(c)

(c) 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 shall

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 pending proceedings;
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.

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, in order:

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).

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).

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

and

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.

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.

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:

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.

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).

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 International Law:

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 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 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 State

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.

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).

For the purposes of the Convention an authority in the State of origin shall be considered to have jurisdiction (Article 7)

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 instituted; or
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).

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).

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

whether, to what extent and from whom a creditor may claim maintenance;
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.

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).

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Section (d) --->

(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.:

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 10).

(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>.

(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 URL: <http://hcch.net/e/conventions/bibl23e.html>.

(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

if recognition or enforcement of the decision is manifestly incompatible with the public policy ("ordre public") of the State addressed; or
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 addressed.

(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).

(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 URL: <http://hcch.net/e/conventions/bibl23e.html>.

(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 (Article 8).

(32) See below, paragraph Nr. 18.