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Published online by Cambridge University Press: 13 December 2013
The globalisation of the economy and the increasing ease of travel have led to the internationalisation of families. Bi-national couples and families relocating from one country to another are now commonplace. The international element of family life often leads to complex legal situations – such as international parental abduction – when these families are facing a crisis. However, the scope of legal issues arising from the internationalisation of families and affecting children is wider than the abduction problem and can relate to relocation, access rights, urgent protection measures or transborder placement, to name only a few. This paper aims to present the 1996 Hague Convention on the International Protection of Children which establishes a comprehensive framework ensuring the effectiveness of the rights of children involved in a crossborder situation.
The official and full title of the Hague 1996 Convention is: the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Hereinafter ‘The 1996 Hague Convention’ or ‘the Convention’. The text of the Convention is available at http://www.hcch.net/index_en.php?act=conventions.text&cid=70.
2 As at 22 June 2013.
3 The scope of the Convention is defined by Article 3. Matters excluded from the scope of the Convention are listed under Article 4.
4 See Convention Preamble, paragraph 7.
5 Post-1996, the following Children Hague Conventions were signed: The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance; and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.
6 The 1996 Hague Convention entered into force in Australia on 1 August 2003.
7 The Status table of the 1996 Hague Convention is available at: http://www.hcch.net/index_en.php?act=conventions.status&cid=70
8 The term ‘authorities’ includes judicial authorities.
9 See Article 5 of the Convention.
10 See Article 5 of the 1996 Convention.
11 See Article 7 of the 1996 Convention.
12 The Convention term for what is also known as ‘abduction’.
13 The Convention term for what is also known as ‘not returning the child’.
14 See Article 6 of the Convention.
15 These provisions are found under Article 8 (Transfer of jurisdiction to an appropriate forum) and 9 (Jurisdiction requested by an appropriate forum) of the Convention.
16 See Article 11 of the Convention.
17 See Article 12 of the Convention.
18 Subject to Article 7 of the Convention.
19 In so far as such measures are not incompatible with measures already taken by authorities which have jurisdiction under Articles 5 to 10.
20 See above under the heading ‘II – Jurisdiction’.
21 See Article 15 of the Convention.
22 See Articles 16, 17 and 18 of the Convention.
23 See Article 20 of the Convention.
24 See Article 23(1) of the Convention.
25 With respect to enforcement, see the heading ‘IV - 2. Enforcement’ below.
26 See Article 24 of the Convention.
27 See Article 25 of the Convention.
28 The only grounds for a refusal to enforce a measure taken in a Contracting States are similar to the grounds for a refusal of recognition, see Article 26(3) and Article 23(2).
29 Article 27 of the Convention.
30 Article 28 of the Convention.
31 The list of Central (and competent) Authorities under the 1996 Hague Convention is available at: http://www.hcch.net/index_en.php?act=conventions.authorities&cid=70
32 For further details, see Article 31 of the Convention.
33 See Articles 33 to 37 of the Convention.
34 An Implementation Checklist was published in 2009 by the Permanent Bureau of the Hague Conference and is available at: http://www.hcch.net/index_en.php?act=publications.details&pid=4727&dtid=2
35 A Revised Draft Practical Handbook on the operation of the 1996 Hague Protection of Children Convention – aimed at all users of the 1996 Convention – was published in 2011 by the Permanent Bureau of the Hague Conference And is available at: http://www.hcch.net/index_en.php?act=publications.details&pid=5535&dtid=2
