Article 11: Illicit transfer and non-return of children

Overview of Article 11

Article 11 requires measures to prevent and remedy wrongful international child removal. Article 11 places obligations on States Parties to: (1) provide mechanisms to protect children from being wrongfully and/or illegally taken from their home country; and (2) provide mechanisms to prevent children from being held outside their home country in breach of custodial rights. Ratifying States have a duty to take measures to protect against abduction, and to recover and return children who have been abducted. Implementation of Article 11 therefore requires States Parties to institute effective measures that are restorative and rehabilitative including: police and legal assistance; targeted border security practices and protocols; assuring the necessary care and protection of the child with a view to planned reunification; ongoing training of officials; financial and diplomatic support for the return of the child; and international cooperation mechanisms. Subsection 2 of Article 11 specifically requires that States Parties have an absolute obligation to promote the conclusion of international agreements to combat illicit transfer and non-return. States Parties must therefore seek to create and join binding legal instruments that promote international cooperation to counter child abduction. These include regional instruments such as the Inter-American Convention on the International Return of Children. The principal international instrument in relation to Article 11 implementation is the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) [1]. The Committee on the Rights of the Child has recommended ratification of this “key international human rights instrument” as a general measure of implementation of the UNCRC [2]. The Hague Abduction Convention establishes a process whereby children may return to their home country; this process is facilitated by the mandatory establishment of “Central Authorities” in Contracting States.

Core attributes of Article 11

The core attributes of Article 11 are:

• Measures to combat the illicit transfer and non-return of children abroad
• Measures to promote the conclusion of bilateral or multilateral agreements or accession to existing agreements

Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.

What did children say?

These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:

Relevant provisions within the SDGs

1. Goal 10: Reduce inequality within and among countries
   • Target 10.7 Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well managed migration policies

Potential sources of data for users of the indicators sets

• Academia
• Government Ministries
• Hague Conference on Private International Law
• National legislation and regulations
• Primary research by national human rights institutions for children
• Primary research by universities and NGOs
• States Party Central Authority pursuant to the Hague Abduction Convention

References used for the overview

1. Hague Conference on Private International Law. (1980). Hague Convention on the Civil Aspects of International Child Abduction. Retrieved from https://www.hcch.net/en/instruments/conventions/full-text/?cid=24
2. United Nations Committee on the Rights of the Child. (2003). General comment No. 5 (2003) on the general measures of implementation of the Convention on the Rights of the Child (CRC/C/GC/2003/5), (para. 12). Retrieved from https://www.refworld.org/docid/4538834f11.html

References used to create indicators

• Detrick, S., Doek, J.E. & Cantwell, N. (1992). The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires.” Dordrecht, The Netherlands: Martinus Nijhoff Publishers.
• Detrick, S. (1999). A Commentary on the United Nations Convention on the Rights of the Child (1st ed.). The Hague, The Netherlands: Martinus Nijhoff Publishers.
• Fundamental Rights Agency, European Union Agency For Fundamental Rights. (2010). Developing indicators for the protection, respect and promotion of the rights of the child in the European Union (Conference Edition). Retrieved from https://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-european-union
• Government of Canada. (2015). Alert: Challenges and International Mechanisms to Address Cross-Border Child Abduction. Report of the Standing Senate Committee on Human Rights. Canada. Retrieved from https://sencanada.ca/content/sen/committee/412/ridr/rep/rep13jul15-e.pdf
• Hague Conference on Private International Law. (1980). Hague Convention on the Civil Aspects of International Child Abduction. Retrieved from https://www.hcch.net/en/instruments/conventions/full-text/?cid=24
• Hague Conference on Private International Law. (1980). A statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Retrieved from https://www.hcch.net/en/publications-and-studies/details4/?pid=6598&dtid=32
• Lippman, L.H., Moore, K.A. & McIntosh, H. (2009). Positive indicators of child well-being: a conceptual framework, measures and methodological issues. Florence, Italy: Innocenti Research Centre. Retrieved from https://www.unicef-irc.org/publications/pdf/iwp_2009_21.pdf
• Lowe, N.V. & Stephens, V. (2012). Global Trends in the Operation of the 1980 Hague Abduction Convention. Family Law Quarterly, 46(1), 41–85.
• Pais, M.S. (1997). The Convention on the Rights of the Child. In Office of the High Commissioner for Human Rights, United Nations Institute for Training and Research, International Labour Organization, and United Nations Staff College Project Turin Centre, Manual on Human Rights Reporting (p. 426). Geneva, Switzerland: United Nations Publication.
• United Nations Office of the High Commissioner for Human Rights (OHCHR). (2007). Legislative History of the Convention on the Rights of the Child. (Vol. 1). New York, United States of America and Geneva, Switzerland: United Nations. Retrieved from https://resourcecentre.savethechildren.net/node/8015/pdf/legislativehistorycrc1en_1.pdf
• United Nations Office of the High Commissioner for Human Rights. (n.d.). Human Rights indicators, tools for measuring progress. Retrieved from https://www.ohchr.org/en/issues/indicators/pages/hrindicatorsindex.aspx
• United Nations Office of High Commissioner for Human Rights (OHCHR) (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
• United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed.). Geneva, Switzerland: UNICEF.
• U.S. Department of State Bureau of Consular Affairs. (2016). Annual Report on International Parental Child Abduction (IPCA). United States of America. Retrieved from https://travel.state.gov/content/dam/childabduction/complianceReports/2016%20IPCA%20Report%20-%20Final%20(July%2011).pdf
• Weiner, M. H. (2002). Navigating the road between uniformity and progress: The need for purposive analysis of the Hague Convention on the Civil Aspects on International Child Abduction. Columbia Human Rights Law Review, 33(2), 275-362
• Wilson, J. (1994). Hague Convention on the Civil Aspects of International Child Abduction. In J. Wilson et al., (Eds), Wilson on Children and the Law. Canada: LexisNexis Canada.
• Ziemele, I. (2007). Article 7: The right to birth registration, name and nationality, and the right to know and be cared for by parents. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child. Leiden, The Netherlands: Martinus Nijhoff Publishers.

Glossary/key words

Access application
Access is not defined comprehensively in the Hague Abduction Convention other than a definition that provides a minimum rights, in Article 5(b): “ ‘Right of access’ (often equivalent to ‘visitation rights’) shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence” (Hague Abduction Convention, 1980). Generally speaking, a person with only access rights cannot maintain a petition for the return of a child. Only parents with rights of custody to the child may petition for the return of an abducted child (though even this is often blurred in SPs legislation).

Contracting State
A contracting State is a State that has expressed its consent to be bound by a treaty where the treaty has not yet entered into force or where it has not entered into force for that State. See article 2 (1) (f) of the Vienna Convention 1969. (UN, 2012).

Illicit transfer and non-return
The illicit transfer and non-return of children abroad refers to the situation of the abduction of children across frontiers by one of their parents. States Parties are required to take measures to combat the illicit transfer and non-return of children abroad, including the conclusion of bilateral or multilateral treaties or accession to existing treaties (UNICEF Innocenti Research Centre, 2000).

Article 11 Indicator Tables

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