Proposal for a COUNCIL DECISION authorising certain Member States to accept, in the interest of the European Union, the accession of Kazakhstan to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Date: 2016-06-07
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, Kazakhstan, accession to an agreement, child, child protection, custody, illegal restraint, international convention, parental responsibility, rights of access

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   EUROPEAN COMMISSION  Brussels, 7.6.2016  COM(2016) 368 final 2016/0169 (NLE)   Proposal for a COUNCIL DECISION authorising certain Member States to accept, in the interest of the European Union, the accession of Kazakhstan to the 1980 Hague Convention on the Civil Aspects of International Child Abduction   
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The aim of the Hague Convention of 25 October 1980 on the Civil Aspects of International 
Child  Abduction  (hereafter:  "the  1980  Convention"),  to  date  ratified  by  93  countries, 
including all EU Member States, is to restore the status quo by means of the prompt return of 
wrongfully  removed  or  retained  children  through  a  system  of  cooperation  among  central 
authorities appointed by its Contracting Parties. 

As  the  prevention  of  child  abduction  is  an  essential  part  of  the  EU's  policy  to  promote  the 
rights  of  the  child,  the  European  Union  is  active  at  international  level  to  improve  the 
application of the 1980 Convention and encourages third States to accede to it.  

Kazakhstan deposited the accession instrument to the 1980 Convention on 3 June 2013. The 
Convention entered into force in Kazakhstan on 1 September 2013. 

Article  38(4)  of  the  1980  Convention  stipulates  that  the  Convention  applies  between  the 
acceding  country  and  such  Contracting  States  as  will  have  declared  their  acceptance  of  the 
accession.  

As the matter of international child abduction falls into the exclusive external competence of 
the  European  Union,  the  decision  whether  to  accept  the  accession  of  Kazakhstan  has  to  be 
taken  at  EU  level  by  means  of  a  Council  Decision.  Member  States  should  thus  make  the 
declaration  of  acceptance  concerning  the  accession  of  Kazakhstan  in  the  interest  of  the 
European Union. 

The  existence  of  the  EU  exclusive  competence  in  the  matter  of  the  acceptance  of  the 
accession of a third State to the 1980 Convention was confirmed by the Court of Justice of the 
European Union, which was consulted at the Commission's initiative.  

On 14 October 2014, Opinion 1/13 of the Court of Justice of the European Union confirmed 
that  the  exclusive  competence  of  the  European  Union  encompasses  the  acceptance  of  the 
accession of a third state to the 1980 Hague Convention on the Civil Aspects of International 
Child Abduction.  

The Court insisted on the need for uniformity on the matter at EU level, avoiding a géométrie 
variable  among  Member  States.  The  objective  of  this  decision  is  to  make  the  1980 
Convention enter into force between Kazakhstan and all EU Member States. 

• 

Consistency with existing policy provisions in the policy area 

As  far  as  parental  child  abduction  is  concerned,  the  1980  Hague  Convention  is  the 
international  counterpart  of  Council  Regulation  No  2201/2003  (known  as  the  Brussels  IIa 
Regulation) which is the cornerstone of EU judicial cooperation in matrimonial  matters and 
matters of parental responsibility1.  

One  of  the  main  objectives  of  the  Regulation  is  to  deter  child  abduction  between  Member 
States by establishing procedures to ensure the child's prompt return to the Member State of 

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OJ L 338, 23.12.2003, p.31. 

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his/her habitual residence. To this end, the Brussels IIa Regulation incorporates in its Article 
11 the procedure laid down in the 1980 Hague Convention and complements it by clarifying 
some of its aspects, in particular with respect to the hearing of the child, the time period to 
render  a  decision  after  an  application  for  return  has  been  lodged  and  the  grounds  for  not 
returning the child. It also introduces provisions governing conflicting return and non-return 
orders issued in different Member States. 

At  the  international  level,  the  European  Union  supports  the  accession  of  third  States  to  the 
1980 Convention in order for its Member States to rely upon a common legal framework to 
deal with international child abductions.  

On 21 December 2011, the Commission adopted 8 proposals for Council Decisions in order to 
accept  the  accession  to  the  1980  Hague  Convention  on  International  Child  Abduction  of  8 
third  countries  (Morocco,  Singapore,  the  Russian  Federation,  Albania,  Andorra,  the 
Seychelles, Gabon and Armenia)2. 

Between  June  and  December  2015,  7  Decisions,  based  on  the  above-mentioned  proposals, 
have been adopted by the Council of the European Union3. 

The present proposal takes into consideration a third country (Kazakhstan) which has acceded 
to the 1980 Convention after the adoption of the 2011 proposals. 

• 

Consistency with other Union policies 

Beside the general objective of developing judicial cooperation in civil matters having cross-
border  implications  under  Article  81  TFEU,  the  present  proposal  is  linked  to  the  objective 
enshrined in Article 3 of the Treaty on the European Union to protect the rights of the child. 
The 1980 Hague Convention system is designed to protect the child from the harmful effects 
of a parental abduction and ensure that the child is able to maintain contact with both parents, 
for instance by securing the effective exercise of access rights. 

The proposal is also consistent with the promotion of the use of mediation in the settlement of 
cross-border  family  disputes.  The  Directive  on  certain  aspects  of  mediation  in  civil  and 
commercial  matters4  applies,  among  other  matters,  to  family  law  within  the  common 
European judicial area. The 1980 Hague Convention also encourages the amicable resolution 
of  family  disputes.  One  of  the  Guides  to  Good  Practice  under  the  1980  Hague  Convention 
published  by  the  Hague  Conference  on  Private  International  Law  is  devoted  to  the  use  of 
mediation  for  the  resolution  of  international  family  disputes  concerning  children  which  fall 
within the scope of the Convention. At the initiative of the European Commission, this Guide 
has been translated in all EU languages other than English and French and also in Arabic to 
support the dialogue with States which have not yet ratified the Convention and help finding 

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COM (2011) 904, 908, 909, 911, 912, 915, 916, 917 adopted on 21/12/2011  
COUNCIL  DECISION  (EU)  2015/1023  of  15.6.2015;  COUNCIL  DECISION  (EU)  2015/1024  of  15 
June  2015;  COUNCIL  DECISION  (EU)  2015/2354  of  10  December  2015;  COUNCIL  DECISION 
(EU) 2015/2355 of 10 December 2015; COUNCIL DECISION (EU) 2015/2356 of 10 December 2015;  
COUNCIL DECISION (EU) 2015/2357 of 10 December 2015; COUNCIL DECISION (EU) 2015/2358 
of  10  December  2015.  The  decision  concerning  Gabon  is  temporarily  put  on  hold  pending  the 
appointment by Gabon of the Central Authority to be designated under Article 6 of the Convention. 
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects 
of mediation in civil and commercial matters (OJ L 136 of 24 May 2008 ,p. 3). 

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concrete  ways  to  tackle  the  problems  posed  by  international  child  abduction  with  non-
ratification countries5. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Given the fact that the decision regards an international agreement, the applicable legal basis 
is Article 218 of the Treaty on the Functioning of the European Union together with Article 
81(3). The Council shall act unanimously after consulting the European Parliament. 

The  United  Kingdom  and  Ireland  are  bound  by  Regulation  (EC)  No  2201/2003  and  are 
therefore taking part in the adoption and application of this Decision. 

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to 
the Treaty on European Union and to the Treaty on the Functioning of the European Union, 
Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to 
its application. 

• 

Subsidiarity  

The initiative falls under the exclusive competence of the EU according to Article 3 (2) of the 
TFEU  as  confirmed  by  Opinion  1/13  of  the  Court  of  Justice  of  the  European  Union. 
Therefore, the subsidiarity principle does not apply. 

• 

Proportionality 

The present proposal is drafted along the lines of the already adopted Council Decisions on 
the same subject matter and does not go beyond what is necessary to achieve the objective of 
a  coherent  EU  action  in  the  matter  of  international  child  abduction  by  ensuring  that  all  EU 
Member  States  accept  the  accession  of  Kazakhstan  to  the  1980  Hague  Convention  within  a 
given time frame. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

In order for the EU to take an informed decision on whether to accept or not the accession of a 
given  third  country  to  the  1980  Convention,  it  is  necessary  to  carry  out  appropriate 
preparatory work. 

During  an  expert  meeting  of  20  January  2015,  the  Commission  and  the  EU  Member  States 
agreed on a set of benchmarks to assess the situation of the third country which acceded to the 
Convention. The consultation carried out with the Member States and the discussions held at 
an expert meeting of 15 January 2016 showed that -at this stage- there are no objections from 
the Member States to the acceptance of the accession of Kazakhstan to the 1980 Convention. 

• 

Collection and use of expertise 

The  relevant  information  concerning  the  level  of  implementation  of  the  Convention  in 
Kazakhstan  has  been  collected  through  several  sources.  In  the  first  place,  information  was 

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gathered by the EU Delegation in Kazakhstan, having regard, in particular, to the enacting of 
implementing legislation, the functioning of the Central Authority, the enforcement procedure 
in child abduction cases, and the possibility for foreigners to accede to legal aid. The results 
of the inquiry was satisfactory and, even if there are some concerns concerning the difficulties 
of locating a child in such a vast territory, these are not such as to prevent the acceptance of 
the accession of the Kazakhstan. 

Also  Member  States  gathered  information  on  the  situation  in  Kazakhstan  and  the  outcome 
was discussed at the expert meeting of 15 January 2016. 

Further information  came  from  the  Permanent  Bureau  of  The  Hague  Conference  on  Private 
International Law. Kazakhstan has been working closely with Unicef on the implementation 
of  the  1980  Convention.  Guidelines  on  the  implementation  of  the  Convention  have  been 
developed.  Under  the  auspices  of  Unicef,  an  exchange  of  knowledge  between  the  Kazakh 
authorities/judges  and  judges  from  other  Contracting  States  to  the  1980  Convention  was 
planned in order to discuss the role that judges play in implementing and applying the 1980 
Convention and relevant provisions of national law. Furthermore, Kazakhstan has designated 
a judge to the International Hague Network of Judges. In October 2015, the Secretary General 
of  The  Hague  Conference  on  Private  International  Law  met  with  the  Central  Authority  and 
was informed that the country profile is in preparation and that implementing legislation was 
in place. In November 2015, a three-day regional seminar was organised in Kazakhstan with 
the participation of Tajikistan, Turkmenistan, Russia and Belarus promoting the core Hague 
Conventions,  including  the  1980  Convention.  In  the  views  of  the  Permanent  Bureau  of  The 
Hague  Conference  on  Private  International  Law,  Kazakhstan  is  a  motivated  State  working 
hard with a view to implement properly the 1980 Convention. 

 • 

Impact assessment 

The present proposal does not have any significant economic, social or environmental impact 
which  would  require  an  impact  assessment  within  the  scope  of  the  European  Commission's 
Better  Regulation  Guidelines.  Similar  to  the  7  Council  Decisions  already  adopted  in  2015 
concerning  the  acceptance  of  the  accession  of  certain  third  States  to  the  1980  Hague 
Convention,  no  impact  assessment  for  this  proposal  is  needed  given  the  nature  of  this 
legislative act. Indeed, there are not any other options than a Council Decision to accept the 
accession of a third State to the 1980 Convention. 

However, a specific assessment of the situation of Kazakhstan, in order to verify whether it is 
capable to implement the 1980 Convention in a satisfactory way was carried out together by 
the Commission and the Member States along the lines described above. 

4. 

BUDGETARY IMPLICATIONS 

The proposed decision has no budgetary implications. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

As the proposal concerns only the authorization to the Member States to accept the accession 
of Kazakhstan to the 1980 Convention, the monitoring of its implementation is limited to the 
respect by the Member States of the wording of the declaration and the timeframe to deposit it 
and communicate its deposit to the Commission as established in the Council Decision.  

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2016/0169 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising certain Member States to accept, in the interest of the European Union, the 
accession of Kazakhstan to the 1980 Hague Convention on the Civil Aspects of 
International Child Abduction 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 81(3) in conjunction with Article 218 thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the opinion of the European Parliament6,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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The European Union has set as one of its aims the promotion of the protection of the 
rights of the child, as stated in Article 3 of the Treaty on European Union. Measures 
for  the  protection  of  children  against  wrongful  removal  or  retention  are  an  essential 
part of that policy. 
The  Union  has  adopted  Council  Regulation  (EC)  No  2201/20037  ('Brussels  IIa 
Regulation'), which aims to protect children from the harmful effects of their wrongful 
removal or  retention and to  establish procedures to  ensure their  prompt  return to  the 
State of their habitual residence, as well as to secure the protection of rights of access 
and rights of custody. 

Regulation (EC) No 2201/2003 complements and reinforces the Hague Convention of 
25  October  1980  on  the  Civil  Aspects  of  International  Child  Abduction  ('the  1980 
Hague  Convention')  which  establishes,  at  international  level,  a  system  of  obligations 
and cooperation among contracting States and between central authorities and aims to 
ensure the prompt return of wrongfully removed or retained children.  

All Member States of the Union are party to the 1980 Hague Convention. 

The  Union  encourages  third  States  to  accede  to  the  1980  Hague  Convention  and 
supports  the  correct  implementation  of  the  1980  Hague  Convention  by participating, 
along  with  the  Member  States,  inter  alia,  in  the  special  commissions  organised  on  a 
regular basis by the Hague Conference on private international law. 

A common legal framework applicable between Member States of the Union and third 
States may be considered to offer the best solution to sensitive cases of international 
child abduction. 

OJ C , , p. . 
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the 
recognition and enforcement of judgments in matrimonial matters and the matters of parental 
responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p. 1). 

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(7) 

(8) 

(9) 

The 1980 Hague Convention stipulates that it applies between the acceding State and 
such contracting States as have declared their acceptance of the accession. 

The  1980  Hague  Convention  does  not  allow  regional  economic  integration 
organisations  such  as  the  Union  to  become  party  to  it.  Therefore,  the  Union  cannot 
accede  to  that  Convention,  nor  can  it  deposit  a  declaration  of  acceptance  of  an 
acceding State. 

Pursuant to Opinion 1/13 of the Court of Justice of the European Union declarations of 
acceptance  under  the  1980  Hague  Convention  falls  within  the  exclusive  external 
competence of the Union. 

(10)  Kazakhstan deposited its instrument of accession to the 1980 Hague Convention on 3 

June 2013. That Convention entered into force for Kazakhstan on 1 September 2013. 

(11)  Only  the  Kingdom  of  the  Netherlands  has  already  accepted  the  accession  of 
Kazakhstan  to  the  1980  Hague  Convention.  An  assessment  of  the  situation  in 
Kazakhstan  has  led  to  the  conclusion  that  those  Member  States  that  have  not  yet 
accepted the accession of Kazakhstan are in a position to accept, in the interest of the 
Union, the accession of Kazakhstan under the terms of the 1980 Hague Convention. 

(12)  The Member States that have not yet accepted the accession of the Kazakhstan should 
therefore  be  authorised  to  accept  it  in  the  interest  of  the  Union  and  to  deposit  their 
declarations of acceptance of accession of Kazakhstan in accordance with the terms set 
out  in  this  Decision.  The  Kingdom  of  the  Netherlands  has  already  accepted  the 
accession  of  Kazakhstan  to  the  1980  Hague  Convention  and  should  therefore  not 
deposit a new declaration of acceptance as the existing declaration remains valid under 
public international law. 

(13)  The United Kingdom and Ireland are bound by Regulation (EC) No 2201/2003 and are 

therefore taking part in the adoption and application of this Decision. 

(14) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by it or subject to its application. 

HAS ADOPTED THIS DECISION:  

Article 1 

1. 
The  Member  States  that  have  not  yet  done  so  are  hereby  authorised  to  accept  the 
accession of Kazakhstan to the Hague Convention of 25 October 1980 on the Civil Aspects of 
International Child Abduction ('the 1980 Hague Convention') in the interest of the Union. 

2. 
Member States referred to in paragraph 1 shall, no later than …,* deposit a declaration 
of acceptance of the accession of Kazakhstan to the 1980 Hague Convention in the interest of 
the Union worded as follows: 

"[Full name of MEMBER STATE] declares that it accepts the accession of Kazakhstan to the 
Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 
in accordance with Council Decision (EU) 2016/…**" 

3.  
Each  Member  State  shall  inform  the  Council  and  the  Commission  of  its  deposit  and 
communicate  to  the  Commission  the  text  of  the  declaration  within  two  months  after  its 
deposit. 

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The  Member  State  which  deposited  its  declaration  of  acceptance  of  the  accession  of 
Kazakhstan to the 1980 Hague Convention prior to the date of adoption of this Decision, shall 
make no new declarations.  

Article 2 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Article 3 

Article 4 

This  Decision  is  addressed  to  all  Member  States  with  the  exception  of  the  Kingdom  of  the 
Netherlands and the Kingdom of Denmark. 

Done at Brussels, 

For the Council 
The President 

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