1994 (December 22)
Official Gazette No. 41643 of December 22, 1994
Through which the Convention on the Civil Aspects of International Child Abduction, signed at The Hague approved 25 October 1980. Summary
CONGRESS OF COLOMBIA DECREES
having regard to the text of the "Convention on the Civil Aspects of International Child Abduction", signed in The Hague on 25 October 1980 adopted by the Convention
fourteenth Session and signed on 25 October 1980 (1).
Convention on Civil Aspects of International Child Abduction
States signatory to the present Convention,
Deeply convinced that the interest of children is of paramount importance to all matters relating to their custody, Desiring protect children internationally from the harmful effects of a transfer or unlawful return and establish procedures to ensure the immediate return of the child in the State habitual residence and to ensure the protection of rights of access, have decided to hold a Convention to this effect and have agreed as follows:
CHAPTER I. Scope of the Convention
ARTICLE 1o. This Convention aims:
a) to ensure the immediate return of children wrongfully removed to or retained in any contractante (sic) State;
B) to effectively respected in the other States contractants custody rights and existing state visit in a contractante.
. United contractants (sic) take all appropriate measures to ensure within the limits of their territories, the implementation of the objectives of this Convention. To this end, they shall use its emergency procedures.
ARTICLE 3. The removal or return of a child will be considered as illegal:
a) has When a violation of custody rights assigned either to a person, an institution or any other body, either alone or jointly, by the law of the State in which the child was habitually resident before the removal or return;
B) That this right was exercised effectively alone or together at the time of removal or return or would have been if these events had not occurred.
The rights of custody mentioned in subparagraph a) may result in particular by operation of law of law or of a judicial or administrative decision or agreement in force under the law of that State.
ARTICLE 4. The Convention shall apply to any child who was habitually resident in a State contractante immediately before the violation of any rights of access. The application of the Convention shall cease when the child reaches 16 years of age.
The 5th ITEM. 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 to decide their place of residence;
B) "rights of access" shall include the right to take the child for a limited time to a place other than the child's habitual residence place period.
CHAPTER II. Central Authorities
ARTICLE 6o. Each State shall designate a Central Authority to discharge the duties which they were imposed by the Convention.
A federal State, a State which are in force several legal systems or a State with autonomous territorial organizations shall be free to designate more than one central authority and to specify the territorial scope of the powers of each of these authorities . The usare State shall designate the Central Authority to which applications may be addressed for transmission to the Central Competent Authority in that State.
ARTICLE 7. Central Authorities shall cooperate with each other and promote cooperation between the competent authorities of their respective States to secure the prompt return of children and to achieve other objectives of this Convention.
In particular, they should take all appropriate measures, either directly or with the assistance of any intermediary:
a) To locate a child transferred or retained illegally;
B) To prevent further danger to the child or prejudice to interested parties by taking or by taking provisional measures;
C) To ensure the voluntary surrender of the child or facilitate an amicable settlement;
D) To exchange, if that proves useful data on the social situation of the child;
E) To provide general information regarding the law of the State on the implementation of the Convention;
F) To initiate or facilitate the initiation of a judicial or administrative proceeding in order to obtain the return of the child and, as appropriate, to allow visitation rights be effectively organized or exercised;
G) To provide or facilitate, as appropriate, obtaining legal aid and advice, including the participation of a lawyer;
H) To ensure, at the administrative level, if necessary and appropriate, the child's return safely;
I) To keep each other informed on the implementation of the Convention and as far as possible, eliminate any obstacles to its application.
CHAPTER III. Return the child
Article 8. The person, institution or organization desiring to which a child has been removed or retained in violation of custody rights may bring the matter either to the Central Authority where the child habitually or resides to the Central Authority of any State contractante so that they provide assistance in order to ensure the child's return.
The request shall contain:
a) information on the applicant's name, the child and the person who is alleged or any removed or retained the child;
B) The date of birth of the child, when he is possible to obtain it;
C) the grounds on which the applicant will draw to claim the return of the child;
D) Any available information on the whereabouts of the child and the name of the person with whom the child is presumed;
The application may be accompanied or supplemented by:
e) An authenticated copy of any relevant decision or agreement;
F) Attestation or affidavit emanating from the Central Authority or other competent authority where the child habitually resides or a to enabled (or competent person) on the law of the State in the matter;
G) Any other relevant document.
Article 9. When the Central Authority is dealing with an application under article 8. It has good reasons to believe that the child is in another contractante State, transmit the request directly to the Central Authority of the State contractante and inform the requesting Central Authority or the applicant, as applicable.
ARTICLE 10. The Central Authority of the State where the child is or having them taken appropriate measures to ensure their voluntary surrender measures.
ARTICLE 11. The administrative or judicial authorities of any State contractante should proceed urgently for the child's return.
When aware judicial or administrative authority has not taken a decision within six weeks from the start of proceedings, the applicant or the central authority of the requested State may, on its own initiative or at the request of the Central Authority requesting State, request a statement of the reasons for the delay. If the answer I be received by the Central Authority of the requested State, that Authority shall transmit to the Central Authority of the requesting State or the applicant, as applicable.
ARTICLE 12. When a child shall have been wrongfully removed or retained within the meaning of Article 3. and that a period of one year has elapsed at least after the transfer or return prior to the initiation of the application before the administrative or judicial authority of contractante State where the child is found, the authority concerned shall order his immediate return.
The judicial or administrative authority even if it be aware after the expiry of one year period referred to in the preceding paragraph, shall also order the return of the child unless the person was shown that child has been integrated into their new environment.
When the administrative or judicial authority of the requested State has reason to believe that the child has been taken to another State, may suspend the proceedings or dismiss the application for return of the child.
ARTICLE 13. However, the provisions of the preceding article judicial or administrative authority is not obliged to order the return of the child if the person, institution or organization that opposes his return probare:
a) The person, institution or organization that cared for the child's person not actually exercised rights of custody at the time of removal or return or had consented to or subsequently acquiesced in the removal or return;
B) That there is a serious risk that the child's return not undergo a physical or psychological harm or otherwise do not place an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that it opposes their return and who has reached an age and maturity show you where it is desirable to take account of this opinion.
In assessing the circumstances mentioned in this Article, the judicial or administrative authorities shall take into account the information provided by the Central Authority or other competent authority of the State where the child habitually resides about their social situation.
ARTICLE 14. In order to determine the existence of a transfer or non-return illegal within the meaning of Article 3., The judicial or administrative authority of the requested State may take into account the legislation and judicial or administrative decisions formally recognized or not in the State where the child habitually resides without recourse to the specific procedures on the proof of that law or the recognition of foreign decisions which would otherwise be applicable.
ARTICLE 15. Before ordering the child's return, administrative and judicial authorities of a contractante State may ask the applicant to submit a decision or attestation emanating from the authorities of the State where the child habitually resides where it appears that the removal or return was unlawful within the meaning of Article 3. Convention, to the extent that you can get this decision or this attestation in that State. The central authorities of the United contractants cooperate as far as possible to obtain such a decision or attestation.
ARTICLE 16. After being informed of the unlawful removal of a child or its not return within the meaning of Article 3., Judicial authorities or administrative contractante State where the child shall have been removed or retained can not solve on the merits of rights of custody until it shall have been shown that the conditions of this Agreement for a return of the child or until a reasonable period has elapsed without any been filed an application in accordance with the provisions are not met in the Agreement.
ARTICLE 17. The only fact that has been accorded a decision or be capable of being recognized in the requested State may not justify the refusal to return a child under this Convention, but the judicial and administrative authorities required state may take into account the reasons for this decision on the implementation of this Convention.
ARTICLE 18. The provisions of this chapter shall not limit the powers of the judicial or administrative authority at any time order the child's return.
ARTICLE 19. A decision on the return of the child given under the Agreement shall not affect the right guard on the merits.
ARTICLE 20. In accordance with the provisions of Article 12 may be denied the child's return where this is not permitted by the fundamental principles required for the protection of human rights and fundamental freedoms.
Business Law ARTICLE 21.
may address a request concerning the organization or protection of the exercise of a right of access to the Central Authority of a contractante State in the same way as a request for the return of the child.
The central authorities will be bound by the obligations of cooperation mentioned in article 7. to ensure the peaceful exercise of rights of access and fulfillment of any condition which would subject the exercise of this right and to the fullest extent possible are eliminated obstacles which would oppose it.
The Central Authorities, either directly or through intermediaries may initiate or promote a legal procedure in order to organize or to protect the rights of access and the conditions to which they may be subjected exercise of this right. CHAPTER V.
may not be imposed any bond or any any deposit that may be called to guarantee the payment of costs and expenses in the context of judicial or administrative procedures specified by this Convention.
ARTICLE 23. No legalization or like formality shall be required in the context of this Convention.
ARTICLE 24. Any application, notice or other document will be sent in their original language to the Central Authority of the State and accompanied by a translation into the official language or one of the official languages of that State or if it may hardly feasible translation, by a translation into French or English. However, a contractante State when making the reservation provided for in Article 42, object to the use of either the French or English in any application, notice or other document sent to its Central Authority.
ARTICLE 25. Nationals of a contractante State and persons habitually residing in that State shall be entitled to all it has to do with the application of the Convention to legal aid and advice in any other contractante State under the same conditions if WHATSOEVER themselves nationals of that other State or habitually reside in it.
ARTICLE 26. Each Central Authority shall bear its own costs in implementing the Convention.
The Central Authority and other public services contractants States shall not impose any expense in relation to applications submitted in accordance with the provisions of the Convention.
In particular, they may not claim from the applicant pay the costs and expenses of the process or possibly the costs incurred by the participation of a lawyer. However, they may require or payment of expenses or that would be caused by the operations related to the child's return.
However, a contractante State, when making the reservation under Article 42, declare that it is not obliged to pay the expenses indicated in the preceding paragraph relating to the participation of a lawyer or a legal adviser but in the extent that such costs may be covered by your service judicial or legal assistance.
When ordering the child's return or when ruling on visitation rights under the Convention, the judicial or administrative authority may, as appropriate, impose the responsibility of the person who has removed or retained the child or who any impeded the exercise of the right of visits payment of all necessary costs incurred by the applicant or on behalf of, especially travel expenses, the costs of legal representation of the applicant and the return of the child as well as all costs and expenses caused to locate the child.
ARTICLE 27. When he shall show that the conditions required by the Convention are not fulfilled or that the application is unfounded, a Central Authority is not obliged to accept the request. In this case immediately inform the applicant of the reasons or the Central Authority that it has sent the request, as appropriate.
Article 28. A Central Authority may require that the application be accompanied by a written authorization empowering it to act on behalf of the applicant or to designate an authorized to act on his behalf.
ARTICLE 29. The Convention does not prevent a person, institution or organization desiring to that there is a violation of the right to save or visiting the sense of articles 3. and 21, to go directly to the judicial or administrative authorities of the States contractants by application or not of the provisions of the Convention.
ARTICLE 30. Any application to the central authority or directly to the judicial or administrative authorities of a contractante State in accordance with the terms of this Agreement and any document or information as may be attached to the application or provided by an Authority It shall be admissible in the courts or administrative authorities of the States contractants.
ARTICLE 31. In relation to a State which in matters of custody of children hath two or more legal systems applicable in different territorial units:
a) Any reference to habitual residence in that State shall be construed as 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 the law of the territorial unit where the child habitually resides.
ARTICLE 32. In relation to a State which in matters of child custody rights hath several legal systems applicable to different categories of persons any reference to the law of that State shall be construed as the law designated by the law of that .
ARTICLE 33. A State within which different territorial units tuvieren its own rules of law concerning childcare is not obliged to apply the Convention where a State whose law is unified not be obliged to apply it.
ARTICLE 34. In matters that is exercised, the Convention shall prevail over the Convention of 5 October 1961 concerning the powers of authorities and the applicable law on protection of minors between States Parties to the two Conventions. I
Moreover, the present Convention shall not prevent another international instrument in force between the State of origin and, needless to unconventional law of the requested State shall be invoked for the return of a child that person has been transferred or wrongfully retained or of organizing access rights.
ARTICLE 35. The agreement will not apply between States contractants but for kidnappings or illegal comebacks that have occurred after its entry into force in those States. If it has been made a declaration in accordance with Articles 39 and 40, the reference to a State contractante made in the preceding paragraph shall mean the unit or territorial units to which the Convention applies.
ARTICLE 36. Nothing in this Convention shall prevent two or more contractants States in order to limit the restrictions to which MIGHT be subjected the child's return, agree among themselves to repeal the provisions of the Convention that may involve such restrictions.
CHAPTER VI. Final clauses
ARTICLE 37. The Convention is open for signature by the States which were Members of the Hague Conference on Private International Law at its fourteenth session will be ratified, accepted or approved and the instruments of ratification, acceptance or approval They shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
ARTICLE 38. Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The Convention will enter into force for the acceding State on the first day of the third calendar month after the deposit of its instrument of accession.
Accession no effect but in the relations between the acceding State and the States that have declared contractants accept such accession. Such statement shall also be made by any Member State ratifying, accepting or approving the Convention further accession. This declaration shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, which shall transmit certified copies to each of the States contractants.
The Convention will enter into force between the acceding State and the State that has declared its acceptance such accession on the first day of the third calendar month after the deposit of the declaration of acceptance.
ARTICLE 39. Any State may at the time of signature, ratification, acceptance, approval or accession declare that the Convention to all the territories it represents internationally or one or more of them will run. This declaration shall take effect at the time enters into force for that State.
This statement and any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
ARTICLE 40. A State which he has two or more territorial units in which different legal to matters covered by this Convention charges are assessed systems may, at the time of signature, ratification, acceptance, approval or accession declare that the this Convention to all its territorial units or only to one or more of them and may at any time modify this statement by making a new declaration.
These declarations shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.
ARTICLE 41. Where a State has a form of government under which executive, judicial and legislative powers estuvieren divided between Central Authorities and other authorities of that State, signature, ratification, acceptance, approval or accession of the Convention to it, or a statement under Article 40 will no implication as to the internal distribution of powers within that State.
Contractante ARTICLE 42. Any State may make later at the time of ratification, acceptance, approval or accession or at the time of a declaration made under Articles 39 and 40, either one or the two reserves provided for in articles 24 and 26, paragraph 3o. No other reservation shall be permitted.
Any State may at any time withdraw a reservation it has made. This withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The effect of the reservation shall cease on the first day of the third calendar month after the notification referred to in the preceding paragraph.
ARTICLE 43. The Convention will enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to Articles 37 and 38.
Then, the Convention enters into force:
1. For each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession.
2. For the territories or territorial units to which the Convention has been extended in accordance with Article 39 or 40, the first day of the third calendar month after the notification referred to in those articles.
ARTICLE 44. The agreement will last five years from the date of its entry into force in accordance with the provisions of Article 43, paragraph one even for States which have subsequently ratified, accepted, approved or which they have acceded to it.
The Convention shall be tacitly renewed every five years, unless notice of termination.
The denunciation shall be notified at least six months before the expiration of five years, the Ministry of Foreign Affairs of the Kingdom of the Netherlands. It may be limited to certain territories or territorial units to which the Convention applies.
The denunciation shall take effect only for the State which has notified it. The Agreement shall remain in force for the other States contractants.