CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION
(Concluded 25 October 1980)
The States signatory to the present
Convention,
Firmly convinced that the interests of children
are of paramount importance in matters relating to
their custody,
Desiring to protect children internationally from
the harmful effects of their wrongful removal or
retention and to establish procedures to ensure their
prompt return to the State of their habitual residence,
as well as to secure protection for rights of
access,
Have resolved to conclude a Convention to this
effect, and have agreed upon the following provisions
-
CHAPTER I - SCOPE OF THE CONVENTION
Article 1 The objects of the present Convention are
-
a) to secure the prompt return of children wrongfully
removed to or retained in any Contracting State ; and
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.
Article 2
Contracting States shall take all appropriate
measures to secure within their territories the
implementation of the objects of the Convention. For
this purpose they shall use the most expeditious
procedures available.
Article 3
The removal or the retention of a child is to be
considered wrongful where -
a) 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; and
b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or
retention.
The rights of custody mentioned in sub-paragraph
a) above, may arise in particular by operation
of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal
effect under the law of that State.
Article 4
The Convention shall apply to any child who was
habitually resident in a Contracting State immediately before any breach of custody or access
rights. The Convention shall cease to apply when the child
attains the age of 16 years.
Article 5
For the purposes of this Convention -
a) "rights of custody" shall include rights relating to
the care of the person of the child and, in particular, the
right to determine the child's place of
residence;
b) "rights of access" shall include the right to take a
child for a limited period of time to a place other than
the child's habitual residence.
CHAPTER II - CENTRAL AUTHORITIES
Article 6 A Contracting State shall designate a Central Authority to discharge the
duties which are imposed by the Convention upon such
authorities.
Federal States , States with more than one system of law or States
having autonomous territorial organizations shall be free
to appoint more than one Central Authority and to specify
the territorial extent of their powers. Where a State has
appointed more than one Central Authority, it shall
designate the Central Authority to which applications may
be addressed for transmission to the appropriate Central
Authority within that State.
Article 7
Central Authorities shall co-operate with each
other and promote co-operation amongst the competent
authorities in their respective State to secure the
prompt return of children and to achieve the other
objects of this Convention.
In particular, either directly or through any
intermediary, they shall take all appropriate measures
-
a) to discover the whereabouts of a child who has been
wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to
interested parties by taking or causing to be taken
provisional measures;
c) to secure the voluntary return of the child or to
bring about an amicable resolution of the
issues;
d) to exchange, where desirable, information relating to
the social background of the child;
e) to provide information of a general character as to
the law of their State in connection with the application
of the Convention;
f) to initiate or facilitate the institution of judicial
or administrative proceedings with a view to obtaining the
return of the child and, in a proper case, to make
arrangements for organizing or securing the effective
exercise of rights of access;
g) where the circumstances so require, to provide or
facilitate the provision of legal aid and advice, including
the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be
necessary and appropriate to secure the safe return of the
child;
i) to keep each other informed with respect to the
operation of this Convention and, as far as possible, to
eliminate any obstacles to its application.
CHAPTER III - RETURN OF CHILDREN
Article 8 Any person, institution or other body claiming
that a child has been removed or retained in breach of
custody rights may apply either to the Central
Authority of the child's habitual residence or to the
Central Authority of any other Contracting State for
assistance in securing the return of the child.
The application shall contain -
a) information concerning the identity of the applicant,
of the child and of the person alleged to have removed or
retained the child;
b) where available, the date of birth of the
child;
c) the grounds on which the applicant's claim for return
of the child is based;
d) all available information relating to the whereabouts
of the child and the identity of the person with whom the
child is presumed to be.
The application may be accompanied or
supplemented by -
e) an authenticated copy of any relevant decision or
agreement;
f) a certificate or an affidavit emanating from a
Central Authority, or other competent authority of the
State of the child's habitual residence, or from a
qualified person, concerning the relevant law of that
State;
g) any other relevant document.
Article 9
If the Central Authority which receives an
application referred to in Article 8 has reason to
believe that the child is in another Contracting State,
it shall directly and without delay transmit the
application to the Central Authority of that
Contracting State and inform the requesting Central
Authority, or the applicant, as the case may be.
Article 10
The Central Authority of the State where the
child is shall take or cause to be taken all
appropriate measures in order to obtain the voluntary
return of the child.
Article 11
The judicial or administrative authorities of
Contracting States shall act expeditiously in
proceedings for the return of children.
If the judicial or administrative authority
concerned has not reached a decision within six weeks
from the date of commencement of the proceedings, the
applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central
Authority of the requesting State, shall have the right
to request a statement of the reasons for the delay. If
a reply is received by the Central Authority of the
requested State, that Authority shall transmit the
reply to the Central Authority of the requesting State,
or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or
administrative authority of the Contracting State where
the child is, a period of less than one year has
elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the
return of the child forthwith.
The judicial or administrative authority, even
where the proceedings have been commenced after the
expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the
child, unless it is demonstrated that the child is now
settled in its new environment.
Where the judicial or administrative authority in
the requested State has reason to believe that the
child has been taken to another State, it may stay the
proceedings or dismiss the application for the return
of the child.
Article 13
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return of
the child if the person, institution or other body
which opposes its return establishes that -
a) the person, institution or other body having the care
of the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention; or
b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable
situation.
The judicial or administrative authority may also
refuse to order the return of the child if it finds
that the child objects to being returned and has
attained an age and degree of maturity at which it is
appropriate to take account of its views.
In considering the circumstances referred to in
this Article, the judicial and administrative
authorities shall take into account the information
relating to the social background of the child provided
by the Central Authority or other competent authority
of the child's habitual residence.
Article 14
In ascertaining whether there has been a wrongful
removal or retention within the meaning of Article 3,
the judicial or administrative authorities of the
requested State may take notice directly of the law of,
and of judicial or administrative decisions, formally
recognized or not in the State of the 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.
Article 15
The judicial or administrative authorities of a
Contracting State may, prior to the making of an order
for the return of the child, request that the applicant
obtain from the authorities of the State of the
habitual residence of the child a decision or other
determination that the removal or retention was
wrongful within the meaning of Article 3 of the
Convention, where such a decision or determination may
be obtained in that State. The Central Authorities of
the Contracting States shall so far as practicable
assist applicants to obtain such a decision or
determination.
Article 16
After receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the
judicial or administrative authorities of the
Contracting State to which the child has been removed
or in which it has been retained shall not decide on
the merits of rights of custody until it has been
determined that the child is not to be returned under
this Convention or unless an application under this
Convention is not lodged within a reasonable time
following receipt of the notice.
Article 17
The sole fact that a decision relating to custody
has been given in or is entitled to recognition in the
requested State shall not be a ground for refusing to
return a child under this Convention, but the judicial
or administrative authorities of the requested State
may take account of the reasons for that decision in
applying this Convention.
Article 18
The provisions of this Chapter do not limit the
power of a judicial or administrative authority to
order the return of the child at any time.
Article 19
A decision under this Convention concerning the
return of the child shall not be taken to be a
determination on the merits of any custody
issue.
Article 20
The return of the child under the provisions of
Article 12 may be refused if this would not be
permitted by the fundamental principles of the
requested State relating to the protection of human
rights and fundamental freedoms.
CHAPTER IV - RIGHTS OF ACCESS
Article 21 An application to make arrangements for
organizing or securing the effective exercise of rights
of access may be presented to the Central Authorities
of the Contracting States in the same way as an
application for the return of a child.
The Central Authorities are bound by the
obligations of co-operation which are set forth in
Article 7 to promote the peaceful enjoyment of access
rights and the fulfilment of any conditions to which
the exercise of those rights may be subject. The
Central Authorities shall take steps to remove, as far
as possible, all obstacles to the exercise of such
rights.
The Central Authorities, either directly or
through intermediaries, may initiate or assist in the
institution of proceedings with a view to organizing or
protecting these rights and securing respect for the
conditions to which the exercise of these rights may be
subject.
CHAPTER V - GENERAL PROVISIONS
Article 22 No security, bond or deposit, however described,
shall be required to guarantee the payment of costs and
expenses in the judicial or administrative proceedings
falling within the scope of this Convention.
Article 23
No legalization or similar formality may be
required in the context of this Convention.
Article 24
Any application, communication or other document
sent to the Central Authority of the requested State
shall be in the original language, and shall be
accompanied by a translation into the official language
or one of the official languages of the requested State
or, where that is not feasible, a translation into
French or English.
However, a Contracting State may, by making a reservation in accordance with
Article 42, object to the use of either French or English,
but not both, in any application, communication or other
document sent to its Central Authority.
Article 25
Nationals of the Contracting States and persons
who are habitually resident within those States shall
be entitled in matters concerned with the application
of this Convention to legal aid and advice in any other
Contracting State on the same conditions as if they
themselves were nationals of and habitually resident in
that State.
Article 26
Each Central Authority shall bear its own costs
in applying this Convention.
Central Authorities and other public services of
Contracting States shall not impose any charges in
relation to applications submitted under this
Convention. In particular, they may not require any
payment from the applicant towards the costs and
expenses of the proceedings or, where applicable, those
arising from the participation of legal counsel or
advisers. However, they may require the payment of the
expenses incurred or to be incurred in implementing the
return of the child.
However, a Contracting State may, by making a
reservation in accordance with Article 42, declare that
it shall not be bound to assume any costs referred to
in the preceding paragraph resulting from the
participation of legal counsel or advisers or from
court proceedings, except insofar as those costs may be
covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an
order concerning rights of access under this
Convention, the judicial or administrative authorities
may, where appropriate, direct the person who removed
or retained the child, or who prevented the exercise of
rights of access, 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.
Article 27
When it is manifest that the requirements of this
Convention are not fulfilled or that the application is
otherwise not well founded, a Central Authority is not
bound to accept the application. In that case, the
Central Authority shall forthwith inform the applicant
or the Central Authority through which the application
was submitted, as the case may be, of its
reasons.
Article 28
A Central Authority may require that the
application be accompanied by a written authorization
empowering it to act on behalf of the applicant, or to
designate a representative so to act.
Article 29
This Convention shall not preclude any person,
institution or body who claims that there has been a breach
of custody or access rights within the meaning of Article 3
or 21 from applying directly to the judicial or
administrative authorities of a Contracting State , whether or not under the provisions of this
Convention.
Article 30
Any application submitted to the Central Authorities
or directly to the judicial or administrative authorities
of a Contracting State in accordance with the terms of this Convention,
together with documents and any other information appended
thereto or provided by a Central Authority, shall be
admissible in the courts or administrative authorities of
the Contracting States.
Article 31
In relation to a State which in matters of
custody of children has two or more systems of law
applicable in different territorial units -
a) any reference to habitual residence in that State
shall be construed as referring to habitual residence in a
territorial unit of that State;
b) any reference to the law of the State of habitual
residence shall be construed as referring to the law of the
territorial unit in that State where the child habitually
resides.
Article 32
In relation to a State which in matters of
custody of children has two or more systems of law
applicable to different categories of persons, any
reference to the law of that State shall be construed
as referring to the legal system specified by the law
of that State.
Article 33
A State within which different territorial units
have their own rules of law in respect of custody of
children shall not be bound to apply this Convention
where a State with a unified system of law would not be
bound to do so.
Article 34
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. Otherwise the present
Convention shall not restrict the application of an
international instrument in force between the State of
origin and the State addressed or other law of the State
addressed for the purposes of obtaining the return of a
child who has been wrongfully removed or retained or of
organizing access rights.
Article 35
This Convention shall apply as between
Contracting States only to wrongful removals or
retentions occurring after its entry into force in
those States.
Where a declaration has been made under Article 39 or
40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or
units in relation to which this Convention
applies.
Article 36
Nothing in this Convention shall prevent two or
more Contracting States, in order to limit the
restrictions to which the return of the child may be
subject, from agreeing among themselves to derogate
from any provisions of this Convention which may imply
such a restriction.
CHAPTER VI - FINAL CLAUSES
Article 37 The Convention shall be open for signature by the
States which were Members of the Hague Conference on
Private International Law at the time of its Fourteenth
Session.
It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall
be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands .
Article 38
Any other State may accede to the
Convention.
The instrument of accession shall be deposited with
the Ministry of Foreign Affairs of the Kingdom of
the Netherlands .
The Convention shall enter into force for a State
acceding to it on the first day of the third calendar
month after the deposit of its instrument of
accession.
The 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. Such a declaration will also have to be made by
any Member State ratifying, accepting or approving the Convention
after an accession. Such declaration shall be deposited at
the Ministry of Foreign Affairs of the Kingdom of
the Netherlands ; this Ministry shall forward, through diplomatic
channels, a certified copy to each of the Contracting
States.
The Convention will enter into force as between
the acceding State and the State that has declared its
acceptance of the accession on the first day of the
third calendar month after the deposit of the
declaration of acceptance.
Article 39
Any State may, at the time of signature,
ratification, acceptance, approval or accession,
declare that the Convention shall extend to all the
territories for the international relations of which it
is responsible, or to one or more of them. Such a
declaration shall take effect at the time the
Convention enters into force for that State.
Such declaration, as well as any subsequent
extension, shall be notified to the Ministry of Foreign
Affairs of the Kingdom of the Netherlands .
Article 40
If a Contracting State has two or more
territorial units in which different systems of law are
applicable in relation to matters dealt with in this
Convention, it may at the time of signature,
ratification, acceptance, approval or accession declare
that this Convention shall extend to all its
territorial units or only to one or more of them and
may modify this declaration by submitting another
declaration at any time.
Any such declaration shall be notified to the
Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to
which the Convention applies.
Article 41
Where a Contracting State has a system of
government under which executive, judicial and
legislative powers are distributed between central and
other authorities within that State, its signature or
ratification, acceptance or approval of, or accession
to this Convention, or its making of any declaration in
terms of Article 40 shall carry no implication as to
the internal distribution of powers within that
State.
Article 42
Any State may, not later than the time of
ratification, acceptance, approval or accession, or at
the time of making a declaration in terms of Article 39
or 40, make one or both of the reservations provided
for in Article 24 and Article 26, third paragraph. No
other reservation shall be permitted.
Any State may at any time withdraw a reservation it
has made. The withdrawal shall be notified to the Ministry
of Foreign Affairs of the Kingdom of the Netherlands .
The reservation shall cease to have effect on the
first day of the third calendar month after the
notification referred to in the preceding
paragraph.
Article 43
The Convention shall enter into force on the
first day of the third calendar month after the deposit
of the third instrument of ratification, acceptance,
approval or accession referred to in Articles 37 and
38.
Thereafter the Convention shall enter into force
-
(1) for each State ratifying, accepting,
approving or acceding to it subsequently, on the first
day of the third calendar month after the deposit of
its instrument of ratification, acceptance, approval or
accession;
(2) for any territory or territorial unit to
which the Convention has been extended in conformity
with Article 39 or 40, on the first day of the third
calendar month after the notification referred to in
that Article.
Article 44
The Convention shall remain in force for five
years from the date of its entry into force in
accordance with the first paragraph of Article 43 even
for States which subsequently have ratified, accepted,
approved it or acceded to it.
If there has been no denunciation, it shall be
renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of
Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiry of the five
year period. It may be limited to certain of the
territories or territorial units to which the Convention
applies.
The denunciation shall have effect only as
regards the State which has notified it. The Convention
shall remain in force for the other Contracting
States.
Article 45
The Ministry of Foreign Affairs of the Kingdom of
the Netherlands shall notify the States Members of the Conference,
and the States which have acceded in accordance with
Article 38, of the following -
(1) the signatures and ratifications, acceptances
and approvals referred to in Article 37;
(2) the accessions referred to in Article
38;
(3) the date on which the Convention enters into
force in accordance with Article 43;
(4) the extensions referred to in Article
39;
(5) the declarations referred to in Articles 38
and 40;
(6) the reservations referred to in Article 24
and Article 26, third paragraph, and the withdrawals
referred to in Article 42;
(7) the denunciations referred to in Article
44.
In witness whereof the undersigned, being duly
authorised thereto, have signed this Convention.
Done at The Hague, on the 25th day of October,
1980, in the English and French languages, both texts
being equally authentic, in a single copy which shall
be deposited in the archives of the Government of the
Kingdom of the Netherlands, and of which a certified
copy shall be sent, through diplomatic channels, to
each of the States Members of the Hague Conference on
Private International Law at the date of its Fourteenth
Session.