CHAPTER TWO – THE 1996 HAGUE CONVENTION

The 1996 Hague Convention provides a structure for effective reciprocity and international co-operation in child protection matters.[1] The Convention provides jurisdiction to issue protective measures based on the child’s presence in the refuge State, allowing courts handling return applications to implement necessary safeguards. The 1996 Hague Convention deals with a wide range of issues, including parental disputes over custody or contact, the protection of runaway teenagers, refugee and internationally displaced children, placement of children abroad in foster or institutional care, and specific powers of representation. It is this framework that also influences the appropriate steps in placing or receiving a child from abroad. As such, practitioners are conversant with the difficulties that arise in the absence of reciprocal common framework for international cooperation.

2.1 Background to the 1996 Hague Convention

The principles of the “protection of minors”[2] and “childhood in danger”[3] were central to of the creation of the 1996 Hague Convention, enhancing the legal protection of children in international custody disputes but also in abduction cases. Shortly after it came into force in 2002, the UK ratified the Convention in 2003[4] as part of its EU membership at the time . This allowed the treaty to be incorporated into domestic law, without the need for separate primary legislation.[5] However it was nearly a decade later – on 1^st November 2012 – that the 1996 Hague Convention officially came into force in the UK. Following the repeal of the European Communities Act 1972 as part of the UK’s departure from the EU, the legal status of the 1996 Hague Convention was reinforced through the enactment of the Private International Law (Implementation of Agreements) Act 2020. By doing so, the UK preserved its commitment to the Convention and secured its effectiveness as a key international instrument for the protection of children. With the legal framework established through the 2020 Act, the 1996 Hague Convention has become the primary international instrument[6] governing child protection in the UK. The application of the 1996 Hague Convention has led to several notable case law developments, demonstrating how courts interpret and apply the Convention’s provisions. In addition to fostering international cooperation, the 1996 Hague Convention provides a framework for the UK to establish best practices in handling cross-border child protection cases. Whereas the number of contracting States (57)[7] remains a limitation in its wide-reaching applicability, interactions with Convention countries demonstrate the practical benefits of the instrument in resolving complex international child protection issues. As more countries adopt the Convention, the collective strength of international co-operation will grow, providing a more unified and enhanced protection of children globally.

The Convention is supported by several key documents that aid in its interpretation and practical application including the Explanatory Report authored by Professor Paul Lagarde, the Practical Handbook on the Operation of the 1996 Child Protection Convention and the Implementation Checklist.[8] The HCCH regularly convenes Special Commission meetings to assess and enhance the practical operation of the Convention[9] as well as to ensure that the Convention remains responsive to evolving global dynamics[10] while strengthening the legal safeguards for children. These gatherings serve as platforms for Contracting Parties to discuss challenges, share best practices, and propose improvements in cross-border child protection measures, the latest being the Eighth Meeting of the Special Commission, held from 10 to 17 October 2023.[11]

2.2 Objectives of the Convention

Fundamentally, the 1996 Hague Convention is grounded in the principles of international cooperation and the best interests of the child. By encouraging States to work together and recognize each other’s protective measures, it promotes legal certainty and stability for children in international situations. At its core, the Convention seeks to enhance the protection of children by establishing clear rules on jurisdiction, applicable law, and the recognition and enforcement of protective measures. Through its carefully structured legal mechanisms, the Convention seeks to safeguard every child regardless of their circumstances or the jurisdictions involved. It is divided into seven chapters: Scope of the Convention; Jurisdiction; Applicable Law; Recognition and Enforcement; Co-operation; General Provisions; Final Clauses. The preamble to the 1996 Hague Convention makes clear that: –

“Considering the need to improve the protection of children in international situations,

Wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children,

Recalling the importance of international co-operation for the protection of children,

Confirming that the best interests of the child are to be a primary consideration…”

The objectives of the 1996 Hague Convention are clearly articulated at the outset. As per Article 1:

The objects of the present Convention are –

1. a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
2. b) to determine which law is to be applied by such authorities in exercising their jurisdiction;
3. c) to determine the law applicable to parental responsibility;
4. d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;
5. e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.

Of note, and as with any private international law instrument, the Convention aims to prevent conflicts of law between legal systems, ensuring that different national laws do not create legal uncertainty or obstruct a child’s right to stability and care. By doing so, a Convention objective is to foster cooperation between States, ensuring that the best interests of the child remain a primary consideration in all decisions affecting them. Another of the Convention’s key objectives is to support children caught in international parental disputes over custody, access, or contact by determining the law to be applied and the appropriate measures of protection. As these cases often arise when parents live in different countries or when one parent seeks to or relocates abroad with a child, the Convention’s mechanisms aims to resolve these disputes efficiently.

With the protection of children being a key objective, the 1996 Convention also extends to children who are internationally abducted and where protective measures are sought[12] as well as the protection of unaccompanied minors, and of children placed abroad in alternative care arrangements, particularly when these arrangements do not fall under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. This includes cases where children are placed in foster care, kafala, or other institutional settings in another country. By ensuring that such placements are properly regulated and recognized across jurisdictions, the Convention helps prevent exploitation, neglect, or trafficking of vulnerable children. Children who are victims of cross-border trafficking, exploitation, and sexual abuse also fall within the Convention’s protective scope.[13] Thus, while the 1996 Hague Convention addresses a wide range of international child protection issues, this book will concentrate on its application in public law care proceedings. Furthermore, although this book focuses on the Convention’s application in public law cases, the case law discussed will inevitably extend beyond this scope where relevant.

2.3 Measures Available Under Article 3 of the 1996 Hague Convention

Article 3 encompasses a broad range of legal provisions relating to parental responsibility, custody, access, guardianship, child placement, supervision of care, and the management of a child’s property. Article 3 of the Convention provides that: –

The measures referred to in Article 1 may deal in particular with –

1. a) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
2. b) rights of custody, including rights relating to the care of the person of the 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 for a limited period of time to a place other than the child’s habitual residence;
3. c) guardianship, curatorship and analogous institutions;
4. d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
5. e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
6. f) the supervision by a public authority of the care of a child by any person having charge of the child;
7. g) the administration, conservation or disposal of the child’s property.

The measures listed in Article 3 are not exhaustive but are provided as examples seeking to present a broad scope, while acknowledging that such measures vary across legal system.[14] For example, from an English perspective, while “Special Guardianship” is a well-established legal status, it remains unfamiliar in many other jurisdictions, particularly in EU civil law systems. However, the broad scope of Article 3 helps support the position as to the distinction between parental responsibility held by a parent and that of a special guardian. In public law cases where the final care plan is a special guardianship order in favour of e.g. a relative, the fact that that special guardian has the final say or overarching parental responsibility would, in certain cases, be seen as a protective measure. Article 3 allows scope for practitioners to comfortably explore the measures of protection envisaged in spite of, amongst others, linguistic particularities.[15]

Parental responsibility, as covered under Article 3(a), warrants an autonomous interpretation. It can arise through various mechanisms under domestic law. In some jurisdictions, parental responsibility is automatically granted, such as when a child is born to married parents. In others, it may require specific actions, such as recognition by an unmarried father, the subsequent marriage of parents, or a formal agreement.[16] Additionally, courts or administrative authorities may assign parental responsibility. The term “attribution” in the Convention is designed to encompass all aforementioned approaches, ensuring its broad applicability. Indeed, under English law, parental responsibility is acquired through several different mechanisms, all of which fall within the broad scope of Article 3(a) of the 1996 Hague Convention. Married parents automatically share parental responsibility upon the birth of their child. For unmarried fathers, parental responsibility can be obtained by being named on the birth certificate (if registered after 1 December 2003), through a formal parental responsibility agreement with the mother, or by securing a court order. Additionally, stepparents and second female parents in same-sex relationships can acquire parental responsibility through agreement or court order. Local authorities may also be granted parental responsibility in cases where a child is subject to a care order.

Article 3(b) covers rights of custody and access,[17] aligning its definitions with the 1980 Hague Child Abduction Convention[18] to maintain consistency between the two treaties. Rights of custody include determining where a child resides and who has the authority to make decisions about their care. Rights of access, which encompass in-person visits as well as remote communication, ensure meaningful contact with a non-custodial parent or other relatives. The Convention also envisages guardianship and similar institutions under Article 3(c) as measures of protection, as well as the appointment and responsibilities of those entrusted with a child’s care under Article 3(d). Placement in foster care, institutional settings, or alternative care arrangements like kafala is addressed in Article 3(e). Additionally, Article 3(f) mandates public authority supervision in cases where a child is under the care of another person. Lastly, Article 3(g) provides safeguards for the administration, conservation, and disposal of a child’s property, ensuring financial protection and responsible management.[19]

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[1]     Permanent Bureau of the HCCH, ‘Approach Global Event: the 25^th Anniversary of the HCCH Child Protection Convention’ (The Hague, 2021) <https://assets.hcch.net/docs/0edc5a90-9a94-402e-8fb4-3b9d27a6aab5.pdf>

[2]     Permanent Bureau of the HCCH, ‘Explanatory Report: 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’ (Proceedings of the Eighteenth Session (1996), Tome II, Protection of children) by Lagarde, referred to as ‘Explanatory Report’ or ‘Lagarde Report’, para 1.

[3]     Explanatory Report, para 3.

[4]     HCCH 1996 Hague Convention ‘Status Table’, available at <https://www.hcch.net/en/instruments/conventions/status-table/?cid=70>

[5]     Facilitated under the framework of the European Communities Act 1972, this meant that the United Kingdom could adopt EU law and international agreements without the need for further primary legislation.

[6]     Replacing “Brussels IIbis”: Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1; superseded by the “Recast Regulation” or “Brussels IIter”. Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition, and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction ST/8214/2019/INIT OJ L 178, 2.7.2019.

[7]     As of 28 February 2025.

[8]     See also Permanent Bureau of the HCCH, Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children (The Hague, 2022).

[9]     The review of its practical operation is considered alongside the 1980 Hague Convention.

[10]    In example: Permanent Bureau of the HCCH, The Application of the 1996 Child Protection Convention to Unaccompanied And Separated Children, The Hague, 2024.

[11]    Permanent Bureau of the HCCH, Preliminary Documents and Conclusions available at <https://www.hcch.net/en/publications-and-studies/details4/?pid=8488&dtid=57>

[12]    Momoh.O, ‘The need for cross-border protective measures in return proceedings’ in Trimmings K, Dutta A, Honorati C and Zupan M (eds), Domestic Violence and Parental Child Abduction (1st edn, Intersentia 2022)

[13]    Permanent Bureau of the HCCH, ‘Practical Handbook on the operation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, recognition, Enforcement and Co-operation in respect of Parental responsibility and Measures of the Protection of Child’ (2014) para 63 (hereafter ‘1996 Convention Practical Handbook’) para 1.2-1.3.

[14]    Explanatory report, para 18-20.

[15]    Explanatory Report, para 20 where Lagarde observes that “Certain English-speaking delegations, in particular that of the United Kingdom, pointed out that the terms ‘custody’ and ‘access’ were replaced in their legislation by different expressions: ‘residence order’ for ‘custody’, ‘contact’ or yet ‘visitation’ for ‘access’. The Convention cannot claim to employ expressions which suit the linguistic particularities of all the States represented. What counts is the meaning which the Contracting States have wanted to give to the words employed”.

[16]    1996 Convention Practical Handbook, para 3.20.

[17]    Ibid, para 3.2; 4.22 (see “situation A”)

[18]    Article 5(b), 1980 Hague Convention.

[19]    Ibid, para 13.71.