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131

CYIL 7 ȍ2016Ȏ

THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE

or administrative authorities a right to take measures directed to the protection of

the child’s person or property. The Convention repeats the introductory provision of

the previous 1961 Convention prepared in the Hague Conference.

115

The provision of the Convention emanates from upholding an insistent idea

that the decision on the protection of a child shall vest with the court of his habitual

residence.

116

The proximity principle corresponds to the best interests of the child

principle.

117

The constituent ‘best interests’ is linguistically superlative even if the

interests of the child are only a primary consideration when deciding on a child.

The best interests thus represent the overriding status and a process which reflects

the needs of the child.

During preparation a thorough debate took place touching on the issue of

necessity or appropriateness of insertion of an explanatory rule, which objective

should have been the determination of the content of the concept. Such a rule could

have encompassed either a descriptive or explicative definition. One definition was

prepared by the

International Union of Latin Notaries

; however it interfered with

the Hague Conference tradition, so it gained no support.

118

Any other definition of

habitual residence was not inserted into the Convention. Besides this, the Special

Commission examined questions on interim absence of a child in his habitual

residence and its changes. Both situations involving cross-border element – loss of

previous habitual residence and acquisition of a new one – were observed as a matter

of fact. As a result, the concept of habitual residence retains its factual character, as

it used to be in the previous Hague Convention of 1961.

119

enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing

Regulation (EC) 1347/2000 and amending Regulation (EC) 44/2001 in matters relating to maintance

[COM(2002) 222 final/2].

115

See Article 5 (1) of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law,

Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the

Protection of Children (‚the Child Protection Convention‘) sa follows: “The judicial or administrative

authorities of the State of the habitual residence of an infant have power, subject to the provisions of

Articles 3 and 4, and paragraph 3 of Article 5 of the present Convention, to take measures directed to

the protection of his person or property.”

116

See Article 1 of the Hague Convention of 5 October 1961 concerning Powers of Authorities and

the Law Applicable in respect of the Protection of Minors as follows: “The judicial or administrative

authorities of the State of the habitual residence of an infant have power, subject to the provisions of

Articles 3 and 4, and paragraph 3 of Article 5 of the present Convention, to take measures directed to

the protection of his person or property.”

117

See Committee on the Rights of the Child. General Comment No. 14 (2013) on the right of the

child to have his or her best interest taken as a primary consideration (Art. 3, paragraph 1), UN

Doc. CRC/C/GC14, 29 May 2013.

118

LAGARDE, Paul. Explanatory Report on the 1996 Hague Child Protection Convention. Proceedings

of the Eighteenth Session, 1998, Tome II, Protection of Child, p. 553.

119

Ibid.