a. The party seeking the child's return was not actually exercising its rights at the
time of the removal or retention, or had consented to or subsequently acquiesced in
such removal or retention; or
b. There is a grave risk that the child' s return would expose the child to physical or
psychological danger.
The requested authority may also refuse to order the child's return if it finds that the
child is opposed to it and if, in the judgment of the requested authority, the child's age
and maturity warrant taking its views into account.
Article 12. (…) The judicial or administrative authority shall issue its decision within
sixty calendar days after receipt of the objection.
99.
According to the Guide to Good Practice under the Hague Convention,102 , "Both the 1980 Hague Child
Abduction Convention and the 1996 Hague Child Protection Convention are based on the idea that, in a child
abduction situation, the authorities in the State to which the child was abducted (requested State) shall have the
competency to decide on the return of the child but not on the merits of custody.' Therefore, according to the
above-mentioned Guide, "The court seized with the Hague return proceedings in the requested State will
therefore have difficulties turning a mediated agreement into a court order if this agreement also covers, besides
the question of return, matters of custody or other matters on which the court seized with the Hague proceedings
lacks (international) jurisdiction"103. According to the Guide, "the involvement of different authorities, possibly
in different States, might become necessary to render the full agreement legally binding and enforceable in the
legal systems concerned. Specialist legal advice on which steps to take and in which of the States involved may
be needed in such cases."104
100.
As regards international jurisdiction in cases of international child abduction, the above-mentioned
Guide states that "It is the wrongful removal or retention itself which creates a special jurisdictional situation in
international child abduction cases falling within the scope of the 1980 Hague Child Abduction Convention and /
or the 1996 Hague Child Protection Convention. According to a widely applied principle of international
jurisdiction it is the court of the child’s habitual residence which has jurisdiction to take long-term decisions
concerning custody of and contact with a child, as well as decisions on cross-border family relocation. This
principle is supported by the 1996 Convention, which works hand in hand with
the 1980 Convention"105. " Central Authorities should support the parties and the courts as much as possible with
information and support their efforts to overcome jurisdictional obstacles to rendering the mediated agreement
legally binding and enforceable in both the requested and requesting States"106.
101.
The Guide to Good Practice under the Hague Convention of 25 October 1980107 includes a number of
measures regarding the State requested to effect the return. In that regard, it establishes that it should have rapid
and effective mechanisms for locating an abducted child, which should be available at every stage of the
proceedings, including the enforcement stage. In particular, it establishes that: it should have rapid and effective
mechanisms for protecting an abducted child while return proceedings are pending, with a view to preventing
the abducting parent from taking the child into hiding; at all stages of the proceedings, the court should consider
whether a need for protective measures exists to prevent the concealment or removal of the child from the
jurisdiction of the court; and effective mechanisms should be available for preparing an abducted child for return.
These measures should be available at every stage of the proceedings, including the enforcement stage.
102.
In accordance with said Guide, if necessary, co-operation with the authorities of the State of habitual
residence to ensure continuing protection of the child after the return should also be considered; rapid and
effective mechanisms should be available for enforcing a return order, including a range of effective coercive
measures; additional conditions or requirements for enforcing a return order through the use of coercive
Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Mediation.
Par. 299.
104 Par. 300.
105 Par. 307.
106 Par. 314.
107 Guide to Good Practice under the Hague Convention on the Civil Aspects of International Child Abduction – Part IV - Enforcement.
102
103