Cap. 507 Art. 15Conflict between texts. OF CHILDREN in international of jurisdiction, protection of protection of consideration, the powers of is in need of into account the 1989, to take property of the in exercising measures of of the the purposes responsibility’ determining or other legal until they reach (b) th

In the Schedule to this Act, should there be any conflict between the English and the Maltese texts, the English text shall prevail. RESPONSIBILITY AND MEASURES FOR THE PROTECTION

(Concluded 19 October 1996) The States signatory to the present Convention, Considering the need to improve the protection of children situations, Wishing to avoid conflicts between their legal systems in respect applicable law, recognition and enforcement of measures for the children, Recalling the importance of international co-operation for the children, Confirming that the best interests of the child are to be a primary Noting that the Convention of 5 October 1961 concerning authorities and the law applicable in respect of the protection of minors revision, Desiring to establish common provisions to this effect, taking United Nations Convention on the Rights of the Child of 20 November Have agreed on the following provisions -

CHAPTER I - SCOPE OF THE CONVENTION Article 1

(1) The objects of the present Convention are -

(a) to determine the State whose authorities have jurisdiction measures directed to the protection of the person or child;

(b) to determine which law is to be applied by such authorities their jurisdiction;

(c) to determine the law applicable to parental responsibility;

(d) to provide for the recognition and enforcement of such protection in all Contracting States;

(e) to establish such co-operation between the authorities Contracting States as may be necessary in order to achieve of this Convention.

(2) For the purposes of this Convention, the term ‘parental includes parental authority, or any analogous relationship of authority the rights, powers and responsibilities of parents, guardians representatives in relation to the person or the property of the child. Article 2 The Convention applies to children from the moment of their birth the age of 18 years. rights of custody, including rights relating to the care of the person of child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child a limited period of time to a place other than the child's habitual residence; guardianship, curatorship and analogous institutions; designation and functions of any person or body having charge of child's person or property, representing or assisting the child; placement of the child in a foster family or in institutional care, or provision of care by kafala or an analogous institution; supervision by a public authority of the care of a child by any person having charge of the child; administration, conservation or disposal of the child’s property.

Article 4 Convention does not apply to -establishment or contesting of a parent-child relationship; decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; name and forenames of the child; emancipation; maintenance obligations; trusts or succession; social security; public measures of a general nature in matters of education or health; measures taken as a result of penal offences committed by children; decisions on the right of asylum and on immigration. CHAPTER II - JURISDICTION

Article 5 judicial or administrative authorities of the Contracting State of the residence of the child have jurisdiction to take measures directed to the child’s person or property.

to Article 7, in case of a change of the child’s habitual residence to Contracting State, the authorities of the State of the new habitual residence

Article 6

refugee children and children who, due to disturbances occurring in internationally displaced, the authorities of the Contracting State of which these children are present as a result of their displacement jurisdiction provided for in paragraph 1 of Article 5. Contracting State in which the child was habitually resident immediately removal or retention keep their jurisdiction until the child has acquired residence in another State, and

(a) each person, institution or other body having rights acquiesced in the removal or retention; or

(b) the child has resided in that other State for a period of after the person, institution or other body having rights or should have had knowledge of the whereabouts request for return lodged within that period is still child is settled in his or her new environment.

(2) The removal or the retention of a child is to be considered wrongful

(a) it is in breach of rights of custody attributed to a person, or any other body, either jointly or alone, under the law which the child was habitually resident immediately before or retention; and

(b) at the time of removal or retention those rights were actually either jointly or alone, or would have been so exercised removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, particular by operation of law or by reason of a judicial or administrative or by reason of an agreement having legal effect under the law of that

(3) So long as the authorities first mentioned in paragraph jurisdiction, the authorities of the Contracting State to which the removed or in which he or she has been retained can take only such under Article 11 as are necessary for the protection of the person or child. Article 8

(1) By way of exception, the authority of a Contracting State having under Article 5 or 6, if it considers that the authority of another Contracting would be better placed in the particular case to assess the best interests may either - request that other authority, directly or with the assistance authority of its State, to assume jurisdiction to take protection as it considers to be necessary, or - suspend consideration of the case and invite the parties such a request before the authority of that other State.

(2) The Contracting States whose authorities may be addressed the preceding paragraph are

(a) a State of which the child is a national,

(b) a State in which property of the child is located,

(c) a State whose authorities are seised of an application legal separation of the child’s parents, or for annulment marriage, this is in the child’s best interests.

Article 9 authorities of a Contracting State referred to in Article 8, paragraph they are better placed in the particular case to assess the child’s they may either request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to the measures of protection which they consider to be necessary, or invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.

authorities concerned may proceed to an exchange of views. authority initiating the request may exercise jurisdiction in place of the Contracting State of the habitual residence of the child only if the has accepted the request.

Article 10 prejudice to Articles 5 to 9, the authorities of a Contracting State jurisdiction to decide upon an application for divorce or legal separation of a child habitually resident in another Contracting State, or for their marriage, may, if the law of their State so provides, take measures protection of the person or property of such child if the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the child, and jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child.

jurisdiction provided for by paragraph (1) to take measures for the the child ceases as soon as the decision allowing or refusing the divorce, legal separation or annulment of the marriage has become proceedings have come to an end for another reason. Article 11 cases of urgency, the authorities of any Contracting State in whose child or property belonging to the child is present have jurisdiction to necessary measures of protection. measures taken under the preceding paragraph with regard to a child resident in a Contracting State shall lapse as soon as the authorities which under Articles 5 to 10 have taken the measures required by the measures taken under paragraph (1) with regard to a child who is resident in a non-Contracting State shall lapse in each Contracting State as required by the situation and taken by the authorities of another measures of a provisional character for the protection of the person the child which have a territorial effect limited to the State in question, such measures are not incompatible with measures already taken which have jurisdiction under Articles 5 to 10.

(2) The measures taken under the preceding paragraph with habitually resident in a Contracting State shall lapse as soon as the have jurisdiction under Articles 5 to 10 have taken a decision measures of protection which may be required by the situation.

(3) The measures taken under paragraph (1) with regard to habitually resident in a non-Contracting State shall lapse in the Contracting where the measures were taken as soon as measures required by taken by the authorities of another State are recognised in the Contracting question. Article 13

(1) The authorities of a Contracting State which have jurisdiction 5 to 10 to take measures for the protection of the person or property abstain from exercising this jurisdiction if, at the time of the commencement proceedings, corresponding measures have been requested from another Contracting State having jurisdiction under Articles 5 to 10 request and are still under consideration.

(2) The provisions of the preceding paragraph shall not apply before whom the request for measures was initially introduced jurisdiction.

Article 14 The measures taken in application of Articles 5 to 10 remain in force their terms, even if a change of circumstances has eliminated the jurisdiction was founded, so long as the authorities which have jurisdiction Convention have not modified, replaced or terminated such measures. CHAPTER III - APPLICABLE LAW

Article 15

(1) In exercising their jurisdiction under the provisions of authorities of the Contracting States shall apply their own law.

(2) However, in so far as the protection of the person or the property requires, they may exceptionally apply or take into consideration the State with which the situation has a substantial connection.

(3) If the child’s habitual residence changes to another Contracting law of that other State governs, from the time of the change, the application of the measures taken in the State of the former habitual Article 16

(1) The attribution or extinction of parental responsibility by without the intervention of a judicial or administrative authority, is law of the State of the habitual residence of the child. responsibility which exists under the law of the State of the child’s residence subsists after a change of that habitual residence to another State.

child’s habitual residence changes, the attribution of parental by operation of law to a person who does not already have such governed by the law of the State of the new habitual residence. Article 17

of parental responsibility is governed by the law of the State of the residence. If the child’s habitual residence changes, it is governed by State of the new habitual residence. Article 18

responsibility referred to in Article 16 may be terminated, or the exercise modified, by measures taken under this Convention.

Article 19 validity of a transaction entered into between a third party and another would be entitled to act as the child’s legal representative under the law where the transaction was concluded cannot be contested, and the third held liable, on the sole ground that the other person was not entitled child’s legal representative under the law designated by the provisions unless the third party knew or should have known that the parental was governed by the latter law. preceding paragraph applies only if the transaction was entered into present on the territory of the same State. Article 20

of this Chapter apply even if the law designated by them is the law non-Contracting State.

Article 21 Chapter the term "law" means the law in force in a State other than its rules. if the law applicable according to Article 16 is that of a non-State and if the choice of law rules of that State designate the law of non-Contracting State which would apply its own law, the law of the latter that other non-Contracting State would not apply its own law, the that designated by Article 16. Article 22 application of the law designated by the provisions of this Chapter can be this application would be manifestly contrary to public policy, taking best interests of the child. CHAPTER IV - RECOGNITION AND ENFORCEMENT Article 23

measures taken by the authorities of a Contracting State shall be operation of law in all other Contracting States. judicial or administrative proceeding, without the child provided the opportunity to be heard, in violation principles of procedure of the requested State;

(c) on the request of any person claiming that the measure her parental responsibility, if such measure was taken, of urgency, without such person having been given an heard;

(d) if such recognition is manifestly contrary to public requested State, taking into account the best interests of

(e) if the measure is incompatible with a later measure Contracting State of the habitual residence of the child, measure fulfils the requirements for recognition in the

(f) if the procedure provided in Article 33 has not been complied

Article 24 Without prejudice to Article 23, paragraph (1), any interested person from the competent authorities of a Contracting State that they recognition or non-recognition of a measure taken in another Contracting procedure is governed by the law of the requested State. Article 25

The authority of the requested State is bound by the findings of authority of the State where the measure was taken based its jurisdiction.

Article 26

(1) If measures taken in one Contracting State and enforceable enforcement in another Contracting State, they shall, upon request party, be declared enforceable or registered for the purpose of enforcement other State according to the procedure provided in the law of the latter

(2) Each Contracting State shall apply to the declaration of registration a simple and rapid procedure.

(3) The declaration of enforceability or registration may be refused of the reasons set out in Article 23, paragraph (2). Article 27

Without prejudice to such review as is necessary in the application preceding Articles, there shall be no review of the merits of the measure

Article 28 Measures taken in one Contracting State and declared enforceable, for the purpose of enforcement, in another Contracting State shall be latter State as if they had been taken by the authorities of that State. takes place in accordance with the law of the requested State to the by such law, taking into consideration the best interests of the child. States, States with more than one system of law or States having territorial units shall be free to appoint more than one central authority the territorial or personal extent of their functions. Where a State has than one central authority, it shall designate the central authority to communication may be addressed for transmission to the appropriate within that State.

Article 30 authorities shall co-operate with each other and promote co-amongst the competent authorities in their States to achieve the purposes Convention.

shall, in connection with the application of the Convention, take to provide information as to the laws of, and services available in, relating to the protection of children. Article 31

authority of a Contracting State, either directly or through public other bodies, shall take all appropriate steps to -

facilitate the communications and offer the assistance provided for in Articles 8 and 9 and in this Chapter; facilitate, by mediation, conciliation or similar means, agreed solutions the protection of the person or property of the child in situations to which the Convention applies; provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within territory of the requested State. Article 32 made with supporting reasons by the central authority or other authority of any Contracting State with which the child has a substantial central authority of the Contracting State in which the child is resident and present may, directly or through public authorities or other provide a report on the situation of the child; request the competent authority of its State to consider the need to take measures for the protection of the person or property of the child. Article 33

authority having jurisdiction under Articles 5 to 10 contemplates the child in a foster family or institutional care, or the provision of care analogous institution, and if such placement or such provision of care in another Contracting State, it shall first consult with the central other competent authority of the latter State. To that effect it shall on the child together with the reasons for the proposed placement or

Article 34

(1) Where a measure of protection is contemplated, the competent under the Convention, if the situation of the child so requires, authority of another Contracting State which has information protection of the child to communicate such information.

(2) A Contracting State may declare that requests under paragraph communicated to its authorities only through its central authority. Article 35

(1) The competent authorities of a Contracting State may request of another Contracting State to assist in the implementation protection taken under this Convention, especially in securing the of rights of access as well as of the right to maintain direct contacts basis.

(2) The authorities of a Contracting State in which the child does reside may, on the request of a parent residing in that State who is or to maintain access to the child, gather information or evidence finding on the suitability of that parent to exercise access and on under which access is to be exercised. An authority exercising jurisdiction Articles 5 to 10 to determine an application concerning access to admit and consider such information, evidence and finding before decision.

(3) An authority having jurisdiction under Articles 5 to 10 to may adjourn a proceeding pending the outcome of a request made (2), in particular, when it is considering an application to restrict or rights granted in the State of the child’s former habitual residence.

(4) Nothing in this Article shall prevent an authority having jurisdiction Articles 5 to 10 from taking provisional measures pending the request made under paragraph (2).

Article 36 In any case where the child is exposed to a serious danger, authorities of the Contracting State where measures for the protection have been taken or are under consideration, if they are informed residence has changed to, or that the child is present in another State, the authorities of that other State about the danger involved and the or under consideration.

Article 37 An authority shall not request or transmit any information under do so would, in its opinion, be likely to place the child’s person danger, or constitute a serious threat to the liberty or life of a member family. Article 38

(1) Without prejudice to the possibility of imposing reasonable provision of services, central authorities and other public authorities States shall bear their own costs in applying the provisions of this Chapter. States with a view to improving the application of this Chapter in their The States which have concluded such an agreement shall transmit depositary of the Convention. CHAPTER VI - GENERAL PROVISIONS Article 40

authorities of the Contracting State of the child’s habitual residence, or Contracting State where a measure of protection has been taken, may deliver having parental responsibility or to the person entrusted with the child’s person or property, at his or her request, a certificate capacity in which that person is entitled to act and the powers him or her. capacity and powers indicated in the certificate are presumed to be person, in the absence of proof to the contrary. Contracting State shall designate the authorities competent to draw up

Article 41

gathered or transmitted under the Convention shall be used only for which they were gathered or transmitted.

Article 42 to whom information is transmitted shall ensure its confidentiality, with the law of their State. Article 43 forwarded or delivered under this Convention shall be exempt from any analogous formality. Article 44

Contracting State may designate the authorities to which requests under 33 are to be addressed.

Article 45 designations referred to in Articles 29 and 44 shall be communicated to Bureau of the Hague Conference on Private International Law. declaration referred to in Article 34, paragraph (2), shall be made to the Convention. Article 46 State in which different systems of law or sets of rules of law apply of the child and his or her property shall not be bound to apply the Convention to conflicts solely between such different systems or sets of

Article 47 a State in which two or more systems of law or sets of rules of law any matter dealt with in this Convention apply in different territorial as referring to presence in a territorial unit;

(3) any reference to the location of property of the child be construed as referring to location of property of territorial unit;

(4) any reference to the State of which the child is a construed as referring to the territorial unit designated State or, in the absence of relevant rules, to the territorial which the child has the closest connection;

(5) any reference to the State whose authorities are seised for divorce or legal separation of the child’s parents, or their marriage, shall be construed as referring to the whose authorities are seised of such application;

(6) any reference to the State with which the child has connection shall be construed as referring to the territorial which the child has such connection;

(7) any reference to the State to which the child has been which he or she has been retained shall be construed as relevant territorial unit to which the child has been removed he or she has been retained;

(8) any reference to bodies or authorities of that State, other authorities, shall be construed as referring to those authorised the relevant territorial unit;

(9) any reference to the law or procedure or authority of the a measure has been taken shall be construed as referring procedure or authority of the territorial unit in which such taken;

(10) any reference to the law or procedure or authority of the shall be construed as referring to the law or procedure the territorial unit in which recognition or enforcement

Article 48 For the purpose of identifying the applicable law under Chapter III, State which comprises two or more territorial units each of which has of law or set of rules of law in respect of matters covered by this following rules apply -

(a) if there are rules in force in such a State identifying unit’s law is applicable, the law of that unit applies;

(b) in the absence of such rules, the law of the relevant defined in Article 47 applies. Article 49 For the purpose of identifying the applicable law under Chapter III, State which has two or more systems of law or sets of rules of law different categories of persons in respect of matters covered by this following rules apply -Article 50 Convention shall not affect the application of the Convention of 25 October Civil Aspects of International Child Abduction, as between Parties to Conventions. Nothing, however, precludes provisions of this Convention from for the purposes of obtaining the return of a child who has been removed or retained or of organising access rights. Article 51

between the Contracting States this Convention replaces the 5 October 1961 concerning the powers of authorities and the law respect of the protection of minors, and the Convention governing the minors, signed at The Hague 12 June 1902, without prejudice to the measures taken under the Convention of 5 October 1961 mentioned

Article 52

Convention does not affect any international instrument to which States are Parties and which contains provisions on matters governed by unless a contrary declaration is made by the States Parties to such

Convention does not affect the possibility for one or more Contracting conclude agreements which contain, in respect of children habitually of the States Parties to such agreements, provisions on matters Convention. Agreements to be concluded by one or more Contracting States on matters of this Convention do not affect, in the relationship of such States Contracting States, the application of the provisions of this Convention. preceding paragraphs also apply to uniform laws based on special ties of other nature between the States concerned. Article 53 Convention shall apply to measures only if they are taken in a State Convention has entered into force for that State. Convention shall apply to the recognition and enforcement of measures entry into force as between the State where the measures have been requested State. Article 54 communication sent to the central authority or to another authority of a shall be in the original language, and shall be accompanied by a the official language or one of the official languages of the other that is not feasible, a translation into French or English.

a Contracting State may, by making a reservation in accordance object to the use of either French or English, but not both.

(b) reserve the right not to recognise any parental responsibility in so far as it is incompatible with any measure taken in relation to that property.

(2) The reservation may be restricted to certain categories of property.

Article 56 The Secretary General of the Hague Conference on Private International at regular intervals convoke a Special Commission in order to review operation of the Convention.

CHAPTER VII - FINAL CLAUSES Article 57

(1) The Convention shall be open for signature by the States Members of the Hague Conference on Private International Law Eighteenth Session.

(2) It shall be ratified, accepted or approved and the instruments acceptance or approval shall be deposited with the Ministry of Foreign Kingdom of the Netherlands, depositary of the Convention.

Article 58

(1) Any other State may accede to the Convention after it has entered in accordance with Article 61, paragraph (1).

(2) The instrument of accession shall be deposited with the depositary.

(3) Such accession shall have effect only as regards the relations acceding State and those Contracting States which have not raised an accession in the six months after the receipt of the notification referred paragraph (b) of Article 63. Such an objection may also be raised time when they ratify, accept or approve the Convention after an such objection shall be notified to the depositary. Article 59

(1) If a State has two or more territorial units in which different are applicable in relation to matters dealt with in this Convention, of signature, ratification, acceptance, approval or accession Convention shall extend to all its territorial units or only to one or may modify this declaration by submitting another declaration at any

(2) Any such declaration shall be notified to the depositary expressly the territorial units to which the Convention applies.

(3) If a State makes no declaration under this Article, the extend to all territorial units of that State. Article 60

(1) Any State may, not later than the time of ratification, acceptance, or accession, or at the time of making a declaration in terms of Article or both of the reservations provided for in Articles 54, paragraph other reservation shall be permitted. Article 61

Convention shall enter into force on the first day of the month following three months after the deposit of the third instrument of ratification, approval referred to in Article 57. Thereafter the Convention shall enter into force -

each State ratifying, accepting or approving it subsequently, on the day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession; each State acceding, on the first day of the month following the expiration of three months after the expiration of the period of six months provided in Article 58, paragraph (3); a territorial unit to which the Convention has been extended in conformity with Article 59, on the first day of the month following the expiration of three months after the notification referred to in that Article. Article 62

Party to the Convention may denounce it by a notification in writing depositary. The denunciation may be limited to certain territorial the Convention applies. denunciation takes effect on the first day of the month following the twelve months after the notification is received by the depositary. period for the denunciation to take effect is specified in the denunciation takes effect upon the expiration of such longer period.

Article 63 depositary shall notify the States Members of the Hague Conference on International Law and the States which have acceded in accordance with following -

signatures, ratifications, acceptances and approvals referred to in Article 57; accessions and objections raised to accessions referred to in Article date on which the Convention enters into force in accordance with Article 61; declarations referred to in Articles 34, paragraph (2), and 59; agreements referred to in Article 39; reservations referred to in Articles 54, paragraph (2), and 55 and the withdrawals referred to in Article 60, paragraph (2); denunciations referred to in Article 62.

whereof the undersigned, being duly authorised thereto, have signed

States Members of the Hague Conference on Private International Law its Eighteenth Session.