Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Seen them Articles 52 to 55 of the Constitution ;
Vu la Act No. 2008-737 of 28 July 2008 authorizing the ratification of the Hague Convention of 13 January 2000 on International Protection of Adults;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:
The Convention on the International Protection of Adults, made in The Hague on 13 January 2000, signed by France on 13 July 2001, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
A N N E X E
CONVENTION ON INTERNATIONAL PROTECTION
DES ADULTES
States signatories to this Convention;
Considering that it is appropriate to ensure in international situations the protection of adults who, due to alteration or insufficiency of their personal abilities, are not in a position to satisfy their interests;
To avoid conflicts between their legal systems of jurisdiction, applicable law, recognition and enforcement of adult protection measures;
Recalling the importance of international cooperation for the protection of adults;
Affirming that the interest of the adult and respect for his dignity and will must be paramount considerations,
agreed on the following provisions:
Chapter I
Scope of the Convention
Article 1
1. This Convention applies, in international situations, to the protection of adults who, because of alteration or insufficiency of their personal faculties, are not in a position to satisfy their interests.
2. Its purpose is to:
(a) To determine the State whose authorities have jurisdiction to take measures to protect the person or property of the adult;
(b) To determine the law applicable by these authorities in the exercise of their jurisdiction;
(c) To determine the law applicable to the representation of the adult;
(d) To ensure the recognition and enforcement of protection measures in all Contracting States;
(e) To establish between the authorities of the Contracting States the necessary cooperation to achieve the objectives of the Convention.
Article 2
1. For the purposes of this Convention, an adult is a person who has attained the age of 18.
2. The Convention also applies to measures concerning an adult who had not reached the age of 18 when they were taken.
Article 3
The measures provided for in Article 1 may include:
(a) Determining the inability and institution of a protection regime;
(b) Implementing the adult under the protection of a judicial or administrative authority;
(c) Guardianship, curatorship and similar institutions;
(d) The designation and functions of any person or body responsible for the care of the person or property of the adult, to represent or assist the person or property;
(e) The placement of the adult in an establishment or any other place where his or her protection may be assured;
(f) The administration, conservation or disposition of the property of the adult;
(g) Authorization for ad hoc intervention for the protection of the person or property of the adult.
Article 4
1. Excluded from the Convention:
(a) Food obligations;
(b) The formation, cancellation and dissolution of marriage or a similar relationship as well as separation of bodies;
(c) Matrimonial regimes and similar regimes applicable to relations similar to marriage;
(d) Trusts and successions;
(e) Social security;
(f) General public health measures;
(g) Measures taken with respect to a person as a result of criminal offences committed by that person;
(h) Decisions on asylum and immigration;
(i) Measures intended solely to safeguard public security.
2. Paragraph 1 does not affect the quality of a person to act as an adult representative in the material referred to in it.
Chapter II
Jurisdiction
Article 5
1. The authorities, both judicial and administrative, of the Contracting State of the habitual residence of the adult are competent to take measures to protect his or her person or property.
2. In the event of a change in the habitual residence of the adult in another Contracting State, the authorities of the State of the new habitual residence are competent.
Article 6
1. For adults who are refugees and those who, as a result of unrest in their country, are internationally displaced, the authorities of the Contracting State in whose territory these adults are present because of their displacement exercise the competence provided for in Article 5, paragraph 1.
2. The previous paragraph also applies to adults whose habitual residence cannot be established.
Article 7
1. Except for adults who are refugees or who, as a result of unrest in the State of their nationality, are internationally displaced, the authorities of a Contracting State whose nationality the adult is competent to take measures to protect his or her person or property, if they consider that they are better able to appreciate the interest of the adult and after having notified the competent authorities under Articles 5 or 2.
2. This jurisdiction may not be exercised if the competent authorities under articles 5, 6, paragraph 2, or 8 informed the authorities of the national State of the adult that they have taken all the measures required by the situation or decided that no action should be taken or that a procedure is pending before them.
3. The measures taken under paragraph 1 shall cease to have effect as soon as the competent authorities under articles 5, 6, paragraph 2, or 8 have taken measures required by the situation or have decided that no action shall be taken. These authorities shall inform the authorities which have taken the measures pursuant to paragraph 1.
Article 8
1. The authorities of the Contracting State having jurisdiction under Articles 5 or 6, if they consider that such is the interest of the adult, may, on their own initiative or at the request of the authority of another Contracting State, require the authorities of one of the States mentioned in paragraph 2 to take measures to protect the person or property of the adult. The request may cover all or part of this protection.
2. Contracting States whose authority may be required under the conditions laid down in the preceding paragraph are:
(a) A State of nationality of the adult;
(b) The state of the previous habitual residence of the adult;
(c) A State in which the property of the adult is located;
(d) The State whose authorities were chosen in writing by the adult to take measures for its protection;
(e) The state of the habitual residence of a person close to the adult willing to take charge of his protection;
(f) The State in whose territory the adult is present, with regard to the protection of his person.
3. In the event that the authority designated under the provisions of the preceding paragraphs does not accept its jurisdiction, the authorities of the Contracting State having jurisdiction under Articles 5 or 6 shall retain jurisdiction.
Article 9
The authorities of a Contracting State in which the property of the adult is located are competent to take protective measures relating to such property, provided that such measures are consistent with those taken by the competent authorities under Articles 5 to 8.
Article 10
1. In all emergency cases, the authorities of each Contracting State in the territory of which the adult or the property belonging to him or her are competent to take the necessary protective measures.
2. The measures taken pursuant to the preceding paragraph in respect of an adult who has his habitual residence in a Contracting State cease to have effect as soon as the competent authorities under Articles 5 to 9 have taken the measures required by the situation.
3. The measures taken pursuant to paragraph 1 with respect to an adult who has his habitual residence in a non-contracting State shall cease to have effect in each Contracting State as soon as the measures required by the situation are recognized, taken by the authorities of another State.
4. The authorities having taken measures pursuant to paragraph 1 shall inform, to the extent possible, the authorities of the Contracting State of the habitual residence of the adult.
Article 11
1. As an exception, the authorities of a Contracting State in whose territory the adult is present are competent to take measures concerning the protection of the person of the adult, having a limited temporary character and territorial effectiveness to that State, provided that these measures are compatible with those already taken by the competent authorities under Articles 5 to 8 and after having notified the competent authorities under Article 5.
2. The measures taken pursuant to the preceding paragraph in respect of an adult who has his habitual residence in a Contracting State cease to have effect as soon as the competent authorities under Articles 5 to 8 have ruled on the measures that may be required by the situation.
Article 12
Subject to Article 7, paragraph 3, the measures taken pursuant to Articles 5 to 9 shall remain in force within the limits that are theirs, even where a change of circumstances has eliminated the element on which jurisdiction was based, as long as the competent authorities under the Convention have not altered, replaced or lifted them.
Chapter III
Applicable law
Article 13
1. In the exercise of their competence under the provisions of Chapter II, the authorities of the Contracting States shall apply their law.
2. However, to the extent that the protection of the person or property of the adult requires it, they may exceptionally apply or take into account the law of another State with which the situation is closely related.
Article 14
Where a measure taken in a Contracting State is implemented in another Contracting State, the conditions of its application shall be governed by the law of that other State.
Article 15
1. The existence, extent, modification and termination of the powers of representation conferred by an adult, either by an agreement or by a unilateral act, to be exercised when that adult is out of order to his or her interests, shall be governed by the law of the State of the habitual residence of the adult at the time of the agreement or unilateral act, unless one of the laws expressly referred to in paragraph 2 has been given.
2. States whose law may be designated are:
(a) A State of nationality of the adult;
(b) The state of a previous habitual residence of the adult;
(c) A State in which the property of the adult is located, in respect of such property.
3. The procedure for exercising these powers of representation shall be governed by the law of the State in which they are exercised.
Article 16
The powers of representation provided for in Article 15, where they are not exercised in a manner that ensures sufficient protection of the person or property of the adult, may be withdrawn or amended by measures taken by an authority having jurisdiction under the Convention. In order to remove or amend these powers of representation, the law determined in section 15 must be taken into consideration to the extent possible.
Article 17
1. The validity of an act between a third party and another person who would be a representative of the adult according to the law of the State where the act has been passed cannot be contested, or the responsibility of the third party engaged, for the sole reason that the other person did not have the capacity of representative under the law designated by the provisions of this chapter, unless the third party knew or was to know that such quality was governed by that law.
2. The preceding paragraph applies only in the case where the act was passed between persons present in the territory of the same State.
Article 18
The provisions of this chapter shall apply even if the law they designate is that of a non-contracting State.
Article 19
For the purposes of this chapter, the term "law" means the law in force in a State, excluding the rules of conflict of laws.
Rule 20
This chapter does not affect the provisions of the law of the State in which the protection of the adult must be ensured, the application of which is enforceable regardless of the law that would otherwise be applicable.
Article 21
The application of the law referred to in the provisions of this chapter may only be ruled out if this application is manifestly contrary to public order.
Chapter IV
Recognition and execution
Article 22
1. The measures taken by the authorities of a Contracting State shall be recognized in full law in the other Contracting States.
2. However, recognition may be refused:
(a) If the measure was taken by an authority whose jurisdiction was not based on a supervisory authority or in accordance with the provisions of Chapter II;
(b) If the measure has been taken, apart from the emergency, within the framework of a judicial or administrative procedure, without giving the adult the opportunity to be heard, in violation of the basic principles of procedure of the requested State;
(c) If recognition is manifestly contrary to the public order of the requested State or is contrary to a provision of the law of that State whose application is required irrespective of the law which would otherwise be applicable;
(d) If the measure is incompatible with a subsequent action taken in a non-contracting State that would have been competent under Articles 5 to 9, when the latter measure meets the conditions necessary for its recognition in the requested State;
(e) If the procedure provided for in section 33 has not been complied with.
Article 23
Without prejudice to article 22, paragraph 1, any interested person may apply to the competent authorities of a Contracting State for a decision on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.
Article 24
The authority of the requested State is bound by the de facto findings on which the authority of the State that has taken the measure has founded its jurisdiction.
Rule 25
1. If the measures taken in a Contracting State and which are enforceable include acts of execution in another Contracting State, they shall, in that other State, be declared enforceable or registered for the purpose of enforcement, upon request of any party concerned, in accordance with the procedure provided by the law of that State.
2. Each Contracting State shall apply a simple and prompt procedure to the declaration of execution or registration.
3. The statement of exequatur or registration may only be refused on any of the grounds provided for in section 22, paragraph 2.
Rule 26
Subject to what is necessary for the application of the preceding articles, the authority of the requested State shall not carry out any revisions to the substance of the measure taken.
Rule 27
The measures taken in a Contracting State, which are declared enforceable or registered for execution in another Contracting State, shall be enforced as if they were taken by the authorities of that other State. The enforcement of the measures is carried out in accordance with the law of the requested State within the limits provided for therein.
Chapter V
Cooperation
Rule 28
1. Each Contracting State shall designate a Central Authority to fulfil its obligations under the Convention.
2. A federal State, a State in which several systems of law are in force or a State with autonomous territorial units is free to designate more than one Central Authority and specify the territorial or personal scope of their functions. The State which makes use of this faculty shall designate the Central Authority to which any communication may be sent for transmission to the competent Central Authority within that State.
Rule 29
1. The Central Authorities must cooperate with each other and promote cooperation between the competent authorities of their State in achieving the objectives of the Convention.
2. They shall, within the framework of the application of the Convention, take appropriate measures to provide information on their legislation, as well as on the services available in their State with regard to the protection of adults.
Rule 30
The Central Authority of a Contracting State shall, either directly or with the assistance of public authorities or other bodies, take all appropriate measures to:
(a) Facilitate communications, by all means, between the competent authorities in situations to which the Convention applies;
(b) Assist, upon request of a competent authority of another Contracting State, to locate the adult when it appears that the adult is present in the territory of the requested State and needs protection.
Rule 31
The competent authorities of a Contracting State may, either directly or through other bodies, encourage the use of mediation, conciliation or any other similar means that allow for an amicable agreement on the protection of the person or property of the adult in situations to which the Convention applies.
Rule 32
1. Where a protective measure is contemplated, the competent authorities under the Convention may, if the adult's situation so requires, request any authority of another Contracting State that has relevant information for the protection of the adult to communicate to it.
2. Each Contracting State may declare that the requests referred to in paragraph 1 may only be forwarded through its Central Authority.
3. The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of protective measures taken under the Convention.
Rule 33
1. Where the competent authority under Articles 5 to 8 envisages the placement of the adult in an establishment or any other place where his protection may be assured, and that such placement shall take place in another Contracting State, it shall consult with the Central Authority or another competent authority of the latter State in advance. To this end, she submits a report on the adult and the reasons for her proposal on placement.
2. The investment decision cannot be taken in the requesting State if the Central Authority or another competent authority of the requested State manifests its opposition within a reasonable time.
Rule 34
In the event that the adult is exposed to a serious danger, the competent authorities of the Contracting State in which measures of protection of that adult have been taken or are in the process of being taken, if they are informed of the change of residence or the presence of the adult in another State, notify the authorities of that danger and the measures taken or under examination.
Rule 35
An authority may not request or transmit information under this chapter if it is of the opinion that such a request or transmission could endanger the person or property of the adult, or constitute a serious threat to the freedom or life of a member of his or her family.
Rule 36
1. Without prejudice to the possibility of claiming reasonable costs for the services provided, the Central Authorities and other public authorities of the Contracting States shall bear their costs arising from the application of the provisions of this chapter.
2. A Contracting State may enter into agreements with one or more other Contracting States on the apportionment of costs.
Rule 37
Any Contracting State may enter into agreements with one or more other Contracting States with a view to promoting in their mutual relations the application of this chapter. States that have concluded such agreements shall transmit a copy thereof to the depositary of the Convention.
Chapter VI
General provisions
Rule 38
1. The authorities of the Contracting State in which a protective measure has been taken or a confirmed representative power may issue to any person entrusted with the protection of the person or property of the adult, at his or her request, a certificate indicating the quality and powers conferred upon him or her.
2. The quality and powers specified by the certificate shall be established on the date of the certificate, unless otherwise proved.
3. Each Contracting State shall designate the authorities authorized to establish the certificate.
Rule 39
Personal data collected or transmitted in accordance with the Convention may not be used for any purpose other than those for which it has been collected or transmitted.
Rule 40
The authorities to which information is transmitted shall ensure confidentiality in accordance with the law of their State.
Rule 41
Documents transmitted or issued under the Convention shall be exempted from legalization or similar formality.
Rule 42
Each Contracting State may designate the authorities to whom requests under Articles 8 and 33 shall be sent.
Rule 43
1. The designations referred to in Articles 28 and 42 will be communicated to the Permanent Bureau of the Hague Conference on Private International Law no later than the date of the deposit of the instrument of ratification, acceptance or approval of or accession to the Convention. The changes to these designations will also be communicated to the Permanent Bureau.
2. The declaration referred to in article 32, paragraph 2, shall be made to the depositary of the Convention.
Rule 44
A Contracting State in which different systems of law or sets of rules apply in respect of the protection of the person or property of the adult is not required to apply the rules of the Convention to conflicts only with respect to these different systems or sets of rules.
Rule 45
With regard to a State in which two or more systems of law or sets of rules relating to matters governed by this Convention apply in different territorial units:
(a) Any reference to the habitual residence in that State shall apply to the habitual residence in a territorial unit;
(b) Any reference to the presence of the adult in this State is to the presence of the adult in a territorial unit;
(c) Any reference to the situation of the property of the adult in that State is to the situation of the property of the adult in a territorial unit;
(d) Any reference to the State of which the adult possesses the nationality is to the territorial unit designated by the law of that State or, in the absence of relevant rules, the territorial unit with which the adult presents the closest link;
(e) Any reference to the State whose authorities were chosen by the adult is to:
– territorial unity if the adult chose the authorities of this territorial unit;
- the territorial unity of a State with which the adult presents the closest link if the adult has chosen the authorities of that State without specifying territorial unity in the State;
(f) Any reference to the law of a State with which the situation is closely related is to the law of a territorial unit with which the situation is closely linked;
(g) Any reference to the law, procedure or authority of the State where a measure has been taken applies to the law or procedure in force in that territorial unit or the authority of the territorial unit to which that measure has been taken;
(h) Any reference to the law, procedure or authority of the requested State shall apply to the law or procedure in force in that territorial unit or the authority of the territorial unit in which recognition or enforcement is invoked;
(i) Any reference to the State of the implementation of the protection measure is to the territorial unity of the implementation of the measure;
(j) Any reference to the bodies or authorities of that State, other than the Central Authorities, shall apply to the bodies or authorities authorized to act in the territorial unit concerned.
Rule 46
In order to identify the law applicable under Chapter III, where a State includes two or more territorial units each of which has its own system of law or a set of rules relating to matters governed by this Convention, the following rules apply:
(a) In the presence of rules in force in that State identifying the territorial unit whose law is applicable, the law of that unit applies;
(b) In the absence of such rules, the law of territorial unity as defined in section 45 applies.
Rule 47
To identify the law applicable under Chapter III, where a State includes two or more systems of law or sets of rules applicable to different categories of persons for matters governed by this Convention, the following rules apply:
(a) In the presence of rules in force in that State identifying which of these laws is applicable, this law applies;
(b) In the absence of such rules, the law of the system or set of rules with which the adult presents the closest link applies.
Rule 48
In the relations between the Contracting States, this Convention replaces the Convention concerning the Prohibition and Similar Protection Measures, signed at The Hague on 17 July 1905.
Rule 49
1. The Convention does not derogate from the international instruments to which Contracting States are Parties and which contain provisions on matters governed by this Convention, unless a declaration to the contrary is made by States bound by such instruments.
2. The Convention does not affect the possibility for one or more Contracting States to enter into agreements that contain, with respect to adults habitually residing in one of the States Parties to such agreements, provisions on matters governed by this Convention.
3. Agreements to be concluded by one or more Contracting States on matters governed by this Convention shall not affect, in the relations of these States with other Contracting States, the application of the provisions of this Convention.
4. The preceding paragraphs also apply to uniform laws based on the existence between the States concerned of special ties, particularly of a regional nature.
Rule 50
1. The Convention applies only to measures taken in a State after the entry into force of the Convention for that State.
2. The Convention applies to the recognition and enforcement of the measures taken after its entry into force in the relations between the State where the measures were taken and the State required.
3. The Convention shall apply from the date of its entry into force in a Contracting State to the powers of representation conferred previously under conditions commensurate with those provided for in Article 15.
Rule 51
1. Any communication to the Central Authority or any other authority of a Contracting State shall be addressed in the original language and accompanied by a translation into the official language or any of the official languages of that Contracting State or, where this translation is difficultly feasible, of a translation into French or English.
2. However, a Contracting State may, by making a reservation in accordance with Article 56, oppose the use of either French or English.
Rule 52
The Secretary General of the Hague Conference on Private International Law periodically convenes a Special Commission to examine the practical functioning of the Convention.
Chapter VII
Final clauses
Rule 53
1. The Convention is open for signature by States that were members of the Hague Conference on Private International Law on 2 October 1999.
2. It will be ratified, accepted or approved and instruments of ratification, acceptance or approval will be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.
Rule 54
1. Any other State may accede to the Convention after its entry into force under Article 57, paragraph 1.
2. The instrument of accession shall be deposited with the depositary.
3. The accession shall have effect only in the relations between the acceding State and the Contracting States that have not raised any objection to it within six months after the receipt of the notification provided for in Article 59, letter b. Such an objection may also be raised by any State at the time of ratification, acceptance or approval of the Convention, after accession. These objections will be notified to the depositary.
Rule 55
1. A State that includes two or more territorial units in which different systems of law apply to matters governed by this Convention may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall apply to all its territorial units or only to one or more of them, and may at any time modify this declaration by making a new declaration.
2. These declarations will be notified to the depositary and will expressly indicate the territorial units to which the Convention applies.
3. If a State does not make a declaration under this article, the Convention shall apply to the entire territory of that State.
Rule 56
1. Any Contracting State may, at the latest at the time of ratification, acceptance, approval or accession, or at the time of declaration made under Article 55, make the reservation provided for in Article 51, paragraph 2. No other reservation will be allowed.
2. Any State may withdraw its reservation at any time. This withdrawal will be notified to the depositary.
3. The effect of the reservation will cease on the first day of the third month of the calendar after the notification referred to in the preceding paragraph.
Rule 57
1. The Convention shall enter into force on the first day of the month following the expiration of a period of three months after the deposit of the third instrument of ratification, acceptance or approval provided for in Article 53.
2. Subsequently, the Convention will enter into force:
(a) For each State ratifying, accepting or approving after the first day of the month following the expiration of a period of three months after the deposit of its instrument of ratification, acceptance, approval or accession;
(b) For each acceding State, on the first day of the month following the expiration of a period of three months after the expiration of the six-month period provided for in Article 54, paragraph 3;
(c) For territorial units to which the Convention was extended in accordance with Article 55, on the first day of the month following the expiration of a period of three months after the notification referred to in this Article.
Rule 58
1. Any State Party to the Convention may denounce it by a written notification to the depositary. Denunciation may be limited to certain territorial units to which the Convention applies.
2. The denunciation shall take effect on the first day of the month following the expiration of a period of twelve months after the date of receipt of the notification by the depositary. Where a longer period for the effective taking of the denunciation is specified in the notification, the denunciation shall take effect upon the expiry of the period in question.
Rule 59
The depositary shall notify the States members of the Hague Conference on Private International Law and the States which have acceded in accordance with the provisions of Article 54:
(a) The signatures, ratifications, acceptances and approvals referred to in Article 53;
(b) Accessions and objections to accessions referred to in article 54;
(c) The date on which the Convention will enter into force in accordance with the provisions of Article 57;
(d) The statements referred to in articles 32, paragraph 2, and 55;
(e) The agreements mentioned in Article 37;
(f) The reservation referred to in Article 51, paragraph 2, and its withdrawal under Article 56, paragraph 2;
(g) The denunciations referred to in section 58.
In faith, the undersigned, duly authorized, have signed this Convention.
Done in The Hague, on 13 January 2000, in French and English, both texts being equally authentic, in a single copy, to be deposited in the archives of the Government of the Kingdom of the Netherlands, and a certified true copy to be sent to each of the States members of the Hague Conference on Private International Law on 2 October 1999.
French statements
France declares, under Article 28, paragraph 1, that the central authority is the Ministry of Justice, Civil Affairs and Seal Directorate, sub-direction of economic law, office of civil and international mutual assistance.
France declares, under Article 32, paragraph 2, that requests for information made by a competent authority under the Convention, to any French authority possessing relevant information for the protection of an adult, for communication under Article 32, paragraph 1, may only be routed through the French central authority.
France declares, under Article 42, that the requests under Articles 8 and 33 must be addressed by the competent authority of the Contracting State to the Prosecutor of the Republic near the Court of Grand Instance or, in the overseas and New Caledonia communities, close to the jurisdiction that takes place:
where the protection measure is to be taken with respect to requests under section 8, or
- in the jurisdiction of the establishment where the placement is considered, with respect to requests under section 33.
Done in Paris, December 30, 2008.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister for Foreign Affairs
and European,
Bernard Kouchner
