Study On The Right Of Custody In The Hague Convention On Civil Aspects Of International Child Abduction

The Hague Convention on Civil Aspects of International Child Abduction intended to protect the interest of three parties and to distribute jurisdiction between two parties.The former refers to children removed to or retained in any contracting state,parent with the right of custody under the convention and parent with the right of access under the convention.The later refers to the court in the state of children's habitual residence with jurisdiction of guardianship disputes and the court which has jurisdiction of convention cases.If a parent was thought of having the right of custody under the convention and being interrupted by the removal or the retention,and there was no obstacles of returning the child involved,the child should be promptly returned to his or her habitual residence.If a parent was thought of having the right of access under the convention,he or she only has right of making an application of securing the effective exercise of right of access.Aims of the convention includes two aspects.The objective one is how to keep balance between the protection of best interests of children and the protection of interests of parents.The procedural one is to promote the prompt return of children so that the court in state of children's habitual residence could smoothly conduct jurisdiction.Accordingly,the court with jurisdiction of convention cases can not excessively intervene in hypostatic issues of guardianship disputes unless return obviously go against best interests of child involved.According to the investigation of typical cases when drafting the convention,parent who has valid right of custody under law of the state of children's habitual residence,mainly made applications of returning.In order to let applications be consented as much as possible,the right of custody under the convention is defined in an independent and open way,not rely on any domestic law.Any evidence proving that applicants ha'ving valid rights of custody based on the law of the state of children's habitual residence can be effective in convention cases.The convention only lists two key elements:rights relate to take care of child and determine the child's place of residence.Prior to an order for the return of the child,the court can request authorities of the state of child's habitual residence a decision or other deternination that the removal or retention violates the right of custody under the convention.With the diversity of types of guardianship disputes,applicants are not limited to parent with right of custody of domestic law."Rights of custody"in the convention provided court with discretion in hearing convention cases by defining in a broad way.Practices of courts in contracting states showing that parts of them tend to independently use the discretion and parts of them tend to conform to law practices or decisions of the court in the state of children's habitual residence.For example,"chasing order"means the judgement made by the court of children's habitual residence after the removal or retention which changed the former judgement of custody allocation,most courts support that such judgement without reasonable ground is invalid in convention cases."Inchoate rights of custody "means that someone without valid evidence of custody in domestic law but actually and mostly take care of children,in order to save such situation few courts try to identify "inchoate rights of custody" as convention question and to expand the explanation of source of rights.But in the problem of "ne exeat right" the mainstream is that the application of returning children made by obligees with right of access should be permitted,but some courts in view of the intendment of convention support that the right of custody and access should be clearly divided and saved in different ways.If the removal or retention is good for the interest of children,excessive protection of parental interest may harms for children's future interest.About the ruling of the article 15,some courts support that court in the state of children's habitual residence can make ruling of convention problems and such ruling was binding.Instead some courts think that the jurisdiction of convention problems is exclusively belong to the court of the state where children was removed to or retained in,and the ruling was not binding.On the one hand,joining in the convention makes for achieving prompt return of children.On the other hand,the discretion of the contracting parties and the tend of broad interpretation of convention,may directly go against law practices and judgement of the state of children's habitual residence,make results of convention cases be uncertain and unpredictable.