THE 1980 HAGUE CONVENTION

ON CHILD ABDUCTION
&
THE BRUSSELS IIa REGULATION
The Right to Judicial Protection: Administration
of Justice in Cross-border Disputes
Belgrade, 19 November 2010

Philippe LORTIE, First Secretary

Hague Conference on Private International Law
INTERNATIONAL RESPONSIBILITIES (1)
UN Convention on the Rights of the Child
Article 9(3)

States Parties shall respect the right of

the child who is separated from one or
both parents to maintain personal
relations and direct contact with both
parents on a regular basis, except if it is
contrary to the child’s best interests.

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INTERNATIONAL RESPONSIBILITIES (2)
UN Convention on the Rights of the Child
Article 10(2)

A child whose parents reside in different

States should have the right to maintain
on a regular basis, save in exceptional
circumstances, personal relations and
direct contacts with both parents.

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INTERNATIONAL RESPONSIBILITIES (3)
UN Convention on the Rights of the Child
Article 11

1. States Parties shall take measures to

combat the illicit transfer and non-
return of children abroad.
2. To this end, States Parties shall
promote the conclusion of bilateral or
multilateral agreements or accession
to existing agreements.
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 The Hague Convention of
25 October 1980 on the Civil Aspects of
International Child Abduction

Concluded 25 October 1980

Entered into Force 1 December 1983

82 States Parties 14 September 2010

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82 Contracting States to the Hague Convention of 25 October
1980 on the Civil Aspects of International Child Abduction

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 82 States Parties to the 1980 Convention
China (Hong Kong Georgia Monaco Slovenia
Albania
& Macau SAR’s) Germany Montenegro South Africa
Argentina
Colombia Greece Morocco Spain
Armenia
Costa Rica Guatemala Netherlands Sri Lanka
Australia
Croatia Honduras New Zealand Sweden
Austria
Cyprus Hungary Nicaragua Switzerland
Bahamas
Czech Republic Iceland Norway Thailand
Belarus
Denmark Ireland Panama Trinidad and Tobago
Belgium
Dominican Israel Paraguay Turkey
Belize Republic
Italy Peru Turkmenistan
Bosnia & Ecuador
Herzegovina Latvia Poland Ukraine
El Salvador
Brazil Lithuania Portugal United Kingdom
Estonia
Bulgaria Luxembourg Romania United States of
Fiji America
Burkina Faso Malta Saint Kitts & Nevis
Finland Uruguay
Canada Mauritius San Marino
Former Yugoslav Uzbekistan
Chile Republic of Mexico Seychelles
Venezuela
Macedonia Moldova Serbia
Zimbabwe
France Slovakia 7
 Objectives of the
Child Abduction Convention
 To protect children from the harmful
effects of their wrongful removal or
retention across international boundaries.

 To ensure their prompt return to the State

of their habitual residence.

 To secure protection for rights of access.

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 Principle of prompt return
of the child
 Protects the child's right to continuing
contact with both parents.
 Supports continuity in the child's life.
 Helps to ensure that decisions concerning
custody / access are made by the appropriate
court.
 Deprives the wrongful parent of procedural
advantages that might otherwise result from
the abduction.
 Incidentally, serves as a deterrent to
abductions and wrongful retentions.
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Some of the strengths / advantages
of the Convention
 A firm structure – parents know where they stand.
 A fair and balanced structure:
– gender neutral;
– neutrality as between legal systems.
 A structure which respects and supports
fundamental rights.
 A rapid procedure – minimising the damage
resulting from a rupture in a parent / child
relationship.
 A structure which promotes agreed solutions.
 A system which removes burdens from consular
authorities.
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 Scope issues
 This Convention shall apply as between
Contracting States only to wrongful removals
or retentions occurring after its entry into
force in those States (Art. 35)

 The Convention shall apply to any child who

was habitually resident in a Contracting State
immediately before any breach of custody or
access rights (Art. 4)

 The Convention shall cease to apply when the

child attains the age of 16 years. (Art. 4)
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 Basic framework and process:

 Following a removal or retention of a child

from one Contracting State to another, the
left-behind person may apply for the return of
the child.

 Application may be via Central Authorities.

 Central Authority in requested State (where

the child is present) will assist in locating the
child, and will facilitate the institution of
return proceedings before the authorities of
that State.

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In front of the requested authority the
left-behind parent must establish:
(1) that the child was habitually residing in a
Contracting State immediately before the
removal or retention (Article 3 a));

(2) that the removal or retention of the child

constituted a breach of custody rights
under the law of that State (Article 3 b));
and

(3) that the applicant was actually exercising

those custody rights at the time of, or
would have exercised those rights but for,
the removal or retention (Article 3 b)).
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 Habitual residence
 “Habitual residence” is not defined by the
Convention.
 Courts have tended to treat habitual residence
as a factual concept, having regard to matters
such as, inter alia:
 Schooling
 School Life
 Family Situation
 Which country was the focal point of the
child’s life prior to removal or retention?

See cases on <http://www.incadat.com>

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Wrongful removal / retention

 The removal or retention of a child may

be considered wrongful if it is in breach
of rights of custody attributed to a
person, an institution or any other body,
either jointly or alone, under the law of
the State in which the child was
habitually resident immediately before
the removal or retention (Article 3 a)).

See cases on <http://www.incadat.com>

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 Rights of custody

 Rights relating to the care of the person

of the child, and, in particular;

 The right to determine the child’s place

of residence (Article 5);

 Rights may arise by operation of law, a

judicial or administrative decision or by a
legal agreement (Article 3).

 See cases on <http://www.incadat.com>

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 Convention obligations

A court must return a wrongfully

removed or retained child below the
age of 16 if application is made within
one year from the date of the removal
or retention

UNLESS it is demonstrated that:

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 Exceptions to return (1)

 The abandoned parent gave permission

for the child to be removed or retained
(by consent or subsequent
acquiescence) (Article 13(1) a)); or

 There is a grave risk that the return

would expose the child to physical or
psychological harm or otherwise place
the child in an intolerable situation
(Article 13(1) b)); or

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 Exceptions to return (2)

 The child objects to being returned and

has reached an age and degree of
maturity at which the court can take
account of the child’s views
(Article 13(2));
or

 The return would violate the fundamental

principles of the protection of human
rights and freedoms of the country where
the child is being held (Article 20).

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 Proceedings commenced
after one year
 Return must be ordered, unless it is
demonstrated that the child is now settled
in its new environment (Art. 12(2)).

 Even then return may be ordered (Art. 18).

 A return order is not a determination on

the merits of any custody issue (Art. 19)

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The Convention has become embedded in
National legal systems

 In many States it is viewed as a means by

which the State fulfills its obligations to
preserve family relationships. See, for
example, the case law under Article 8 of the
European Convention on Human Rights.

 The Convention has been judged to be in

accordance with national Constitutions or
Charters of Rights in: Argentina, Belgium,
Canada, Czech Republic, Germany, Ireland,
South Africa, Switzerland, United States of
America.
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 Key implementation factors
 Establishment of an efficient and responsive Central
Authority (Arts 6 & 7).
 Applying expeditious procedures (Arts 2 & 11).
 Ensuring access to procedures (Arts 22, 25 & 26).
 Providing for efficient enforcement of orders.*
 Familiarising / training all actors in the Convention
processes – Central Authority personnel, judges, lawyers,
enforcement officers, etc.
 If possible, concentrating jurisdiction to hear return
applications in a limited number of judges.*
 Consideration of preventive measures.
 Structures for promoting agreement between parents.*
 Raising public awareness.
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 How to deal with enforcement
of return orders (1)
Object
 To avoid coercive measures as far as possible.
Means
 Take measures to prevent the removal or
concealment of the child during the Hague
proceedings.
 Preparation of the child for return.
 Consider the wishes and feelings of the child.
 All proceedings – first instance, appeal and
enforcement – to be conducted expeditiously.
 Return orders to be as detailed as possible on the
practical arrangements for return and usually not
to allow for delays.
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 How to deal with enforcement
of return orders (2)

• Promote voluntary compliance at all

stages.
• Involve relevant professionals where
coercive measures are necessary.
• Train all actors.
See further:
Draft Guide to Good Practice under the
1980 Hague Convention – Part IV -
Enforcement

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 Dealing with allegations of domestic
violence or child abuse

• The role of Article 13

• Measures to ensure that the return of the
child (and, where appropriate, accompanying
parent) is effected in safe and secure
conditions:
 Undertakings
 Mirror orders
 The 1996 Hague Convention
 The role of the Central Authority

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 Legal Systems in which jurisdiction to hear
return application has been concentrated in
a relatively small number of courts / judges

Australia France Northern

Ireland
Cyprus Germany
Romania
Czech Ireland
Republic Sweden
Netherlands
England and Switzerland
Wales Nicaragua

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 Why are agreed solutions important?

 The primary responsibility for securing a child’s

protection lies with the child’s parents.
 Arrangements which are agreed between the
parents are in the long-term interests of the
child because:
• they should provide a basis for ongoing co-
operation between the parents;
• they should help to avoid continuing parental
conflict and litigation;
• they are more likely to be adhered to;
• they can be tailored to suit the particular
circumstances of the family;
• they can take account of a wide range of
inter-connected issues.
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 Some Statistics
• Approximately 1300 return applications per
annum are processed globally through Central
Authorities (68% abductors are mothers)
• Of the return applications which are proceeded
with:
- 45% - voluntary return (agreement or consent
order) => 98 days average
- 30% - court ordered return
=> 143 days average
- 20% - return order refused by the court
=> 233 days average
- 5% - other (including access/contact order)
- Unknown - number of applications for return
made directly to competent authorities
• [Return applications represent 84% of Central
Authority business – other applications are for
access under Article 21] 28
 1980 CONVENTION v. BRUSSELS IIa
Overview:

• 1980 Convention remains in force between all

the Member States of the EU
• Regulation insures intra and extra-community
application of the 1980 Convention
• Regulation supplements the 1980 Convention
with a view to achieving closer co-operation and
more integration
• New rules are in conformity with the 1980
Convention and in some cases in harmony with
already existing rules or practice
 1980 CONVENTION v. BRUSSELS IIa
Overview:

• The definition of “wrongful removal or retention”

• The opportunity to be heard
• The decision must be rendered within a six-
week period
• The protection of the child after her or his
return must be arranged in advance
• The order of non-return is subject to the custody
decision of the court of the habitual residence
of the child
 Convention of 19 October 1996 on
Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in respect of
Parental Responsibility and Measures for the
Protection of Children

• Entered into force: 1 January 2002

• 25 Contracting States (as at 11 October 2010)
• Remaining EU Member States expected to
ratify imminently.
• USA, Canada and New Zealand also
considering ratification.

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 1996 Hague Child Protection Convention:
Reinforcement of the 1980 Hague Child
Abduction Convention
• Underpins primary role played by the authorities of
the child’s habitual residence (Art. 7).
• Allows court dealing with the return application to
take urgent / provisional protective measures (e.g.
contact orders and orders which help to ensure a
safe return) (Art. 11).
• Provides for the recognition of such measures in
the country to which the child is returned (Art. 23).
• Reinforces Art. 21 of the 1980 Convention
concerning rights of access (Arts 23 and 35).

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 Why is participation in a
multilateral Convention important?
 Securing the rights of children wrongfully removed
from the State of habitual residence.
 Guaranteeing assistance abroad for left-behind
parents in the State of habitual residence.
 Supporting visitation rights for parents.
 Securing international co-operation (judicial and
administrative) on the basis of a shared legal
framework.
 Benefitting from and contributing to the shared
experience of a multiplicity of legal systems.
 Fulfilling international legal obligations.
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Hague Conference Resources: International
Child Abduction Database INCADAT

• Makes accessible leading

decisions in respect of the
Hague Convention
• Currently contains
summaries of over 800
decisions
• Available in English, French
and Spanish
• Used by judges,
INCADAT also provides practitioners, Central
information on legal Authorities, researchers and
developments in respect others
of international child
abduction in States not
party to the Convention www.incadat.com 34
 Hague Conference Resources
The Hague Conference Homepage
http://www.hcch.net
• Child Abduction Section
• Latest information on the status of
the 1980 Convention
• Contact details of Central Authorities
• Judges’ Newsletter
• Bibliography (including Explanatory
Report)
Guides to Good Practice
Part I – Central Authority Practice
Part II – Implementing Measures
Part III – Preventive Measures
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Part IV - Enforcement
 Special Commission to review the
practical operation of the 1980
Child Abduction Convention
• Who: Members, Contracting States, States
with an interest, invited organisations
• What: to discuss Guide to Good Practice on
Mediation, Statistical Survey, Draft Principles
on Judicial Communications, issues of family
relocation, possible Protocol, etc.
• When: tentatively June 2011, early 2012
• Where: The Hague
• Why: to review the practical operation of the
Convention (every 4 to 5 years)
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 Information
Secretariat at the Permanent Bureau of the
Hague Conference on Private International Law

Scheveningseweg 6
2517 KT The Hague
The Netherlands

Tel: +31 (70) 363 3303 or Fax: +31 (70) 360 4867
e-mail: secretariat@hcch.net
http://www.hcch.net

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