On the ratification of the Convention on the Civil Aspects of International Child Abduction

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The Law of the Republic of Kazakhstan dated November 13, 2012 No. 48-V

To ratify The Convention on the Civil Aspects of International Child Abduction, committed in The Hague on October 25, 1980, with the following reservation: "The Republic of Kazakhstan, in accordance with article 42 of the Convention, does not consider itself bound by the obligation to bear the costs of lawyers or advisers or court costs provided for in the second paragraph of article 26 of the Convention, except those that may be reimbursed by her legal aid and consultation system."

President of the Republic of Kazakhstan N. NAZARBAYEV

Convention on the Civil Aspects of International Child Abduction (Concluded on October 25, 1980)

The States Parties to this Convention, firmly convinced that the interests of children are the most important thing in caring for them, desiring to provide children with international protection from the harmful consequences of their illegal displacement or capture, and to establish procedures to ensure their immediate return to their State of permanent residence, as well as to ensure the protection of access rights., have decided to conclude this Convention for this purpose and have agreed as follows:

Chapter I Scope of the Convention

Article 1

The objectives of this Convention are: (a) Ensuring the immediate return of children illegally displaced to any of the Contracting States or held in any of the Contracting States; and (b) ensuring that custody and access rights provided for by the legislation of one Contracting State are effectively respected in the other Contracting States.

Article 2

The Contracting States will take all appropriate measures to ensure that the objectives of the Convention are achieved in their territories. To do this, they use the fastest procedures at their disposal.

Article 3

The transfer or capture of a child is considered illegal if: (a) The custody rights of the child belonging to any person, institution or other body, collective or individual, are violated in accordance with the legislation of the State in which the child permanently resided prior to his transfer or capture; and (b) at the time of transfer or capture, these rights were effectively exercised, collectively or individually, or they would have been carried out if it hadn't been for the transfer and capture. The guardianship rights referred to in paragraph (a) may arise, in particular, in accordance with any legal act, either by virtue of a decision of judicial or administrative authorities, or as a result of an agreement entailing legal consequences under the legislation of that State.

Article 4

The Convention applies to any child who has permanently resided in a Contracting State immediately prior to the commission of an act of violation of custody or access rights. The application of the Convention ceases when the child reaches the age of 16.

Article 5

For the purposes of this Convention: (a) "Guardianship rights" include rights related to the care of a person in relation to a child, and in particular, the right to determine the child's place of residence; (b) "Access rights" include the right to take a child for a limited time to a place other than his permanent residence.

Chapter II Central authorities

Article 6

A Contracting State shall establish a Central Authority to perform the functions assigned to such authorities by this Convention. Federal States, States with more than one legal system, or States that include autonomous entities have the right to establish several Central Bodies and determine the territorial limits of their powers. Where several Central Authorities have been established, the State appoints a Central Authority to which all applications and communications should be addressed for distribution to other Central Authorities in that State.

Article 7

The central authorities shall cooperate with each other and promote cooperation between the competent authorities of their States in order to ensure the immediate return of children and achieve other objectives of the Convention. In particular, directly or through any intermediary, they shall take all appropriate measures to: (a) Disclose all details about the child who has been unlawfully displaced or captured; (b) Prevent further harm to the child or harm to the persons concerned by taking interim measures; (c) Ensure the voluntary return of the child or the achievement of an amicable solution to problems; (d) Exchange information, where desirable, on the child's social situation; (e) Provide general information, for example, on the legislation of their States and areas governed by the Convention; (f) Initiate judicial or administrative procedures or facilitate such procedures in order to achieve to return the child and, if necessary, to organize the effective exercise of the right of access; (g) To provide or arrange, as circumstances require, legal assistance and advice, including the participation of lawyers and legal advisers; (h) To provide such organizational assistance as may be necessary to ensure the safe return of the child; (i) To exchange information on the operation of this Convention and, to the extent possible, to remove obstacles to its application.

Chapter III The return of children

Article 8

Any person, institution or other authority claiming that a child has been abducted or seized in violation of guardianship rights may apply either to the Central Authority of the child's Permanent Residence or to the Central Authority of any other Contracting State for assistance in returning the child. The application must contain: (a) information about the identity of the applicant, the identity of the child and the identity of the person suspected of moving or capturing the child; (b) if possible, the date of birth of the child.; (c) The grounds on which the applicant's claim for the return of the child is based; (d) All available information about the child and the identity of the person with whom the child is allegedly located. The application may be supplemented with the following: (e) An authentic copy of any relevant decision or agreement; (f) A certificate or certificate issued by a Central authority or other competent authority of the child's State of permanent residence or by an informed person on the relevant legislation of that State; g) any other relevant document.

Article 9

If the Central Authority which has received the application provided for in Article 8 has reason to believe that the child is in another Contracting State, it shall, without delay, transmit the application directly to the Central Authority of that Contracting State and inform the requesting Central Authority or the applicant.

Article 10

The central authority of the State where the child is located takes all appropriate measures for the voluntary return of the child.

Article 11

The judicial and administrative authorities of the Contracting States shall carry out all procedures for the return of children without delay. If the relevant judicial or administrative authorities have not reached any decision within six months of the start of the proceedings, the applicant or the Central Authority of the requested State, on their own initiative or at the request of the Central Authority of the requesting State, have the right to request an explanation of the reasons for the delay. If the response is received by the Central Authority of the requested State, this authority transmits the response to the Central Authority of the requesting State or to the applicant.

Article 12

If the child has been displaced or captured as provided for in Article 3 and less than one year has passed since the date of the illegal transfer or capture by the beginning of the proceedings in the judicial or administrative authorities of the Contracting State where the child is located, the relevant authorities shall order the immediate return of the child. Judicial and administrative authorities, even in cases where procedures are initiated after the expiration of the one-year period referred to in the previous paragraph, also order the return of the child, unless there is evidence that the child has already fully settled into his new environment. If the judicial or administrative authorities in the requested State have reason to believe that the child has been removed to another State, they can stop the procedures or refuse to accept the application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding article, the judicial or administrative authorities of the requested State are not required to order the return of the child if the person, institution or other body proves that: a) the person, institution or other body taking care of the child did not actually exercise the right of guardianship at the time of the transfer or capture, or agreed to the transfer or capture, or subsequently tacitly acknowledged the transfer or capture; (b) There is a serious risk that his or her return will put the child at risk of physical or psychological harm or otherwise create an intolerable environment for the child. Judicial or administrative authorities may also refuse to order the return of a child if they find that the child objects to the return and has reached an age and level of maturity at which his opinion cannot be ignored. When considering the circumstances described in this article, judicial and administrative authorities take into account information about the child's social background provided by the Central Authority of the child's country of permanent residence.

Article 14

In determining whether an illegal transfer or seizure within the meaning of article 3 has actually taken place, the judicial or administrative authorities of the requested State may directly take into account the law and judicial and administrative decisions that have received and have not received formal recognition in the State of permanent residence of the child, without resorting to special procedures for proving this right or recognizing decisions of foreign authorities.

Article 15

The judicial or administrative authorities of a Contracting State may, before ordering the return of a child, request the applicant to obtain from the authorities of the child's State of permanent residence a decision or other document defining the transfer or seizure as an unlawful act within the meaning of article 3 of the Convention, if such a decision or definition can be obtained in that State. The central authorities of the Contracting States shall assist the applicant in obtaining such a document.

Article 16

After receiving news of the illegal transfer or seizure of a child within the meaning of Article 3, the judicial or administrative authorities of the Contracting State to whose territory the child was transferred or in whose territory he or she is being held will not decide on the merits of the custody issue until it is determined that the child should not be returned. in accordance with this Convention, or until the application is filed within a reasonable period of time after receiving the notification.

Article 17

The mere fact of making a decision on guardianship or the need for recognition of this decision in the requested State does not constitute grounds for refusing to return the child in accordance with this Convention, but the judicial or administrative authorities of the requested State may take into account the reasoning of this decision in the process of applying the Convention.

Article 18

The provisions of this chapter do not limit the powers of judicial or administrative authorities to order the return of a child at any time.

Article 19

No decision taken in accordance with this Convention on the return of a child should be interpreted as a determination on the merits of the case when deciding on guardianship.

Article 20

The return of a child within the meaning of article 12 may be refused if it is not permitted by the basic principles of the requested State relating to the protection of human rights and fundamental freedoms.

Chapter IV Access rights

Article 21

An application with a request to organize or ensure the effective exercise of access rights may be submitted to the Central Authorities of the Contracting States in the same manner as an application for the return of a child. The central authorities are obliged, through the provisions on cooperation set out in article 7, to promote the peaceful exercise of access rights and the fulfillment of any conditions for the exercise of these rights. The central authorities shall take steps, as far as possible, to remove all obstacles to the exercise of such rights. The central authorities, directly or through intermediaries, may initiate or facilitate the initiation of procedures for the purpose of organizing the exercise or protection of these rights and ensuring conditions for their observance.

Chapter V General provisions

Article 22

No insurance, securities or deposits are required to cover the costs of judicial or administrative procedures provided for in this Convention.

Article 23

No legalization or similar formalities are required to comply with the provisions of this Convention.

Article 24

Any statement, communication or other document shall be sent by the Central Authority of the requested State in the original language and accompanied by a translation into the official language or one of the official languages of the requested State, or if this is not possible, a translation into English or French. However, a Contracting State may, by making a reservation in accordance with article 42, object to the use of either English or French, but not both, in declarations, communications or other documents sent to the Central Authority.

Article 25

Nationals of the Contracting States and persons permanently residing in those States have the right to receive legal assistance and advice in matters related to the implementation of this Convention in any other Contracting State under the same conditions as if they themselves were citizens of those States or permanently residing in their territory.

Article 26

Each Central Authority shall bear its own costs for the application of this Convention. The central authorities and other public services of the Contracting States shall not require payment of any fees in connection with the declarations provided for in this Convention. In particular, they cannot demand any payments from the applicant for reimbursement of the costs of the procedures, or those that arise from the participation of lawyers or advisers. However, they may claim reimbursement for the return of the child. Nevertheless, a Contracting State may, by making a reservation in accordance with article 42, declare that it does not consider itself obligated to bear the costs provided for in the preceding paragraph for the services of lawyers or advisers or legal costs other than those that can be reimbursed by its legal aid and advice system. By ordering the return of a child or an order related to the exercise of access rights under this Convention, judicial or administrative authorities may impose on the person responsible for the transfer or seizure of the child, or the person obstructing the exercise of access rights, the necessary costs on behalf of the applicant, including travel or the costs of locating the child, and also for the actions of lawyers on behalf of the applicant, and the costs of returning the child.

Article 27

If it is clear that the requirements of this Convention have not been fulfilled, or that the application is otherwise insufficiently substantiated, the Central Authority is not obliged to accept the application. In this case, the Central Authority shall immediately inform the applicant or the Central Authority through which the application was submitted of its arguments.

Article 28

The central authority may request that the application be accompanied by a written power of attorney to act on behalf of the applicant or appoint a representative.

Article 29

This Convention does not prevent any person, institution or authority alleging a violation of custody or access rights within the meaning of articles 3 or 21 from directly appealing to the judicial or administrative authorities of any Contracting State, regardless of what is provided for in this Convention.

Article 30

Any application submitted to a Central Authority or directly to judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents or other information attached thereto or issued by the Central Authority, shall be accepted by the courts or administrative authorities of the Contracting States.

Article 31

As for a State in which two or more legal systems operate in different territorial units in matters of custody of children, then: (a) permanent residence is understood as permanent residence in one of the territorial units of that State; (b) the legislation of the State of residence is understood as the legislation of the territorial unit where the child resides permanently.

Article 32

As for a State in which two or more legal systems apply to different categories of persons in matters of custody of children, the law of that State is understood as a legal system defined by the law of that State.

Article 33

A State in which different territorial units have their own legal rules regarding custody of children is not obliged to apply this Convention in cases where a State with a unified legal system is not obliged to do so.

Article 34

This Convention takes precedence over the Convention of October 5, 1961 on the Powers of the Authorities and the Law Applicable to the Protection of Young Persons for the parties to both Conventions with regard to the matters governed by it. In other cases, this Convention does not limit the application of any international treaty in force between the State of origin and the requested State, or over another law of the requested State, for the purpose of returning a child who has been unlawfully displaced or detained, or organizing access rights.

Article 35

This Convention will enter into force between the Contracting States in respect of acts of illegal transfer or seizure that take place only after entry into force for those States. If a declaration is made under article 39 or 40, the reference to a Contracting State in the preceding paragraph shall be interpreted as referring to the territorial unit or units in respect of which this Convention applies.

Article 36

Nothing in this Convention shall prevent two or more Contracting States, in order to narrow the restrictions that may be imposed on the return of a child, from concluding an agreement that avoids complying with any provision of this Convention imposing such a restriction.

Chapter VI Final provisions

Article 37

The Convention will be open for signature by the States that are former members of the Hague Conference on Private International Law during its Fourteenth session. It will be ratified, accepted or approved, and the instruments of ratification, acceptance or approval will be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 38

Any other State may accede to the Convention. The document of accession is deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The Convention enters into force for the acceding State on the first day of the third calendar month after the deposit of the instrument of accession. The accession is valid only in the relations between the acceding State and those States that declare their recognition of this accession. Such a declaration will also be required from any State Party ratifying, approving or accepting the Convention after such accession. Such a declaration must be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry will provide a certified copy of the Convention to each Contracting State through diplomatic channels. The Convention will enter into force between the acceding State and the State that has declared its recognition of the accession on the first day of the third calendar month after the deposit of the declaration of recognition.

Article 39

Any State has the right, at the time of signature, ratification, acceptance, approval or accession, to declare that the Convention applies to all territories for whose international relations it is responsible, or to one or more such territories. Such a declaration will become valid upon the entry into force of the Convention for that State. Such a declaration, as well as any subsequent extension of the Convention, must be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 40

If a Contracting State consists of two or more territorial units in which the rules of different legal systems apply to matters governed by this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention will apply in all of these territorial units or only in one or more of them, and may change his statement by submitting another statement at any time. Any such declaration must be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands, and it must explicitly identify the Territories in which the Convention applies.

Article 41

If, in the system of government of a Contracting State, executive, judicial and legislative powers are distributed between the central and other organs within that State, its signature or ratification, acceptance or approval, or accession to the Convention, or its declaration within the meaning of article 40, shall not entail any consequences for the distribution of powers within that State.

Article 42

Any State may, no later than at the time of ratification, acceptance, approval or accession, or at the time of declaration within the meaning of article 39 or 40, make one or both of the reservations provided for in article 24 and the third paragraph of article 26. No other reservations are permitted. Any State may withdraw its reservation at any time. The withdrawal must be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The reservation ceases to be valid on the first day of the third calendar month after the notification specified in the previous paragraph.

Article 43

The Convention enters into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in articles 37 and 38. After that, the Convention enters into force.: 1. for each State ratifying, accepting, approving or acceding to the Convention, on the first day of the third calendar month after the deposit of the instrument of ratification, acceptance, approval or accession; 2. for any territory or territorial unit to which the Convention applies in accordance with articles 39 or 40, on the first day of the third calendar month after the communications referred to in these articles.

Article 44

The Convention remains in force for five years after the date of entry into force in accordance with the first paragraph of article 43, including for States that have subsequently ratified, accepted, approved or acceded to the Convention. If there have been no denunciations, the Convention is automatically renewed every five years. Any denunciation must be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiration of the next five-year period. Denunciation may be limited to individual territories or territorial units to which the Convention applies. The denunciation is effective only in respect of the State that has notified it. The Convention remains in force for the other Contracting States.

Article 45

The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the participating States of the Conference and the States that have acceded in accordance with article 38 of the following: 1. Signatures and ratifications, acceptances and approvals under Article 37; 2. Accessions under Article 38; 3. Date of entry into force of the Convention in accordance with article 43; 4. Extension of the Convention within the meaning of article 39; 5. on the declarations provided for in articles 38 and 40; 6. reservations provided for in article 24 and the third paragraph of article 26, as well as withdrawals within the meaning of article 42; 7. denunciations provided for in article 44. In witness whereof, the undersigned, being duly authorized, have signed this Convention. Done at The Hague, on the 25th day of October, 1980, in English and French, both texts being equally authentic, in a single copy, which will be deposited in the archives of the Government of the Kingdom of the Netherlands, and one certified copy will be sent through diplomatic channels to each of the member States of the Hague Conference on Private International Law during its The fourteenth session.

I hereby certify that this text is a certified copy of the Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on October 25, 1980.

Acting Chief of Staff of the Department of the Ministry of Internal Affairs of the Republic of Kazakhstan D. Halykov

I hereby certify that this text is a certified copy of the certified copy of the Convention on the Civil Aspects of International Child Abduction, committed in The Hague on October 25, 1980.

Head of the International Law Department of the Ministry of Foreign Affairs of the Republic of Kazakhstan D.Yessentaev

RCPI's note! The following is the text of the Convention in English and French.

President

Republic of Kazakhstan

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