European Treaty Series - No. 192 CONVENTION ON CONTACT CONCERNING CHILDREN

Transcription

1 Europen Trety Series - No. 192 CONVENTION ON CONTACT CONCERNING CHILDREN Strsourg, 15.V.2003

2 2 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 Premle The memer Sttes of the Council of Europe nd the other signtories hereto, Tking into ccount the Europen Convention on Recognition nd Enforcement of Decisions concerning Custody of Children nd on Restortion of Custody of Children of 20 My 1980 (ETS No. 105); Tking into ccount the Hgue Convention of 25 Octoer 1980 on the Civil Aspects of Interntionl Child Aduction nd the Hgue Convention of 19 Octoer 1996 on Jurisdiction, Applicle Lw, Recognition, Enforcement nd Co-opertion in respect of Prentl Responsiility nd Mesures for the Protection of Children; Tking into ccount the Council Regultion (EC) No. 1347/2000 of 29 My 2000 on jurisdiction nd the recognition nd enforcement of judgments in mtrimonil mtters nd in mtters of prentl responsiility for children of oth spouses; Recognising tht, s provided in the different interntionl legl instruments of the Council of Europe s well s in Article 3 of the United Ntions Convention on the Rights of the Child of 20 Novemer 1989, the est interests of the child shll e primry considertion; Awre of the need for further provisions to sfegurd contct etween children nd their prents nd other persons hving fmily ties with children, s protected y Article 8 of the Convention for the Protection of Humn Rights nd Fundmentl Freedoms of 4 Novemer 1950 (ETS No. 5); Tking into ccount Article 9 of the United Ntions Convention on the Rights of the Child which provides for the right of child, who is seprted from one or oth prents, to mintin personl reltions nd direct contct with oth prents on regulr sis, except when this is contrry to the child's est interests; Tking into ccount prgrph 2 of Article 10 of the United Ntions Convention on the Rights of the Child, which provides for the right of the child whose prents reside in different Sttes to mintin on regulr sis, sve in exceptionl circumstnces, personl reltions nd direct contcts with oth prents; Awre of the desirility of recognising not only prents ut lso children s holders of rights; Agreeing consequently to replce the notion of ccess to children with the notion of contct concerning children ; Tking into ccount the Europen Convention on the Exercise of Children s Rights (ETS No. 160) nd the desirility of promoting mesures to ssist children in mtters concerning contct with prents nd other persons hving fmily ties with children; Agreeing on the need for children to hve contct not only with oth prents ut lso with certin other persons hving fmily ties with children nd the importnce for prents nd those other persons to remin in contct with children, suject to the est interests of the child;

3 3 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 Noting the need to promote the doption y Sttes of common principles with respect to contct concerning children, in prticulr in order to fcilitte the ppliction of interntionl instruments in this field; Relising tht mchinery set up to give effect to foreign orders relting to contct concerning children is more likely to provide stisfctory results where the principles on which these foreign orders re sed re similr to the principles in the Stte giving effect to such foreign orders; Recognising the need, when children nd prents nd other persons hving fmily ties with children live in different Sttes, to encourge judicil uthorities to mke more frequent use of trnsfrontier contct nd to increse the confidence of ll persons concerned tht the children will e returned t the end of such contct; Noting tht the provision of efficient sfegurds nd dditionl gurntees is likely to ensure the return of children, in prticulr, t the end of trnsfrontier contct; Noting tht n dditionl interntionl instrument is necessry to provide solutions relting in prticulr to trnsfrontier contct concerning children; Desiring to estlish co-opertion etween ll centrl uthorities nd other odies in order to promote nd improve contct etween children nd their prents, nd other persons hving fmily ties with such children, nd in prticulr to promote judicil co-opertion in cses concerning trnsfrontier contct; Hve greed s follows: CHAPTER I OBJECTS OF THE CONVENTION AND DEFINITIONS Article 1 Ojects of the Convention The ojects of this Convention re: c to determine generl principles to e pplied to contct orders; to fix pproprite sfegurds nd gurntees to ensure the proper exercise of contct nd the immedite return of children t the end of the period of contct; to estlish co-opertion etween centrl uthorities, judicil uthorities nd other odies in order to promote nd improve contct etween children nd their prents, nd other persons hving fmily ties with children. Article 2 Definitions For the purposes of this Convention: contct mens: i ii the child stying for limited period of time with or meeting person mentioned in Articles 4 or 5 with whom he or she is not usully living; ny form of communiction etween the child nd such person;

4 4 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 iii the provision of informtion to such person out the child or to the child out such person. c d e contct order mens decision of judicil uthority concerning contct, including n greement concerning contct which hs een confirmed y competent judicil uthority or which hs een formlly drwn up or registered s n uthentic instrument nd is enforcele; child mens person under 18 yers of ge in respect of whom contct order my e mde or enforced in Stte Prty; fmily ties mens close reltionship such s etween child nd his or her grndprents or silings, sed on lw or on de fcto fmily reltionship; judicil uthority mens court or n dministrtive uthority hving equivlent powers. CHAPTER II GENERAL PRINCIPLES TO BE APPLIED TO CONTACT ORDERS Article 3 Appliction of principles Sttes Prties shll dopt such legisltive nd other mesures s my e necessry to ensure tht the principles contined in this chpter re pplied y judicil uthorities when mking, mending, suspending or revoking contct orders. Article 4 Contct etween child nd his or her prents 1 A child nd his or her prents shll hve the right to otin nd mintin regulr contct with ech other. 2 Such contct my e restricted or excluded only where necessry in the est interests of the child. 3 Where it is not in the est interests of child to mintin unsupervised contct with one of his or her prents the possiility of supervised personl contct or other forms of contct with this prent shll e considered. Article 5 Contct etween child nd persons other thn his or her prents 1 Suject to his or her est interests, contct my e estlished etween the child nd persons other thn his or her prents hving fmily ties with the child. 2 Sttes Prties re free to extend this provision to persons other thn those mentioned in prgrph 1, nd where so extended, Sttes my freely decide wht spects of contct, s defined in Article 2 letter. shll pply. Article 6 The right of child to e informed, consulted nd to express his or her views 1 A child considered y internl lw s hving sufficient understnding shll hve the right, unless this would e mnifestly contrry to his or her est interests:

5 5 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 to receive ll relevnt informtion; to e consulted; to express his or her views. 2 Due weight shll e given to those views nd to the scertinle wishes nd feelings of the child. Article 7 Resolving disputes concerning contct When resolving disputes concerning contct, the judicil uthorities shll tke ll pproprite mesures: c to ensure tht oth prents re informed of the importnce for their child nd for oth of them of estlishing nd mintining regulr contct with their child; to encourge prents nd other persons hving fmily ties with the child to rech micle greements with respect to contct, in prticulr through the use of fmily medition nd other processes for resolving disputes; efore tking decision, to ensure tht they hve sufficient informtion t their disposl, in prticulr from the holders of prentl responsiilities, in order to tke decision in the est interests of the child nd, where necessry, otin further informtion from other relevnt odies or persons. Article 8 Contct greements 1 Sttes Prties shll encourge, y mens they consider pproprite, prents nd other persons hving fmily ties with the child to comply with the principles lid down in Articles 4 to 7 when mking or modifying greements on contct concerning child. These greements should preferly e in writing. 2 Upon request, judicil uthorities shll, except where internl lw otherwise provides, confirm n greement on contct concerning child, unless it is contrry to the est interests of the child. Article 9 The crrying into effect of contct orders Sttes Prties shll tke ll pproprite mesures to ensure tht contct orders re crried into effect. Article 10 Sfegurds nd gurntees to e tken concerning contct 1 Ech Stte Prty shll provide for nd promote the use of sfegurds nd gurntees. It shll communicte, through its centrl uthorities, to the Secretry Generl of the Council of Europe, within three months fter the entry into force of this Convention for tht Stte Prty, t lest three ctegories of sfegurds nd gurntees ville in its internl lw in ddition to the sfegurds nd gurntees referred to in prgrph 3 of Article 4 nd in letter of prgrph 1 of Article 14 of this Convention. Chnges of ville sfegurds nd gurntees shll e communicted s soon s possile.

6 6 ETS No. 192 Convention on Contct concerning Children, 15.V Where the circumstnces of the cse so require, judicil uthorities my, t ny time, mke contct order suject to ny sfegurds nd gurntees oth for the purpose of ensuring tht the order is crried into effect nd tht either the child is returned t the end of the period of contct to the plce where he or she usully lives or tht he or she is not improperly removed. Sfegurds nd gurntees for ensuring tht the order is crried into effect, my in prticulr include: supervision of contct; the oligtion for person to provide for the trvel nd ccommodtion expenses of the child nd, s my e pproprite, of ny other person ccompnying the child; security to e deposited y the person with whom the child is usully living to ensure tht the person seeking contct with the child is not prevented from hving such contct; fine to e imposed on the person with whom the child is usully living, should this person refuse to comply with the contct order. Sfegurds nd gurntees for ensuring the return of the child or preventing n improper removl, my in prticulr include: the surrender of pssports or identity documents nd, where pproprite, document indicting tht the person seeking contct hs notified the competent consulr uthority out such surrender during the period of contct; finncil gurntees; chrges on property; undertkings or stipultions to the court; the oligtion of the person hving contct with the child to present himself or herself, with the child, regulrly efore competent ody such s youth welfre uthority or police sttion, in the plce where contct is to e exercised; the oligtion of the person seeking contct to present document issued y the Stte where contct is to tke plce, certifying the recognition nd declrtion of enforceility of custody or contct order or oth either efore contct order is mde or efore contct tkes plce; the imposition of conditions in reltion to the plce where contct is to e exercised nd, where pproprite, the registrtion, in ny ntionl or trnsfrontier informtion system, of prohiition preventing the child from leving the Stte where contct is to tke plce. 3 Any such sfegurds nd gurntees shll e in writing or evidenced in writing nd shll form prt of the contct order or the confirmed greement.

7 7 ETS No. 192 Convention on Contct concerning Children, 15.V If sfegurds or gurntees re to e implemented in nother Stte Prty, the judicil uthority shll preferly order such sfegurds or gurntees s re cple of implementtion in tht Stte Prty. CHAPTER III MEASURES TO PROMOTE AND IMPROVE TRANSFRONTIER CONTACT Article 11 Centrl uthorities 1 Ech Stte Prty shll ppoint centrl uthority to crry out the functions provided for y this Convention in cses of trnsfrontier contct. 2 Federl Sttes, Sttes with more thn one system of lw or Sttes hving utonomous territoril units shll e free to ppoint more thn one centrl uthority nd to specify the territoril or personl extent of their functions. Where Stte hs ppointed more thn one centrl uthority, it shll designte the centrl uthority to which ny communiction my e ddressed for trnsmission to the pproprite centrl uthority within tht Stte. 3 The Secretry Generl of the Council of Europe shll e notified of ny ppointment under this rticle. Article 12 Duties of the centrl uthorities The centrl uthorities of Sttes Prties shll: c d e co-operte with ech other nd promote co-opertion etween the competent uthorities, including judicil uthorities, in their respective countries to chieve the purposes of the Convention. They shll ct with ll necessry desptch; with view to fcilitting the opertion of this Convention, provide ech other on request with informtion concerning their lws relting to prentl responsiilities, including contct nd ny more detiled informtion concerning sfegurds nd gurntees in ddition to tht lredy provided ccording to prgrph 1 of Article 10, nd their ville services (including legl services, pulicly funded or otherwise) s well s informtion concerning ny chnges in these lws nd services; tke ll pproprite steps in order to discover the whereouts of the child; secure the trnsmission of requests for informtion coming from the competent uthorities nd relting to legl or fctul mtters concerning pending proceedings; keep ech other informed of ny difficulties likely to rise in pplying the Convention nd, s fr s possile, eliminte ostcles to its ppliction. Article 13 Interntionl co-opertion 1 The judicil uthorities, the centrl uthorities nd the socil nd other odies of Sttes Prties concerned, cting within their respective competence, shll co-operte in reltion to proceedings regrding trnsfrontier contct. 2 In prticulr, the centrl uthorities shll ssist the judicil uthorities of Sttes Prties in communicting with ech other nd otining such informtion nd ssistnce s my e necessry for them to chieve the ojects of this Convention.

8 8 ETS No. 192 Convention on Contct concerning Children, 15.V In trnsfrontier cses, the centrl uthorities shll ssist children, prents nd other persons hving fmily ties with the child, in prticulr, to institute proceedings regrding trnsfrontier contct. Article 14 Recognition nd enforcement of trnsfrontier contct orders 1 Sttes Prties shll provide, including where pplicle in ccordnce with relevnt interntionl instruments: system for the recognition nd enforcement of orders mde in other Sttes Prties concerning contct nd rights of custody; procedure wherey orders relting to contct nd rights of custody mde in other Sttes Prties my e recognised nd declred enforcele in dvnce of contct eing exercised within the Stte ddressed. 2 If Stte Prty mkes recognition or enforcement or oth of foreign order conditionl on the existence of trety or reciprocity, it my consider this Convention s such legl sis for recognition or enforcement or oth of foreign contct order. Article 15 Conditions for implementing trnsfrontier contct orders The judicil uthority of the Stte Prty in which trnsfrontier contct order mde in nother Stte Prty is to e implemented my, when recognising or declring enforcele such contct order, or t ny lter time, fix or dpt the conditions for its implementtion, s well s ny sfegurds or gurntees ttching to it, if necessry for fcilitting the exercise of this contct, provided tht the essentil elements of the order re respected nd tking into ccount, in prticulr, chnge of circumstnces nd the rrngements mde y the persons concerned. In no circumstnces my the foreign decision e reviewed s to its sustnce. Article 16 Return of child 1 Where child t the end of period of trnsfrontier contct sed on contct order is not returned, the competent uthorities shll, upon request, ensure the child s immedite return, where pplicle, y pplying the relevnt provisions of interntionl instruments, of internl lw nd y implementing, where pproprite, such sfegurds nd gurntees s my e provided in the contct order. 2 A decision on the return of the child shll e mde, whenever possile, within six weeks of the dte of n ppliction for the return. Article 17 Costs With the exception of the cost of reptrition, ech Stte Prty undertkes not to clim ny pyment from n pplicnt in respect of ny mesures tken under this Convention y the centrl uthority itself of tht Stte on the pplicnt's ehlf. Article 18 Lnguge requirement 1 Suject to ny specil greements mde etween the centrl uthorities concerned:

9 9 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 communictions to the centrl uthority of the Stte ddressed shll e mde in the officil lnguge or in one of the officil lnguges of tht Stte or e ccompnied y trnsltion into tht lnguge; the centrl uthority of the Stte ddressed shll nevertheless ccept communictions mde in English or in French, or ccompnied y trnsltion into one of these lnguges. 2 Communictions coming from the centrl uthority of the Stte ddressed, including the results of enquiries crried out, my e mde in the officil lnguge or one of the officil lnguges of tht Stte or in English or French. 3 However, Stte Prty my, y mking declrtion ddressed to the Secretry Generl of the Council of Europe, oject to the use of either French or English under prgrphs 1 nd 2 of this rticle, in ny ppliction, communiction or other documents sent to their centrl uthorities. CHAPTER IV RELATIONSHIP WITH OTHER INSTRUMENTS Article 19 Reltionship with the Europen Convention on Recognition nd Enforcement of Decisions concerning Custody of Children nd on Restortion of Custody of Children Prgrphs 2 nd 3 of Article 11 of the Europen Convention of 20 My 1980 (ETS N 105) on Recognition nd Enforcement of Decisions concerning Custody of Children nd on Restortion of Custody of Children shll not e pplied in reltions etween Sttes Prties which re lso Sttes Prties of the present Convention. Article 20 Reltionships with other instruments 1 This Convention shll not ffect ny interntionl instrument to which Sttes Prties to the present Convention re Prties or shll ecome Prties nd which contins provisions on mtters governed y this Convention. In prticulr, this Convention shll not prejudice the ppliction of the following legl instruments: c d the Hgue Convention of 5 Octoer 1961 on the competence of uthorities nd the pplicle lw concerning the protection of minors, the Europen Convention on the recognition nd enforcement of decisions concerning custody of children nd on restortion of custody of children of 20 My 1980, suject to Article 19 ove, the Hgue Convention of 25 Octoer 1980 on the civil spects of interntionl child duction, the Hgue Convention of 19 Octoer 1996 on jurisdiction, pplicle lw, recognition, enforcement nd co-opertion in respect of prentl responsiility nd mesures for the protection of children. 2 Nothing in this Convention shll prevent Prties from concluding interntionl greements completing or developing the provisions of this Convention or extending their field of ppliction. 3 In their mutul reltions, Sttes Prties which re memers of the Europen Community shll pply Community rules nd shll therefore not pply the rules rising from this

10 10 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 Convention, except in so fr s there is no Community rule governing the prticulr suject concerned.

11 11 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 CHAPTER V AMENDMENTS TO THE CONVENTION Article 21 Amendments 1 Any proposl for n mendment to this Convention presented y Prty shll e communicted to the Secretry Generl of the Council of Europe nd forwrded y him or her to the memer Sttes of the Council of Europe, ny signtory, ny Stte Prty, the Europen Community, to ny Stte invited to sign this Convention in ccordnce with the provisions of Article 22 nd to ny Stte invited to ccede to this Convention in ccordnce with the provisions of Article Any mendment proposed y Prty shll e communicted to the Europen Committee on Legl Co-opertion (CDCJ), which shll sumit to the Committee of Ministers its opinion on tht proposed mendment. 3 The Committee of Ministers shll consider the proposed mendment nd the opinion sumitted y the CDCJ nd, following consulttion of the Prties to the Convention, which re not memers of the Council of Europe, my dopt the mendment. 4 The text of ny mendment dopted y the Committee of Ministers in ccordnce with prgrph 3 of this rticle shll e forwrded to the Prties for cceptnce. 5 Any mendment dopted in ccordnce with prgrph 3 of this rticle shll enter into force on the first dy of the month following the expirtion of period of one month fter the dte on which ll Prties hve informed the Secretry Generl tht they hve ccepted it. CHAPTER VI FINAL CLAUSES Article 22 Signture nd entry into force 1 This Convention shll e open for signture y the memer Sttes of the Council of Europe, the non-memer Sttes which hve prticipted in its elortion nd the Europen Community. 2 This Convention is suject to rtifiction, cceptnce or pprovl. Instruments of rtifiction, cceptnce or pprovl shll e deposited with the Secretry Generl of the Council of Europe. 3 This Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte on which three Sttes, including t lest two memer Sttes of the Council of Europe, hve expressed their consent to e ound y the Convention in ccordnce with the provisions of the preceding prgrph. 4 In respect of ny Stte mentioned in prgrph 1 or the Europen Community, which susequently expresses its consent to e ound y it, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of the deposit of its instrument of rtifiction, cceptnce or pprovl. Article 23 Accession to the Convention 1 After the entry into force of this Convention, the Committee of Ministers of the Council of Europe my, fter consulttion of the Prties, invite ny non-memer Stte of the Council of Europe, which hs not prticipted in the elortion of the Convention, to ccede to this Convention y decision tken y the mjority provided for in Article 20 d. of the Sttute of

12 12 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 the Council of Europe, nd y unnimous vote of the representtives of the Contrcting Sttes entitled to sit on the Committee of Ministers. 2 In respect of ny cceding Stte, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of deposit of the instrument of ccession with the Secretry Generl of the Council of Europe. Article 24 Territoril ppliction 1 Any Stte or the Europen Community my, t the time of signture or when depositing its instrument of rtifiction, cceptnce, pprovl or ccession, specify the territory or territories to which this Convention shll pply. 2 Any Prty my, t ny lter dte, y declrtion ddressed to the Secretry Generl of the Council of Europe, extend the ppliction of this Convention to ny other territory specified in the declrtion nd for whose interntionl reltions it is responsile or on whose ehlf it is uthorised to give undertkings. In respect of such territory, the Convention shll enter into force on the first dy of the month following the expirtion of period of three months fter the dte of receipt of such declrtion y the Secretry Generl. 3 Any declrtion mde under the two preceding prgrphs my, in respect of ny territory specified in such declrtion, e withdrwn y notifiction ddressed to the Secretry Generl of the Council of Europe. The withdrwl shll ecome effective on the first dy of the month following the expirtion of period of three months fter the dte of receipt of such notifiction y the Secretry Generl. Article 25 Reservtions No reservtion my e mde in respect of ny provision of this Convention. Article 26 Denuncition 1 Any Prty my, t ny time, denounce this Convention y mens of notifiction ddressed to the Secretry Generl of the Council of Europe. 2 Such denuncition shll ecome effective on the first dy of the month following the expirtion of period of three months fter the dte of receipt of the notifiction y the Secretry Generl. Article 27 Notifictions The Secretry Generl of the Council of Europe shll notify the memer Sttes of the Council of Europe, ny Stte signtory, ny Stte Prty, the Europen Community, to ny Stte invited to sign this Convention in ccordnce with the provisions of Article 22 nd to ny Stte invited to ccede to this Convention in ccordnce with the provisions of Article 23 of: ny signture; the deposit of ny instrument of rtifiction, cceptnce, pprovl or ccession; c ny dte of entry into force of this Convention in ccordnce with Articles 22 nd 23; d ny mendment dopted in ccordnce with Article 21 nd the dte on which such n mendment enters into force;

13 13 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 e ny declrtion mde under the provisions of Article 18;

14 14 ETS No. 192 Convention on Contct concerning Children, 15.V.2003 f ny denuncition mde in pursunce of the provisions of Article 26; g ny other ct, notifiction or communiction, in prticulr relting to Articles 10 nd 11 of this Convention. In witness whereof, the undersigned, eing duly uthorised thereto, hve signed this Convention. Done t Strsourg, this 15th dy of My 2003, in English nd in French, oth texts eing eqully uthentic, in single copy, which shll e deposited in the rchives of the Council of Europe. The Secretry Generl of the Council of Europe shll trnsmit certified copies to ech memer Stte of the Council of Europe, to the non-memer Sttes which hve prticipted in the elortion of this Convention, to the Europen Community nd to ny Stte invited to ccede to this Convention.