The judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the preceding
paragraph, shall also order the return of the child, unless it is demonstrated that the
child is now settled in its new environment. (...)
96.
Article 13 establishes as exceptions to international return that:
Notwithstanding the provisions of the preceding Article, the judicial or administrative
authority of the requested State is not bound to order the return of the child if the
person, institution or other body which opposes its return establishes that a) the person, institution or other body having the care of the person of the child was
not actually exercising the custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the
child if it finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and
administrative authorities shall take into account the information relating to the
social background of the child provided by the Central Authority or other competent
authority of the child's habitual residence.
97.
Article 7 of the Hague Convention on parental responsibility and protection of children, or Hague
Convention 1996100 establishes that:
(1) 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.
98.
For its part, the Commission notes that the pertinent provision in the Inter-American Convention on the
International Return of Children establish as follows:101
Article 1: The purpose of this Convention is to secure the prompt return of children
habitually resident in one State Party who have been wrongfully removed from any
State to a State Party or who, having been lawfully removed, have been wrongfully
retained. This Convention further seeks to secure enforcement of visitation and
custody rights of parties entitled to them.
Article 11. A judicial or administrative authority of the requested State is not required
to order the child's return if the party raising objections to the return establishes that:
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.
101 Inter-American Convention on the International Return of Children, ratified by Ecuador, which deposited its instrument of ratification
on August 3, 2002.
100