145 / 536
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.