1. Signed by the Kingdom of Morocco on that date.

2. Habitual residence is also used in Art. 9 which confines the application of the Convention to minors who are nationals of a Contracting State and have their habitual residence in that state.

3. This is implicit in Art. 8.1.

4. See R.D. Kollewijn, ‘Het Haags Voogdijverdrag voor het Internationale Hof van Justitie’ [The Hague Convention on the Guardianship of Minors before the International Court of Justice], 9 NTIR (1959) p. 311 at pp. 314–316. The original intention, no doubt, was to protect the exercise of paternal power (puissance paternelle), see Dyer, A., ‘Childhood's Rights in Private International Law’, 5 Aust. Jo. Of Fam. Law (1991) p. 103 at pp. 106–108.Google Scholar

5. Case Concerning the Application of the Convention of 1902 Governing the Guardianship of Infants: Netherlands v. Sweden, ICJ Rep. (1958) p. 55.

6. The Dutch guardian had nominated another Swedish family as foster-parents for the child.

7. Kollewijn, loc. cit. n. 4, at p. 331.

8. G.DROZ, Regards surle droit international privé comparé (Dordrecht, Martinus Nijhoff 1991) p. 123.

9. See M. Sumampouw, Les nouvelles conventions de La Haye, tome IV (Dordrecht, Martinus Nijhoff 1994) pp. 76–82 and cases there cited. See HR 1 July 1982, NJ 1983 No. 201; 18 November 1983, NJ 1984 No. 343. M. Sumampouw, Les nouvelles conventions de La Haye, tome III (Dordrecht, Martinus Nijhoff 1984) pp. 118–121.

10. M. Sumampouw, Les nouvelles conventions de La Haye, tome V (The Hague, Martinus Nijhoff 1996) pp. 75–77; IPRax 1991, 254. See also Sumampouw, ibid., at p. 73 (Rb. Zutphen 10 November 1994).

11. A. Heini, et al., eds., IPRG-Kommentar (Zurich, Schulthess Verlag 1993), Art. 85 B. II. 3. (K. Siehr).

12. Sumampouw, tome IV, op. cit. n. 9, at pp. 73–74.

13. Sumampouw, op. cit. n. 10, at p. 78 (OLG Dusseldorf 22 July 1993; Bavarian OLG 7 September 1990).

14. Ibid., at pp. 78–79 (Bavarian OLG 7 September 1990; BGH 5 February 1992).

15. Ibid., at pp. 78–80 (BGH 5 February 1992; AG Eschwege 5 December 1994).

16. The member states and dates of ratification or accession are: Austria (1975), France(1972), Germany (1971), Italy (1995), Luxembourg (1969), Netherlands (1971), Poland (1993), Portugal (1969), Spain (1987), Switzerland (1969) and Turkey (1983).

17. The 1902 Convention required that the minor be both resident within a Contracting State and a national of such a state: 1902 Convention Art. 9. The 1961 Convention basically only requires habitual residence in a Contracting State, but allows a reservation to restrict the application of the Convention to nationals of a Contracting State: 1961 Convention Art. 13. Such reservations made by Luxembourg and Spain are still in effect.

18. See Convention on the Protection of Minors 1961, Art. 12.

19. Emancipation is excluded from the scope of the Convention in Art. 4(d).

20. As Lagarde points out in ‘La nouvelle convention de La Haye sur la protection des mineurs’, 86 Rev.crit.dr.int.priv. (1997) p. 217 at p. 222, the court would apply a certain degree of flexibility when dealing with a young person in that age group.

21. Cf., under the Child Abduction Convention 1980: Re H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476.

22. Sumampouw, op. cit. n. 10, at p. 52 and cases there cited.

23. See, for example, Art. 5 of the UN Convention on the Rights of the Child which recognizes the ‘responsibilities, rights and duties of parents’ to provide ‘appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention’, acknowledging that any right or authority of the parent is limited by the existence of such rights.

24. See Children Act 1989 (UK) s. 3(1); Family Law Act 1975 (AUS) s. 61B.

25. Cf., the definition given in the Children Act 1989 (UK) s. 3(1) (for domestic law purposes) as including: ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’ A similar definition is found in Family Law Act 1975 (AUS) s. 61B which, however, does not include a reference to rights over a child's property.

26. P. Lagarde, Explanatory Report on the 1996 Convention, provisional edition (The Hague, Permanent Bureau of the Conference 1997) p. 55, para. 40.

27. See, for instance, the description given by OLG Stuttgart 23 June 1975 (‘le lieu du vrai centre de gravité determinant le mode de vie de l'enfant’): M. Sumampouw, Les nouvelles conventions de La Haye, tome II (Alphen aan den Rijn, Sijthoff & Noordhoff 1980) p. 111.

28. See the decision of the OLG Dusseldorf of 16 December 1983 in Sumampouw, tome IV, op. cit. n. 9, at p. 69, where the assumption of jurisdiction by a German court over an abducted Italian child under Art. 1 of the 1961 Convention was upheld after the child had spent 15 months in Germany pending the outcome of litigation between the parents. See also the decision of the Swedish Supreme Administrative Court (under the Child Abduction Convention 1980) of 20 December 1995, Sumampouw, op. cit. n. 10, at p. 169, to the same effect.

29. See ln re S. (A Minor) (Custody: Habitual Residence) [1997] 3 WLR 597 (concerning a child taken by its grandmother without custodial rights from England to Ireland) at p. 602 per Lord Slynn citing Butler-Sloss LJ in the Court of Appeal ‘the longer the actual residence in the new jurisdiction without challenge, the more likely the child would acquire the habitual residence of those who have continued to care for the child without opposition.’ It was not necessary in the House of Lords to pass on the correctness of that statement since the child was only for two or three days in the care of its de facto caregiver in Ireland.

30. See the decision of the Swiss Federal Supreme Court of 9 September 1991, Sumampouw, op. cit. n. 10, at p. 60, where Swiss jurisdiction in respect of a German child abducted into Switzerland was denied because the abduction was opposed by the parent with parental authority and the stay in Switzerland was still too short and precarious to amount to habitual residence.

31. See Clive, E., “The Concept of Habitual Residence”, 109 Juridical Review (1997) p. 137 at p. 143.Google Scholar

32. In Re J (A Minor) (Abduction) [1990] 2 AC 562 at p. 579. See, Clive, loc. cit. n. 31, at p. 143.

33. Clive, ibid., at p. 147. This point was also made by the Administrative Court (VGH) in the decision noted in n. 34 below.

34. See the decision of the VGH of Baden-Württemberg of 13 March 1985, Sumampouw, tome IV, op. cit. n. 9, at p. 63.

35. Supra n. 26, para. 39.

36. See Sumampouw, op. cit. n. 10, at p. 62 (OLG Karlsruhe 6 July 1993) and at p. 65 (OGH Austria 19 December 1989).

37. For a contrary view, see supra n. 26, para. 42, at least in relation to a move of habitual residence to another Contracting State.

38. Certainly if that court was not already seised of jurisdiction before the removal. In the case of a court already seised, see n. 37 above and discussion in the text.

39. The definition of wrongful removal or retention in Art. 7(2) of the 1996 Convention is the same as that found in Art. 3 of the Child Abduction Convention 1980.

40. Under Art. 12 of the 1980 Child Abduction Convention the authorities of the state to which or in which the child has been wrongfully removed or retained, is not obliged to order the return of the child if proceedings were commenced after one year from the date of wrongful removal or retention and the child has become settled in its new environment.

41. In 1997 the reservation was still in force for Luxembourg, Poland and Turkey.

42. Lagarde, loc. cit. n. 20, at p. 229 considers that there is still uncertainty on this point, but it was the understanding of many non-European delegations who reluctantly agreed to the compromise that their states would not be obliged to recognise European Union jurisdictions which did not conform to those found in chapter II.

43. See 1902 Convention, Arts. 3 and 4.

44. See supra n. 26, para. 73, where Lagarde points out that the English text of Art. 11(3) is ambiguous, but the French text makes it clear that recognition of the measure is a matter for the law of each Contracting State separately.

45. As regards measures taken in non-Contracting States, see Art. 12(3). The same comments apply, ibid.

46. It appears to have originated in a proposal from the United Kingdom to deal with children who are temporarily present in a state, for holidays or study, who may require care or supervision by a local authority in a non-urgent situation: supra n. 26, para. 74.

47. See Family Law Act 1975 s. 61C. This provision does not apply in Western Australia, where the traditional rule that the single mother has sole custody still prevails.

48. See Gillick v. West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112.

49. See Lagarde, loc. cit. n. 20, at p. 231.

50. The theoretical issue before the House of Lords in Gillick's case, n. 48 above. There was no evidence in that case to suggest that the daughters of Mrs Gillick ever sought such advice or were likely to do so.

51. See n. 47 above.

52. For instance under Art. 35 in relation to access.

53. See supra n. 26, para. 89, where Lagarde points out that the clause is not based on proximity, but the best interests of the child. For a discussion of the better law approach, see: R.A. Leflar, American Conflicts Law, 4th edn. (Charlottesville, Michie 1986) p. 279.

54. The finding of fact on which the exercise of jurisdiction is based, such as a finding that the child was habitually resident in the Contracting State in question must be accepted in the requested state: Art. 25. The position may be otherwise if the conclusion of habitual residence is not based on a factual finding, but on an ‘artificial’ application of the concept of habitual residence, such as a conclusion that the habitual residence of a kidnapped child cannot be changed.

55. See supra n. 26, para. 135.

56. See In re T (Minors) (International Child Abduction: Access) [1993] 3 All ER 127.

57. There is no definition of ‘competent authority’. Presumably such an authority is one which under the law of the state to which it belongs is competent to take the action envisaged.

58. An Australian example is seen in In the Marriage of Murray and Tam; Director of Family Services (ACT) Intervener, 16 Fam LR (1993) p. 982, where the children were returned to New Zealand despite serious allegations of violence made against the father.

59. Dyer, loc. cit. n. 4, at p. 118.