Hague Convention on the Civil Aspects of International Child Abduction
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The Hague Convention on the Civil Law Aspects of International Child Abduction (also Hague Child Abduction Convention, HKC for short ) of October 25, 1980 is a multilateral agreement within the framework of the Hague Conference on Private International Law . It concerns cases of international child abduction .
The aim of the agreement is to protect children from the harmful consequences of being deprived of or withheld across international borders by applying procedures to this multilateral agreement that order immediate return. The agreement stipulates that the contracting states must order a repatriation within 6 weeks. The application for repatriation must be submitted within one year of the child being taken abroad. Otherwise, the return can be refused on the grounds that the child has settled into the new environment. Decisive for the HKÜ application is how the custody relationships were before the kidnapping and whether the kidnapped child has his habitual residencein the country from where it was abducted. As part of the return procedure, the foreign court can demand a certificate of illegality in accordance with Article 15 of the HKÜ Agreement. This certificate is issued free of charge by the respective family courts at the local courts.
The application is submitted via the Central Authority in Bonn. The application must be submitted in German and in the language of the respective requested country. The forms are available in numerous languages. In addition to the HKÜ, there are European legal provisions that make it easier for the parents concerned to resolve an international conflict. On March 1, 2005, the so-called Brussels II a regulation of the European Union came into force.
Content overview of the Convention
- Article 1 : Immediate return of illegally abducted or detained children and compliance with the law of access
- Article 2 : Measures to implement the Convention
- Article 3 : Unlawfulness regarding the removal or retention of a child
- Article 4 : Application of the Convention in the case of habitual residence in a Contracting State
- Article 5 : Definition of custody and access rights
- Article 6 : Central authority in the respective contracting states for the performance of the tasks assigned to this Convention
- Article 7 : Cooperation between the central authorities between the contracting states and their immediate tasks
- Article 8 : Application for return
- Article 9 : Forwarding the application if the child is not in the requesting State Party
- Article 10 : Measures for the voluntary return of the child
- Article 11 : Speed up the return procedure
- Article 12 : One year period
- Article 13 : Reasons for refusing a return
- Article 14 : Consideration of judicial and administrative decisions abroad
- Article 15 : Request for a certificate of illegality
- Article 16 : Custody decision only after the return procedure has been completed
- Article 17 : No influence of custody decisions in the requested country on return procedures
- from Article 21 : Right to personal contact
- from Article 37 : Final provisions - accession, signature and ratification as well as validity
Unlawful removal or retention
The Convention defines that the removal or retention of a child is illegal if:
- Violation of custody, which a person, authority or other body is entitled to alone or jointly under the law of the state in which the child was habitually resident immediately before removal or retention;
- this right was actually exercised, alone or jointly, at the time of removal or retention, or would have been exercised if removal or retention had not taken place.
Habitual residence
The Hague Convention prescribes the immediate return of a child if he or she was habitually resident in an HKC contracting state before the child was abducted. The aim is to prevent a breach of custody and access rights in the HKÜ contracting state into which the child was withdrawn. Habitual residence means that the child had a familiar environment before child abduction, from which it was torn out by the withdrawing parent. It should be emphasized that the term habitual residence does not refer to the new situation in life through the illegal removal or retention of a child. The withdrawing parent cannot unilaterally create a new habitual residence. International child abduction remains illegal even if this situation persists for years due to procedural delays in the return procedure.
Illegality according to Article 3 (certificate of illegality)
The judge in the HKÜ contracting state called upon can demand a certificate of illegality in accordance with Article 3 HKÜ. This is issued free of charge at the respective local courts. This certifies that the removal of the child was illegal according to Article 3 HKÜ. The contracting states are obliged to support the parent concerned in order to obtain such a certificate.
Contracting States
This map shows the countries that have acceded to the HKCH Agreement - broken down into HCCH members and HCCH non-members (as of March 2011).
The following 100 countries have currently (as of May 1, 2019) joined the HKÜ:
A:
Albania , Andorra , Argentina , Armenia , Australia
B:
Bahamas , Belarus , Belgium , Belize , Bolivia , Bosnia-Herzegovina , Brazil , Bulgaria , Burkina Faso
C:
Chile , Costa Rica
D:
Denmark (excluding Faroe Islands and Greenland), Germany , Dominican Republic
E:
Ecuador , El Salvador , Estonia
F:
Fiji , Finland , France
G:
Gabon , Georgia , Greece , Guatemala , Guinea , Guyana ,
H:
Honduras , Hong Kong (Special Administrative Region of the PRC)
I:
Iraq , Ireland , Iceland , Israel , Italy
J:
Jamaica , Japan
K:
Canada , Kazakhstan , Colombia , Croatia , Cuba
L:
Lesotho , Latvia , Liechtenstein , Lithuania , Luxembourg ,
M:
Macau (Special Administrative Region of the PR China), Malta , Morocco , Mauritius , Macedonia , Mexico , Moldova , Monaco , Montenegro
N:
New Zealand , Nicaragua , the Netherlands (reservation: HKÜ only refers to the Dutch Kingdom in Europe, i.e. not overseas), Norway A
:
Austria
P:
Pakistan , Panama , Paraguay , Peru , Philippines , Poland , Portugal
R:
Romania , Russia
S:
San Marino , Zambia , Sweden , Switzerland , Serbia , Seychelles , Zimbabwe , Singapore , Slovakia , Slovenia , Spain , Sri Lanka , St. Kitts and Nevis , South Africa , South Korea
T:
Thailand , Trinidad & Tobago , Czech Republic , Tunisia , Turkey , Turkmenistan
U:
Ukraine , Hungary , Uruguay , Uzbekistan
S:
Venezuela , United Kingdom (with Bermuda , Falkland Islands , Isle of Man , Jersey , Cayman Islands and Montserrat ), United States of America
C:
Cyprus
Child abduction within the European Union
In the member states of the European Union (except Denmark) the HKÜ is modified by the Brussels IIa regulation.
Noncompliance - HKÜ non-conformity
The term "noncompliance" means the HKÜ non-conformity of some member states with regard to the practical implementation of this Hague Convention. The US Department of State publishes a so-called "Compliance Report" to the Congress of the United States every year in May, which monitors the implementation of the Convention and the conformity of the respective member states on the basis of incoming and outgoing cases in the United States. The report highlights countries with the following categorization:
- "Not compliant" - countries that do not comply with the HKÜ in relation to the USA:
- "Demonstrating Patterns of Noncompliance" - countries that have partially shown HKÜ nonconformity in relation to the USA:
In contrast to the US Department of State , the Central Authority in Bonn publishes annual statistics in which only the incoming and outgoing applications within the last year with the respective results are published. Difficulties with partner countries in implementing the convention are not dealt with.
Failure to comply with the HKÜ
On May 9, 2017, the TV magazine Report Mainz used a specific example to show that Ukraine does not comply with and ignores the HKÜ despite current international law. So far, a total of 33 German mothers or fathers of children kidnapped in Ukraine have sued in court for the return of their children within the meaning of the HKÜ, however, according to the Ukrainian Deputy Justice Minister Serhiy Petuchov , these requests have only been granted in three cases. However, even in these three cases there was no actual return. According to the German Ministry of Justice , no pressure is being put on Ukraine to comply with the HKÜ so as not to endanger international relations.
Web links
- Hague Convention on the Civil Aspects of International Child Abduction
- State-specific information
- Central Authority of the Federal Republic of Germany - Federal Office of Justice (responsible for the HKÜ application) with application forms and brochure (pdf)
- Central Authority Bonn - Statistics on cases of international child abduction (incoming and outgoing cases) 2012 (pdf) with activity report (pdf)
- US State Department - Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction - Compliance Report 2012 (pdf; 349 kB)
Individual evidence
- ↑ Information on the repatriation of kidnapped children and on cross-border conflicts of contact and custody , on bundesjustizamt.de. Retrieved May 10, 2017.
- ↑ Hague Convention on the Civil Aspects of International Child Abduction (pdf; 83 kB)
- ↑ HKÜ application ( Memento from November 19, 2010 in the Internet Archive )
- ↑ Article 3 HKÜ
- ↑ Article 4 HKÜ
- ↑ Article 15 HKÜ
- ↑ [Overview of the ratification status]
- ↑ 1. Brussels IIa-VO / International decision-making authority / A. procedural law / § 2 matrimonial matters / family matters with international relevance / manuals / library / family law / legal portal - Deubner legal portal. Retrieved May 21, 2019 .
- ^ US Department of State, Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, April 2013 ( PDF )
- ↑ Kidnapped children, disenfranchised fathers: Why international agreements on child abduction don't work , on swr.de, May 9, 2017. Retrieved May 10, 2017.
