The Right Of Custody In The Hague Convention On Civil Aspects Of International Child Abduction

As one of the most successful Hague Convention on family law instruments, The Hague Convention on Civil Aspects of International Child Abduction seeks to combat parental child abduction by providing a system co-operation between Central Authorities and a rapid procedure for the return of the child to the country of the child’s habitual residence. In this Convention, item 5 contains the right of custody, which is an autonomous concept, but instead of an exact definition, the Convention defined the right of custody by giving examples. By this way, more cases are governed by the Convention, as a consequence, the return of the child is more rapid and their right of custody can be protected more effectively. However, because it covers the return of child, the disputes on the right of custody emerged since the Convention took effect.In this article, the building-block of the right of custody, where the right may arise and the cognition of right are analysed and some ideas are put forward. The right of custody contains two rights, which are the right to decide the residence of child and the right to take care of child. The source of the right of custody of the Convention is by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. The cognition of right of custody is regulated in Item 15 and it is restricted in issues on Convention, not on domestic law. As to issues about domestic law, the Requesting State can offer them with strict conditions and the Requested State should show enough respect to the verdict of courts of the Requesting State based on the comity and respect between States.Besides, this article explains the effect of the Convention on some countries and international relationship by selecting the representative states of Civil Law System and Common-Law System and elaborate correspond conventions and systems created by these conventions. At last, when it comes to China, I discuss the necessity and the practicability of the accession to the Convention of the mainland area of China.