Custody and Abduction of Children:
Rights of the Child vs. Family Breakdown
9. The European Convention on Recognition
and Enforcement of Decisions Concerning Custody of Children and on Restoration
of Custody of Children (Luxembourg, 20 May 1980).
Trans-border marriages and cohabitations are more and
more frequent. The same can unfortunately be said for separations and divorces
as well (21). Being aware of the risks for children in
the situation of family crisis and breakdown, and noting the increasing
number of cases where children have been improperly removed across an international
frontier, the Council of Europe drew up in 1980 an European Convention
on Recognition and Enforcement of Decisions Concerning Custody of Children
and on Restoration of Custody of Children (Luxembourg, 20 May 1980) (22).
This act draws its inspiration from the remark 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; furthermore, it emphasises that the right of access of parents
is a normal corollary to the right of custody.
The Convention provides for (see Article 2) the setting
up of central authorities, which in each Contracting State should carry
out the functions described by this instrument. The Secretary General of
the Council of Europe should be notified of any appointment of such a kind.
According to Article 3, the central authorities of the Contracting States
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 (Article
4). 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,
co-operate with each other and promote co-operation between
the competent authorities in their respective countries;
secure the transmission of requests for information coming
from competent authorities and relating to legal or factual matters concerning
provide each other on request with information about their
law relating to the custody of children and any changes in that law;
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 7 says that 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.
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 (Article 8). Recognition and enforcement of a foreign decision
may be refused only in some exceptional cases (Article 9) (23),
but in no circumstances may the foreign decision be reviewed as to its
substance. The same rules apply to foreign decisions on rights of access
and provisions of decisions relating to custody which deal with the right
of access: they shall be recognised and enforced subject to the same conditions
as other decisions relating to custody (Article 11).
to discover the whereabouts of the child;
to avoid, in particular by any necessary provisional measures,
prejudice to the interests of the child or of the applicant;
to secure the recognition or enforcement of the decision;
to secure the delivery of the child to the applicant where
enforcement is granted;
to inform the requesting authority of the measures taken
and their results (Article 5).
Finally, Articles 13 - 16 set forth some procedural rules,
while Articles 21 - 24 provide for the conditions and rules concerning
ratification, acceptance, approval and entering into force of the Convention.
10. The Hague Convention on the
Civil Aspects of International Child Abduction (The Hague, 25 October 1980).
In the very same year in which the aforementioned Council
of Europe's convention was done, the Hague Conference on Private International
Law drew up the Convention on the Civil Aspects of International Child
Abduction, done at The Hague, on the 25th day of October, 1980 (24).
Main scope of this act is to protect children internationally from the
harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of access (Article
1). The removal or the retention of a child is to be considered wrongful
where (Article 3):
it is in breach of rights of custody attributed to a person,
an institution or any other body, either jointly or alone, under the law
of the State in which the child was habitually resident immediately before
the removal or retention
According to Article 4 the Convention shall apply to any
child who was habitually resident in a Contracting State immediately before
any breach of custody or access rights. The Convention shall cease to apply
when the child attains the age of 16 years.
at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but
for the removal or retention.
The Convention provides for the setting up of Central
Authorities for each Contracting State (see Article 6). These Authorities
shall co-operate with each other and promote co-operation amongst the competent
authorities in their respective States to secure the prompt return of children
and to achieve the other objects of this Convention. In particular (see
Article 7), either directly or through any intermediary, they shall take
all appropriate measures:
Where a child has been wrongfully removed or retained and,
at the date of the commencement of the proceedings before the judicial
or administrative authority of the Contracting State where the child is,
a period of less than one year has elapsed from the date of the wrongful
removal or retention, the authority concerned shall order the return of
the child forthwith. The judicial or administrative authority, even where
the proceedings have been commenced after the expiration of the period
of one year referred to in the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that the child is now settled
in its new environment (see Article 12) (25).The return
of the child under the provision of Article 12 may be refused if this would
not be permitted by the fundamental principles of the requested State relating
to the protection of human rights and fundamental freedoms (Article 20).
to discover the whereabouts of a child who has been wrongfully
removed or retained;
to prevent further harm to the child or prejudice to interested
parties by taking or causing to be taken provisional measures;
to secure the voluntary return of the child or to bring about
an amicable resolution of the issues;
to exchange, where desirable, information relating to the
social background of the child;
to provide information of a general character as to the law
of their State in connection with the application of the Convention;
to initiate or facilitate the institution of judicial or
administrative proceedings with a view to obtaining the return of the child
and, in a proper case, to make arrangements for organizing or securing
the effective exercise of rights of access;
to provide such administrative arrangements as may be necessary
and appropriate to secure the safe return of the child.
Articles 21 - 36 provide for right of access, stating
that an application to make arrangements for organizing or securing the
effective exercise of rights of access may be presented to the Central
Authorities of the Contracting States in the same way as an application
for the return of a child. The Central Authorities are bound by the obligations
of co-operation which have already been described (see Article 7), in order
to promote the peaceful enjoyment of access rights and the fulfilment of
any conditions to which the exercise of such rights may be subject.
According to Articles 25 and 26, Nationals of the Contracting
States and persons who are habitually resident within those States shall
be entitled in matters concerned with the application of this Convention
to legal aid and advice in any other Contracting State on the same conditions
as if they themselves were nationals of and habitually resident in that
State. Each Central Authority shall bear its own costs in applying this
Convention. Finally, it has to be said that the Convention does not prevent
any person, institution or body who claims that there has been a breach
of custody or access rights from applying directly to the judicial or administrative
authorities of a Contracting State, whether or not under the provisions
of the same Convention (Article 29).
11. The Hague Convention on the
Recognition and Enforcement of Decisions Relating to Maintenance Obligations
(2 October 1973) and the Hague Convention on the Law Applicable to Maintenance
Obligations (2 October 1973).
Pecuniary rights of children involved in a family breakdown
are safeguarded by two conventions drafted by the Hague Conference on Private
The first instrument (26) aims to establish
common provisions to govern the reciprocal recognition and enforcement
of decisions relating to maintenance obligations in respect of adults,
as well as at co-ordinating these provisions and those of the Convention
of the 15th of April 1958 on the Recognition and Enforcement of Decisions
Relating to Maintenance Obligations in Respect of Children (27).
the Hague Convention on the Recognition and Enforcement of
Decisions Relating to Maintenance Obligations (2 October 1973) and
the Hague Convention on the Law Applicable to Maintenance
Obligations (2 October 1973).
The Hague Convention on the Recognition and Enforcement
of Decisions Relating to Maintenance Obligations applies to decisions rendered
by a judicial or administrative authority in a Contracting State in respect
of a maintenance obligation arising from a family relationship, parentage,
marriage or affinity, including a maintenance obligation towards an infant
who is not legitimate (Article 1). According to Article 4, a decision rendered
in a Contracting State shall be recognised or enforced in another Contracting
Provisionally enforceable decisions and provisional measures
shall, although subject to ordinary forms of review, be recognised or enforced
in the State addressed if similar decisions may be rendered and enforced
in that State (28).
if it was rendered by an authority considered to have jurisdiction
under Article 7 or 8 of the Convention; and
if it is no longer subject to ordinary forms of review in
the State of origin.
For the purposes of the Convention an authority in the
State of origin shall be considered to have jurisdiction (Article 7)
Articles 13 - 17 set forth procedural rules for recognition
and enforcement of decisions. It is furthermore worth mentioning that also
settlements enforceable in the State of origin shall be recognised and
enforced subject to the same conditions as judicial decisions, so far as
the above mentioned conditions are applicable to it (see Article 21).
if either the maintenance debtor or the maintenance creditor
had his habitual residence in the State of origin at the time when the
proceedings were instituted; or
if the maintenance debtor and the maintenance creditor were
nationals of the State of origin at the time when the proceedings were
if the defendant had submitted to the jurisdiction of the
authority, either expressly or by defending on the merits of the case without
objecting to the jurisdiction (29).
The Hague Convention on the Law Applicable to Maintenance
Obligations (2 October 1973) (30) deals with the same
maintenance obligations (arising from a family relationship, parentage,
marriage or affinity, including a maintenance obligation in respect of
a child who is not legitimate) contemplated by the other Hague Convention,
bearing the same date (Article 1). Scope of this convention is that of
governing conflicts of laws in respect of such maintenance obligations
(Article 2). Applicable law is the internal law of the habitual residence
of the maintenance creditor. In the case of a change in the habitual residence
of the creditor, the internal law of the new habitual residence shall apply
as from the moment when the change occurs (Article 4) (31).
It must be highlighted that the law designated by the Convention applies
irrespective of any requirement of reciprocity and whether or not it is
the law of a Contracting State (Article 3).
According to Article 10 the law applicable to a maintenance
obligation shall determine inter alia
The two conventions described in this paragraph deal not
only with the rights of children, but also with other kind of maintenance
rights within family relationship, as, e.g., rights to alimony between
spouses. This latter topic will also be dealt with later on (32).
whether, to what extent and from whom a creditor may claim
who is entitled to institute maintenance proceedings and
the time limits for their institution;
the extent of the obligation of a maintenance debtor, where
a public body seeks reimbursement of benefits provided for a creditor.
(21) Upon this topic see Oberto, I
contratti della crisi coniugale, Milano, 1999, p. 28 et s.
(22) The text of the Convention is available
at the following URL: <http://www.coe.fr/eng/legaltxt/105e.htm>.
(23) Such as, e.g.:
(24) The text of the Convention is available
at the following URL: <http://hcch.net/e/conventions/menu28e.html>.
For an exhaustive bibliography on this topic see <http://hcch.net/e/conventions/bibl28e.html>.
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;
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:
on the habitual residence of the defendant, or
on the last common habitual residence of the child's parents,
at least one parent being still habitually resident there, or
on the habitual residence of the child;
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 (see also Article
(25) It must be highlighted that, according
to Article 17, the sole fact that a decision relating to custody has been
given in or is entitled to recognition in the requested State shall not
be a ground for refusing to return a child under the Convention, but the
judicial or administrative authorities of the requested State may take
account of the reasons for that decision in applying the Convention.
(26) The text of the Convention is available
at the following URL: <http://hcch.net/e/conventions/menu23e.html>.
An exhaustive bibliography upon this topic can be found at the following
(27) This previous convention has been
replaced by the two 1973 Hague Conventions, as regards the States who are
Parties to them: see Article 29 of the Hague Convention on the Recognition
and Enforcement of Decisions Relating to Maintenance Obligations and Article
18 of the Hague Convention on the Law Applicable to Maintenance Obligations.
(28) According to Article 5, however,
recognition or enforcement of a decision may be refused
(29) Without prejudice to the provisions
of Article 7, the authority of a Contracting State which has given judgement
on a maintenance claim shall be considered to have jurisdiction for the
purposes of the Convention if the maintenance is due by reason of a divorce
or a legal separation, or a declaration that a marriage is void or annulled,
obtained from an authority of that State recognised as having jurisdiction
in that matter, according to the law of the State addressed (see Article
8). The application of the law designated by the Convention may be refused
only if it is manifestly incompatible with public policy ("ordre public").
However, even if the applicable law provides otherwise, the needs of the
creditor and the resources of the debtor shall be taken into account in
determining the amount of maintenance (Article 11).
if recognition or enforcement of the decision is manifestly
incompatible with the public policy ("ordre public") of the State addressed;
if the decision was obtained by fraud in connection with
a matter of procedure; or
if proceedings between the same parties and having the same
purpose are pending before an authority of the State addressed and those
proceedings were the first to be instituted; or
if the decision is incompatible with a decision rendered
between the same parties and having the same purpose, either in the State
addressed or in another State, provided that this latter decision fulfils
the conditions necessary for its recognition and enforcement in the State
(30) The text of the Convention is available
at the following URL: <http://hcch.net/e/conventions/menu24e.html>.
An exhaustive bibliography upon this topic can be found at the following
(31) Notwithstanding the provisions of
Articles 4 to 6, the law applied to a divorce governs the maintenance obligations
between the divorced spouses and the revision of decisions relating to
these obligations. This rule applies also in the case of a legal separation
and in the case of a marriage which has been declared void or annulled
(32) See below, paragraph Nr. 18.