Article on the Hague
Convention and International Child Abduction
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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
b. to ensure that rights of custody and of access under the law of one
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
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
Article 7
Central Authorities shall co-operate with each
other and promote co-operation amongst the competent authorities in their
respective States 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 other 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 –
a. an authenticated copy of any relevant decision or
agreement;
b. 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;
c. 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 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 of 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 of 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 the 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 determination on the merits of
any custody issue.
Article 20
The return of the child under the provision 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.
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 fulfillment of any conditions to
which the exercise of such 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.
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
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
Article 30
Any application submitted to the Central
Authorities or directly to the judicial or administrative authorities of a
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
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
Article
36
Nothing in this Convention shall prevent two or
more
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
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
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
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
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
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 reservations 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
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
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
1. the signatures and ratifications, acceptances
and approvals referred to in Article 37;
2. the accession 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 denunciation
referred to in Article 44. In witness whereof the undersigned, being duly authorized
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.
International Adoption
& Child Abduction
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