CONVENTION
ON CONTACT CONCERNING CHILDREN
Strasbourg, 15.V.2003
Preamble
The member States of the Council of Europe
and the other Signatories hereto,
Taking into account the European Convention
on Recognition and Enforcement of Decisions concerning Custody of Children
and on Restoration of Custody of Children of 20 May 1980 (ETS No. 105);
Taking into account the Hague Convention of
25 October 1980 on the Civil Aspects of International Child Abduction
and the Hague 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;
Taking into account the Council Regulation
(EC) No. 1347/2000 of 29 May 2000 on jurisdiction and the recognition
and enforcement of judgments in matrimonial matters and in matters of
parental responsibility for children of both spouses;
Recognising that, as provided in the different
international legal instruments of the Council of Europe as well as in
Article 3 of the United Nations Convention on the Rights of the Child
of 20 November 1989, the best interests of the child shall be a primary
consideration;
Aware of the need for further provisions to
safeguard contact between children and their parents and other persons
having family ties with children, as protected by Article 8 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
of 4 November 1950 (ETS No. 5);
Taking into account Article 9 of the United
Nations Convention on the Rights of the Child which provides for the right
of a child, who is separated from one or both parents, to maintain personal
relations and direct contact with both parents on a regular basis, except
when this is contrary to the child's best interests;
Taking into account paragraph 2 of Article
10 of the United Nations Convention on the Rights of the Child, which
provides for the right of the child whose parents reside in different
States to maintain on a regular basis, save in exceptional circumstances,
personal relations and direct contacts with both parents;
Aware of the desirability of recognising not
only parents but also children as holders of rights;
Agreeing consequently to replace the notion
of "access to children" with the notion of "contact concerning
children";
Taking into account the European Convention
on the Exercise of Childrens Rights (ETS No. 160) and the desirability
of promoting measures to assist children in matters concerning contact
with parents and other persons having family ties with children;
Agreeing on the need for children to have
contact not only with both parents but also with certain other persons
having family ties with children and the importance for parents and those
other persons to remain in contact with children, subject to the best
interests of the child;
Noting the need to promote the adoption by
States of common principles with respect to contact concerning children,
in particular in order to facilitate the application of international
instruments in this field;
Realising that machinery set up to give effect
to foreign orders relating to contact concerning children is more likely
to provide satisfactory results where the principles on which these foreign
orders are based are similar to the principles in the State giving effect
to such foreign orders;
Recognising the need, when children and
parents and other persons having family ties with children live in
different States, to encourage judicial authorities to make more frequent
use of transfrontier contact and to increase the confidence of all persons
concerned that the children will be returned at the end of such contact;
Noting that the provision of efficient safeguards
and additional guarantees is likely to ensure the return of children,
in particular, at the end of transfrontier contact;
Noting that an additional international instrument
is necessary to provide solutions relating in particular to transfrontier
contact concerning children;
Desiring to establish co-operation between
all central authorities and other bodies in order to promote and improve
contact between children and their parents, and other persons having family
ties with such children, and in particular to promote judicial co-operation
in cases concerning transfrontier contact;
Have agreed as follows:
Chapter I Objects of
the Convention and definitions
Article
1 Objects of the Convention
The objects of this Convention are:
a to determine general
principles to be applied to contact orders;
b to fix appropriate
safeguards and guarantees to ensure the proper exercise of contact and
the immediate return of children at the end of the period of contact;
c to establish co-operation
between central authorities, judicial authorities and other bodies in
order to promote and improve contact between children and their parents,
and other persons having family ties with children.
Article
2 Definitions
For the
purposes of this Convention:
a "contact"
means:
i the
child staying for a limited period of time with or meeting a person mentioned
in Articles 4 or 5 with whom he or she is not usually living;
ii any
form of communication between the child and such person;
iii the
provision of information to such a person about the child or to the child
about such a person.
b "contact order"
means a decision of a judicial authority concerning contact, including
an agreement concerning contact which has been confirmed by a competent
judicial authority or which has been formally drawn up or registered as
an authentic instrument and is enforceable;
c "child"
means a person under 18 years of age in respect of whom a contact order
may be made or enforced in a State Party;
d "family ties"
means a close relationship such as between a child and his or her grandparents
or siblings, based on law or on a de facto family relationship;
e "judicial authority"
means a court or an administrative authority having equivalent powers.
Chapter II General principles
to be applied to contact orders
Article
3 Application of principles
States Parties shall adopt such legislative
and other measures as may be necessary to ensure that the principles contained
in this chapter are applied by judicial authorities when making, amending,
suspending or revoking contact orders.
Article
4 Contact between a child and his or her parents
1 A child and his
or her parents shall have the right to obtain and maintain regular contact
with each other.
2 Such contact may
be restricted or excluded only where necessary in the best interests of
the child.
3 Where it is not
in the best interests of a child to maintain unsupervised contact with
one of his or her parents the possibility of supervised personal contact
or other forms of contact with this parent shall be considered.
Article
5 Contact between a child and persons other than his or her parents
1 Subject to his or
her best interests, contact may be established between the child and persons
other than his or her parents having family ties with the child.
2 States Parties are
free to extend this provision to persons other than those mentioned in
paragraph 1, and where so extended, States may freely decide what aspects
of contact, as defined in Article 2 letter a shall apply.
Article
6 The right of a child to be informed, consulted and to express his
or her views
1 A child considered
by internal law as having sufficient understanding shall have the right,
unless this would be manifestly contrary to his or her best interests:
·
to receive all relevant information;
·
to be consulted;
·
to express his or her views.
2 Due weight shall
be given to those views and to the ascertainable wishes and feelings of
the child.
Article
7 Resolving disputes concerning contact
When resolving disputes concerning contact,
the judicial authorities shall take all appropriate measures:
a to ensure that both
parents are informed of the importance for their child and for both of
them of establishing and maintaining regular contact with their child;
b to encourage parents
and other persons having family ties with the child to reach amicable
agreements with respect to contact, in particular through the use of family
mediation and other processes for resolving disputes;
c before taking a
decision, to ensure that they have sufficient information at their disposal,
in particular from the holders of parental responsibilities, in order
to take a decision in the best interests of the child and, where necessary,
obtain further information from other relevant bodies or persons.
Article
8 Contact agreements
1 States Parties shall
encourage, by means they consider appropriate, parents and other persons
having family ties with the child to comply with the principles laid down
in Articles 4 to 7 when making or modifying agreements on contact concerning
a child. These agreements should preferably be in writing.
2 Upon request, judicial
authorities shall, except where internal law otherwise provides, confirm
an agreement on contact concerning a child, unless it is contrary to the
best interests of the child.
Article
9 The carrying into effect of contact orders
States Parties shall take all appropriate
measures to ensure that contact orders are carried into effect.
Article
10 Safeguards and guarantees to be taken concerning contact
1 Each State Party
shall provide for and promote the use of safeguards and guarantees. It
shall communicate, through its central authorities, to the Secretary General
of the Council of Europe, within three months after the entry into force
of this Convention for that State Party, at least three categories of
safeguards and guarantees available in its internal law in addition to
the safeguards and guarantees referred to in paragraph 3 of Article 4
and in letter b of paragraph 1 of Article 14 of this Convention.
Changes of available safeguards and guarantees shall be communicated as
soon as possible.
2 Where the circumstances
of the case so require, judicial authorities may, at any time, make a
contact order subject to any safeguards and guarantees both for the purpose
of ensuring that the order is carried into effect and that either the
child is returned at the end of the period of contact to the place where
he or she usually lives or that he or she is not improperly removed.
a Safeguards and guarantees
for ensuring that the order is carried into effect, may in particular
include:
·
supervision of contact;
·
the obligation for a person to
provide for the travel and accommodation expenses of the child and, as
may be appropriate, of any other person accompanying the child;
·
a security to be deposited by
the person with whom the child is usually living to ensure that the person
seeking contact with the child is not prevented from having such contact;
·
a fine to be imposed on the person
with whom the child is usually living, should this person refuse to comply
with the contact order.
b Safeguards and guarantees
for ensuring the return of the child or preventing an improper removal,
may in particular include:
·
the surrender of passports or
identity documents and, where appropriate, a document indicating that
the person seeking contact has notified the competent consular authority
about such a surrender during the period of contact;
·
financial guarantees;
·
charges on property;
·
undertakings or stipulations to
the court;
· the obligation of the person having
contact with the child to present himself or herself, with the child regularly
before a competent body such as a youth welfare authority or a police
station, in the place where contact is to be exercised;
·
the obligation of the person seeking
contact to present a document issued by the State where contact is to
take place, certifying the recognition and declaration of enforceability
of a custody or a contact order or both either before a contact order
is made or before contact takes place;
·
the imposition of conditions in
relation to the place where contact is to be exercised and, where appropriate,
the registration, in any national or transfrontier information system,
of a prohibition preventing the child from leaving the State where contact
is to take place.
3 Any such safeguards
and guarantees shall be in writing or evidenced in writing and shall form
part of the contact order or the confirmed agreement.
4 If safeguards or
guarantees are to be implemented in another State Party, the judicial
authority shall preferably order such safeguards or guarantees as are
capable of implementation in that State Party.
Chapter III Measures
to promote and improve transfrontier contact
Article
11 Central authorities
1 Each State Party
shall appoint a central authority to carry out the functions provided
for by this Convention in cases of transfrontier contact.
2 Federal States,
States with more than one system of law or States having autonomous territorial
units shall be free to appoint more than one central authority and to
specify the territorial or personal extent of their functions. Where a
State has appointed more than one central authority, it shall designate
the central authority to which any communication may be addressed for
transmission to the appropriate central authority within that State.
3 The Secretary General
of the Council of Europe shall be notified of any appointment under this
article.
Article
12 Duties of the central authorities
The central authorities of States Parties
shall:
a)
co-operate with each other and
promote co-operation between the competent authorities, including judicial
authorities, in their respective countries to achieve the purposes of
the Convention. They shall act with all necessary despatch;
b)
with a view to facilitating the
operation of this Convention, provide each other on request with information
concerning their laws relating to parental responsibilities, including
contact and any more detailed information concerning safeguards and guarantees
in addition to that already provided according to paragraph 1 of Article
10, and their available services (including legal services, publicly funded
or otherwise) as well as information concerning any changes in these laws
and services;
c)
take all appropriate steps in
order to discover the whereabouts of the child;
d)
secure the transmission of requests
for information coming from the competent authorities and relating to
legal or factual matters concerning pending proceedings;
e)
keep each other informed of any
difficulties likely to arise in applying the Convention and, as far as
possible, eliminate obstacles to its application.
Article
13 International co-operation
1 The judicial authorities,
the central authorities and the social and other bodies of States Parties
concerned, acting within their respective competence, shall co-operate
in relation to proceedings regarding transfrontier contact.
2 In particular, the
central authorities shall assist the judicial authorities of States Parties
in communicating with each other and obtaining such information and assistance
as may be necessary for them to achieve the objects of this Convention.
3 In transfrontier
cases, the central authorities shall assist children, parents and other
persons having family ties with the child, in particular, to institute
proceedings regarding transfrontier contact.
Article
14 Recognition and enforcement of transfrontier contact orders
1 States Parties shall
provide, including where applicable in accordance with relevant international
instruments:
a)
a system for the recognition and
enforcement of orders made in other States Parties concerning contact
and rights of custody;
b)
a procedure whereby orders relating
to contact and rights of custody made in other States Parties may be recognised
and declared enforceable in advance of contact being exercised within
the State addressed.
2 If a State Party
makes recognition or enforcement or both of a foreign order conditional
on the existence of a treaty or reciprocity, it may consider this Convention
as such a legal basis for recognition or enforcement or both of a foreign
contact order.
Article
15 Conditions for implementing transfrontier contact orders
The judicial authority of the State Party
in which a transfrontier contact order made in another State Party is
to be implemented may, when recognising or declaring enforceable such
a contact order, or at any later time, fix or adapt the conditions for
its implementation, as well as any safeguards or guarantees attaching
to it, if necessary for facilitating the exercise of this contact, provided
that the essential elements of the order are respected and taking into
account, in particular, a change of circumstances and the arrangements
made by the persons concerned. In no circumstances may the foreign decision
be reviewed as to its substance.
Article
16 Return of a child
1 Where a child at
the end of a period of transfrontier contact based on a contact order
is not returned, the competent authorities shall, upon request, ensure
the childs immediate return, where applicable, by applying the relevant
provisions of international instruments, of internal law and by implementing,
where appropriate, such safeguards and guarantees as may be provided in
the contact order.
2 A decision on the
return of the child shall be made, whenever possible, within six weeks
of the date of an application for the return.
Article
17 Costs
With the exception of the cost of repatriation,
each State Party undertakes not to claim any payment from an applicant
in respect of any measures taken under this Convention by the central
authority itself of that State on the applicant's behalf.
Article
18 Language requirement
1 Subject to any special
agreements made between the central authorities concerned:
a)
communications to the central
authority of the State addressed shall be made in the official language
or in one of the official languages of that State or be accompanied by
a translation into that language;
b)
the central authority of the State
addressed shall nevertheless accept communications made in English or
in French, or accompanied by a translation into one of these languages.
2 Communications coming
from the central authority of the State addressed, including the results
of enquiries carried out, may be made in the official language or one
of the official languages of that State or in English or French.
3 However, a State
Party may, by making a declaration addressed to the Secretary General
of the Council of Europe, object to the use of either French or English
under paragraphs 1 and 2 of this article, in any application, communication
or other documents sent to their central authorities.
Chapter IV Relationship
with other instruments
Article
19 Relationship with the European Convention on Recognition and Enforcement
of Decisions concerning Custody of Children and on Restoration of Custody
of Children
Paragraphs 2 and 3 of Article 11 of the European
Convention of 20 May 1980 (ETS N° 105) on Recognition and Enforcement
of Decisions concerning Custody of Children and on Restoration of Custody
of Children shall not be applied in relations between States Parties which
are also States Parties of the present Convention.
Article
20 Relationships with other instruments
1 This Convention
shall not affect any international instrument to which States Parties
to the present Convention are Parties or shall become Parties and
which contains provisions on matters governed by this Convention. In particular,
this Convention shall not prejudice the application of the following legal
instruments:
a)
the Hague Convention of 5 October
1961 on the competence of authorities and the applicable law concerning
the protection of minors,
b)
the European Convention on the
recognition and enforcement of decisions concerning custody of children
and on restoration of custody of children of 20 May 1980, subject to Article 19
above,
c)
the Hague Convention of 25 October
1980 on the civil aspects of international child abduction,
d)
the Hague 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.
2 Nothing in this
Convention shall prevent Parties from concluding international agreements
completing or developing the provisions of this Convention or extending
their field of application.
3 In their mutual
relations, States Parties which are members of the European Community
shall apply Community rules and shall therefore not apply the rules arising
from this Convention, except in so far as there is no Community rule governing
the particular subject concerned.
Chapter V Amendments
to the Convention
Article
21 Amendments
1 Any proposal for
an amendment to this Convention presented by a Party shall be communicated
to the Secretary General of the Council of Europe and forwarded by him
or her to the member States of the Council of Europe, any signatory, any
State Party, the European Community, to any State invited to sign this
Convention in accordance with the provisions of Article 22 and to any
State invited to accede to this Convention in accordance with the provisions
of Article 23.
2 Any amendment proposed
by a Party shall be communicated to the European Committee on Legal Co-operation
(CDCJ), which shall submit to the Committee of Ministers its opinion on
that proposed amendment.
3 The Committee of
Ministers shall consider the proposed amendment and the opinion submitted
by the CDCJ and, following consultation of the Parties to the Convention,
which are not members of the Council of Europe, may adopt the amendment.
4 The text of any
amendment adopted by the Committee of Ministers in accordance with paragraph
3 of this article shall be forwarded to the Parties for acceptance.
5 Any amendment adopted
in accordance with paragraph 3 of this article shall enter into force
on the first day of the month following the expiration of a period of
one month after the date on which all Parties have informed the Secretary
General that they have accepted it.
Chapter VI Final clauses
Article
22 Signature and entry into force
1 This Convention
shall be open for signature by the member States of the Council of Europe,
the non-member States which have participated in its elaboration and the
European Community.
2 This Convention
is subject to ratification, acceptance or approval. Instruments of ratification,
acceptance or approval shall be deposited with the Secretary General of
the Council of Europe.
3 This Convention
shall enter into force on the first day of the month following the expiration
of a period of three months after the date on which three States, including
at least two member States of the Council of Europe, have expressed their
consent to be bound by the Convention in accordance with the provisions
of the preceding paragraph.
4 In respect of any
State mentioned in paragraph 1 or the European Community, which subsequently
expresses its consent to be bound by it, the Convention shall enter into
force on the first day of the month following the expiration of a period
of three months after the date of the deposit of its instrument of ratification,
acceptance or approval.
Article
23 Accession to the Convention
1 After the entry
into force of this Convention, the Committee of Ministers of the Council
of Europe may, after consultation of the Parties, invite any non-member
State of the Council of Europe, which has not participated in the elaboration
of the Convention, to accede to this Convention by a decision taken by
the majority provided for in Article 20 d. of the Statute of the
Council of Europe, and by unanimous vote of the representatives of the
Contracting States entitled to sit on the Committee of Ministers.
2 In respect of any
acceding State, the Convention shall enter into force on the first day
of the month following the expiration of a period of three months after
the date of deposit of the instrument of accession with the Secretary
General of the Council of Europe.
Article
24 Territorial application
1 Any State or the
European Community may, at the time of signature or when depositing its
instrument of ratification, acceptance, approval or accession, specify
the territory or territories to which this Convention shall apply.
2 Any Party may, at
any later date, by a declaration addressed to the Secretary General of
the Council of Europe, extend the application of this Convention to any
other territory specified in the declaration and for whose international
relations it is responsible or on whose behalf it is authorised to give
undertakings. In respect of such territory, the Convention shall enter
into force on the first day of the month following the expiration of a
period of three months after the date of receipt of such declaration by
the Secretary General.
3 Any declaration
made under the two preceding paragraphs may, in respect of any territory
specified in such declaration, be withdrawn by a notification addressed
to the Secretary General. The withdrawal shall become effective on the
first day of the month following the expiration of a period of three months
after the date of receipt of such notification by the Secretary General.
Article 25 Reservations
No reservation may be made in respect of any
provision of this Convention.
Article 26 Denunciation
1 Any Party may, at
any time, denounce this Convention by means of a notification addressed
to the Secretary General of the Council of Europe.
2 Such denunciation
shall become effective on the first day of the month following the expiration
of a period of three months after the date of receipt of the notification
by the Secretary General.
Article 27 Notifications
The Secretary General of the Council of Europe
shall notify the member States of the Council of Europe, any State signatory,
any State Party, the European Community, to any State invited to sign
this Convention in accordance with the provisions of Article 22 and to
any State invited to accede to this Convention in accordance with the
provisions of Article 23 of:
a any signature;
b the deposit of any
instrument of ratification, acceptance, approval or accession;
c any date of entry
into force of this Convention in accordance with Articles 22 and 23;
d any amendment adopted
in accordance with Article 21 and the date on which such an amendment
enters into force;
e any declaration
made under the provisions of Article 18;
f any denunciation
made in pursuance of the provisions of Article 26;
g any other act, notification
or communication, in particular relating to Articles 10 and 11 of this
Convention.
In witness whereof, the undersigned, being
duly authorised thereto, have signed this Convention.
Done at [Strasbourg], the [15th] day of [May
2003], in English and in French, both texts being equally authentic, in
a single copy, which shall be deposited in the archives of the Council
of Europe. The Secretary General of the Council of Europe shall transmit
certified copies to each member State of the Council of Europe, to the
non-member States which have participated in the elaboration of this Convention,
to the European Community and to any State invited to accede to this Convention.
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