial units or only to one or more of them. Such a

declaration can be modified at any time by another more extensive

declaration. Actually, any modification of a declaration which

tends to limit the applicability of the Convention ought to be

regarded as a partial denunciation in terms of article 44, third

paragraph.

Under article 39, the same result will occur with regard to

States which are responsible for the international relations of

other territories. Although such situations are meant to

disappear as a logical consequence of the progressive application