Introduction

The Hague Convention - Child Protection Section

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 (HCCH 1996 Child Protection Convention)
- a multilateral treaty covering a broad range of civil measures to protect children
in cross-border situations;
- provides uniform rules that prevent conflicting decisions, enable cross-border co-
operation between authorities, and secure the recognition and enforcement of
measures among Contracting Parties;
- provides information about the operation of the Convention and the work of The
Hague Conference in monitoring its implementation and promoting international
co-operation in the area of child protection.

CHAPTER I – SCOPE OF THE CONVENTION

What are the objects of the present Convention?

a) to determine the State whose authorities have jurisdiction to take measures
directed to the protection of the person or property of the child;
b) to determine which law is to be applied by such authorities in exercising their
jurisdiction;
c) to determine the law applicable to parental responsibility;
d) to provide for the recognition and enforcement of such measures of protection
in all Contracting States;
e) to establish such co-operation between the authorities of the Contracting
States as may be necessary in order to achieve the purposes of this Convention.

This concern actions and decisions related to the care, protection, and property of
children which include:
1. Parental responsibility – assigning, exercising, limiting, or ending it, and allowing
others to assume it temporarily.
2. Custody and access rights – deciding who cares for the child, where the child
lives, and arrangements for visitation or temporary stays elsewhere.
3. Guardianship or similar institutions – establishing legal guardians or similar
protectors for the child.
4. Representation and assistance – appointing individuals or bodies to manage or
support the child or their property.
5. Child placement – arranging foster care, institutional care, or similar forms of
protection like kafala.
6. Public supervision – ensuring authorities oversee anyone responsible for the child’s
care.
7. Property management – administering, preserving, or disposing of the child’s
property.
‘Parental responsibility’
- includes parental authority, or any analogous relationship of authority determining
the rights, powers and responsibilities of parents, guardians or other legal
representatives in relation to the person or the property of the child.

- The law of the child’s habitual residence determines when parental responsibility
arises or ends, whether automatically or through agreement.

- continues even if the child later moves to another State, though new responsibility
may arise under the new State’s law.

- The exercise of parental rights and duties is governed by the law of the child’s
habitual residence, which changes accordingly if the child moves.

- can be ended or modified through measures taken under the Convention.

To whom is this applicable?

- children from the moment of their birth until they reach the age of 18 years.

The Convention does not apply to –

a) the establishment or contesting of a parent-child relationship;
b) decisions on adoption, measures preparatory to adoption, or the annulment or
revocation of adoption;
c) the name and forenames of the child;
d) emancipation;
e) maintenance obligations;
f) trusts or succession;
g) social security;
h) public measures of a general nature in matters of education or health;
i) measures taken as a result of penal offences committed by children;
j) decisions on the right of asylum and on immigration.

CHAPTER II – JURISDICTION

Who has jurisdiction to take measures directed to the protection of the child's person or
property?
 The judicial or administrative authorities of the Contracting State of the habitual
residence of the child;

 In case of a change of the child's habitual residence to another Contracting State

- the authorities of the State of the new habitual residence have jurisdiction;

 Refugee children and children who are internationally displaced, and whose
habitual residence cannot be established - authorities of the Contracting State on
the territory of which these children are present as a result of their displacement;
 In case of wrongful removal or retention of the child, the authorities of the
Contracting State in which the child was habitually resident immediately before
the removal or retention keep their jurisdiction until the child has acquired a
habitual residence in another State, and
a) each person, institution or other body having rights of custody has
acquiesced in the removal or retention; or
b) the child has resided in that other State for a period of at least one year
after the person, institution or other body having rights of custody has or
should have had knowledge of the whereabouts of the child, no request
for return lodged within that period is still pending, and the child is settled in
his or her new environment.

 Transfer of Jurisdiction (Exception to General Rule)

- Authorities that normally have jurisdiction may request another State’s authority to
take over a child protection case if that State is better suited to assess the child’s
best interests.

- This may include the child’s national State, a State where the child’s property is
located, a State handling the parents’ divorce, or one with a substantial
connection to the child. The receiving State may assume jurisdiction if it agrees it’s
best for the child.

- Conversely, if another State believes it is better placed to decide in the child’s best
interests, it may ask the State of the child’s habitual residence for permission to
assume jurisdiction. It may only exercise such jurisdiction if the original State
accepts the request.

 Jurisdiction in Divorce or Separation Proceedings

A State hearing a divorce, legal separation, or annulment case may also take
protective measures for a child habitually residing in another State if:

 One parent lives in that State and has parental responsibility,

 All persons with parental responsibility agree, and
 It serves the child’s best interests.

This special jurisdiction ends once the marital case is finalized.

 Urgent Cases
In urgent situations, any State where the child or their property is located may take
temporary protective measures.

These lapse once the competent authorities (under Articles 5–10) act or, for non-
Contracting States, once foreign measures are recognized.
  Provisional and Territorial Measures
A State where the child or their property is present may take provisional measures
effective only within its territory, provided these do not conflict with existing
measures by the competent authorities.

Such measures also lapse when the competent authorities issue a decision.

 Concurrent Proceedings
If two States with jurisdiction are seized of the same case, one must refrain from
acting while the other continues—unless the first authority declines jurisdiction.

 Continuity of Measures
Protective measures remain valid even if the original basis for jurisdiction changes,
until new authorities modify, replace, or end them.

SIDE NOTE:
The Supreme Court of Ukraine follows the interpretation in the Practical Handbook on the
Operation of the 1996 Hague Child Protection Convention, stating that habitual residence
is a factual concept reflecting the child’s real and stable integration into a social and
family environment.

To determine habitual residence, courts must consider factors such as:

 The duration, regularity, and purpose of the child’s stay in a country;
 The family’s reasons for moving there;
 The child’s nationality, school attendance, and language skills;
 The child’s social and family connections, such as friends, relatives, and
community involvement.

Indicators of habitual residence include school or preschool attendance, medical

registration, participation in clubs or activities, and stable family life—all showing that the
child regards the place as their permanent and comfortable home.

Jurisdictional Rule
 General rule (Article 5): Jurisdiction belongs to the state of the child’s habitual
residence.
 Exceptions (Articles 6–7): Apply to refugee children, internationally displaced
children, or those wrongfully removed or retained.
the authorities of the Contracting State on the territory of which these children are present as a result of their displacement have the jurisdiction

The Ukrainian government clarified that Ukrainian children who fled due to Russian
aggression are not refugees under Article 6, because the threat comes from outside
Ukraine, not from Ukraine itself.
→ Therefore, Article 5 applies, and jurisdiction depends on the child’s habitual residence.
 CHAPTER III – APPLICABLE LAW

 Application of Law
Authorities with jurisdiction apply their own national law when making child
protection decisions but may consider another State’s law if it has a substantial
connection and doing so better protects the child.

If the child’s habitual residence changes, the new State’s law governs future
application of existing measures.

 Validity of Transactions
A transaction made with a person acting as a child’s representative is valid under
the law of the State where it occurred, even if another law says otherwise—unless
the third party knew that the person lacked authority.

 Non-Contracting States
These rules apply even if the relevant law belongs to a non-Contracting State.

CHAPTER IV – Recognition and Enforcement

 Recognition of Measures
Child protection measures made by one Contracting State are automatically
recognized in all others.

Recognition may be refused only for specific reasons, such as:

 The authority lacked jurisdiction under the Convention,

 The child or parent was not given the right to be heard,
 The measure violates public policy,
 It conflicts with a later valid measure, or
 The required procedure (Article 33) was not followed.

 Request for Recognition

Any interested person can apply to a State’s authority to decide on recognition
or non-recognition of a measure. The procedure follows the requested State’s law.

 Binding Findings of Fact

The requested State must accept the facts on which the original State based its
jurisdiction.

 Enforcement in Another State

When enforcement is needed in another country:

 The measure must be declared enforceable or registered under a simple

and rapid procedure.
 Enforcement may be refused only for the reasons listed in Article 23(2).
  No Review of Merits
The enforcing State cannot re-examine the substance or correctness of the
original decision.

 Execution of Enforcement
Once declared enforceable or registered, the measure is executed as if issued by
the local authorities, in accordance with the law of the enforcing State, and
always guided by the best interests of the child.

CHAPTER V – Co-operation

Article 29 – Designation of Central Authority

 Each Contracting State must designate a Central Authority to fulfill the

Convention’s duties.
 Federal or multi-system States may appoint multiple Central Authorities and define
their respective jurisdictions.
 When multiple authorities exist, a main Central Authority must be designated to
receive and forward communications appropriately.

Article 30 – Co-operation Among Central Authorities

 Central Authorities must cooperate with each other and with local agencies to
achieve the Convention’s goals.
 They must provide information on national laws and available services related to
child protection.

Article 31 – Responsibilities of the Central Authority

Central Authorities must take steps to:

 Facilitate communication and assistance as stated in the Convention.

 Promote mediation or conciliation to reach agreed solutions for child protection.
 Assist in locating a child who may be in need of protection within their territory.

Article 32 – Exchange of Information on Child’s Situation

 Upon request from another Contracting State with a substantial connection to the
child, the Central Authority may:
 Provide a report on the child’s situation.
 Ask its competent authority to consider protective measures for the
child.
Article 33 – Intercountry Placement or Care

 Before placing a child in foster care, institutional care, or similar arrangements in

another Contracting State:

 The competent authority must consult with the Central Authority of that
State.
 A report on the child and reasons for placement must be sent.
 The placement can only proceed if the requested State consents,
prioritizing the child’s best interests.

Article 34 – Requests for Information

 Authorities may request information from another State relevant to child

protection.
 A State may declare that such requests must go through its Central Authority.

Article 35 – Implementation and Access Rights

 Authorities may request assistance from another State to implement protective

measures, including ensuring access and contact rights.
 A non-resident parent’s State may:
 Gather information or evidence about the parent’s suitability for access.
 Submit findings to the State handling the custody or access case.
 Proceedings may be adjourned until such information is received.
 Authorities may still take provisional measures while waiting for the outcome.

Article 36 – Child in Serious Danger

 When a child faces serious danger and moves to another State, authorities must
inform the receiving State’s authorities about the risk and any protective measures
taken.

Article 37 – Protection of Confidentiality

 No authority shall share information if doing so would endanger the child, their
property, or pose a serious threat to the liberty or life of a family member.

Article 38 – Financial Responsibility

 Central and public authorities bear their own costs for applying the Convention,
except for reasonable service fees.
 States may enter agreements to decide how costs are shared.
Article 39 – Bilateral or Multilateral Agreements

 Contracting States may make agreements with each other to improve

cooperation under this Chapter.
 Copies of such agreements must be sent to the Depositary of the Convention.

Chapter VI – General Provisions

Article 40 – Certificates of Authority

 States may issue a certificate confirming a person’s parental authority or

protective powers over a child.
 The certificate’s content is presumed valid unless proven otherwise.
 Each State must designate authorities responsible for issuing such certificates.

Article 41 – Use of Personal Data

 Personal data collected or shared under the Convention may be used only for
their intended purpose.

Article 42 – Confidentiality

 Authorities must maintain confidentiality of shared information, according to their

national laws.

Article 43 – Exemption from Legalization

 Documents sent under the Convention are exempt from legalization or similar
formalities (e.g., notarization or embassy authentication).

Article 44 – Designated Authorities for Requests

 States may designate specific authorities to receive requests under Articles 8, 9,

and 33 (relating to jurisdiction and communication).

Article 45 – Communication of Designations and Declarations

 States must communicate designations under Articles 29 and 44 to the Permanent

Bureau of The Hague Conference.
 Declarations under Article 34(2) are to be sent to the depositary of the
Convention.
Article 46 – Internal Conflicts of Law

 A State with multiple legal systems is not required to apply the Convention to
conflicts within its own systems.

Article 47 – Application to States with Multiple Territorial Units

 For countries with several territorial units (e.g., provinces or regions with different
laws), references to “State” are interpreted as referring to the relevant territorial
unit for:
 Habitual residence
 Presence of the child
 Location of property
 Nationality and closest connection
 Divorce or separation proceedings
 Substantial connection
 Child removal or retention
 Competent authorities
 Relevant law and procedures

Article 48 – Applicable Law (Multiple Territorial Units)

 If a State has internal rules deciding which territorial law applies, those rules are
followed.
 If not, the relevant territorial unit identified in Article 47 applies.

Article 49 – Applicable Law (Multiple Legal Systems by Person Category)

 If a State has different laws for different categories of persons:

 Follow existing internal rules, or
 Apply the law most closely connected with the child.

Article 50 – Relationship with 1980 Hague Child Abduction Convention

 The 1996 Convention does not affect the application of the 1980 Child
Abduction Convention.
 However, it may still be used to support return or access rights for wrongfully
removed or retained children.

Article 51 – Replacement of Earlier Conventions

 This Convention replaces earlier ones concerning protection of minors (1902

and 1961 Hague Conventions), but measures taken under the 1961 Convention
remain recognized.
Article 52 – Relationship with Other International Instruments

 The Convention does not override other treaties unless states explicitly declare
so.
 States may still enter agreements about child protection for children habitually
resident in their territories.
 Such agreements do not affect obligations under this Convention with other
States.
 Applies also to regional or uniform laws among certain States.

Article 53 – Temporal Application

 The Convention applies only to measures taken after it entered into force for a
State.
 It applies to recognition/enforcement of measures taken after entry into force
between States concerned.

Article 54 – Language of Communication

 Communications must be in the original language with a translation into the

official language(s) of the other State, or into French or English if not feasible.
 A State may object to the use of either French or English by making a
reservation under Article 60.

Article 55 – Reservations on Property Protection

 A State may reserve jurisdiction over protection of a child’s property located

on its territory.
 It may refuse recognition of measures conflicting with its own regarding that
property.
 Reservation can apply to specific categories of property.

Article 56 – Review of Convention’s Operation

 The Secretary General of The Hague Conference will periodically convene a

Special Commission to review how the Convention operates in practice.
 CHAPTER VII – FINAL CLAUSES

Chapter VII of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the
Protection of Children is a detailed analysis of child protection in cross-border situations.

It addresses how public law measures are applied when a child at risk has links to multiple
countries, and the complexities of applying this public law within a private international
law framework.

CASE TITLE: London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child
Protection Convention)

FACTS OF THE CASE:

The child, H, was born in France in 2009. She lived there until 2017 when she moved to live
with her paternal grandmother, N, in Tunisia, pursuant to an order of the French court. H's
mother had died in early 2017.

H remained living in Tunisia until she arrived in England on 19 June 2021 to stay with her
paternal uncle. The circumstances which led to this are far from clear. H was initially taken
into police protection and placed in foster care on 4 July 2021. She was returned to her
paternal uncle on 7 July but, as explained in the judgment below, was again placed in
foster care on 13 July 2021. The Local Authority commenced care proceedings on 18
August 2021. An interim care order was made on 7 September 2021. H has remained in
foster care since then.

There were, regrettably, very substantial delays in the progress of the case including in
respect of the issue of habitual residence although the question of jurisdiction had been
identified as requiring determination when the proceedings began. There were also
regrettably very significant delays in engaging with N. Ultimately, an application was
issued by her for a summary return order but, because of the latter delays, this was not
made until 27 June 2022.

ISSUES OF THE CASE:

1. The date by reference to which the court determines whether it has jurisdiction based
on a child's habitual residence, pursuant to the provisions of Article 5 of the 1996
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the Protection of
Children ("the 1996 Convention"). Is it the date of the hearing or is it the date on which
the proceedings were issued?
2. The extent of the court's jurisdiction to make orders under Part IV of the Children Act
1989 ("the CA 1989") if a child is present, but not habitually resident, in England and
Wales nor any other Contracting State to the 1996 Convention.

RULING OF THE CASE:

1. The Court of Appeal clarified that when determining jurisdiction under the 1996
Hague Child Protection Convention, a child's habitual residence is assessed as of
the date the proceedings began, not the date of the hearing. The case established
that the jurisdictional scheme of the 1996 Convention applies to UK public law
proceedings, even if one of the jurisdictions involved is a non-Contracting State.
2. The child is not habitually resident in the UK or another contracting state, the court
can still exercise jurisdiction based on the child's physical presence under common
law.

Monasky v. Taglieri (2020)

589 U.S. ___, Decided February 25, 2020

Facts:

 Michelle Monasky (American) and Domenico Taglieri (Italian) lived in Italy after
marriage.
 Their baby was born there.
 Monasky left Italy with the baby and went to Ohio, claiming abuse.
 Taglieri filed a case under The Hague Convention, saying the baby’s habitual
residence was Italy.
 Lower courts agreed and ordered the child’s return to Italy.

Issue:

Does finding a child’s habitual residence under The Hague Convention require the
parents to have an explicit agreement on where the child will live?

Ruling:

No.
The Court said that “habitual residence” should be decided by looking at the totality of
circumstances — all facts of the case — not just whether the parents agreed.
Reasoning:

 The Hague Convention doesn’t define “habitual residence.”

 The Court said it depends on real-life facts, like where the family lived and
intended to settle.
 A clear parental agreement is not required.
 The trial court’s decision should be respected unless there’s a clear mistake.

Decision:

Italy was the baby’s habitual residence.

The Supreme Court affirmed the return of the child to Italy.

Significance:

 Courts must use a flexible, fact-based approach to determine habitual residence.

 Infants can have a habitual residence even without parental agreement.
 Appellate courts must give deference to trial courts’ findings.

G.R. No. 168785, Herald Black Dacasin vs. Sharon Del Mundo Dacasin (2010):

Facts:

 Herald Dacasin (American) and Sharon Dacasin (Filipino) married in Manila in

1994; they have a daughter, Stephanie, born 1995.
 In 1999, Sharon got a divorce in Illinois, USA, which:
o Dissolved the marriage.
o Gave her sole custody of Stephanie.
o Retained Illinois court jurisdiction for enforcement.
 In 2002, the parents signed a custody agreement in Manila for joint custody of
Stephanie, choosing Philippine courts to resolve disputes. Sharon did not get the
Illinois court to relinquish jurisdiction.
 In 2004, Herald filed a case in the Makati Regional Trial Court to enforce the joint
custody agreement. Sharon argued the Philippine court had no jurisdiction
because the Illinois court retained custody jurisdiction.
Trial Court Rulings

 March 1, 2005: Court dismissed the case for lack of jurisdiction and held:
1. Illinois retained jurisdiction over the divorce and custody.
2. The Illinois divorce decree is binding on Herald.
3. The custody agreement violated Philippine law (cannot agree to share
custody of a child under seven if parents are separated/divorced).
 June 23, 2005: Reconsideration denied.

Supreme Court Decision:

1. Jurisdiction
o The Philippine court does have jurisdiction to hear Herald’s case because
the suit is about enforcing the post-divorce agreement, not the Illinois
divorce decree itself.
2. Validity of the Custody Agreement
o The agreement is void under Philippine law because:
 Stephanie was under seven years old.
 For children under seven of divorced/separated parents, sole
custody is mandated to the mother (Article 213, Family Code).
o Private agreement cannot override this law.
o Sharon’s refusal to follow the agreement also shows repudiation.
3. Foreign Divorce
o Herald cannot claim the Illinois divorce is invalid just because his spouse is
Filipino.
o Foreign divorces are valid for the alien spouse under their national law.
4. Remand for Custody
o Stephanie is now about 15, outside the under-seven mandatory maternal
custody rule.
o The case is remanded to the trial court to determine custody based on the
best interest of the child.

Ruling:

 Philippine court has jurisdiction, but the 2002 custody agreement is void.
 Orders of March 1, 2005 and June 23, 2005 reversed.
 Case remanded for further proceedings on Stephanie’s custody.
Key Takeaways:

 Philippine law gives sole custody to the mother for children under 7 of
divorced/separated parents.
 Foreign divorces are recognized for alien spouses, even if obtained by a Filipino
spouse.
 Post-divorce custody agreements that violate Philippine law are void.
 Courts can consider the best interest of the child once they are older than 7.

Re J (A Child) (1996 Hague Convention) (Morocco) (2015):

Court: Court of Appeal (Civil Division)

Date: 1 April 2015
Area: International Child Law

Summary:
The English court did not have jurisdiction to order a child to be returned to Morocco
under the 1996 Hague Convention or its own inherent powers. Courts must consider which
international laws apply before making decisions in cases involving another country.

Facts:
 Parents: Moroccan and British citizens.
 Child, S, born in the UK in 2005.
 Family returned to Morocco in 2011; parents divorced; child lived with mother.
 In 2013, the mother took S to the UK without the father’s consent.
 Father applied first to Moroccan court, then to English court for S’s return.
 English judge ruled S should return to Morocco based on his past habitual
residence, without considering his residence at the time of the hearing.

Issue:
Did the English court have jurisdiction to order S’s return?
Held:

1. Jurisdiction under international law:

o 1980 Hague Convention: Not applicable (UK didn’t accept Morocco’s
accession).
o Brussels IIa (EU Regulation 2201/2003): Not applicable (child never
habitually resident in an EU state).
o 1996 Hague Convention: Applicable. Moroccan court had jurisdiction
because S was habitually resident in Morocco before being wrongfully
removed. English court only had limited jurisdiction under Article 11 for
urgent protective measures—this case was not urgent.
o Inherent jurisdiction of English courts: Could not override the Convention’s
rules; English courts could only act if they had substantive jurisdiction under
the Convention.
2. Result:
o The English court should have dismissed the father’s application.
o The return order was set aside.
3. Guidance:
o When a case involves another country, courts must consider jurisdiction first.
o They should check whether Brussels IIa, the 1996 Convention, or other
international rules apply.
o If the 1980 Hague Convention applies, its rules are not affected by the 1996
Convention.

Key Point:
English courts cannot assume jurisdiction just because a child is in the UK. The 1996
Hague Convention is meant to respect which country has the authority to make
decisions about a child.

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