CYIL Vol. 7, 2016

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.

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