The 1980 Hague Convention
‘On the Civil Aspects
of International Child Abduction’
(relevant Articles)
ARTICLE 30
‘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.’
ARTICLE 19
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.
NOTE: Hague is only to determine jurisdiction of the child
ARTICLE 1
The objects of the present Convention are:
a) to secure [prompt] return of children [wrongfully] removed to or retained in any Contracting State;
and
b) to ensure rights of custody and of access under the law of one Contracting State
are effectively 'respected' in the other Contracting States.
ARTICLE 2
Contracting States [shall] take ‘all appropriate measures’ to secure within their territories
the implementation of the objects of the Convention.
For this purpose they [shall] use the most expeditious procedures available.
ARTICLE 11
The judicial or administrative authorities of Contracting States [shall act] expeditiously
in proceedings for the return of children. * (See also the 'Special Note' #1 Below)
ARTICLE 12
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 return of the child
'forthwith.'
The judicial or administrative authority, even where the proceedings have
been commenced [after] expiration of the period of one year referred to in the
preceding paragraph (which did not occur in Alessia's case), [shall] also order return of the child,
unless it is demonstrated that the child is now settled in its new environment.
(See Special Note # 2 below)
ARTICLE 3
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.
ARTICLE 14
'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
recognized or not in the State of the habitual residence of the child, without recourse to specific procedures
for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
ARTICLE 5
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 of 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.
‘On the Civil Aspects
of International Child Abduction’
(relevant Articles)
ARTICLE 30
‘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.’
ARTICLE 19
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.
NOTE: Hague is only to determine jurisdiction of the child
ARTICLE 1
The objects of the present Convention are:
a) to secure [prompt] return of children [wrongfully] removed to or retained in any Contracting State;
and
b) to ensure rights of custody and of access under the law of one Contracting State
are effectively 'respected' in the other Contracting States.
ARTICLE 2
Contracting States [shall] take ‘all appropriate measures’ to secure within their territories
the implementation of the objects of the Convention.
For this purpose they [shall] use the most expeditious procedures available.
ARTICLE 11
The judicial or administrative authorities of Contracting States [shall act] expeditiously
in proceedings for the return of children. * (See also the 'Special Note' #1 Below)
ARTICLE 12
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 return of the child
'forthwith.'
The judicial or administrative authority, even where the proceedings have
been commenced [after] expiration of the period of one year referred to in the
preceding paragraph (which did not occur in Alessia's case), [shall] also order return of the child,
unless it is demonstrated that the child is now settled in its new environment.
(See Special Note # 2 below)
ARTICLE 3
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.
ARTICLE 14
'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
recognized or not in the State of the habitual residence of the child, without recourse to specific procedures
for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
ARTICLE 5
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 of 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.
* SPECIAL NOTES 1 & 2
in reference to Articles 2, 11 & 12 above:
Special Note #1:
The UK Court also violated the European Union’s
2003 ‘COUNCIL REGULATION (EC) No 2201/2003.’
EU REG: ARTICLE 11
'Return of the Child'
'3) 'Without prejudice […] the court [shall], except where exceptional
circumstances make this impossible, issue its judgment [no later] than six weeks
after the application is lodged.' [UK intentionally delayed Alessia's case for 10 months]
'4) A court can[not] refuse to return a child on the basis of Article 13b of the
1980 Hague Convention if it is established that adequate arrangements have been
made to secure the protection of the child after his or her return.'
________________________________________
Special Note # 2
The Mother who kidnapped Alessia, erroneously attempted to
get the UK Court to rule that Alessia had 'settled' in a new environment.
Fortunately for Alessia, there is ample prior UK case law to prohibit
this false attempt to circumvent the purpose and objective of the Hague Convention:
[UK Court of Appeals]
Soucie v. Soucie 1995 SC 134, 1995 SLT
4148,1995 SCLR 203
“In our opinion..."
"the respondent has failed to demonstrate that such
a 'settlement' has been established…
because of the age of the child a [3 year old female];
it is unlikely that the child can properly be said to be
'established' in a community involving
such matters as school, people,
friends, activities and
opportunities..."
(Alessia is also 3)
MAINTAINING CONSISTENCY
TO THE PURPOSE & OBJECTIVE OF THE HAGUE CONVENTION
Member States who ratified the Hague Convention
have also ruled as follows:
(1) Friedrich,78 F.3d 1068 (at Para 29):
“A removing parent must [not] be allowed to abduct a child
and then when brought to court complain that the child
'has grown used to the surroundings to which they were abducted.'
Under the logic of the Convention it is the [abduction] that causes
the pangs of their subsequent return.”
(2) Walsh v. Walsh, 221 F.3d 204, 220 n.14 (1st Cir. 2000):
“We disregard the arguments that grave risk of harm may be established by the mere
fact that removal would unsettle the children who have now settled in the United
States..." … "That is an inevitable consequence of their removal.”
(3) Clarke v. Clarke, 2008 WL 2217608 (E.D. Pa. May 27, 2008):
“a Mother [cannot] turn a nine-week isit to the United States
into an almost seven month stay and then claim that the child is 'acclimatized'
in the United States so as to [shift] habitual residence"...
“This court noted the respondent cannot take advantage of the time-lapse
in which she led the petitioner to believe that she was planning on returning to Australia to
claim that the children have become “acclimatized...”
"it is precisely this type of
behaviour that undermines the purpose of the Hague Convention.”
(4) Evans v. Evans (U.K. 1988) [Court of Appeals]
(Civ. Div.) No. AD 1716 of 1988:
The Father asks the Court to consider this UK case in the Court of
Appeals, wherein the mere fact that a UK decision ‘might’allow the misuse of the
Article 13(b) exception: “only serves to drive a coach and horses
through the provisions of this Convention, since it would be
open to [any] abducting parent to raise allegations under Article 13."
in reference to Articles 2, 11 & 12 above:
Special Note #1:
The UK Court also violated the European Union’s
2003 ‘COUNCIL REGULATION (EC) No 2201/2003.’
EU REG: ARTICLE 11
'Return of the Child'
'3) 'Without prejudice […] the court [shall], except where exceptional
circumstances make this impossible, issue its judgment [no later] than six weeks
after the application is lodged.' [UK intentionally delayed Alessia's case for 10 months]
'4) A court can[not] refuse to return a child on the basis of Article 13b of the
1980 Hague Convention if it is established that adequate arrangements have been
made to secure the protection of the child after his or her return.'
________________________________________
Special Note # 2
The Mother who kidnapped Alessia, erroneously attempted to
get the UK Court to rule that Alessia had 'settled' in a new environment.
Fortunately for Alessia, there is ample prior UK case law to prohibit
this false attempt to circumvent the purpose and objective of the Hague Convention:
[UK Court of Appeals]
Soucie v. Soucie 1995 SC 134, 1995 SLT
4148,1995 SCLR 203
“In our opinion..."
"the respondent has failed to demonstrate that such
a 'settlement' has been established…
because of the age of the child a [3 year old female];
it is unlikely that the child can properly be said to be
'established' in a community involving
such matters as school, people,
friends, activities and
opportunities..."
(Alessia is also 3)
MAINTAINING CONSISTENCY
TO THE PURPOSE & OBJECTIVE OF THE HAGUE CONVENTION
Member States who ratified the Hague Convention
have also ruled as follows:
(1) Friedrich,78 F.3d 1068 (at Para 29):
“A removing parent must [not] be allowed to abduct a child
and then when brought to court complain that the child
'has grown used to the surroundings to which they were abducted.'
Under the logic of the Convention it is the [abduction] that causes
the pangs of their subsequent return.”
(2) Walsh v. Walsh, 221 F.3d 204, 220 n.14 (1st Cir. 2000):
“We disregard the arguments that grave risk of harm may be established by the mere
fact that removal would unsettle the children who have now settled in the United
States..." … "That is an inevitable consequence of their removal.”
(3) Clarke v. Clarke, 2008 WL 2217608 (E.D. Pa. May 27, 2008):
“a Mother [cannot] turn a nine-week isit to the United States
into an almost seven month stay and then claim that the child is 'acclimatized'
in the United States so as to [shift] habitual residence"...
“This court noted the respondent cannot take advantage of the time-lapse
in which she led the petitioner to believe that she was planning on returning to Australia to
claim that the children have become “acclimatized...”
"it is precisely this type of
behaviour that undermines the purpose of the Hague Convention.”
(4) Evans v. Evans (U.K. 1988) [Court of Appeals]
(Civ. Div.) No. AD 1716 of 1988:
The Father asks the Court to consider this UK case in the Court of
Appeals, wherein the mere fact that a UK decision ‘might’allow the misuse of the
Article 13(b) exception: “only serves to drive a coach and horses
through the provisions of this Convention, since it would be
open to [any] abducting parent to raise allegations under Article 13."