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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
of the principle which
proclaims the right of peoples to
self-determination, the
Conference felt it advisable to keep a
clause which might yet
prove to be useful.
149 Finally, a word should
be said on article 41, since it
contains a wholly novel
provision in Hague Conventions. It also
appears in the other
Convention adopted at the Fourteenth
Session, i.e. the
Convention on International Access to Justice,
at the express request of
the Australian delegation.
This article seeks to make
it clear that ratification of the
Convention by a State will
carry no implication as to the
internal distribution of
executive, judicial and legislative
powers in that State.
This may seem
self-evident. and this is the point which the head
of the Canadian delegation
made during the debates of the Fourth
Commission where it was
decided to insert such a provision in
both Conventions (see
P.-v. No 4 of the Plenary Session). The
Canadian delegation,
openly expressing the opinion of a large
number of delegations,
regarded the insertion of this article in
the two Conventions as
unnecessary. Nevertheless, article 41 was
adopted, largely to
satisfy the Australian delegation, for which
the absence of such a
provision would apparently have created
insuperable constitutional
difficulties.
150 On the question of
reservations, the Convention allows
only those provided for in
articles 24 and 26. No other
reservation is permitted.
Moreover, article 42 sets forth the
customary provision
whereby a State can 'at any time withdraw a
reservation it has made'.
151 Finally, the
importance placed on the duty which was
assumed by the Ministry of
Foreign Affairs of the Kingdom of the
Netherlands (article 45)
to notify Member States and Contracting
States should be
emphasized, particularly in view of the rule
played by declarations of
acceptance of future accessions in a
convention such as this.
Madrid, April 1981
ELISA PEREZ-VERA
--------------------
1. Australia, Austria,
Belgium, Canada, Czechoslovakia, Denmark,
Finland, France, Germany,
Greece, Ireland, Japan, Luxemburg,
Netherlands,
Norway,Portugal, Spain, Sweden, Switzerland, United
Kingdom, United States,
Venezuela and Yugoslavia.
Representatives of the
Arab Republic of Egypt, Israel and Italy
did not participate in the
vote, despite having played an active
part in the proceedings of
the Fist Convention. Morocco, the Holy
See and the Union of the
Soviet Socialist Republics sent
observers. In the course
of the proceedings, the Fist Commission
also had at its disposal
the invaluable assistance of observers
from the Council of
Europe, the Commonwealth Secretariat and
International Social
Service.
2. Report of the Special
Commission, Nos 3 and 7 to 15.
3. The Drafting Committee,
under the chairmanship of Mr. Leal as
Vice-Chairman of the First
Commission, included Messrs Savolainen
(Finland), Chatin
(France), Jones (United Kingdom) and the
Reporter. Mr Dyer and
several recording secretaries provided the
Committee with extremely
valuable assistance.
4. Working Documents Nos
45, 55, 75, 78, 79 and 83.
5. Working Document No 59,
supplemented by the proposal of the
Secretariat in Working
Document No. 761. The Subcommittee on
'Application Clauses'
decided against changing the terms of the
articles on this topic
which had been prepared by the Special
Commission (Proces-verbal
No 12).
6. The 'Model Form'
Subcommittee under the chairmanship of
Professor Muller-Freinfels
(Federal Republic of Germany) comprised
Messrs Deschenaux
(Switzerland), Hergen (United States), Barbosa
(Portugal), Minami (Japan)
and Miss Pripp (Sweden). The
Subcommittee on
'Application Clauses', chaired by Mr. van
Boeschoten (Netherlands),
was made up of Messrs Hetu (Canada),
Hjorth (Denmark), Creswell
(Australia), Salem (Egypt) and Miss
Selby (United States).
7. See in particular the
Observations of Governments, Prel. Doc.
No. 7.
8. Prel. Doc. No. 6.
9. Explanatory Report on
the
Convention on the Law
Applicable to Matrimonial Property Regimes,
Acts and Documents of the
Thirteenth Session, Book II, p. 329.
10. See in particular the
Questionnaire and Report on
international child
abduction by one parent, prepared by Adair
Dyer, Prel. Doc. No. 1,
August 1977, supra, pp. 18-25 (hereafter
referred to as the `Dyer
Report'), and the Report on the
preliminary draft
Convention, adopted by the Special Commission,
Prel. Doc. No. 6, May
1980, supra, pp. 172-173.
11. Such an option was
rejected in the course of the first meeting
of the Special Commission.
Cf. Conclusions drawn from the
discussions of the Special
Commission of March 1979 on legal
kidnapping, prepared by
the Permanent Bureau, Prel. Doc. No 5.
June 1979, supra, pp.
163-164
12. Dyer Report, supra,
pp. 22-23
13. Parliamentary Assembly
of the Council of Europe. 31st
Ordinary Session,
Recommendation on a European Charter on the
Rights of the Child. Text
adopted on 4 October 1979.
14. Dyer Report, supra, p.
21.
15. See P.-v. No. 9 and
associated Working Documents.
16. The text was adopted
with 14 votes in favour, 6 against and 4
abstentions, see P.-v. No.
13.
17. The European
Convention on Recognition and Enforcement of
Decisions Concerning
Custody of Children and on Restoration of
Custody of Children,
adopted by the Committee of Ministers of the
Council of Europe on 30
November 1979 and opened for signing by
the members States at
Luxembourg on 20 May 1980.
18. As in article 39 of
the Convention of 18 March 1970 on the
Taking of Evidence Abroad
in Civil or Commercial Matters, see P.-v
No 13.
19. The system adopted,
among others, by the Convention on
International Access to
Justice, also adopted during the
Fourteenth Session of the
Conference.
20. Compare, for example,
article 18(3) of the Convention of 15
November 1965 on the
Service Abroad of Judicial and Extrajudicial
Documents in Civil or
Commercial Matters. Also, articles 24 and
25 of the Convention of 18
March 1970 on the Taking of Evidence
Abroad in Civil or
Commercial Matters.
21. Cf. infra, the
commentary on article 12 of the Convention
22. See the Report of the
Special Commission, No. 52
23. Cf. Working Document
No. 2 (Proposal of the United Kingdom
delegation and P.-v. No. 2
24. Cf. Working Document
No 5 (Proposal of the Canadian
delegation) and P. -v. No.
3
25. Cf. the Special
Commission Report no. 62, supra, p. 90
26. Cf. Working Document
No. 2 (Proposal of the United Kingdom
delegation); and P. -v.
No. 2
27. This interpretation is
based upon the deliberations of the
Special Commission which
led to its adopting a similar text to the
current one. See Report of
th Special Commission, No. 64, supra,
pp. 191-192
28. See Working Document
No. 58. 'Document de clarification
presente pr la delegation
italienne, for the desirability of
including such a case in
the Convention.
29. Cf. Working Documents
Nos 1 (Proposal of the United States
delegation) and 10
(Proposal of the Finnish delegation), and also
P.-v. No. 3.
30. Cf. Working Document
No. 2 (Proposal of the united Kingdom
delegation) and the debate
on this point in P. -v. Nos 3 and 13
31. For example:
Convention of 24 October 1956 on the Law
Applicable to Maintenance
Obligations in Respect of Children
(article 1; Convention of
15 Apr 1958 on the Recognition and
Enforcement of Decision
Relating to Maintenance Obligations in
Respect of Children
(article 1); Convention of 5 October 1961
Concerning the Powers of
Authorities and the Law Applicable in
Respect of the Protection
of Minors (article 12); Convention of 15
Nov 1965 on Jurisdiction,
Applicable Law and Recognition of
Decisions Relating to
Adoptions (article 1).
32. Cf. Working Document
No 4 (Proposition de la delegation belge)
and P.-v. No. 4
33. A more restrictive
approach was to be found initially in the
Dyer Report, referred to
above, entitled Report on international
child abduction by one
parent.
34. See the Judgment of
the International Court of Justice, dated
28 November 1958, on the
case concerning the application of the
Convention of 1902 for
regulating the guardianship of minors. ICJ
Reports 1958, p. 55 et
seq.
35. See, for example, the
Convention of 5 October 1961 concerning
the powers of authorities
and the applicable law in respect of the
protection of minors.
36. See article 31(1) of
the Vienna Convention of 23 May 1969 on
the law of treaties.
37. See Working Documents
No 7 (Proposal of the United States
delegation) and P.-v. Nos
4 and 14
38. See supra, No. 45
39. See supra, Nos 43 to
48
40. See Working Document
No. 9 (Proposal of the United kingdom
delegation) and P.-v. No.
5
41. See Report of the
Special Commission, No. 92
42. See Working Document
No. 25 (Proposal of the delegation of the
Federal Republic of
Germany) and P.-v. Nos 7 and 10
43. See supra, Nos 28 to
35
44. See Working Documents
Nos 12 (Proposal of the United States
delegation) and 42
(Proposition de la delegation hellenique), and
also P.-v. No. 8
45. See Report of the
Special Commission, Nos 102-103
46. Working Documents Nos
53, paragraph 2 (Proposal of the United
Kingdom delegation), 32,
article XG (Proposal of the Netherlands
delegation), and 19
(Proposal of the Japanese delegation), as well
as P.-v. No. 12.
47. See Working Document
No 77 (Proposal of the Chairman,
supported by the
Rapporteur and the delegations of Australia,
Canada, Finland, France,
the Federal Republic of Germany, Ireland,
Spain, Switzerland and the
United Kingdom) and P.-v. No. 17
48. See Working Document
No. 31 (Proposal of the Danish
delegation) and P.-v. No.
13
49. See Report of the
Special Commission, No. 110
50. See the more
restrictive construction which was incorporated
in article 14 of the
Convention on International Access to
Justice, also adopted
during the Fourteenth Session of the
Conference.
51. A somewhat different
approach is found i article 7 of the
Convention on
International Access to Justice, referred to supra.
52. See, in similar vein,
articles 1 and 2 of the Convention on
International Access to
Justice, referred t supra.
53. Article 22(2)(a) of
the Preliminary Draft prepared by the
Special Commission.
54. See Work Documents Nos
51 and 61 (Propositions de la
delegation belge) and Nos
57 and 67 (Proposals of the Canadian,
Netherlands and United
States delegations) and also P.-v. Nos 11
and 14
55. See article 26 of the
preliminary draft Convention, Working
Document No. 49 (Proposal
of the United States delegation) and
P.-v. No. 11
56. See in particular Mr.
von Overbeck's Report on the Convention
on the Law Applicable to
Matrimonial Property Regimes, in Acts and
Documents of the
Thirteenth Session, Book II, p. 374 et seq.
57. See Working Document
No. 53 (Proposal of the United Kingdom
delegation) and P.-v. No.
13
58. See Working Document
No 68 (Proposal of the Canadian
delegation) and P.-v. No.
15
59. See Working Document
No 81 (Proposal of the Chairman with the
consent of the delegations
of Austria, the Federal Republic of
Germany, Switzerland and
the United Kingdom) and P.-v. No. 18. An
oral proposal of the
Reporter that the Convention be extended to
cover situations which
occurred during the year prior to its entry
into force was not
accepted.
60. See, for example, the
Convention of 1 March 1954 on civil
procedure.
61. See Working Documents
Nos 70 (Proposition des delegations
belge, francaise et
luxembourgoise) and 80 (Proposal of the United
States delegation) as well
as P.-v. Nos 16 and 18.
62. See supra, no. 42
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