Communication from the Ministry of Foreign Affairs No. 34 / 1998 Coll.
Communication from the Ministry of Foreign Affairs on the negotiation of the Convention on Civil Aspects of International Child Abduction
Valid
Effective from 01.03.1998
34
COMMUNICATION
Ministry of Foreign Affairs
The Ministry of Foreign Affairs states that the Convention on Civil Aspects of International Child Abduction was adopted in The Hague on 25 October 1980.
On behalf of the Czech and Slovak Federal Republic, the Convention was signed in The Hague on 28 December 1992.
By letter of 28 January 1993, the Czech Republic notified the Government of the Kingdom of the Netherlands, the depositary of the Convention, that the successor State of the Czech and Slovak Federal Republic, with effect from 1 January 1993, was deemed to be a signatory State of the Convention on the Civil Aspects of International Child Abduction of 25 October 1980.
The Parliament of the Czech Republic has given its assent to the Convention and the President of the Republic has ratified it, subject to Article 42 of the Convention, "that the Czech Republic shall not reimburse the expenditure referred to in Article 26 (2) of the Convention, arising from the participation of a legal representative or adviser or as costs of proceedings, except for the costs which may be borne by the Czech Republic under its own arrangements for the provision of legal assistance and advice '. The instrument of ratification of the Czech Republic was deposited with the Government of the Kingdom of the Netherlands on 15 December 1997.
The Convention entered into force on 1 December 1983 on the basis of Article 43 and for the Czech Republic in accordance with paragraph 1 of that Article on 1 March 1998.
The Czech translation of the Convention is being announced simultaneously.
CONVENTION
on civil aspects of international child abduction
Contracting States to this Convention,
firmly convinced that children's interests are of paramount importance in matters of childcare,
Desiring to protect children by international arrangements against the harmful effects of their illegal transfer or detention and laying down procedures to ensure their immediate return to the State of their habitual residence and to ensure the protection of the right of contact with them,
decide to conclude the Convention to that end and agree on the following provisions:
CHAPTER I
SCOPE OF THE CONVENTION
The subjects of this Convention are:
(a) to ensure the immediate return of children unlawfully transferred or detained in a Contracting State;
(b) ensure that rights relating to the care of and contact with the child under the law of a Contracting State are effectively respected in the other Contracting States.
The Contracting States shall take all necessary measures to ensure the objectives of the Convention in their territories. With this aim, they must proceed in the fastest possible way.
The transfer or detention of a child shall be considered unlawful if:
(a) the right of custody of a child which is held by a person, institution or any other institution either jointly or separately, under the law of the State in which the child was habitually resident immediately prior to the transfer or detention;
(b) at the time of the transfer or detention, this right has actually been exercised, jointly or separately, or would have been exercised in the absence of any transfer or detention.
The right of childcare referred to in point (a) may result in particular from the laws, judicial or administrative decisions or from an agreement in force under the law of that State.
The Convention shall apply to any child who has his habitual residence in a Contracting State immediately before a breach of the right of care or contact with him. The Convention shall not apply if the child has reached the age of 16 years.
For the purposes of this Convention:
(a) "right of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;
(b) "right of contact with the child" shall include the right to take the child to a place other than the normal residence of the child for a limited period of time.
CHAPTER II
GENERAL AUTHORITIES
Each Contracting State shall designate a central authority to carry out the duties imposed by the Convention on that authority.
Federal States, States with more than one legal system or States having autonomous territorial units may designate more than one central authority and indicate the territorial scope of their competence. A State which has designated more than one central authority shall designate the central authority to which requests for referral shall be sent to the competent central authority in that State.
The central authorities shall cooperate and promote cooperation between competent authorities in their States to ensure the immediate return of children and to achieve the further objectives of this Convention. In particular, either directly or through an intermediary, they shall take all necessary measures to:
(a) identify the whereabouts of the child who has been unlawfully moved or detained;
(b) protect the child from further harm and the parties involved by taking precautionary measures or by arranging for their adoption;
(c) ensure the voluntary return of the child or facilitate a friendly solution;
(d) information relating to the social status of the child has been communicated to each other where necessary;
(e) general information on the rule of law of their State concerning the implementation of the Convention has been provided;
(f) have initiated or facilitated the initiation of judicial or administrative proceedings for the purpose of ordering the return of the child, where appropriate, to allow the modification or effective exercise of the right of contact with the child;
(g) ensure or facilitate, where circumstances so require, the provision of legal assistance and advice, including the participation of the legal representative;
(h) take such administrative measures as are necessary and appropriate to ensure the safe return of the child;
(i) inform each other of the implementation of this Convention and, where possible, exclude any obstacles to its implementation.
CHAPTER III
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A person, institution or other body claiming that a child has been moved or detained by an act infringing the right of custody may either request the central authority of the child's habitual residence or the central authority of any other Contracting State to assist in ensuring the return of the child.
The proposal shall include:
(a) details of the identity of the applicant, the child and the person claimed to have moved or detained the child;
(b) the date of birth of the child, if known,
(c) the reasons on which the applicant relies on his application for the return of the child;
(d) all available details of the child's residence and identity of the person likely to be present.
The design may be accompanied or supplemented by:
(e) a certified copy of any decision or agreement relating to the case;
(f) a certificate or affidavit issued by a central authority or other competent authority of the State of habitual residence of the child or by a person competent to do so in respect of the legislation of that State applicable to the case;
(g) any other document relating to the case.
Where a central authority receiving a proposal referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall forward the proposal directly and without delay to the central authority of that Contracting State and shall inform the applicant Central Authority and, where appropriate, the appellant thereof.
The central authority of the State in which the child is, shall take or arrange for all measures necessary to achieve the voluntary return of the child.
In proceedings for the return of children, the judicial or administrative authorities of the Contracting States shall act promptly.
If the competent judicial or administrative authority has not decided within six weeks of the initiation of the procedure, the applicant or the central authority of the requested State may, either on its own motion or on a proposal from the central authority of the requesting State, request the communication of the reasons for the delay.
If the Central Authority of the requested State receives a reply, it shall forward it to the Central Authority of the requesting State or, where appropriate, to the applicant.
Where the child has been unlawfully moved or detained in accordance with Article 3 and on the date of the initiation of proceedings before the judicial or administrative authority of the Contracting State in which the child is located, a period of less than one year from the date of the illegal transfer or detention has elapsed, the competent authority shall order the child to be returned without delay.
If it is not demonstrated that the child has met his new environment, the judicial or administrative authority shall order the return of the child, even if the proceedings began after the expiry of the period of one year referred to in the preceding paragraph.
If the judicial or administrative authority of the requested State has reason to believe that the child has been transferred to another State, it may stop the proceedings or reject the application for the return of the child.
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State shall not be obliged to order the return of the child if the person, institution or other body who does not agree to its return proves that:
(a) the person, institution or other body who was to take care of the person of the child did not actually exercise the right of custody of the child at the time of transfer or detention, or agreed to, or later, accept the transfer or detention; or
(b) there is a serious risk that a return would expose the child to physical or mental harm or otherwise put them in an unbearable situation.
The judicial or administrative authority may also refuse to order the return of the child if it is found that the child does not agree to the return and reaches the age and degree of maturity in which it is appropriate to take account of its opinions.
In assessing the circumstances referred to in this Article, judicial and administrative authorities shall take into account information relating to the social status of the child provided by the central authority or other competent authority of the habitual residence of the child.
When determining whether an illegal transfer or detention has taken place pursuant to Article 3, the judicial or administrative authorities of the requesting State may take into account, without further delay, the law and judicial or administrative decisions formally recognised or not in the State of habitual residence of the child, without taking special action with regard to the evidence of that right or the recognition of foreign decisions which would otherwise have been used.
The judicial or administrative authorities of a Contracting State may, before ordering the return of the child, require the applicant to obtain from the authority of the State of habitual residence of the child a decision or other finding that the transfer or detention was unlawful under Article 3 of the Convention, provided that such decision or finding can be obtained in that State. The central authorities of the Contracting States shall assist the appellant within the limits of the possibility of obtaining such a decision or finding.
Upon receipt of a notification of an illegal transfer or detention of a child pursuant to Article 3, the judicial or administrative authorities of the Contracting State to which the child has been transferred or detained may not take a substantive decision on the right of custody of the child until it has been decided that the child should not be returned under this Convention or that a proposal under this Convention has been made within a reasonable period of time following receipt of the notification.
The mere fact that a judgment relating to the care of a child has been given or fulfils the conditions for recognition in the requested State shall not constitute grounds for refusing the return of a child under this Convention, but the judicial or administrative authorities of the requested State may, when applying this Convention, take account of the reasons for this Decision.
The provisions of this Chapter shall not restrict the power of the judicial or administrative authority to order the return of the child at any time.
The return decision issued under this Convention shall not affect the substantive arrangements for the right of custody of the child.
The return of the child under the provisions of Article 12 may be refused if the fundamental principles of the requested State on the protection of human rights and fundamental freedoms do not permit it.
CHAPTER IV
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An application to modify or ensure the effective exercise of the right of contact with a child may be submitted to the central authorities of the Contracting States in the same way as a proposal to return the child.
The central authorities shall cooperate as provided for in Article 7 to ensure the peaceful exercise of the right of contact with the child and to fulfil any conditions which may be laid down for the exercise of that right. The central authorities shall take measures to remove, within the limits of the possibility, any obstacles to the exercise of this right.
The central authorities may, either directly or through an intermediary, initiate or assist in the initiation of proceedings for the treatment or protection of that right and ensure that the conditions which may be laid down for the exercise of that right are respected.
CHAPTER V
GENERAL PROVISIONS
No guarantee or advance, whatever it is called, shall be required to ensure the payment of costs and expenses in judicial or administrative proceedings falling within the scope of this Convention.
Verification or similar formality may not be required in the context of this Convention.
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, if the acquisition of such translation is difficult, a translation into French or English.
For each application, communication or other document sent to its central authority, the Contracting State may not agree to the use of French or English, but not both, subject to Article 42.
Citizens of the Contracting States and persons habitually resident in those States will be entitled to legal aid and advice in any Contracting State in the implementation of this Convention under the same conditions as if they themselves were citizens of that State and habitually resident therein.
Each central authority shall bear its own costs in implementing this Convention.
The central authorities and other public services of the Contracting States shall not impose any charges in respect of proposals made under this Convention. In particular, they may not require any payment from the appellant for the costs of the proceedings or, where appropriate, fees resulting from the participation of legal representatives or advisers. However, they may require payment of expenditure incurred or incurred in ensuring the return of the child.
However, a Contracting State may declare, subject to Article 42, that it shall not reimburse the expenditure referred to in the preceding paragraph incurred by the participation of a lawyer or adviser or as costs other than those which may be reimbursed under its own rules on the provision of legal assistance and advice.
The judicial or administrative authorities which take decisions relating to the return of a child or to the regulation of the right of contact with him under this Convention may, where appropriate, impose on a person who has transferred or detained a child or who has prevented the exercise of the right of contact with him to pay the necessary expenses incurred by, or on behalf of, the applicant, in particular travel expenses, the costs of the applicant's legal representation and the costs associated with the return of the child, as well as any costs relating to the search for the child.
If it is clear that the conditions laid down in this Convention are not met or that the proposal is otherwise unfounded, the Central Authority need not accept the proposal. In such a case, the central authority shall immediately inform the appellant or, depending on the nature of the case, the authority through which the application was lodged of its reasons.
The central authority may request that the application be accompanied by a written authorisation authorising it to act on behalf of the applicant or to designate a representative to act.
This Convention shall not prevent any person, institution or body claiming to have infringed, or having contact with, the rights of custody of a child within the meaning of Article 3 or 32 from turning directly to the judicial or administrative authorities of a Contracting State, in accordance with or without the provisions of this Convention.
Any proposal submitted to the Central Authority or directly to the judicial or administrative authorities of a Contracting State in accordance with this Convention, as well as documents and any other information attached thereto or provided by the Central Authority, courts or administrative authorities of the Contracting States, shall be accepted.
In relation to a State which has two or more legislation in force in different territorial units on childcare matters:
(a) any reference to normal residence in that State relates to normal residence in that State's territorial unit;
(b) any appeal to the law of the State of habitual residence relates to the law of the territorial unit in which the child is habitually resident.
With regard to a State which has two or more rules applicable to different categories of persons in matters of childcare, any appeal to the law of that State shall relate to the legislation laid down by that State.
A State in which different territorial units have their own legislation on childcare will not be obliged to apply this Convention if a State with a single legal system would not be obliged to apply it.
In matters covered by this Convention, this Convention shall take precedence over the Convention of 5 October 1961 on the powers and law applicable to matters relating to the protection of minors, insofar as States are parties to both conventions. Otherwise, this Convention shall not prevent the application of any other international arrangement which applies between the State of origin and the State of the requested State, or any other law of the State of the requested State in order to obtain the return of a child who has been unlawfully transferred or detained, or to ensure the right of contact with the child.
This Convention shall apply between the Contracting States only in cases of illegal transfer or detention which took place after it entered into force in those States.
Where a declaration has been made pursuant to Article 39 or 40, the reference in the preceding paragraph to the Contracting State shall apply to the territorial unit or units to which this Convention applies.
Nothing in this Convention shall prevent two or more Contracting States from agreeing to apply to each other any provisions of this Convention which may lead to such restrictions in order to reduce the restrictions which may be subject to the return of the child.
CHAPTER VI
FINAL PROVISIONS
The Convention will be open for signature by States which were members of the Hague Conference on Private International Law at the time of its 14th session.
It shall be ratified, accepted or approved and the instruments of ratification and acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Any other state may accede to the Convention.
The instrument of access shall be 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 following the deposit of its instrument of accession.
The approach is only effective in relations between the acceding state and the contracting States, which declare their acceptance of the approach. This declaration shall be made by any Member State ratifying, receiving or approving the Convention after having access to it. This declaration shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, which shall send a certified copy by diplomatic means to each Contracting State.
The Convention shall enter into force between the acceding State and the State which has declared that it accepts this approach on the first day of the third calendar month following the deposit of the declaration of acceptance.
Each State may declare, at the time of signature, ratification, acceptance, approval or accession, that the Convention applies to all territories which it represents internationally or to one or more of them. This declaration shall become effective as soon as the Convention for that State enters into force.
This declaration, also as any subsequent extension, will be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Where a Contracting State has two or more territorial units in which different rules apply to matters governed by this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention shall apply to all its territorial units or to only one or more of them and may amend this Declaration at any time by a new declaration.
These declarations will be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and must explicitly specify the territorial units for which the Convention applies.
Where a Contracting State has a system of government in which the executive judicial and legislative power is distributed between the central and other authorities of that State, its signature or ratification, acceptance or approval of the Convention or its access or declaration made pursuant to Article 40 shall in no way affect the internal division of powers in that State.
Each State may, at the latest at the time of ratification, acceptance, approval or accession or at the time of a declaration pursuant to Article 39 or 40, make one or both of the reservations provided for in Articles 24 and 26 (3). No further reservation is admissible.
Each State may at any time withdraw the reservation it has made. This appeal will be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The reservation shall expire on the first day of the third calendar month following the notification referred to in the preceding paragraph.
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 referred to in Articles 37 and 38.
The Convention shall then enter into force:
1. for each State that ratifies, accepts, approves or accedes to it at a later date, on the first day of the third calendar month following the deposit of its instrument of ratification, acceptance, approval or accession,
2. for any territory or geographical area to which the Convention has been extended in accordance with Article 39 or 40, on the first day of the third calendar month following the notification referred to in those Articles.
The Convention shall remain in force for five years from the date of its entry into force, in accordance with Article 43 (2), as well as for States which later ratified, accepted, approved or acceded to it.
The Convention will be renewed silently by five years if it is not terminated.
The denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the end of the five-year period. It may be restricted to certain territories or territorial units covered by the Convention.
The denunciation will only be effective for the state that announced it. The Convention shall remain in force for the other Contracting States.
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the Member States of the conferences and States which acceded pursuant to Article 38:
1. the signatures and ratification, acceptance and approval referred to in Article 38;
2. the accession referred to in Article 38,
3. the date on which the Convention enters into force pursuant to Article 43,
4. extensions as referred to in Article 39;
5. the declarations referred to in Articles 38 and 40;
6. the reservations made in Articles 24 and 26 (3) and the appeals referred to in Article 42;
7. denunciations referred to in Article 44.
They have duly authorised, in evidence of which the undersigned, have signed this Convention.
Done at The Hague, 25 October 1980, in the English and French languages, both texts being equally authentic, in one copy to be deposited in the archives of the Government of the Kingdom of the Netherlands, the certified copy of which will be sent by diplomatic means to each Member State of the Hague Conference on Private International Law at the time of its 14th session.
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Regulation Information
| Citation | Communication from the Ministry of Foreign Affairs No. 34 / 1998 Coll., on the negotiation of the Convention on Civil Aspects of International Child Abduction |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 05.03.1998 |
|---|---|
| Effective from | 01.03.1998 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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