Possible steps to improve the operation of Article 15 of The Hague Convention of 25 October 1980

Article 15 of The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction provides an optional mechanism for a requested court or other competent authority seized of return proceedings to ascertain the law of a foreign State applied under the 1980 Convention to a specific case, by recourse to a foreign authority. The Article reads as follows:

“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

By doing so article 15 “answers to the difficulties which the competent authorities of the requested State might experience in reaching a decision on an application for the return of a child through being uncertain of how the law of the child’s habitual residence will apply in a particular case”.

It is to be noted that an Article 15 request is purely voluntary and not mandatory, such that “the return of the child cannot be made conditional upon such decision or other determination being provided” (noting that it may be impossible to obtain such a decision or determination in the State of the child’s habitual residence).

The Central Authority should facilitate the applicant’s obtaining of an Article 15 decision or determination and this “decision or certificate” should contain an analysis bearing on whether the removal or retention was wrongful under the terms of the 1980 Convention, addressing the two elements articulated in Article 3:

  • the removal or retention constituted a breach of custody rights
  • and the applicant was prima facie exercising these rights “legitimately and in actual fact, in terms of the law of the child’s habitual residence”.

What are then the possible steps to improve the operation of Article 15?

  • Invite Contracting States to make available or improve existing procedures for Article 15 decisions or determinations;
  • Increase availability of information on Article 15 and its operation: a barrier commonly identified in the operation of Article 15 is a lack of experience of some judges and other authorities in issuing a decision or determination, or simply a lack of awareness that such decisions or determinations might be issued at all;
  • Clarify internal procedures and practices: it may be desirable to have implementing legislation for the 1980 Convention that provides, if necessary, a legal basis for and clarifies procedures for obtaining an Article 15 decision or determination ;
  • Improve the practical application of Article 15 with:
    • Analysis as to when an Article 15 decision or determination is required;
    • Use of alternatives before requesting an Article 15 decision or determination (for example a competent authority may use the IHNJ and direct judicial communications to swiftly resolve ambiguous issues through judicial exchange).

In general, Contracting States to the 1980 Convention might be invited to implement effective Article 15 procedures, or to review and clarify internal procedures where the Article 15 decisions or determinations are already available, including through the setting of meaningful timeframes for their issuance.

 

Source: https://assets.hcch.net/docs/8d8fe552-1dbb-43ec-99e1-cb82de674ab1.pdf

 

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