2008/431/EC: Council Decision of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law - Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children

• Articles: 69

Article 1

1.   The Council hereby authorises Belgium, Germany, Ireland, Greece, Spain, France, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Finland, Sweden and the United Kingdom to ratify, or accede to, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (hereinafter referred to as the Convention), in the interest of the Community, subject to the conditions set out in Articles 3 and 4.

2.   The text of the Convention is attached to this Decision.

Article 1

1.   The objects of the present Convention are:

(a)

to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;

(b)

to determine which law is to be applied by such authorities in exercising their jurisdiction;

(c)

to determine the law applicable to parental responsibility;

(d)

to provide for the recognition and enforcement of such measures of protection in all Contracting States;

(e)

to establish such cooperation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.

2.   For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.

Article 2

The Council hereby authorises Bulgaria, Cyprus, Latvia, Malta, the Netherlands and Poland to make the following declaration:

‘Articles 23, 26 and 52 of the Convention allow Contracting Parties a degree of flexibility in order to apply a simple and rapid regime for the recognition and enforcement of judgments. The Community rules provide for a system of recognition and enforcement which is at least as favourable as the rules laid down in the Convention. Accordingly, a judgment given in a court of a Member State of the European Union, in respect of a matter relating to the Convention, shall be recognised and enforced in …  ( 4 ) by application of the relevant internal rules of Community law  ( 5 ) .

( 4 )   Member State making the declaration."

( 5 )   Council Regulation (EC) No 2201/2003 plays a special role in this field since it relates to jurisdiction and recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.’

"

Article 2

The Convention applies to children from the moment of their birth until they reach the age of 18 years.

Article 3

1.   The Member States mentioned in Article 1(1) shall take the necessary steps to deposit simultaneously their instruments of ratification or accession with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, if possible before 5 June 2010.

2.   The Member States referred to in paragraph 1 shall exchange information with the Commission within the Council, before 5 December 2009, on the prospective date of completion of their parliamentary procedures required for ratification or accession. On this basis, the date and modalities of the simultaneous deposit shall be determined.

Article 3

The measures referred to in Article 1 may deal in particular with:

(a)

the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;

(b)

rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence;

(c)

guardianship, curatorship and analogous institutions;

(d)

the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;

(e)

the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;

(f)

the supervision by a public authority of the care of a child by any person having charge of the child;

(g)

the administration, conservation or disposal of the child's property.

Article 4

The Member States mentioned in Article 1(1) shall inform the Ministry of Foreign Affairs of the Kingdom of the Netherlands in writing when their parliamentary procedures required for ratification or accession have been carried out indicating that their instruments of ratification or accession will be deposited at a later stage in accordance with this Decision.

Article 4

The Convention does not apply to:

(a)

the establishment or contesting of a parent-child relationship;

(b)

decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;

(c)

the name and forename of the child;

(d)

emancipation;

(e)

maintenance obligations;

(f)

trusts or succession;

(g)

social security;

(h)

public measures of a general nature in matters of education or health;

(i)

measures taken as a result of penal offences committed by children;

(j)

decisions on the right of asylum and on immigration.

Article 5

Decision shall apply from the day of its publication in the Official Journal of the European Union .

Article 5

1.   The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.

2.   Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.

Article 6

This Decision is addressed to all Member States with the exception of Denmark, the Czech Republic, Estonia, Lithuania, Hungary, Slovenia and Slovakia.

Article 6

1.   For refugee children and children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the Contracting State on the territory of which these children are present as a result of their displacement have the jurisdiction provided for in paragraph 1 of Article 5.

2.   The provisions of the preceding paragraph also apply to children whose habitual residence cannot be established.

Article 7

1.   In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and:

(a)

each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

(b)

the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

2.   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 subparagraph (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.

3.   So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.

Article 8

1.   By way of exception, the authority of a Contracting State having jurisdiction under Articles 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either:

—

request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or,

—

suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

2.   The Contracting States whose authorities may be addressed as provided in the preceding paragraph are:

(a)

a State of which the child is a national;

(b)

a State in which property of the child is located;

(c)

a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage;

(d)

a State with which the child has a substantial connection.

3.   The authorities concerned may proceed to an exchange of views.

4.   The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Articles 5 or 6, if it considers that this is in the child's best interests.

Article 9

1.   If the authorities of a Contracting State referred to in Article 8(2), consider that they are better placed in the particular case to assess the child's best interests, they may either:

—

request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or

—

invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.

2.   The authorities concerned may proceed to an exchange of views.

3.   The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request.

Article 10

1.   Without prejudice to Articles 5 to 9, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if:

(a)

at the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the child; and

(b)

the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child.

2.   The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason.

Article 11

1.   In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.

2.   The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.

3.   The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.

Article 12

1.   Subject to Article 7, the authorities of a Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take measures of a provisional character for the protection of the person or property of the child which have a territorial effect limited to the State in question, in so far as such measures are not incompatible with measures already taken by authorities which have jurisdiction under Articles 5 to 10.

2.   The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken a decision in respect of the measures of protection which may be required by the situation.

3.   The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in the Contracting State where the measures were taken as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.

Article 13

1.   The authorities of a Contracting State which have jurisdiction under Articles 5 to 10 to take measures for the protection of the person or property of the child must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State having jurisdiction under Articles 5 to 10 at the time of the request and are still under consideration.

2.   The provisions of the preceding paragraph shall not apply if the authorities before whom the request for measures was initially introduced have declined jurisdiction.

Article 14

The measures taken in application of Articles 5 to 10 remain in force according to their terms, even if a change of circumstances has eliminated the basis upon which jurisdiction was founded, so long as the authorities which have jurisdiction under the Convention have not modified, replaced or terminated such measures.

Article 15

1.   In exercising their jurisdiction under the provisions of Chapter II, the authorities of the Contracting States shall apply their own law.

2.   However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection.

3.   If the child's habitual residence changes to another Contracting State, the law of that other State governs, from the time of the change, the conditions of application of the measures taken in the State of the former habitual residence.

Article 16

1.   The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child.

2.   The attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority, is governed by the law of the State of the child's habitual residence at the time when the agreement or unilateral act takes effect.

3.   Parental responsibility which exists under the law of the State of the child's habitual residence subsists after a change of that habitual residence to another State.

4.   If the child's habitual residence changes, the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the State of the new habitual residence.

Article 17

The exercise of parental responsibility is governed by the law of the State of the child's habitual residence. If the child's habitual residence changes, it is governed by the law of the State of the new habitual residence.

Article 18

The parental responsibility referred to in Article 16 may be terminated, or the conditions of its exercise modified, by measures taken under this Convention.

Article 19

1.   The validity of a transaction entered into between a third party and another person who would be entitled to act as the child's legal representative under the law of the State where the transaction was concluded cannot be contested, and the third party cannot be held liable, on the sole ground that the other person was not entitled to act as the child's legal representative under the law designated by the provisions of this Chapter, unless the third party knew or should have known that the parental responsibility was governed by the latter law.

2.   The preceding paragraph applies only if the transaction was entered into between persons present on the territory of the same State.

Article 20

The provisions of this Chapter apply even if the law designated by them is the law of a non-Contracting State.

Article 21

1.   In this Chapter the term ‘law’ means the law in force in a State other than its choice of law rules.

2.   However, if the law applicable according to Article 16 is that of a non-Contracting State and if the choice of law rules of that State designate the law of another non-Contracting State which would apply its own law, the law of the latter State applies. If that other non-Contracting State would not apply its own law, the applicable law is that designated by Article 16.

Article 22

The application of the law designated by the provisions of this Chapter can be refused only if this application would be manifestly contrary to public policy, taking into account the best interests of the child.

Article 23

1.   The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.

2.   Recognition may however be refused:

(a)

if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;

(b)

if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;

(c)

on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;

(d)

if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;

(e)

if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;

(f)

if the procedure provided in Article 33 has not been complied with.

Article 24

Without prejudice to Article 23(1) any interested person may request from the competent authorities of a Contracting State that they decide 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 25

The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.

Article 26

1.   If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.

2.   Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.

3.   The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23(2).

Article 27

Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.

Article 28

Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child.

Article 29

1.   A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention on such authorities.

2.   Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

Article 30

1.   Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their States to achieve the purposes of the Convention.

2.   They shall, in connection with the application of the Convention, take appropriate steps to provide information as to the laws of, and services available in, their States relating to the protection of children.

Article 31

The Central Authority of a Contracting State, either directly or through public authorities or other bodies, shall take all appropriate steps to:

(a)

facilitate the communications and offer the assistance provided for in Articles 8 and 9 and in this Chapter;

(b)

facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies;

(c)

provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested State.

Article 32

On a request made with supporting reasons by the Central Authority or other competent authority of any Contracting State with which the child has a substantial connection, the Central Authority of the Contracting State in which the child is habitually resident and present may, directly or through public authorities or other bodies:

(a)

provide a report on the situation of the child;

(b)

request the competent authority of its State to consider the need to take measures for the protection of the person or property of the child.

Article 33

1.   If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.

2.   The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child's best interests.

Article 34

1.   Where a measure of protection is contemplated, the competent authorities under the Convention, if the situation of the child so requires, may request any authority of another Contracting State which has information relevant to the protection of the child to communicate such information.

2.   A Contracting State may declare that requests under paragraph 1 shall be communicated to its authorities only through its Central Authority.

Article 35

1.   The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of measures of protection taken under this Convention, especially in securing the effective exercise of rights of access as well as of the right to maintain direct contacts on a regular basis.

2.   The authorities of a Contracting State in which the child does not habitually reside may, on the request of a parent residing in that State who is seeking to obtain or to maintain access to the child, gather information or evidence and may make a finding on the suitability of that parent to exercise access and on the conditions under which access is to be exercised. An authority exercising jurisdiction under Articles 5 to 10 to determine an application concerning access to the child, shall admit and consider such information, evidence and finding before reaching its decision.

3.   An authority having jurisdiction under Articles 5 to 10 to decide on access may adjourn a proceeding pending the outcome of a request made under paragraph 2, in particular, when it is considering an application to restrict or terminate access rights granted in the State of the child's former habitual residence.

4.   Nothing in this Article shall prevent an authority having jurisdiction under Articles 5 to 10 from taking provisional measures pending the outcome of the request made under paragraph 2.

Article 36

In any case where the child is exposed to a serious danger, the competent authorities of the Contracting State where measures for the protection of the child have been taken or are under consideration, if they are informed that the child's residence has changed to, or that the child is present in another State, shall inform the authorities of that other State about the danger involved and the measures taken or under consideration.

Article 37

An authority shall not request or transmit any information under this Chapter if to do so would, in its opinion, be likely to place the child's person or property in danger, or constitute a serious threat to the liberty or life of a member of the child's family.

Article 38

1.   Without prejudice to the possibility of imposing reasonable charges for the provision of services, Central Authorities and other public authorities of Contracting States shall bear their own costs in applying the provisions of this Chapter.

2.   Any Contracting State may enter into agreements with one or more other Contracting States concerning the allocation of charges.

Article 39

Any Contracting State may enter into agreements with one or more other Contracting States with a view to improving the application of this Chapter in their mutual relations. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

Article 40

1.   The authorities of the Contracting State of the child's habitual residence, or of the Contracting State where a measure of protection has been taken, may deliver to the person having parental responsibility or to the person entrusted with protection of the child's person or property, at his or her request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred upon him or her.

2.   The capacity and powers indicated in the certificate are presumed to be vested in that person, in the absence of proof to the contrary.

3.   Each Contracting State shall designate the authorities competent to draw up the certificate.

Article 41

Personal data gathered or transmitted under the Convention shall be used only for the purposes for which they were gathered or transmitted.

Article 42

The authorities to whom information is transmitted shall ensure its confidentiality, in accordance with the law of their State.

Article 43

All documents forwarded or delivered under this Convention shall be exempt from legalisation or any analogous formality.

Article 44

Each Contracting State may designate the authorities to which requests under Articles 8, 9 and 33 are to be addressed.