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Law - European Convention on contact concerning children
The member States of the Council of Europe and the other Signatories
hereto,
Taking into account the European Convention on Recognition
and Enforcement of Decisions concerning Custody of Children
and on Restoration of Custody of Children of 20 May 1980 (ETS
No. 105);
Taking into account the Hague Convention of 25 October 1980
on the Civil Aspects of International Child Abduction and
the Hague Convention of 19 October 1996 on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co-operation in respect
of Parental Responsibility and Measures for the Protection
of Children;
Taking into account the Council Regulation (EC) No. 1347/2000
of 29 May 2000 on jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and in matters of parental
responsibility for children of both spouses;
Recognising that, as provided in the different international
legal instruments of the Council of Europe as well as in Article
3 of the United Nations Convention on the Rights of the Child
of 20 November 1989, the best interests of the child shall
be a primary consideration;
Aware of the need for further provisions to safeguard contact
between children and their parents and other persons having
family ties with children, as protected by Article 8 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms of 4 November 1950 (ETS No. 5);
Taking into account Article 9 of the United Nations Convention
on the Rights of the Child which provides for the right of
a child, who is separated from one or both parents, to maintain
personal relations and direct contact with both parents on
a regular basis, except when this is contrary to the child's
best interests;
Taking into account paragraph 2 of Article 10 of the United
Nations Convention on the Rights of the Child, which provides
for the right of the child whose parents reside in different
States to maintain on a regular basis, save in exceptional
circumstances, personal relations and direct contacts with
both parents;
Aware of the desirability of recognising not only parents
but also children as holders of rights;
Agreeing consequently to replace the notion of "access
to children" with the notion of "contact concerning
children";
Taking into account the European Convention on the Exercise
of Children’s Rights (ETS No. 160) and the desirability
of promoting measures to assist children in matters concerning
contact with parents and other persons having family ties
with children;
Agreeing on the need for children to have contact not only
with both parents but also with certain other persons having
family ties with children and the importance for parents and
those other persons to remain in contact with children, subject
to the best interests of the child;
Noting the need to promote the adoption by States of common
principles with respect to contact concerning children, in
particular in order to facilitate the application of international
instruments in this field;
Realising that machinery set up to give effect to foreign
orders relating to contact concerning children is more likely
to provide satisfactory results where the principles on which
these foreign orders are based are similar to the principles
in the State giving effect to such foreign orders;
Recognising the need, when children and parents and other
persons having family ties with children live in different
States, to encourage judicial authorities to make more frequent
use of transfrontier contact and to increase the confidence
of all persons concerned that the children will be returned
at the end of such contact;
Noting that the provision of efficient safeguards and additional
guarantees is likely to ensure the return of children, in
particular, at the end of transfrontier contact;
Noting that an additional international instrument is necessary
to provide solutions relating in particular to transfrontier
contact concerning children;
Desiring to establish co-operation between all central authorities
and other bodies in order to promote and improve contact between
children and their parents, and other persons having family
ties with such children, and in particular to promote judicial
co-operation in cases concerning transfrontier contact;
Have agreed as follows:
Article 1 – Objects of the Convention
The objects of this Convention are:
a to determine general principles to be applied to contact
orders;
b to fix appropriate safeguards and guarantees to ensure the
proper exercise of contact and the immediate return of children
at the end of the period of contact;
c to establish co-operation between central authorities, judicial
authorities and other bodies in order to promote and improve
contact between children and their parents, and other persons
having family ties with children.
Article 2 – Definitions
For the purposes of this Convention:
a "contact" means:
i the child staying for a limited period of time with or meeting
a person mentioned in Articles 4 or 5 with whom he or she
is not usually living;
ii any form of communication between the child and such person;
iii the provision of information to such a person about the
child or to the child about such a person.
b "contact order" means a decision of a judicial
authority concerning contact, including an agreement concerning
contact which has been confirmed by a competent judicial authority
or which has been formally drawn up or registered as an authentic
instrument and is enforceable;
c "child" means a person under 18 years of age in
respect of whom a contact order may be made or enforced in
a State Party;
d "family ties" means a close relationship such
as between a child and his or her grandparents or siblings,
based on law or on a de facto family relationship;
e "judicial authority" means a court or an administrative
authority having equivalent powers.
Article 3 – Application of principles
States Parties shall adopt such legislative and other measures
as may be necessary to ensure that the principles contained
in this chapter are applied by judicial authorities when making,
amending, suspending or revoking contact orders.
Article 4 – Contact between a child and his or her parents
1 A child and his or her parents shall have the right to obtain
and maintain regular contact with each other.
2 Such contact may be restricted or excluded only where necessary
in the best interests of the child.
3 Where it is not in the best interests of a child to maintain
unsupervised contact with one of his or her parents the possibility
of supervised personal contact or other forms of contact with
this parent shall be considered.
Article 5 – Contact between a child and persons other
than his or her parents
1 Subject to his or her best interests, contact may be established
between the child and persons other than his or her parents
having family ties with the child.
2 States Parties are free to extend this provision to persons
other than those mentioned in paragraph 1, and where so extended,
States may freely decide what aspects of contact, as defined
in Article 2 letter a shall apply.
Article 6 – The right of a child to be informed, consulted
and to express his or her views
1 A child considered by internal law as having sufficient
understanding shall have the right, unless this would be manifestly
contrary to his or her best interests:
– to receive all relevant information;
– to be consulted;
– to express his or her views.
2 Due weight shall be given to those views and to the ascertainable
wishes and feelings of the child.
Article 7 – Resolving disputes concerning contact
When resolving disputes concerning contact, the judicial authorities
shall take all appropriate measures:
a to ensure that both parents are informed of the importance
for their child and for both of them of establishing and maintaining
regular contact with their child;
b to encourage parents and other persons having family ties
with the child to reach amicable agreements with respect to
contact, in particular through the use of family mediation
and other processes for resolving disputes;
c before taking a decision, to ensure that they have sufficient
information at their disposal, in particular from the holders
of parental responsibilities, in order to take a decision
in the best interests of the child and, where necessary, obtain
further information from other relevant bodies or persons.
Article 8 – Contact agreements
1 States Parties shall encourage, by means they consider appropriate,
parents and other persons having family ties with the child
to comply with the principles laid down in Articles 4 to 7
when making or modifying agreements on contact concerning
a child. These agreements should preferably be in writing.
2 Upon request, judicial authorities shall, except where internal
law otherwise provides, confirm an agreement on contact concerning
a child, unless it is contrary to the best interests of the
child.
Article 9 – The carrying into effect of contact orders
States Parties shall take all appropriate measures to ensure
that contact orders are carried into effect.
Article 10 – Safeguards and guarantees to be taken concerning
contact
1 Each State Party shall provide for and promote the use of
safeguards and guarantees. It shall communicate, through its
central authorities, to the Secretary General of the Council
of Europe, within three months after the entry into force
of this Convention for that State Party, at least three categories
of safeguards and guarantees available in its internal law
in addition to the safeguards and guarantees referred to in
paragraph 3 of Article 4 and in letter b of paragraph 1 of
Article 14 of this Convention. Changes of available safeguards
and guarantees shall be communicated as soon as possible.
2 Where the circumstances of the case so require, judicial
authorities may, at any time, make a contact order subject
to any safeguards and guarantees both for the purpose of ensuring
that the order is carried into effect and that either the
child is returned at the end of the period of contact to the
place where he or she usually lives or that he or she is not
improperly removed.
a Safeguards and guarantees for ensuring that the order is
carried into effect, may in particular include:
– supervision of contact;
– the obligation for a person to provide for the travel
and accommodation expenses of the child and, as may be appropriate,
of any other person accompanying the child;
– a security to be deposited by the person with whom
the child is usually living to ensure that the person seeking
contact with the child is not prevented from having such contact;
– a fine to be imposed on the person with whom the child
is usually living, should this person refuse to comply with
the contact order.
b Safeguards and guarantees for ensuring the return of the
child or preventing an improper removal, may in particular
include:
– the surrender of passports or identity documents and,
where appropriate, a document indicating that the person seeking
contact has notified the competent consular authority about
such a surrender during the period of contact;
– financial guarantees;
– charges on property;
– undertakings or stipulations to the court;
– the obligation of the person having contact with the
child to present himself or herself, with the child regularly
before a competent body such as a youth welfare authority
or a police station, in the place where contact is to be exercised;
– the obligation of the person seeking contact to present
a document issued by the State where contact is to take place,
certifying the recognition and declaration of enforceability
of a custody or a contact order or both either before a contact
order is made or before contact takes place;
– the imposition of conditions in relation to the place
where contact is to be exercised and, where appropriate, the
registration, in any national or transfrontier information
system, of a prohibition preventing the child from leaving
the State where contact is to take place.
3 Any such safeguards and guarantees shall be in writing or
evidenced in writing and shall form part of the contact order
or the confirmed agreement.
4 If safeguards or guarantees are to be implemented in another
State Party, the judicial authority shall preferably order
such safeguards or guarantees as are capable of implementation
in that State Party.
Article 11 – Central authorities
1 Each State Party shall appoint a central authority to carry
out the functions provided for by this Convention in cases
of transfrontier contact.
2 Federal States, States with more than one system of law
or States having autonomous territorial units shall be free
to appoint more than one central authority and to specify
the territorial or personal extent of their functions. Where
a State has appointed more than one central authority, it
shall designate the central authority to which any communication
may be addressed for transmission to the appropriate central
authority within that State.
3 The Secretary General of the Council of Europe shall be
notified of any appointment under this article.
Article 12 – Duties of the central authorities
The central authorities of States Parties shall:
a co-operate with each other and promote co-operation between
the competent authorities, including judicial authorities,
in their respective countries to achieve the purposes of the
Convention. They shall act with all necessary despatch;
b with a view to facilitating the operation of this Convention,
provide each other on request with information concerning
their laws relating to parental responsibilities, including
contact and any more detailed information concerning safeguards
and guarantees in addition to that already provided according
to paragraph 1 of Article 10, and their available services
(including legal services, publicly funded or otherwise) as
well as information concerning any changes in these laws and
services;
c take all appropriate steps in order to discover the whereabouts
of the child;
d secure the transmission of requests for information coming
from the competent authorities and relating to legal or factual
matters concerning pending proceedings;
e 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 13 – International co-operation
1 The judicial authorities, the central authorities and the
social and other bodies of States Parties concerned, acting
within their respective competence, shall co-operate in relation
to proceedings regarding transfrontier contact.
2 In particular, the central authorities shall assist the
judicial authorities of States Parties in communicating with
each other and obtaining such information and assistance as
may be necessary for them to achieve the objects of this Convention.
3 In transfrontier cases, the central authorities shall assist
children, parents and other persons having family ties with
the child, in particular, to institute proceedings regarding
transfrontier contact.
Article 14 – Recognition and enforcement of transfrontier
contact orders
1 States Parties shall provide, including where applicable
in accordance with relevant international instruments:
a a system for the recognition and enforcement of orders made
in other States Parties concerning contact and rights of custody;
b a procedure whereby orders relating to contact and rights
of custody made in other States Parties may be recognised
and declared enforceable in advance of contact being exercised
within the State addressed.
2 If a State Party makes recognition or enforcement or both
of a foreign order conditional on the existence of a treaty
or reciprocity, it may consider this Convention as such a
legal basis for recognition or enforcement or both of a foreign
contact order.
Article 15 – Conditions for implementing transfrontier
contact orders
The judicial authority of the State Party in which a transfrontier
contact order made in another State Party is to be implemented
may, when recognising or declaring enforceable such a contact
order, or at any later time, fix or adapt the conditions for
its implementation, as well as any safeguards or guarantees
attaching to it, if necessary for facilitating the exercise
of this contact, provided that the essential elements of the
order are respected and taking into account, in particular,
a change of circumstances and the arrangements made by the
persons concerned. In no circumstances may the foreign decision
be reviewed as to its substance.
Article 16 – Return of a child
1 Where a child at the end of a period of transfrontier contact
based on a contact order is not returned, the competent authorities
shall, upon request, ensure the child’s immediate return,
where applicable, by applying the relevant provisions of international
instruments, of internal law and by implementing, where appropriate,
such safeguards and guarantees as may be provided in the contact
order.
2 A decision on the return of the child shall be made, whenever
possible, within six weeks of the date of an application for
the return.
Article 17 – Costs
With the exception of the cost of repatriation, each State
Party undertakes not to claim any payment from an applicant
in respect of any measures taken under this Convention by
the central authority itself of that State on the applicant's
behalf.
Article 18 – Language requirement
1 Subject to any special agreements made between the central
authorities concerned:
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 However, a State Party may, by making a declaration addressed
to the Secretary General of the Council of Europe, object
to the use of either French or English under paragraphs 1
and 2 of this article, in any application, communication or
other documents sent to their central authorities.
Article 19 – Relationship with the European Convention
on Recognition and Enforcement of Decisions concerning Custody
of Children and on Restoration of Custody of Children
Paragraphs 2 and 3 of Article 11 of the European Convention
of 20 May 1980 (ETS N° 105) on Recognition and Enforcement
of Decisions concerning Custody of Children and on Restoration
of Custody of Children shall not be applied in relations between
States Parties which are also States Parties of the present
Convention.
Article 20 – Relationships with other instruments
1 This Convention shall not affect any international instrument
to which States Parties to the present Convention are Parties
or shall become Parties and which contains provisions on matters
governed by this Convention. In particular, this Convention
shall not prejudice the application of the following legal
instruments:
a the Hague Convention of 5 October 1961 on the competence
of authorities and the applicable law concerning the protection
of minors,
b the European Convention on the recognition and enforcement
of decisions concerning custody of children and on restoration
of custody of children of 20 May 1980, subject to Article
19 above,
c the Hague Convention of 25 October 1980 on the civil aspects
of international child abduction,
d the Hague Convention of 19 October 1996 on jurisdiction,
applicable law, recognition, enforcement and co-operation
in respect of parental responsibility and measures for the
protection of children.
2 Nothing in this Convention shall prevent Parties from concluding
international agreements completing or developing the provisions
of this Convention or extending their field of application.
3 In their mutual relations, States Parties which are members
of the European Community shall apply Community rules and
shall therefore not apply the rules arising from this Convention,
except in so far as there is no Community rule governing the
particular subject concerned.
Article 21 – Amendments
1 Any proposal for an amendment to this Convention presented
by a Party shall be communicated to the Secretary General
of the Council of Europe and forwarded by him or her to the
member States of the Council of Europe, any signatory, any
State Party, the European Community, to any State invited
to sign this Convention in accordance with the provisions
of Article 22 and to any State invited to accede to this Convention
in accordance with the provisions of Article 23.
2 Any amendment proposed by a Party shall be communicated
to the European Committee on Legal Co-operation (CDCJ), which
shall submit to the Committee of Ministers its opinion on
that proposed amendment.
3 The Committee of Ministers shall consider the proposed amendment
and the opinion submitted by the CDCJ and, following consultation
of the Parties to the Convention, which are not members of
the Council of Europe, may adopt the amendment.
4 The text of any amendment adopted by the Committee of Ministers
in accordance with paragraph 3 of this article shall be forwarded
to the Parties for acceptance.
5 Any amendment adopted in accordance with paragraph 3 of
this article shall enter into force on the first day of the
month following the expiration of a period of one month after
the date on which all Parties have informed the Secretary
General that they have accepted it.
Article 22 – Signature and entry into force
1 This Convention shall be open for signature by the member
States of the Council of Europe, the non-member States which
have participated in its elaboration and the European Community.
2 This Convention 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.
3 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 States, including at
least two member States of the Council of Europe, have expressed
their consent to be bound by the Convention in accordance
with the provisions of the preceding paragraph.
4 In respect of any State mentioned in paragraph 1 or the
European Community, 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 its instrument
of ratification, acceptance or approval.
Article 23 – Accession to the Convention
1 After the entry into force of this Convention, the Committee
of Ministers of the Council of Europe may, after consultation
of the Parties, invite any non-member State of the Council
of Europe, which has not participated in the elaboration of
the Convention, to accede to this Convention by a decision
taken by the majority provided for in Article 20 d. of the
Statute of the Council of Europe, and by unanimous vote of
the representatives of the Contracting States entitled to
sit on the Committee of Ministers.
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 – Territorial application
1 Any State or the European Community 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 Party 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 and for whose international relations
it is responsible or on whose behalf it is authorised to give
undertakings. 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 of such declaration by the Secretary General.
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 three
months after the date of receipt of such notification by the
Secretary General.
Article 25 – Reservations
No reservation may be made in respect of any provision of
this Convention.
Article 26 – Denunciation
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 three
months after the date of receipt of the notification by the
Secretary General.
Article 27 – Notifications
The Secretary General of the Council of Europe shall notify
the member States of the Council of Europe, any State signatory,
any State Party, the European Community, to any State invited
to sign this Convention in accordance with the provisions
of Article 22 and to any State invited to accede to this Convention
in accordance with the provisions of Article 23 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 and 23;
d any amendment adopted in accordance with Article 21 and
the date on which such an amendment enters into force;
e any declaration made under the provisions of Article 18;
f any denunciation made in pursuance of the provisions of
Article 26;
g any other act, notification or communication, in particular
relating to Articles 10 and 11 of this Convention.
In witness whereof, the undersigned, being duly authorised
thereto, have signed this Convention.
Done at Strasbourg, this 15th day of May 2003, in English
and in 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, to the non-member States which have participated
in the elaboration of this Convention, to the European Community
and to any State invited to accede to this Convention.
http://conventions.coe.int/Treaty/en/treaties/html/192.htm
European Convention on Recognition
and Enforcement of Decisions concerning Custody of Children
and on Restoration of Custody of Children
Luxemburg, 20.V.1980
Explanatory Report
Français
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 16 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 provisions
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. In the same cases, 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 enquiries be carried out.
2. The cost of enquiries in any Contracting State shall be
met by the authorities of the State where they are carried
out.
3. Request for enquiries and the results of enquiries 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 State 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 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 the 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, the 20th 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.
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