Section 1(2).
Modifications etc. (not altering text)
C1Sch. 1 applied (with modifications) (1.3.1997) by S.I. 1996/3156, art. 2, Sch.
Sch. 1 applied (with modifications) (2.12.1997) by S.I. 1997/2574 art. 2, Sch.
The removal or the retention of a child is to be considered wrongful where—
(a)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
(b)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 rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
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 sixteen years.
For the purposes of this Convention—
(a)“rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b)“rights or access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
Central 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, either directly or through any intermediary, they shall take all appropriate measures—
(a)to discover the whereabouts of a child who has been wrongfully removed or retained;
(b)to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c)to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d)to exchange, where desirable, information relating to the social background of the child;
(e)to provide information of a general character as to the law of their State in connection with the application of the Convention;
(f)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;
(g)where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h)to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i)to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain—
(a)information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
(b)where available, the date of birth of the child;
(c)the grounds on which the applicant’s claim for return of the child is based;
(d)all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by—
(e)an authenticated copy of any relevant decision or agreement;
(f)a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State;
(g)any other relevant document.
If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.
The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
Where a child has been wrongfully removed or retained in terms of Article 3 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.
Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—
(a)the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b)there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
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 this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
An application to make arrangements for organising 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 are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope 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, where that is not feasible, a translation into French or English.
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.
A Central Authority may require that the application be accompanied by a written authorisation empowering it to act on behalf of the applicant, or to designate a representative so to act.
This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.
Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.
In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units—
(a)any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
(b)any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.
In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.
Section 12(2).
Modifications etc. (not altering text)
C2Sch. 2 applied (with modifications) (1.3.1997) by S.I. 1996/3156, art. 2, Sch.
Sch. 2 applied (with modifications) (2.12.1997) by S.I. 1997/2574 art. 2, Sch.
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.
(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.
(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.
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.
(1)[Recognition and enforcement may be refused] 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.
(3)In no circumstances may the foreign decision be reviewed as to its substance.
(1)[Recognition and enforcement may also be refused] 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)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.
(1)Decisions on rights of access and provisions of decisions relating to custody which deal with the rights 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.
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.
(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.
(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.
Requests for enquiries and the results of enquiries may be sent to the authority concerned through the central authorities.
(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 the decision was given or 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.
Section 27(1).
Modifications etc. (not altering text)
C3Sch. 3 applied (with modifications) (1.3.1997) by S.I. 1996/3156, art. 2, Sch.
Sch. 3 applied (with modifications) (2.12.1997) by S.I. 1997/2574 art. 2, Sch.
[F11U.K.The following are the orders referred to in section 27(1) of this Act—
(a)a care order under the Children Act 1989 (as defined by section 31(11) of that Act, read with section 105(1) and Schedule 14);
(b)a residence order (as defined by section 8 of the Act of 1989); and
(c)any order made by a court in England and Wales under any of the following enactments—
(i)section 9(1), 10(1(a) or 11(a) of the Guardianship of Minors Act 1971;
(ii)section 42(1) or (2) or 43(1) of the Matrimonial Causes Act 1973;
(iii)section 2(2)(b), 4(b) or (5) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975;
(iv)section 8(2)(a), 10(1) or 19(1)(ii) of the Domestic Proceedings and Magistrates Courts Act 1978;
(v)section 26(1)(b) of the Adoption Act 1976.]
Textual Amendments
F1Sch. 3 Pt. I para. 1 substituted (14. 10. 1991) by Children Act 1989 (c. 41, SIF 20), s. 108(5)(6), Sch. 13 para. 57(3), Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)
2U.K.An order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person.
F23U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F2Sch. 3 Pt. I para. 3 repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, art. 3
4U.K.An authorisation given by the Secretary of State under section 26(2) of the Children and Young Persons Act 1969 (except where the relevant order, within the meaning of that section, was made by virtue of the court which made it being satisfied that the child was guilty of an offence).
5An order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the [F3residence, custody, care or control of a child or contact with, or] access to a child, excluding—
(i)an order placing a child under the supervision of a local authority;
(ii)an adoption order under section 12(1) of the M1Adoption (Scotland) Act 1978;
[F4(iia)an order freeing a child for adoption made under section 18 of the M2Adoption (Scotland) Act 1978]
(iii)an order relating to the [F5guardianship] of a child;
(iv)an order made under section 16(8), 16A(3) or 18(3) of the M3Social Work (Scotland) Act 1968;
(v)an order made in the exercise of any power under Part III of the Social Work (Scotland) Act 1968 to authorise any person to take a child to a place of safety, to issue, renew or recall a warrant for the apprehension or detention of a child, or to order the detention of a child in secure accommodation;
(vi)an order made in proceedings under this Act.
Textual Amendments
F3Words in Sch. 3 Pt. II para. 5 substituted (1.11.1996 subject to arts. 4-7 of the commencing S.I.) by 1995 c. 36, s. 104(4), Sch. 4 para. 37(6)(a)(i) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.
F4Sch. 3, Pt. I para. 5(iia) inserted by Family Law Act 1986 (c. 55, SIF 49:3), s. 68(1), Sch. 1 para. 31
F5Words in Sch. 3 Pt. II para. 5(iii) substituted (1.11.1996 subject to arts. 4-7 of the commencing S.I.) by 1995 c. 36, s. 105(4), Sch. 4 para. 37(6)(a)(ii) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.
Modifications etc. (not altering text)
C4Sch. 3 Pt. II para. 5(ii) modified (1.11.1994) by S.I. 1994/2804, reg. 3, Sch. 2 para. 4
Marginal Citations
6A supervision requirement or other order made by a children’s hearing in Scotland under section 44(1), 47, 48, 72(1) or 74(1) of the Social Work (Scotland) Act 1968.
7An order made by the Secretary of State under section 74(3) of the said Act of 1968.
[F68U.K.The following orders—
(a)a care order under the Children (Northern Ireland) Order 1995 (as defined by Article 49(1) of that Order read with Article 2(2) and Schedule 8);
(b)a residence order (as defined by Article 8 of that Order);
(c)any order made by a court in Northern Ireland under any of the following enactments—
(i)section 5 of the Guardianship of Infants Act 1886 (except so far as it relates to costs);
(ii)section 49 of the Mental Health Act (Northern Ireland) 1961;
(iii)Article 45(1) or (2) or 46 of the Matrimonial Causes (Northern Ireland) Order 1978;
(iv)Article 10(2)(a), 12(1) or 20(1)(ii) of the Domestic Proceedings (Northern Ireland) Order 1980;
(v)Article 27(1)(b) of the Adoption (Northern Ireland) Order 1987.]
Textual Amendments
F6Sch. 3 Pt. III para. 8 substituted (4.11.1996) by S.I. 1995/756, art. 11(5); S.R. 1996/297, art. 3
9U.K.An order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person.
F710U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F7Sch. 3 Pt. III para. 10 repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, art. 3