Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Entry into force: 1-XII-1983

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

dated October 25, 1980

The signatory States to this Convention –

Firmly convinced that the best interests of the child are paramount in all matters of custody;

Desiring to protect the child internationally from the disadvantages of wrongful removal or retention and to establish procedures to ensure his prompt return to his State of habitual residence and to ensure the protection of the right of personal contact with the child, 

have decided to conclude a Convention to this end and have agreed on the following provisions:

Chapter I – Scope of the Convention

article 1

The aim of this convention is to

(a) to ensure the prompt return of children wrongfully removed to or retained in a Contracting State; and
(b) to ensure that rights of custody and contact existing in a Contracting State are effectively respected in other Contracting States.

Article 2

The Contracting States shall take all appropriate measures to attain the objectives of the Convention on their territory. To this end, they use their fastest possible procedures.

Article 3

The removal or retention of a child is considered wrongful if

(a) this violates the right of custody to which a person, authority or other body has, alone or jointly, the law of the country in which the child was habitually resident immediately before the removal or retention, and (
b) that right at the time of the removal or retention was actually exercised or would have been exercised had the removal or retention not taken place.

Custody referred to in point (a) may exist, in particular, by operation of law, by virtue of a judicial or administrative decision, or by virtue of an agreement that is effective under the law of the state concerned.

Article 4

The Convention applies to any child who was habitually resident in a Contracting State immediately prior to any violation of custody or access rights. The Convention ceases to apply once the child has reached the age of 16.

Article 5

Covered for the purposes of this Convention

a) “rights of custody” means care for the person of the child and in particular the right to determine the whereabouts of the child;
b) the right “right of contact” means the right to take the child to a place other than his habitual residence for a limited period of time.

Chapter II – Central Authorities

Article 6

Each Contracting State designates a central authority to carry out the functions conferred on it by this Convention.

A federal state, a multi-jurisdictional state, or a state made up of autonomous local authorities is free to designate several central authorities and determine their territorial jurisdiction. If a state makes use of this possibility, it determines the central authority to which the applications for transmission to the competent central authority in this state can be addressed.

Article 7

The Central Authorities shall cooperate and encourage cooperation among the competent authorities of their States to ensure the prompt return of children and also to achieve the other objectives of this Convention.

In particular, they shall take all appropriate measures, directly or with the help of others, to

(a) to ascertain the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or harm to the parties concerned by taking or causing to take interim measures;
c) ensure the voluntary return of the child or bring about an amicable settlement of the matter;
d) to exchange information on the child’s social situation where appropriate;
e) to provide general information on the law of their States in connection with the application of the Convention;
f) Initiating or facilitating the initiation of judicial or administrative proceedings to obtain the return of the child and, where appropriate, to ensure the implementation or effective exercise of the right of access;
g) to the extent necessary to initiate or facilitate the approval of legal aid and legal advice, including the assignment of a lawyer;
h) to ensure the safe return of the child by any necessary and appropriate official measures;
i) to inform each other of the operation of the Convention and to remove as far as possible obstacles to its application.

Chapter III – Return of Children

Article 8

Any person, authority or other body claiming that a child has been removed or retained in violation of custody rights may apply either to the central authority of the child’s habitual residence or to the central authority of another Contracting State in order to obtain assistance their support to ensure the return of the child.

The application must contain

(a) details of the identity of the applicant, the child and the person alleged to have removed or retained the child;
b) the child’s date of birth, to the extent that it can be ascertained;
c) the reasons given by the applicant for his right to the return of the child;
(d) all available information regarding the whereabouts of the child and the identity of the person with whom the child is believed to be.

The application can be supplemented as follows or the following annexes can be attached:

e) a certified copy of a decision or agreement relevant to the matter;
f) a certificate or affidavit of the relevant legislation of the State concerned; it must come from the central authority or other competent authority of the State where the child habitually resides, or from a person authorized to do so;
g) any other document relevant to the matter.

Article 9

If the Central Authority receiving an application under Article 8 has reason to believe that the child is in another Contracting State, it shall transmit the application directly and without delay to the Central Authority of that State; it shall inform the requesting central authority or, where appropriate, the applicant.

Article 10

The central authority of the State in which the child is located shall take or arrange for all appropriate measures to effect the child’s voluntary return.

Article 11

In proceedings for the return of children, the courts or administrative authorities of each Contracting State shall act with due expeditiousness.

If the court or administrative authority dealing with the case has not made a decision within six weeks of receipt of the application, the applicant or the central authority of the requested State may, on its own initiative or at the request of the central authority of the requesting State request an explanation of the reasons for the delay. Once the central authority of the requested State has received the reply, it transmits it to the central authority of the requesting State or, where appropriate, to the applicant.

Article 12

If a child has been wrongfully removed or retained within the meaning of Article 3 and less than one year has elapsed from the date of removal or retention when the application is received by the court or administrative authority of the Contracting State in which the child is present the competent court or the competent administrative authority orders the immediate return of the child.

If the application is not received until after the one-year period referred to in paragraph 1, the court or administrative authority shall also order the return of the child, unless it can be proven that the child has settled into its new environment.

If the court or administrative authority of the requested State has reason to believe that the child has been removed to another State, the proceedings may be stayed or the application for the return of the child may be rejected.

Article 13

Notwithstanding Article 12, the court or administrative authority of the requested State shall have no obligation to order the return of the child if the person, authority or other body objecting to the return of the child proves:

a) that the person, authority or other body who was responsible for the custody of the child actually did not exercise the right of custody at the time of the removal or retention, consented to the removal or retention or subsequently approved it or
b) that the return with there is a serious risk of physical or mental harm to the child or otherwise puts the child in an unreasonable situation.

The court or administrative authority may also refuse to order the return of the child if it is found that the child resists return and that the child has reached an age and maturity where it is appropriate to take its opinion into account.

In assessing the circumstances referred to in this Article, the court or administrative authority shall take into account information on the child’s social situation which has been obtained from the central authority or other competent authority of the State of the child’s habitual residence.

Article 14

When the courts or administrative authorities of the requested State are required to determine whether there has been a wrongful removal or retention within the meaning of Article 3, they may apply the law and judicial or administrative decisions of the State of the child’s habitual residence, whether or not they are formally recognized there or not, immediately consider; in so doing, they need not follow the special procedures for proving that right or for recognizing foreign judgments that would otherwise have to be followed.

Article 15

Before ordering the return of the child, the courts or administrative authorities of a Contracting State may require the applicant to produce a decision or other certification from the authorities of the State of the child’s habitual residence evidencing that the removal or retention was unlawful within the meaning of Article 3 if such a decision or certificate can be obtained in the State concerned. The central authorities of the Contracting States shall assist the applicant to the extent possible in obtaining such a decision or certificate.

Article 16

If the courts or administrative authorities of the Contracting State to which the child has been removed or to which the child has been retained have been informed of the wrongful removal or retention of the child within the meaning of Article 3, they may not make a decision on the substance of custody until it has been decided: that the child is not to be returned under this Convention, or if no application under the Convention is made within a reasonable time of notification.

Article 17

The fact that a custody decision has been made or is recognizable in the requested State does not in itself constitute grounds for refusing the return of a child under this Convention; however, the courts or administrative authorities of the requested State may take the reasons for the decision into account when applying the Convention.

Article 18

Nothing in this Chapter shall prevent the courts or administrative authorities from ordering the return of the child at any time.

Article 19

A decision on the return of the child made pursuant to this Convention shall not be regarded as a decision on custody.

Article 20

The return of the child under Article 12 may be refused if it is inadmissible under the fundamental values ​​of the protection of human rights and fundamental freedoms prevailing in the requested state.

Chapter IV – Right to Personal Contact

Article 21

The application for implementation or effective exercise of the right of access may be addressed to the central authority of a Contracting State in the same manner as an application for the return of the child.

By virtue of the duty of cooperation referred to in Article 7, the central authorities shall promote the undisturbed exercise of the right of access and the fulfillment of any conditions to which the exercise of that right is subject. The central authorities will take steps to remove, as far as possible, any obstacles to the exercise of this right.

The central authorities may, directly or with the help of others, prepare or assist in the initiation of proceedings to exercise or protect the right of contact and to ensure that the conditions to which the exercise of that right may depend are respected.

Chapter V – General Provisions

Article 22

In any judicial or administrative proceeding covered by this Convention, no security or deposit, by any name whatsoever, shall be required for the payment of costs and expenses.

Article 23

No legalization or similar formality shall be required under this Convention.

Article 24

Applications, communications or other documents are sent to the central authority of the requested State in the original language; they must be accompanied by a translation into the official language or one of the official languages ​​of the requested State or, if such a translation is difficult to obtain, a translation into French or English.

However, a Contracting State may make a reservation under Article 42 objecting to the use of French or English, but not both, in applications, communications or other documents sent to its central authority.

Article 25

Nationals of a Contracting State and persons habitually resident in such a State shall, in all matters connected with the application of this Convention, be entitled to legal aid and advisory assistance in any other Contracting State on the same terms as nationals of that State habitually resident there .

Article 26

Each Central Authority shall bear its own costs incurred in applying this Convention.

The central authorities and other authorities of the Contracting States shall not charge any fee for applications made under this Convention. In particular, they may not require the applicant to pay any procedural costs or the costs that may arise from the appointment of a lawyer. However, you can request reimbursement of expenses incurred or incurred as a result of the return of the child.

However, a Contracting State may make a reservation under Article 42 stating that it is bound to pay the costs of the appointment of counsel or of any judicial proceeding referred to in paragraph 2 of this Article only to the extent such costs are covered by its system of legal costs and advisory assistance are covered.

When the courts or administrative authorities order the return of the child or make orders concerning the right of access under this Convention, they may, where appropriate, require the person who removed or retained the child or who prevented the exercise of the right of access order the reimbursement of the necessary costs incurred by the applicant himself or on his account; this includes in particular the travel costs, all costs or expenses for locating the child, costs for legal representation of the applicant and costs for the return of the child.

Article 27

If it is apparent that the requirements of this Convention are not met or that the application is otherwise unfounded, a Central Authority is not required to accept the application. In that case, the central authority shall promptly inform the applicant or, where applicable, the central authority that sent the application, its reasons.

Article 28

A Central Authority may require that the application be accompanied by a written power of attorney authorizing it to act on behalf of the applicant or to appoint a representative to act on his behalf.

Article 29

Nothing in this Convention shall prevent any person, authority or body who alleges a violation of the rights of custody or access referred to in Article 3 or 21 from recourse directly to the courts or administrative authorities of a Contracting State, whether in application of the Convention or independently of it.

Article 30

Any application made under this Convention to the central authorities or directly to the judicial or administrative authorities of a Contracting State, as well as any documents and other communications accompanying the application or obtained from a central authority, shall be readily received by the judicial or administrative authorities of the Contracting States.

Article 31

If there are two or more legal systems in force in different territorial units in a State relating to the custody of children, then

a) a reference to habitual residence in that State shall be construed as a reference to habitual residence in a territorial unit of that State;
b) a reference to the law of the State of habitual residence shall be construed as a reference to the law of the territorial unit of that State in which the child has his habitual residence.

Article 32

Where in a State there are two or more systems of law governing child custody applicable to different categories of persons, a reference to the law of that State shall be construed as a reference to the system of law resulting from the legal order of that State.

Article 33

A State in which different territorial units have their own laws relating to the custody of children is not required to apply this Convention where a State with a common legal system would not be required to do so.

Article 34

Within the scope of its material scope of application, this Convention takes precedence over the Convention of 5 October 1961 on the competence of public authorities and the applicable law in relation to the protection of minors, insofar as the States are parties to both conventions. Otherwise nothing in this Convention restricts the application of other international instruments in force between the State of origin and the requested State, or the application of the non-contractual law of the requested State, when thereby obtaining the return of a child wrongfully removed or retained, or the enforcement of the law intended for personal contact.

Article 35

This Convention shall apply between States Parties only to wrongful removal or retention occurring after its entry into force in those States.

Where a declaration has been made under Article 39 or 40, the reference to a Contracting State in paragraph 1 of this Article shall be construed as a reference to the entity or entities to which the Convention applies.

Article 36

Nothing in this Convention shall prevent two or more States Parties from limiting any restrictions to which the return of a child may be subject by mutually agreeing to derogate from those provisions of the Convention which might constitute such a restriction.

Chapter VI – Final Provisions

Article 37

This Convention shall be open for signature by the States which, at the time of the Fourteenth Session of the Hague Conference on Private International Law, were Members of the Conference.

It requires ratification, acceptance or approval; the instruments of ratification, acceptance or approval are deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 38

Any other state can accede to the convention.

The instrument of accession is deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The Convention shall enter into force for the acceding State on the first day of the third calendar month after the deposit of its instrument of accession.

Accession has effect only in the relations between the acceding state and the contracting states which declare that they accept accession. Such a declaration shall also be made by any Member State which, after accession, ratifies, accepts or approves the Convention. This declaration is deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall transmit a certified copy to each Contracting State through diplomatic channels.

The Convention shall enter into force between the acceding State and the State which has declared its acceptance of accession on the first day of the third calendar month after the declaration of acceptance has been deposited.

Article 39

Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention extends to all or some of the territories for which it has international relations. Such a declaration will take effect as soon as the Convention enters into force for the State concerned.

Such a declaration, as well as any subsequent extension, will be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 40

A Contracting State consisting of two or more territorial units in which different legal systems apply to the matters dealt with in this Convention may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention applies to all of its territorial units or is only extended to one or more of them; he can change this declaration at any time by submitting a new declaration.

Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands, with an express designation of the territorial units to which the Convention applies.

Article 41

Where a Contracting State has a form of government under which executive, judicial and legislative powers are divided between central and other organs within that State, signature or ratification, acceptance, approval or accession to this Convention or delivery shall a declaration under Article 40 does not affect the division of power within that State.

Article 42

Any State may, not later than ratification, acceptance, approval or accession, or when making a declaration under Article 39 or 40, make either or both of the reservations provided for in Article 24 and Article 26, paragraph 3. Further reservations are not permitted.

Any State may at any time withdraw a reservation it has made. The withdrawal will be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The effect of the reservation ends on the first day of the third calendar month after the notification referred to in paragraph 2.

Article 43

The Convention shall enter into force on the first day of the third calendar month following the deposit of the third instrument of ratification, acceptance, approval or accession provided for in Articles 37 and 38.

After that, the Convention will come into force

1. For any State which subsequently ratifies, accepts, approves or accedes to it, 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 it has been extended under Article 39 or 40, on the first day of the third calendar month following the notification provided for in that Article.

Article 44

The Convention shall remain in force for a period of five years from the date of its entry into force in accordance with paragraph 1 of Article 43, including for States which have subsequently ratified, accepted, approved or acceded to it.

Except in the case of denunciation, the term of the Convention shall be tacitly extended by five years at a time.

The termination will be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands no later than six months before the end of the five years. It may be limited to specific territories or territorial units to which the Convention applies.

The denunciation is only effective for the state that notified it. The Convention remains in force for the other Contracting States.

Article 45

The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the Member States of the Conference and the States acceding under Article 38

1. Any signature, ratification, acceptance and approval under article 37;
2. any accession under Article 38;
3. the date on which the Convention enters into force in accordance with Article 43;
4. any extension under Article 39;
5. any declaration under Articles 38 and 40;
6. any reservation made under Article 24 and Article 26(3) and any withdrawal of reservation made under Article 42;
7. any termination under Article 44.

In witness whereof the undersigned, being duly authorized thereto, have signed this Convention.

Done at The Hague on October 25, 1980 in the French and English languages, both texts being equally authentic, in a single copy deposited in the archives of the Government of the Kingdom of the Netherlands and by each State which, during the Fourteenth Session of the Hague Conference for International Private Law was a member of the conference, a certified copy is sent through diplomatic channels.

Done at The Hague on October 25, 1980