Transfrontier contact concerning children Regional Conference on the 1980 Hague Convention on the Civil Aspects of International Child Abduction Belgrade,

Transfrontier contact concerning childrenRegional Conference on the 1980 Hague Convention

on the Civil Aspects of InternationalChild Abduction

Belgrade, Serbia3-4 February 2011

Philippe Lortie, First SecretaryHague Conference on Private International Law

Transfrontier contact concerning children

General Principles and a Guide to Good Practice

Français

Available at:www.hcch.net

English

Conférence de La Haye de droit international privé | Hague Conference on Private International Law

http://www.hcch.net/

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Executive Summary, page X


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1. The general principle

2. Co-operation

3. Procedures

4. Safeguards and guarantees

5. Promoting parental agreement


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The general principle:The right of the child to maintain personal

relationships

U.N. Convention on the Rights of the Child

“States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.” (Art. 9(3))

“A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. […]” (Art. 10(2))


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2. Co-operation

3. Procedures




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The framework for international legal co-operation

2.1 The basic framework

Two basic elements to support contact rights across frontiers are…• Common rules regarding jurisdiction;• a mutual respect (recognition and enforcement) for decisions concerning contact which are made on the common jurisdictional bases.

The 1996 Hague Child Protection Convention provides the basic framework, along with the 1980 Hague Child Abduction Convention


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Inter-state administrativeco-operation

2.2.1 In the context of transfrontier contact the Central Authority acts as a focal point for the exchange of information between States.

2.2.2 The Central Authority also acts as the centre for channelling information about the progress of specific cases.

2.2.3 The Central Authority is the central point for the provision of services to give effect to contact rights.


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2. Co-operation

3. Procedures




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Effective access to procedures

3.1.1 An effective access to the procedures which exist to establish or to exercise transfrontier contact rights.

3.1.2 In the case of an applicant from abroad, this implies:

• taking account of the special difficulties arising from unfamiliarity with language or legal systems;

• appropriate assistance in instituting proceedings;

• legal aid or assistance if possible;

• an opportunity to raise issues of contact at all relevant times.


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Acting with due speed at all stages of administrative and judicial procedures (para. 3.2.2), in particular:

the location of the child proceedings for enforcement

setting of dates for hearings including on appeal

the processing of applications for legal aid or assistance

achieving an amicable outcome the processing of applications

Degree and duration of disruption with contact and speed (Para. 3.2.1)

Speed of procedures


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2. Co-operation

3. Procedures




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Safeguards and guarantees

Courts should have at their disposal a broad range of measures which help to safeguard and guarantee stipulated contact arrangements.

• the surrender of the passport(s) or travel documents of the child;• the deposit of a monetary bond or surety;• supervision of contact by a professional or a family member;• other restrictions attached to contact relative to the risks;• requiring that a mirror order should be made in the country where contact is to be exercised.

4.2 Safeguards against unlawful retention

4.1 Safeguards and guarantees

The primary guarantee against unlawful retention following a period of visitation (1980 Hague Convention)

4.3 Examples of guarantees and safeguards


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Safeguards and guarantees General principles

4.4 Taking into account the traditions of the parties

4.6 Specifying the terms and conditions

4.5 Proportionality

4.8 Ensuring that the terms and conditions of contact will be enforceable in another country

4.7 Modern means of preserving contact


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2. Co-operation

3. Procedures




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Promoting parental agreement

5.1 Promoting parental agreement

5.2 Facilitating and encouraging agreed solutions

5.3 The role of the State in promoting and supporting parental agreement on contact

5.4 Further elements in the legal framework- Fairness - Right of the child to express his / her views - Confidentiality, impartiality and independence of mediation- Quality and training of mediators

5.5 Legal framework to give the contact agreement cross-border effect


Questions

Permanent BureauHague Conference on Private International Law

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Documents

Transfrontier contact concerning children Regional Conference on the 1980 Hague Convention on the Civil Aspects of International Child Abduction Belgrade,