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INTER—AMERICAN CONVENTION ON THE INTERNATIONAL RETURN OF CHILDREN Author(s): Heidi V. Jiménez Source: International Legal Materials, Vol. 29, No. 1 (JANUARY 1990), pp. 63-72 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/20693414 . Accessed: 18/06/2014 13:14 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to International Legal Materials. http://www.jstor.org This content downloaded from 185.44.79.85 on Wed, 18 Jun 2014 13:14:44 PM All use subject to JSTOR Terms and Conditions

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Page 1: INTER—AMERICAN CONVENTION ON THE INTERNATIONAL RETURN OF CHILDREN

INTER—AMERICAN CONVENTION ON THE INTERNATIONAL RETURN OF CHILDRENAuthor(s): Heidi V. JiménezSource: International Legal Materials, Vol. 29, No. 1 (JANUARY 1990), pp. 63-72Published by: American Society of International LawStable URL: http://www.jstor.org/stable/20693414 .

Accessed: 18/06/2014 13:14

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access toInternational Legal Materials.

http://www.jstor.org

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Page 2: INTER—AMERICAN CONVENTION ON THE INTERNATIONAL RETURN OF CHILDREN

INTER-AMERICAN CONVENTION ON THE INTERNATIONAL RETURN OF CHILDREN* [Done at Montevideo, July 15, 1989]

+Cite as 29 I.L.M. 63 (1990)+

Introductory Note

Heidi V. Jimenez

Beginning with the preparatory work for the Third Inter-American

Specialized Conference on Private International Law (CIDIP-III), the Inter-American Children's Institute, a specialized agency of the OAS based in

Montevideo, Uruguay, cooperated with the General Secretariat in the field of international family law. In 1983, the Institute called a meeting of experts in Quito, Ecuador, from which there emerged the draft Convention on Conflicts of Laws Concerning the Adoption of Minors. This draft was revised by the Inter-American Juridical Committee at its meeting of January 1984, and served as a basis for what was to become the Inter-American Convention on the

topic .A/

Following a natural progression in the field, and taking account of the invaluable experience gained at the regional level, the CIDIP-III adopted two resolutions calling for continued study and cooperation in the areas of

trafficking in and protection of adopted minors (CIDIP-III/Res.I/84 and CIDIP-III/Res.V/84).

In preparation for CIDIP-IV, the General Secretariat of the OAS undertook a work program, in coordination with the Inter-American Juridical Committee and the Inter-American Children's Institute, to develop technical documents and draft Conventions for the designated agenda topics of Abduction and Return of Minors, and Maintenance Obligations (CP/Res.486 (717/87) corr.l).

International abduction and return of minors was the subject of a draft Convention prepared by the Inter-American Juridical Committee (CIDIP-IV/doc.4/88 add.l). This draft, as revised by a group of experts convened in San Jos?, Costa Rica by the Inter-American Children's Institute on

May 22 through 26, 1989, served as a basic working document for CIDIP-IV

(CIDIP-IV/doc.17/89).

In its treatment of the topic, CIDIP-IV sought to harmonize the internationally accepted principles and procedures reflected in the San Jose! draft, the 1980 Hague Convention on the Civil Aspects of International Child Abduction [19 I.L.M. 1501 (1980)], and the national characteristics of the participating States. The overriding sentiment was that although some substantive differences may exist between the 1980 Convention and a future Inter-American Convention, their objective was compatible. There would thus be no problem in becoming formally bound by both instruments, having the Inter-American Convention apply as between those OAS Member States that are not members of the Hague Conference, and the 1980 Conventipn between all other

1. Inter-American Convention on Conflicts of Laws Concerning the Adoption of Minors, 62 OAS Treaty Searies; 24 I.L.M. 460 (1985); signed on May 24, 1984, entered into force on May 26, 1988, between Colombia and Mexico.

*[ Reproduced From EHe Eext provided By EKe Organization of American States. The Introductory Note was prepared for International Legal Materials by Heidi V. Jimenez, Secretariat of Legal Affairs, Organization of American States. As of January 31, 1990, the Convention had been signed by Bolivia, Brazil, Colombia, Ecuador, Guatemala, Haiti, Paraguay, Peru, Uruguay and Venezuela.]

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members of the Hague. Since only eight OAS Member States are members of the

Hague Conference (Argentina, Brazil, Chile, Mexico, Suriname, United States,

Uruguay and Venezuela), only they could ratify the 1980 Convention without

having to fulfill additional requirements ?pursuant to Article 32, the

accession of non-members of the Hague Conference hinges on a declaration by the Contracting States. This fact alone was thought to provide sufficient

justification for regional codification in the field.

In Committee, the majority of the delegates were of the opinion that the

word "abduction" ought not be included in the title of the Convention, since

the word had criminal connotations that were not in keeping with the nature of

the draft; the latter was designed to regulate civil aspects of wrongful rentbval and retention of children, rather than extradition deriving ftom the

commission of the crime of abduction or the penal aspects of concealing the

child's whereabouts.

It was further agreed that the linking of visitation and custody rights would not only broaden the scope of the Convention and its chances of

ratification, but would also have a preventive effect on unlawful removal and

retention of children.

I.L.M. Content Summary

TEXT OF CONVENTION - I.L.M. Page 66

SCOPE - I.L.M. Page 66

Art. 1

Art. 2 Art. 3 Art. 4

Art. 5

Art. 6

[Purpose is the prompt return of children who have been wrongfully removed from a State] [Definition of child (under 16 years old)] [Definition of rights of custody and visitation] [Elements of a wrongful removal or retention of a child] [Standing of person to bring an action for a child's return] [Jurisdiction of State to consider petition for return of child]

THE CENTRAL AUTHORITY - I.L.M. Page 67

Art. 7 [Duty to designate a Central Authority; duties of Central Authority]

RETURN PROCEEDINGS - I.L.M. Page 67

Art. 8 [initiating proceedings by filing an application or petition]

Art. 9 [Contents of application of petition] Art. 10 [voluntary return; temporary custody by competent

authorities; ordering return of the child]

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Art* 11 [Objections to an order of return] Art. 12 [Time period for filing objections; procedure for

adjudication] Art* 13 [Return order inoperative after 45 days; costs] Art. 14 [Statute of limitations] Art. 15 [Return orders have no effect on ultimate custody

decisions] Art. 16 [Custody decisions are to be held in abeyance

pending adjudication of an application for a return order]

Art. 17 [Open authority to order return]

LOCATING MINORS - I.L.M. Page 69

Arts. 18-20 [Making requests through the Central Authority; duty of Central Authority to act upon the request]

VISITATION RIGHTS - I.L.M. Page 70

Art. 21 [Requests for enforcement of visitation rights]

GENERAL PROVISIONS - I.L.M. Page 70

Art. 22 [Transmission of requests; letters rogatory; expenses; refusal to return when violative of fundamental human rights principles; responsibility of the Inter-American Children's Institute]

FINAL PROVISIONS - I.L.M. Page 71

Art. 28 [Signature] Art. 29 [Ratification] Art. 30 [Accession] Art. 31 [Reservations] Arts. 32-33 [Territorial units with different legal systems] Art. 34 [Effect on the Hague Convention of October 25, 1980

(see 19 I.L.M. 1501 (1980) for the text)] Art. 35 [No effect on existing treaties and conventions] Art. 36 [Entry into force] Art. 37 [Denunciation] Art. 38 [Authentic Texts: English, French, Portuguese, and

Spanish]

[Done at Montevideo, Uruguay, July 15, 1989]

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INTER-AMERICAN CONVENTION ON THE INTERNATIONAL RETURN OF CHILDREN

SCOPE

Article 1

The purpose of this Convention is to secure the prompt return of children habitually resident in one State Party who have been wrongfully removed from anv State to a State Party or who, having been lawfully removed, have been wrongfully retained. This Convention further seeks to secure enforcement of visitation and custody rights of parties entitled to them.

Article 2

For the purposes of this Convention, a child shall be any person below the age of sixteen years.

Article 3

For the purposes of this Convention:

a. Rights of custody include rights relating to the care of the child

and, in particular, the right to determine the child's place of

residence;

b. Rights of visitation include the right to take a child for a limited

period of time to a place other than the child's habitual residence.

Article 4

The removal or retention of a child shall be considered wrongful whenever it is in breach of the custody rights that parents, institutions or others

having such rights individually or jointly exercise over the child under the law of the child's habitual residence immediately prior to the removal or retention.

Article 5

Any party designated by Article 4 may, in the exercise of custody or similar rights, bring an action for the child's return.

Article 6

Judicial or administrative authorities of the State Party in which the child habitually resided immediately before the removal or retention shall have jurisdiction to consider a petition for the child's return.

In urgent cases, the applicant may choose, instead, to file a request for the child's return directly with authorities of the State Party in whose territory the wrongfully removed or retained child is or is thought to be when the reauest is made, or with the authorities of the State Party in which the wrongful act giving rise to the request took place.

Making a request in the manner described in the preceding paragraph shall in no way alter the iurisdiction authorized by the first paragraph of this article.

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THE CENTRAL AUTHORITY

Article 7

For the purposes of this Convention, each Stete Pertv shall desienate a central authoritv to ensure fulfillment of the obligations established under this Convention and shall inform the General Secretariat of the Organization of American States of that designation.

Specifically the Central Authoritv shall assist the applicant and competent authorities of the respective States in locating and returning the child. It shall also facilitate the prompt return and delivery of the child to the applicant and assist the parties in obtaining the necessary documents for proceedings under this Convention.

The Central Authorities of the States Parties shall cooperate with one another and exchange information on the operation of the Convention in order to secure the prompt return of children and to achieve the other purposes of this Convention.

RETURN PROCEEDINGS

Article 8

A partv seeking a child's return may file an application or petition with the competent authorities in accordance with Article 6:

a. By a letter rogatory;

b. By filing a request with a central authority; or

c. Directly, or through diplomatic or consular channels.

Article 9

1. The application or petition referred to in Article 8 shall contain:

a. An account of the removal or retention and sufficient information to

identify the applicant, the removed or retained child and, where

possible, the person alleged to have removed or retained the child;

b. Information on the presumed location of the child and on the circumstances and dates of the removal to a foreign country or of the

expiration of the authorized length of stay; and

c. The legal grounds for the child's return.

2. The application or petition shall be accompanied by:

a. A full and certified copy of a judicial or administrative opinion, if any, or of a determination on which the request is based; concise evidence of the existing situation or, if appropriate, a statement of the pertinent applicable lav;

b* Certified documents establishing the standing of the applicant;

c. Certification of or information on the applicable law of the State of the child's habitual residence issued by the Central Authoritv of, or by any other competent source in, that State;

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d. Where necessary, translations into the official language of the requested State of all documents referred to in this article; and

e. A statement of the measures required to effect the return of the child.

3. A competent authority mav dispense with any of the requirements or the presentation of documents called for by this article if, in its opinion, the child's return is justified.

4. Letters rogatory or requests, and the documents attached thereto, shall not require certification if thev are transmitted through diplomatic or consular channels or through the Central Authority.

Article 10

The requested court, Central Authority, or other competent authorities of the State where the child is found shall, where appropriate, take all measures conducive to the voluntary return of the child.

Should a voluntary return not take place, the judicial or administrative

authorities, after verifying compliance with Article 9, shall forthwith meet with the child and take such measures to provide for its temporary custody or care as the circumstances mav dictate, and shall, where appropriate, immediately order its return. Further, the agency charged by domestic law with protecting the child's welfare shall be notified.

In addition, while the application for return is pending, the competent authorities shall take the necessary steps to prevent the child from leaving their jurisdiction.

Article 11

A judicial or administrative authority of the requested State is not

required to order the child's return if the party raising objections to the return establishes that:

a. The party seeking the child's return was not actually exercising its right8 at the time of the removal or retention, or had consented to or subsequently acquiesced in such removal or retention; or

b. There is a grave risk that the child's return would expose the child to physical or psychological danger.

The requested authority may also refuse to order the child's return if it finds that the child is opposed to it and if, in the iudgment of the requested authority, the child's age and maturity warrant taking its views into account.

Article 12

The objections mentioned in Article 11 shall be raised within a period of

eight working days from the time the authorities meet with the child and bring such period to the attention of the person retaining the child.

The judicial or administrative authorities shall assess the circumstances and the evidence furnished by the opposing party to support its objections to the child's return, shall ascertain the applicable law and judicial or

administrative precedents of the State of the child's habitual residence, and, if necessary, shall request assistance from Central Authorities, diplomatic agents or consular officers of the States Parties.

The judicial or administrative authoritv shall issue its decision within

sixty calendar days after receipt of the objection.

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Article 13

If within forty-five calendar days after the requesting authority has received notice of a decision to return the child, the steps necessary for the child's return have not been taken, the return order shall become inoperative and any measures taken shall be lifted*

Costs of the return shall be borne by the claimant; should the claimant lack the means, the authorities of a requesting State may defray the costs, which may be recovered from the person responsible for the wrongful removal or

retention*

Article 14

Proceedings under this Convention shall be commenced within one calendar

year of the wrongful removal or retention.

As to children whose location is unknown, the period shall run from the time they are located.

Nevertheless, expiration of the one-year period shall not bar the child's return if, in the opinion of the requested authority, the circumstances so

warrant, unless it is demonstrated that the child is settled in its new

environment.

Article 15

The fact of a child's return shall not prejudge the ultimate custody decision.

Article 16

After receiving notice of a child's wrongful removal or retention as

defined in Article 4, the judicial or administrative authorities of the State Party to which the child has been removed or where it is retained shall refrain from deciding on the merits of custody claims until it is determined either that the child is not to be returned under this Convention or that no

request pursuant to this Convention has been lodged within a reasonable time

following receipt of such notice.

Article 17

The foregoing provisions shall not limit the power of a judicial or administrative authority to order the child's return at any time.

LOCATING MINORS

Article 18

Any person mentioned in Article 5 may directly, through the Central Authority, or through the judicial or administrative authorities of one State Party request the competent authorities of another State Party to locate children whose habitual residence is in the State of the requesting authority and who are thought to be wrongfully in the requested State.

The request shall be accompanied by any information supplied by the person making the request or gathered by the requesting authority relevant to the locating of the child and the identity of the person with whom the child is presumed to be.

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Article 19

The Central Authority or judicial or administrative authorities of one State Party Which, upon learning from a request pursuant to Article 18 that a child wrongfully outside its habitual residence is located within their

jurisdiction, shall immediately take all appropriate measures to safeguard its health and prevent its concealment or removal to another jurisdiction.

The location of the child shall be reported to the authorities of the

requesting State.

Article 20

The measures adopted pursuant to Article 19 may be lifted if the child's return is not requested within sixty calendar days after the authorities of the requesting State have been informed of the location of the child.

A lifting of such measures shall not preclude exercise of the right to

request the child's return in accordance with the procedures and time limits specified in this Convention.

VISITATION RIGHTS

Article 21

Any person with visitation rights may, pursuant to Article 6, address a

request for their enforcement to the competent authorities of any State Party. The same procedures shall be followed as those governing a request for a child's return under this Convention.

GENERAL PROVISIONS

Article 22

Letters rogatory and requests for the return or the locating of children may be transmitted, as appropriate, to the requested authority by the parties themselves, or through judicial, diplomatic, or consular channels, or through the Central Authority of the requesting or the requested State.

Article 23

The processing of letters rogatory or requests under this Convention and the measures arising therefrom shall be free of charge and exempt from any tax, deposit or bond, however named.

The parties initiating a letter rogatory or request that have appointed a

person to represent them in the requested forum shall bear any expenses incurred in connection with such representation.

Nevertheless, upon ordering a child's return under this Convention, the

competent authorities may, where appropriate, direct the person who wrongfully removed or retained the child to pay the necessary expenses incurred by the

applicant? those incurred in locating the minor, and the costs of return.

Article 24

The arrangements and measures necessary to give effect to letters rogatory shall not require the intervention of the petitioner, and shall be implemented directly by the requested authority. This procedure, however, shall not bar

any partv from intervening either personally or through a duly appointed representative.

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Article 25

A child's return under this Convention may be refused where it would be manifestly in violation of the fundamental principles of the requested State

recognized by universal and regional instruments on human rights or on the rights of children.

Article 26

This Convention shall not bar the competent authorities from ordering the child's immediate return when its removal or retention is a criminal offense.

Article 27

As a Specialized Organization of the Organization of American States, the Inter-American Children's Institute shall be responsible for coordinating the activities of the Central Authorities within the scope of the Convention and for receiving and evaluating information from the States Parties in respect of

application of the Convention.

It shall also be responsible for cooperating with other international

organizations competent in the matter.

FINAL PROVISIONS

Article 28

This Convention shall be open for signature by the Member States of the

Organization of American States.

Article 29

This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.

Article 30

This Convention shall remain open for accession by any other State. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.

Article 31

Each State may, at the time of signature, ratification or accession, make reservations to this Convention, provided that each reservation concerns one or more specific provisions and is not incompatible with the purposes and objectives of this Convention.

Article 32

If a State has two or more territorial units in which different systems of law apply in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification or accession, declare that this Convention shall extend to all its territorial units or to only one or more of them.

Such declaration may be modified by subsequent declarations, which shall expressly indicate the territorial unit or units to which the Convention applies. Such subsequent declarations shall be transmitted to the General Secretariat of the Organization of American States, and shall become effective thirty days after the date of their receipt.

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Article 33

In the case of a State that, with respect to the custody of children, has two or more systems of law applicable in different territorial units:

a. Any reference to the habitual residence in that State refers to habitual residence in a territorial unit of that State;

b. Any reference to the law of the State of habitual residence refers to the law of the territorial unit in which the child has its habitual residence*

Article 34

Among the Member States of the Organization of American States that are

parties to this Convention and to the Hague Convention of October 25, 1980 on the civil aspects of international child abduction, this Convention shall

prevail.

However, States Parties may enter into bilateral agreements to give priority to the application of the Hague Convention.

Article 35

This Convention shall limit neither the provisions of existing or future bilateral or multilateral conventions on this subject entered into by the States Parties, nor the more favorable practices that those States may observe in this area*

Article 36

This Convention shall enter into force on the thirtieth day following the date of deposit of the second instrument of ratification.

For each State ratifying or acceding to the Convention after the deposit of the second instrument of ratification, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article 37

This Convention shall remain in force indefinitely, but any of the States Parties may denounce it. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. After one year from the date of deposit of the instrument of denunciation, the Convention shall no longer be in force for the denouncing State, but shall remain in force for the other States Parties.

Article 38

The original instrument of this Convention, the English, French, Portuguese and Spanish texts of which are equally authentic, shall be

deposited with the General Secretariat of the Organization of American States, which shall forward an authenticated copy of its text to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of its Charter. The General Secretariat of the Organization of American States shall notify the Member States of that Organization and the States that have acceded to the Convention of the signatures, deposits of instruments of

ratification, accession and denunciation, as well as of reservations, if any. It shall also transmit the declarations provided for in the pertinent articles of this Convention.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Convention.

DONE AT MONTEVIDEO, EASTERN REPUBLIC OF URUGUAY, this fifteenth day of

July, one thousand nine hundred and eighty-nine.

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