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.2. The removal or the retention of a child is to be considered wrongful where:(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.The rights of custody mentioned in subparagraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.3. So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.Article 81. By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or Article 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either:- request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or- suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.2. The Contracting States whose authorities may be addressed as provided in 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 for divorce or legal separation of the child's parents, or for annulment of their marriage;(d) a State with which the child has a substantial connection.3. The authorities concerned may proceed to an exchange of views.4. The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or Article 6, if it considers that this is in the child's best interests.Article 91. If the authorities of a Contracting State referred to in Article 8(2), consider that they are better placed in the particular case to assess the child's best interests, 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 take 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.2. The authorities concerned may proceed to an exchange of views.3. The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request.Article 101. Without prejudice to Articles 5 to 9, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if:(a) at 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(b) the 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.2. The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason.Article 111. In all cases of urgency, the authorities of any Contracting State, in whose territory the child or property belonging to the child is present, have jurisdiction to take any necessary measures of protection.2. The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.3. The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State
protection has been taken, may deliver to the person having parental responsibility or to the person entrusted with protection of the child's person or property, at his or her request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred upon him or her.2. The capacity and powers indicated in the certificate are presumed to be vested in that person, in the absence of proof to the contrary.3. Each Contracting State shall designate the authorities competent to draw up the certificate.Article 41Personal data gathered or transmitted under the Convention shall be used only for the purposes for which they were gathered or transmitted.Article 42The authorities to whom information is transmitted shall ensure its confidentiality, in accordance with the law of their State.Article 43All documents forwarded or delivered under this Convention shall be exempt from legalisation or any analogous formality.Article 44Each Contracting State may designate the authorities to which requests under Articles 8, 9 and 33 are to be addressed.Article 451. The designations referred to in Articles 29 and 44 shall be communicated to the Permanent Bureau of The Hague Conference on Private International Law.2. The declaration referred to in Article 34(2), shall be made to the depositary of the Convention.Article 46A Contracting State in which different systems of law or sets of rules of law apply to the protection of the child and his or her property shall not be bound to apply the rules of the Convention to conflicts solely between such different systems or sets of rules of law.Article 47In relation to a State in which two or more systems of law or sets of rules of law with regard to any matter dealt with in this Convention apply in different territorial units:1. any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit;2. any reference to the presence of the child in that State shall be construed as referring to presence in a territorial unit;3. any reference to the location of property of the child in that State shall be construed as referring to location of property of the child in a territorial unit;4. any reference to the State of which the child is a national shall be construed as referring to the territorial unit designated by the law of that State or, in the absence of relevant rules, to the territorial unit with which the child has the closest connection;5. any reference to the State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage, shall be construed as referring to the territorial unit whose authorities are seised of such application;6. any reference to the State with which the child has a substantial connection shall be construed as referring to the territorial unit with which the child has such a connection;7. any reference to the State to which the child has been removed or in which he or she has been retained shall be construed as referring to the relevant territorial unit to which the child has been removed or in which he or she has been retained;8. any reference to bodies or authorities of that State, other than Central Authorities, shall be construed as referring to those authorised to act in the relevant territorial unit;9. any reference to the law or procedure or authority of the State in which a measure has been taken shall be construed as referring to the law or procedure or authority of the territorial unit in which such measure was taken;10. any reference to the law or procedure or authority of the requested State shall be construed as referring to the law or procedure or authority of the territorial unit in which recognition or enforcement is sought.Article 48For the purpose of identifying the applicable law under Chapter III, in relation to a State which comprises two or more territorial units each of which has its own system of law or set of rules of law in respect of matters covered by this Convention, the following rules apply:(a) if there are rules in force in such a State identifying which territorial unit's law is applicable, the law of that unit applies;(b) in the absence of such rules, the law of the relevant territorial unit as defined in Article 47 applies.Article 49For the purpose of identifying the applicable law under Chapter III, in relation to a State which has two or more systems of law or sets of rules of law applicable to different categories of persons in respect of matters covered by this Convention, the following rules apply:(a) if there are rules in force in such a State identifying which among such laws applies, that law applies;(b) in the absence of such rules, the law of the system or the set of rules of law with which the child has the closest connection applies.Article 50This Convention shall not affect the application of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, as between Parties to both Conventions. Nothing, however, precludes provisions of this Convention from being invoked for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights.Article 51In relations between the Contracting States, this Convention replaces 20The provisions of this Chapter apply even if the law designated by them is the law of a non-Contracting State.Article 211. In this Chapter the term "law" means the law in force in a State other than its choice of law rules.2. However, if the law applicable according to Article 16 is that of a non-Contracting State and if the choice of law rules of that State designate the law of another non-Contracting State which would apply its own law, the law of the latter State applies. If that other non-Contracting State would not apply its own law, the applicable law is that designated by Article 16.Article 22The application of the law designated by the provisions of this Chapter can be refused only if this application would be manifestly contrary to public policy, taking into account the best interests of the child.CHAPTER IVRECOGNITION AND ENFORCEMENTArticle 231. The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.2. Recognition may however be refused:(a) if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;(c) on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;(d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;(e) if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;(f) if the procedure provided in Article 33 has not been complied with.Article 24Without prejudice to Article 23(1), any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.Article 25The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.Article 261. If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.2. Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.3. The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23(2).Article 27Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.Article 28Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child.CHAPTER VCOOPERATIONArticle 291. A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention on such authorities.2. Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.Article 301. Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their States to achieve the purposes of the Convention.2. They shall, in connection with the application of the Convention, take appropriate steps to provide information as to the laws of, and services available in, their States relating to the protection of children.Article 31The Central Authority of a Contracting State, either directly or through public authorities or other bodies, shall take all appropriate steps to:(a) facilitate the communications and offer the assistance provided for in Articles 8 and 9 and in this Chapter;(b) facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies;(c) provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies;(c) 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 the territory of the requested State.Article 32On a request made with supporting reasons by the Central Authority or other competent authority of any Contracting State with which the child has a substantial connection, the Central Authority of the Contracting State in which the child is habitually resident and present may, directly or through public authorities or other bodies:(a) provide a report on the situation of the child;(b) 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 331. If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by "kafala" or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.2. The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child's best interests.Article 341. Where a measure of protection is contemplated, the competent authorities under the Convention, if the situation of the child so requires, may request any authority of another Contracting State which has information relevant to the protection of the child to communicate such information.2. A Contracting State may declare that requests under paragraph 1 shall be communicated to its authorities only through its Central Authority.Article 351. The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of measures of protection taken under this Convention, especially in securing the effective exercise of rights of access as well as of the right to maintain direct contacts on a regular basis.2. The authorities of a Contracting State in which the child does not habitually reside may, on the request of a parent residing in that State who is seeking to obtain or to maintain access to the child, gather information or evidence and may make a finding on the suitability of that parent to exercise access and on the conditions under which access is to be exercised. An authority exercising jurisdiction under Articles 5 to 10 to determine an application concerning access to the child, shall admit and consider such information, evidence and finding before reaching its decision.3. An authority having jurisdiction under Articles 5 to 10 to decide on access may adjourn a proceeding pending the outcome of a request made under paragraph 2, in particular, when it is considering an application to restrict or terminate access rights granted in the State of the child's former habitual residence.4. Nothing in this Article shall prevent an authority having jurisdiction under Articles 5 to 10 from taking provisional measures pending the outcome of the request made under paragraph 2.Article 36In any case where the child is exposed to a serious danger, the competent authorities of the Contracting State where measures for the protection of the child have been taken or are under consideration, if they are informed that the child's residence has changed to, or that the child is present in another State, shall inform the authorities of that other State about the danger involved and the measures taken or under consideration.Article 37An authority shall not request or transmit any information under this Chapter if to do so would, in its opinion, be likely to place the child's person or property in danger, or constitute a serious threat to the liberty or life of a member of the child's family.Article 381. Without prejudice to the possibility of imposing reasonable charges for the provision of services, Central Authorities and other public authorities of Contracting States shall bear their own costs in applying the provisions of this Chapter.2. Any Contracting State may enter into agreements with one or more other Contracting States concerning the allocation of charges.Article 39Any Contracting State may enter into agreements with one or more other Contracting States with a view to improving the application of this Chapter in their mutual relations. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.CHAPTER VIGENERAL PROVISIONSArticle 401. The authorities of the Contracting State of the child's habitual residence, or of the Contracting State where a measure of protection has been taken, may deliver to the person having parental responsibility or to the person entrusted with protection of the child's person or property, at his or her request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred upon him or her.2. The capacity and powers indicated in Avis juridique important|22003A0221(01)Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children Jornal Oficial nº L 048 de 21/02/2003 p. 0003 - 0013