92.
According to the Convention, after receiving notice of a wrongful removal or retention, the authorities of
the requested State "shall not decide on the merits of rights of custody until it has been determined that the child
is not to be returned under this Convention or unless an application under this Convention is not lodged within
a reasonable time following receipt of the notice" (Article 16). In light of the above, the Commission observes that
the Hague Convention refers in principle to an indication to the effect that the best interests of the child have to
do with restoration of the status quo via a decision ordering his or her return to the country of habitual residence,
where the substantive issues involved can be examined.99
93.
According to the Convention, Central Authorities shall co-operate with each other to secure the prompt
return "of children" and shall take all appropriate measures to prevent further harm to the child or prejudice to
interested parties and to secure the voluntary return of the child or to bring about an amicable resolution of the
issues (Article 7). As the Convention establishes in Article 7:
Central Authorities shall co-operate with each other and promote co-operation
amongst the competent authorities in their respective States to secure the prompt
return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all
appropriate measures a) to discover the whereabouts of a child who has been wrongfully removed or
retained;
b) to prevent further harm to the child or prejudice to interested parties by taking
or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable
resolution of the issues;
d) to exchange, where desirable, information relating to the social background of
the child;
e) to provide information of a general character as to the law of their State in
connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings
with a view to obtaining the return of the child and, in a proper case, to make
arrangements for organising or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal
aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention
and, as far as possible, to eliminate any obstacles to its application.
94.
The Convention establishes that "The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children" and that "If the judicial or administrative authority
concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the
applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority
of the requesting State, shall have the right to request a statement of the reasons for the delay" (Article 11).
95.
Thus, Article 12 establishes:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at
the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period of less
than one year has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
In this vein, see European Court of Human Rights. Case of X v. Latvia (Application no. 27853/09). Judgment of Tuesday, November 26,
2013, par. 94-97.
99