The Hague 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 (HC 96; RS 0.211.231.011) aims to improve the protection of children in international situations by avoiding conflicts between the legal systems of the signatory states in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.
The objects of the Convention are (art. 1 HC 96):
- to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
- to determine which law is to be applied by such authorities in exercising their jurisdiction;
- to determine the law applicable to parental responsibility;
- to provide for the recognition and enforcement of such measures of protection in all Contracting States;
- 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.
When does it apply
The HC 96 applies, in international situations, to children from the moment of their birth until they reach the age of 18 years (art. 2 HC 96). The Convention only applies to measures taken in a State after the Convention has entered into force for that State (art. 53 HC 96).
The judicial of administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property (art. 5 HC 96). In case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction (art. 5 par. 2 HC 96).
The HC 96 also provides for several subsidiary fora as well as a mechanism for transferring jurisdiction.
The protection measures may deal in particular with (art. 3 HC 96):
- the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
- 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;
- guardianship, curatorship and analogous institutions;
- the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;
- the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
- the supervision by a public authority of the care of a child by any person having charge of the child;
- the administration, conservation or disposal of the child's property.
The HC 96 does not apply to (art. 4 HC 96):
- the establishment or contesting of a parent-child relationship
- decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;
- the name and forenames of the child;
- maintenance obligations;
- trusts or succession;
- social security;
- public measures of a general nature in matters of education or health;
- measures taken as a result of penal offences committed by children;
- decisions on the right of asylum and on immigration.
The list of Contracting States can be found on the website of the Hague Conference.
The Federal Supreme Court confirmed that the HC 96 applies to non-Contracting States as well. Only the provisions on the co-operation between authorities (Chapter V of the HC 96) apply solely between Contracting States.
When Swiss decisions or measures need to be recognized and enforced abroad, the private international law rules of the State where the measure has to be enforced apply. If a Swiss citizen is concerned, the Consular Directorate of the Federal Department of Foreign Affairs (FDFA) could, where appropriate, provide advice and assistance, as well as the Swiss Embassy of the concerned State. Foreign citizens may, however, contact their Consulate or Embassy in Switzerland.
Last modification 27.04.2011