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Explanatory Report to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children

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Explanatory Report to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children European Treaty Series - No. 105 Explanatory Report to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children Luxembourg, 20.V.1980 I. The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, drawn up within the Council of Europe by a committee of governmental experts under the authority of the European Committee on Legal Co-operation (CDCJ), was opened for signature by the member States of the Council of Europe on 20 May 1980 in Luxembourg on the occasion of the 12th Conference of European Ministers of Justice. II. The text of the explanatory report prepared by the committee of experts and submitted to the Committee of Ministers of the Council of Europe, as amended and completed by the CCJ, does not constitute an instrument providing an authoritative interpretation of the Convention, although it might be of such nature as to facilitate the application of the provisions contained therein. Introduction 1 In 1972, at their 7th Conference (Basle, 15-18 May 1972) the European Ministers of Justice examined ways of improving co-operation concerning the guardianship and custody of children on the basis of a report presented by Mr Christian Broda, Austrian Minister of Justice. 2. In that report the Minister dwelt, inter alia, on the necessity of ad. equate protection of children and the need to ensure the recognition and enforcement in foreign States of national judgments governing custody. In its Resolution No. 1, the Conference recommended that the Committee of Ministers of the Council of Europe should ask the European Committee on Legal Co-operation (CDCJ) to study forms of co-operation among the member States with a view to children being afforded increased international protection based solely on their welfare. 3. Subsequently the European Committee on Legal Co-operation proposed, and the Committee of Ministers approved, the setting up of a committee of governmental experts to indicate, as a preliminary step, what concrete measures might be taken within the framework of the Council of Europe to implement the resolution mentioned above. 4. The committee of experts was made up of experts appointed by the governments of member States and observers from Finland, Spain (which became a member State in 1977) and the Hague Conference on Private International Law; it elected Mr R. Loewe (Austria) Chairman and Mr M. C. Blair (United Kingdom) Vice-Chairman. 5. At its first meeting, in 1973, the committee of experts considered it appropriate, under its terms of reference, to propose as a priority task the drawing up of a European convention on the recognition and enforcement of decisions relating to the custody of children. The committee of experts had, in fact, noted that the Hague Convention of 5 October 1961 concerning the competence of authorities and the law applicable in respect of the protection Explanatory Report – ETS 105 – Custody of Children __________________________________________________________________________________ of minors contained no provisions guaranteeing the enforcement of foreign decisions in this field. Further. more, a number of Council of Europe member States have not as yet acceded to the convention. It therefore seemed desirable that, as the Council of Europe advocates ever closer unity among its members, they should make common provisions to this effect, for the right of custody could be adversely affected if the measures which enabled it to be exercised were not enforced abroad. 6. In 1976, the experts for Switzerland on the committee presented a proposal for a preliminary draft convention on the restoration of custody of children. This proposal dealt in particular with the restoration of custody of children removed from the person having their custody and taken across an international frontier. The European Committee on Legal Co- operation (CDCJ) authorised the committee of experts to examine the Swiss proposal together with the draft European convention on recognition and enforcement of decisions relating to the custody of children. 7. In carrying out this examination the committee of experts decided to harmonise the two drafts and reconstruct the documents so as to form a single convention with a twofold purpose: i. the recognition and enforcement of decisions concerning custody of children, and ii. the restoration of custody in the case of a removal of a child to another country. 8. The preparatory work was completed by the committee of experts at its meeting from 29 January to 3 February 1979 under the chairmanship of Mr G. Koumantos (Greece). Mr R. L. Jones (United Kingdom) was Vice-Chairman. 9. The draft convention was examined and amended by the European Committee on Legal Co-operation (CDCJ) and submitted to the Committee of Ministers which adopted the text and decided to open it to signature by member States of the Council of Europe on 20 May 1980, in Luxembourg, on the occasion of the 12th Conference of European Ministers of Justice. Commentary on the provisions of the Convention General comments 10. The Convention is concerned with different situations relating to the right of custody, and lays down specific solutions for them. The situations and solutions are as follows: a. Improper removal of a child where both parents and the child have as their sole nationality that of the State in which the decision regarding the right of custody was given and where, furthermore, the child has his habitual residence in that State; non-repatriation of a child after a period of access abroad, in breach of either an agreement confirmed by a competent authority or of a decision by the competent authority concerning the right of access. In these cases covered by Article 8, if the application is made within a very short space of time, laid down as six months from the removal or non-repatriation, the custody shall be restored forthwith and may not be subject to any condition other than the establishment of the facts as covered by those cases. b. Improper removal where one of the conditions provided for under Article 8, paragraph 1. a (common nationality, habitual residence in the State of origin) is not fulfilled but the application is made within six months from the date of the improver removal. This case, covered by Article 9, calls for the restoration of the custody, which may be subject to only a limited number of grounds for refusal, generally concerned with the observance of the rights of defence and of decisions already given in the requested State. 2 Explanatory Report – ETS 105 – Custody of Children __________________________________________________________________________________ c. In all other cases, covered by Article 10, including those where the request is made after more than six months, the conditions laid down for repatriation are more numerous since the child may already have been integrated into the surroundings to which he has been removed. 11. With the aim of making the Convention acceptable to a larger number of States, a special provision (Article 17) enables States so wishing to apply, by means of a reservation, the conditions referred to in c above to either or both of the situations described at a and b above. Article 1 12. This article contains the definitions of certain concepts, as understood in the context of the Convention. 13. In connection more particularly with the concept of a "child", the age of 16 has been taken, not because of the age of legal capacity, but because a decision on custody could not easily be enforced against the wishes of a child over that age. On addition, there is less need after the child has reached the age of 16 to protect him against improper removals. The conditions required by the definition as regards a child's age and his right to decide on his residence are cumulative. 14. In most Council of Europe member States decisions on custody are the exclusive preserve of the courts. There are, however, some member States, such as Denmark, Norway and Switzerland, in which this power is also given to administrative authorities. The definition of the concept of "authority" takes account of this situation. 15. Nationality and habitual residence are not defined in the Convention and must be determined in accordance with the law of each Contracting State. However, where the child's habitual residence is concerned, reference can be made to rules 7-11 in Resolution (72) 1 of the Committee of Ministers of the Council of Europe on standardisation of the legal concepts of "domicile" and "residence". 16. For the purpose of the Convention it is immaterial whether the person to whom custody is granted or refused be a physical or legal person, an institution or an authority. 17. The definition of decisions relating to custody is also intended to cover the right of access, which is governed by Article 11. A decision which is limited to ordering the return of the child to the place where he was before his removal is also a decision relating to custody. The decisions in question must originate in a Contracting State; this follows from Article 7 and the whole structure of the Convention. 18. The Convention is not applicable to decision which do not relate either to the care of the person of the child, or to the right to decide on the place of his residence or the right to access to him. In particular, it is inapplicable to decisions bearing only on legal representation as such or on the granting of consent in property matters. But of course, where a decision on legal representation has direct effects on the granting or exercise of custody, it falls to this extent within the scope of the Convention ("decision relating to the custody").
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