EUROPEAN CONVENTION ON RECOGNITION AND
ENFORCEMENT OF DECISIONS CONCERNING
CUSTODY OF CHILDREN
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The Member States of the Council of Europe, signatory
hereto,
Recognising that in the Member States of the Council
of Europe the welfare of the child is of overriding
importance in reaching decisions concerning his
custody;
Considering that the making of arrangements to
ensure that decisions concerning the custody of a child
can be more widely recognised and enforced will provide
greater protection of the welfare of children;
Considering it desirable, with this end in view,
to emphasise that the right of access of parents is a
normal corollary to the right of custody;
Noting the increasing number of cases where
children have been improperly removed across an
international frontier and the difficulties of securing
adequate solutions to the problems caused by such
cases;
Desirous of making suitable provision to enable
the custody of children which has been arbitrarily
interrupted to be restored;
Convinced of the desirability of making
arrangements for this purpose answering to different
needs and different circumstances;
Desiring to establish legal co-operation between
their authorities,
Have agreed as follows:-
Article 1
For the purposes of this
Convention:-
(a)
'child' means a person of any
nationality, so long as he is under sixteen years of age
and has not the right to decide on his own place of
residence under the law of his habitual residence, the law
of his nationality or the internal law of the State
addressed;
(b)
'authority' means a judicial or
administrative authority;
(c)
'decision relating to custody' means a
decision of an authority in so far as it relates to the
care of the person of the child, including the right to
decide on the place of his residence, or to the right of
access to him;
(d)
'improper removal' means the removal of
a child across an international frontier in breach of a
decision relating to his custody which has been given in a
Contracting State and which is enforceable in such a State;
'improper removal' also includes:
(i)
the failure to return a child across
an international frontier at the end of a period of the
exercise of the right of access to this child or at the end
of any other temporary stay in a territory other than that
where the custody is exercised;
(ii)
a removal which is subsequently
declared unlawful within the meaning of Article 12.
Part 1
Central Authorities
Article 2
(1)
Each Contracting State shall appoint a
central authority to carry out the functions provided for
by this Convention.
(2)
Federal States and States with more
than one legal system shall be free to appoint more than
one central authority and shall determine the extent of
their competence.
(3)
The Secretary General of the Council of
Europe shall be notified of any appointment under this
Article.
Article 3
(1)
The central authorities of the
Contracting States shall co-operate with each other and
promote co-operation between the competent authorities in
their respective countries.
They shall act with all necessary despatch.
(2)
With a view to facilitating the
operation of this Convention, the central authorities of
the Contracting States:-
(a)
shall secure the transmission of
requests for information coming from competent authorities
and relating to legal or factual matters concerning pending
proceedings;
(b)
shall provide each other on request
with information about their law relating to the custody of
children and any changes in that law;
(c)
shall keep each other informed of any
difficulties likely to arise in applying the Convention
and, as far as possible, eliminate obstacles to its
application.
Article 4
(1)
Any person who has obtained in a
Contracting State a decision relating to the custody of a
child and who wishes to have that decision recognised or
enforced in another Contracting State may submit an
application for this purpose to the central authority in
any Contracting State.
(2)
The application shall be accompanied by
the documents mentioned in Article 13.
(3)
The central authority receiving the
application, if it is not the central authority in the
State addressed, shall send the documents directly and
without delay to that central authority.
(4)
The central authority receiving the
application may refuse to intervene where it is manifestly
clear that the conditions laid down by this Convention are
not satisfied.
(5)
The central authority receiving the
application shall keep the applicant informed without delay
of the progress of his application.
Article 5
(1)
The central authority in the State
addressed shall take or cause to be taken without delay all
steps which it considers to be appropriate, if necessary by
instituting proceedings before its competent authorities,
in order:-
(a)
to discover the whereabouts of the
child.
(b)
to avoid, in particular by any
necessary provisional measures, prejudice to the interests
of the child or of the applicant;
(c)
to secure the recognition or
enforcement of the decision;
(d)
to secure the delivery of the child to
the applicant where enforcement is
granted;
(e)
to inform the requesting authority of
the measures taken and their results.
(2)
Where the central authority in the
State addressed has reason to believe that the child is in
the territory of another Contracting State it shall send
the documents directly and without delay to the central
authority of that State.
(3)
With the exception of the cost of
repatriation, each Contracting State undertakes not to
claim any payment from an applicant in respect of any
measures taken under paragraph 1 of this Article by the
central authority of that State on the applicant's behalf,
including the costs of proceedings and, where applicable,
the costs incurred by the assistance of a lawyer.
(4)
If recognition or enforcement is
refused, and if the central authority of the State
addressed considers that it should comply with a request by
the applicant to bring in that State proceedings concerning
the substance of the case, that authority shall use its
best endeavours to secure the representation of the
applicant in the proceedings under conditions no less
favourable than those available to a
person who is resident in and a national of
that State and for this purpose it may, in particular,
institute proceedings before its competent authorities.
Article 6
(1)
Subject to any special agreements made
between the central authorities concerned and to the
provisions of paragraph 3 of this Article:-
(a)
communications to the central authority
of the State addressed shall be made in the official
language or in one of the official languages of that State
or be accompanied by a translation into that language;
(b)
the central authority of the State
addressed shall nevertheless accept communications made in
English or in French or accompanied by a translation into
one of these languages.
(2)
Communications coming from the central
authority of the State addressed, including the results of
enquiries carried out, may be made in the official language
or one of the official languages of that State or in
English or French.
(3)
A Contracting State may exclude wholly
or partly the provision of paragraph 1(b) of this Article.
When a Contracting State has made this
reservation any other Contracting State may also apply the
reservation in respect of that State.
PART II
Recognition and enforcement of
decisions and restoration of custody of children
Article 7
A decision relating to custody
given in a Contracting State shall be recognised and, where
it is enforceable in the State of origin, made enforceable
in every other Contracting State.
Article 8
(1)
In the case of an improper removal, the
central authority of the State addressed shall cause steps
to be taken forthwith to restore the custody of the child
where:-
(a)
At the time of the institution of the
proceedings in the State where the decision was given or at
the time of the improper removal, if earlier, the child and
his parents had as their sole nationality the nationality
of that State and the child had his habitual residence in
the territory of that State, and
(b)
a request for the restoration was made
to a central authority within a period of six months from
the date of the improper removal.
(2)
If, in accordance with the law of the
State addressed, the requirements of paragraph 1 of this
Article cannot be complied with without recourse to a
judicial authority, none of the grounds of refusal
specified in this Convention shall apply to the judicial
proceedings.
(3)
Where there is an agreement officially
confirmed by a competent authority between the person
having the custody of the child and another person to allow
the other person a right of access, and the child, having
been taken abroad, has not been restored at the end of the
agreed period to the person having the custody, custody of
the child shall be restored in accordance with
paragraphs 1(b) and 2 of this Article.
The same shall apply in the case of a
decision of the competent authority granting such a right
to a person who has not the custody of the child.
Article 9
(1)
In cases of improper removal, other
than those dealt with in Article 8, in which an application
has been made to a central authority within a period of six
months from the date of the removal, recognition and
enforcement may be refused only if:-
(a)
in the case of a decision given in the
absence of the defendant or his legal representative, the
defendant was not duly served with the document which
instituted the proceedings or an equivalent document in
sufficient time to enable him to arrange his defence; but
such a failure to effect service cannot constitute a ground
for refusing recognition or enforcement where service was
not effected because the defendant had concealed his
whereabouts from the person who instituted the proceedings
in the State of origin;
(b)
in the case of a decision given in the
absence of the defendant or his legal representative, the
competence of the authority giving the decision was not
founded:-
(i)
on the habitual residence of the
defendant; or
(ii)
on the last common habitual residence
of the child's parents, at least one parent being still
habitually resident there, or
(iii)
on the habitual residence of the
child;
(c)
the decision is incompatible with a
decision relating to custody which became enforceable in
the State addressed before the removal of the child, unless
the child has had his habitual residence in the territory
of the requesting State for one year before his
removal.
(2)
Where no application has been made to a
central authority, the provisions of paragraph 1 of this
Article shall apply equally, if recognition and enforcement
are requested within six months from the date of the
improper removal.
(3)
In no circumstances may the foreign
decision be reviewed as to its substance.
Article 10
(1)
In cases other than those covered by
Articles 8 and 9, recognition and enforcement may be
refused not only on the grounds provided for in Article 9
but also on any of the following grounds:
(a)
if it is found that the effects of the
decision are manifestly incompatible with the fundamental
principles of the law relating to the family and children
in the State addressed;
(b)
if it is found that by reason of a
change in the circumstances including the passage of time
but not including a mere change in the residence of the
child after an improper removal, the effects of the
original decision are manifestly no longer in accordance
with the welfare of the child;
(c)
if at the time when the proceedings
were instituted in the State of origin;
(i)
the child was a national of the State
addressed or was habitually resident there and no such
connection existed with the State of origin;
(ii)
the child was a national both of the
State of origin and of the State addressed and was
habitually resident in the State addressed;
(d)
if the decision is incompatible with a
decision given in the State addressed or enforceable in
that State after being given in a third State, pursuant to
proceedings begun before the submission of the request for
recognition or enforcement, and if the refusal is in
accordance with the welfare of the child.
(2)
Proceedings for recognition or
enforcement may be adjourned on any of the following
grounds:-
(a)
if an ordinary form of review of the
original decision has been commenced;
(b)
if proceedings relating to the custody
of the child, commenced before the proceedings in the State
of origin were instituted, are pending in the State
addressed;
(c)
if another decision concerning the
custody of the child is the subject of proceedings for
enforcement or of any other proceedings concerning the
recognition of the decision.
Article 11
(1)
Decisions on rights of access and
provisions of decisions relating to custody which deal with
the right of access shall be recognised and enforced
subject to the same conditions as other decisions relating
to custody.
(2)
However, the competent authority of the
State addressed may fix the conditions for the
implementation and exercise of the right of access taking
into account, in particular, undertakings given by the
parties on this matter.
(3)
Where no decision on the right of
access has been taken or where recognition or enforcement
of the decision relating to custody is refused, the central
authority of the State addressed may apply to its competent
authorities for a decision on the right of access if the
person claiming a right of access so requests.
Article 12
Where, at the time of the removal
of a child across an international frontier, there is no
enforceable decision given in a Contracting State relating
to his custody, the provisions of this Convention shall
apply to any subsequent decision, relating to the custody
of that child and declaring the removal to be unlawful,
given in a Contracting State at the request of any
interested person.
Part III
Procedure
Article 13
(1)
A request for recognition or
enforcement in another Contracting State of a decision
relating to custody shall be accompanied by:-
(a)
a document authorising the central
authority of the State addressed to act on behalf of the
applicant or to designate another representative for that
purpose;
(b)
a copy of the decision which satisfies
the necessary conditions of authenticity;
(c)
in the case of a decision given in the
absence of the defendant or his legal representative, a
document which establishes that the defendant was duly
served with the document which instituted the proceedings
or an equivalent document;
(d)
if applicable, any document which
establishes that, in accordance with the law of the State
of origin, the decision is enforceable;
(e)
if possible, a statement indicating the
whereabouts or likely whereabouts of the child in the State
addressed;
(f)
proposals as to how the custody of
the child should be restored.
(2)
The documents mentioned above shall,
where necessary, be accompanied by a translation according
to the provisions laid down in Article 6.
Article 14
Each Contracting State shall apply
a simple and expeditious procedure for recognition and
enforcement of decisions relating to the custody of a
child.
To that end it shall ensure that a request
for enforcement may be lodged by simple application.
Article 15
(1)
Before reaching a decision under
paragraph (1)(b) of Article 10, the authority concerned in
the State addressed:-
(a)
shall ascertain the child's views
unless this is impracticable having regard in particular to
his age and understanding; and
(b)
may request that any appropriate
inquiries be carried out.
(2)
The cost of inquiries in any
Contracting State shall be met by the authorities of the
State where they are carried out.
Requests for inquiries and the
results of inquiries may be sent to the authority concerned
through the central authorities.
Article 16
For the purposes of this
Convention, no legalisation or any like formality may be
required.
Part IV
Reservations
Article 17
(1)
A Contracting State may make a
reservation that, in cases covered by Articles 8 and 9 or
either of these Articles, recognition and enforcement of
decisions relating to custody may be refused on such of the
grounds provided under Article 10 as may be specified in
the reservation.
(2)
Recognition and enforcement of
decisions given in a Contracting State which has made the
reservation provided for in paragraph 1 of this Article may
be refused in any other Contracting State on any of the
additional grounds referred to in that reservation.
Article 18
A Contracting State may make a
reservation that it shall not be bound by the provisions of
Article 12.
The provisions of this Convention shall not
apply to decisions referred to in Article 12 which have
been given in a Contracting State which has made such a
reservation.
Part V
Other Instruments
Article 19
This Convention shall not exclude
the possibility of relying on any other international
instrument in force between the State of origin and the
State addressed or on any other law of the State addressed
not derived from an international agreement for the purpose
of obtaining recognition or enforcement of a decision.
Article 20
(1)
This Convention shall not affect any
obligations which a Contracting State may have towards a
non-contracting State under an international instrument
dealing with matters governed by this Convention.
(2)
When two or more Contracting States
have enacted uniform laws in relation to custody of
children or created a special system of recognition or
enforcement of decisions in this field, or if they should
do so in the future, they shall be free to apply, between
themselves, those laws or that system in place of this
Convention or any part of it.
In order to avail themselves of this
provision the States shall notify their decision to the
Secretary General of the Council of Europe.
Any alteration or revocation of this
decision must also be notified.
Part VI
Final Clauses
Article 21
This Convention shall be open for
signature by the Member States of the Council of Europe.
It is subject to ratification, acceptance or
approval.
Instruments of ratification, acceptance or
approval shall be deposited with the Secretary General of
the Council of Europe.
Article 22
(1)
This Convention shall enter into force
on the first day of the month following the expiration of a
period of three months after the date on which three
Member States of the Council of Europe have expressed their
consent to be bound by the Convention in accordance with
the provisions of Article 21.
(2)
In respect of any Member State which
subsequently expresses its consent to be bound by it, the
Convention shall enter into force on the first day of the
month following the expiration of a period of three months
after the date of the deposit of the instrument of
ratification, acceptance or approval.
Article 23
(1)
After the entry into force of this
Convention, the Committee of Ministers of the Council of
Europe may invite any State not a member of the Council to
accede to this Convention, by a decision taken by the
majority provided for by Article 20(d) of the Statute and
by the unanimous vote of the representatives of the
Contracting States entitled to sit on the Committee.
(2)
In respect of any acceding State, the
Convention shall enter into force on the first day of the
month following the expiration of a period of three months
after the date of deposit of the instrument of accession
with the Secretary General of the Council of Europe.
Article 24
(1)
any State may at the time of signature
or when depositing its instrument of ratification,
acceptance, approval or accession, specify the territory or
territories to which this Convention shall apply.
(2)
Any State may at any later date, by a
declaration addressed to the Secretary General of the
Council of Europe, extend the application of this
Convention to any other territory specified in the
declaration.
In respect of such territory, the Convention
shall enter into force on the first day of the month
following the expiration of a period of three months after
the date of receipt by the Secretary General of such
declaration.
(3)
Any declaration made under the two
preceding paragraphs may, in respect of any territory
specified in such declaration, be withdrawn by a
notification addressed to the Secretary General.
The withdrawal shall become effective on the
first day of the month following the expiration of a period
of six months after the date of receipt of such
notification by the Secretary General.
Article 25
(1)
A State which has two or more
territorial units in which different systems of law apply
in matters of custody of children and of recognition and
enforcement of decisions relating to custody may, at the
time of signature or when depositing its instrument of
ratification, acceptance, approval or accession, declare
that this Convention shall apply to all its territorial
units or to one or more of them.
(2)
Such a State may at any later date, by
a declaration addressed to the Secretary General of the
Council of Europe, extend the application of this
Convention to any other territorial unit specified in the
declaration.
In respect of such territorial unit the
Convention shall enter into force on the first day of the
month following the expiration of a period of three months
after the date of receipt by the Secretary General of such
declaration.
(3)
Any declaration made under the two
preceding paragraphs may, in respect of any territorial
unit specified in such declaration, be withdrawn by
notification addressed to the Secretary General.
The withdrawal shall become effective on the
first day of the month following the expiration of a period
of six months after the date of receipt of such
notification by the Secretary General.
Article 26
(1)
In relation to a State which has in
matters of custody two or more systems of law of
territorial application:-
(a)
reference to the law of a person's
habitual residence or to the law of a person's nationality
shall be construed as referring to the system of law
determined by the rules in force in that State or, if there
are no such rules, to the system of law with which the
person concerned is most closely connected;
(b)
reference to the State of origin or to
the State addressed shall be construed as referring, as the
case may be, to the territorial unit where the decision was
given or to the territorial unit where recognition or
enforcement of the decision or restoration of custody is
requested.
(2)
Paragraph 1(a) of this Article also
applies
mutatis mutandis to States which have in matters
of custody two or more systems of law of personal
application.
Article 27
(1)
Any State may, at the time of signature
or when depositing its instrument of ratification,
acceptance, approval or accession, declare that it avails
itself of one or more of the reservations provided for in
paragraph 3 of Article 6, Article 17 and Article 18 of this
Convention.
No other reservation may be made.
(2)
Any Contracting State which has made a
reservation under the preceding paragraph may wholly or
partly withdraw it by means of a notification addressed to
the Secretary General of the Council of Europe.
The withdrawal shall take effect on the date
of receipt of such notification by the Secretary
General.
Article 28
At the end of the third year
following the date of entry into force of this Convention
and, on his own initiative, at any time after this date,
the Secretary General of the Council of Europe shall invite
the representatives of the central authorities appointed by
the Contracting States to meet in order to study and to
facilitate the functioning of the Convention.
Any Member State of the Council of Europe
not being a party to the Convention may be represented by
an observer.
A report shall be prepared on the work of
each of these meetings and forwarded to the Committee of
Ministers of the Council of Europe for information.
Article 29
(1)
Any party may at any time denounce this
Convention by means of a notification addressed to the
Secretary General of the Council of Europe.
(2)
Such denunciation shall become
effective on the first day of the month following the
expiration of a period of six months after the date of
receipt of the notification by the Secretary General.
Article 30
The Secretary General of the
Council of Europe shall notify the Member States of the
Council and any State which has acceded to this Convention,
of:-
(a)
any signature;
(b)
the deposit of any instrument of
ratification, acceptance, approval or accession;
(c)
any date of entry into force of this
Convention in accordance with Articles 22, 23, 24 and 25;
(d)
any other act, notification or
communication relating to this Convention.
In witness whereof the
undersigned, being duly authorised thereto, have signed
this Convention.
Done at Luxembourg, this 20
th day of May 1980, in English and French, both
texts being equally authentic, in a single copy which shall
be deposited in the archives of the Council of Europe.
The Secretary General of the Council of
Europe shall transmit certified copies to each Member State
of the Council of Europe and to any State invited to accede
to this Convention.