HCCH 1996 Child Protection Convention and compatibility with the 1951 Refugee Convention.”
Submitted by: Nietta Keane (HCCH) [& Denise Baruch-Kotulla (UNHCR)]
 The views expressed by the author[s] are their own and may not reflect the official positions of their [respective] organisation[s]
The proposed contribution seeks to present the jurisdiction rules under the 1996 Child Protection Convention and their operation, particularly as it relates to children internationally displaced due to armed conflicts, civil unrest or disasters, which frequently involve exposure to serious human rights violations or other serious harm possibly amounting to persecution.
The paper will elaborate on the circumstances in which the grounds of jurisdiction under Articles 5 and 6 of the 1996 Child Protection Convention are applicable. The paper will demonstrate the benefit of the application of the jurisdiction rules under the 1996 Convention, particularly in a context of conflict or crisis, where national / domestic systems and infrastructure may be completely or partially inoperable and where some regions of the State may be more affected than others while the conflict or crisis evolves dynamically. It will also delve into the responsibilities of States hosting internationally displaced children and their human rights obligations, including the duty to ensure the protection of children and their best interests. This involves discussing issues such as (habitual) residence, taking protection measures for children by including them in national child protection systems, as well as the possibility for children to return to the country of origin, relocate to a third State, or integrate in the country of presence.
Through its analysis of the aforementioned, the paper will underline the fundamental compatibility of the rules under the 1996 Convention and the 1951 Convention and broader human rights standards in relation to refugee and internationally displaced children.
The paper will also be an opportunity to present the updated version of the HCCH document on “The Application of the 1996 Child Protection Convention to Unaccompanied and Separated Children”, in order to raise awareness to its contents and promote its dissemination.

The right to family life and the principle of family unity are of particular importance in the context of international protection and apply irrespective of whether a country is a party to the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol and regional refugee law instruments. When people flee persecution, conflict and other serious harm, they are often separated from their family members. Children, in particular if unaccompanied or separated, suffer from heightened psychological distress caused by an accumulation of traumatic experiences, loss, separation and uncertainty. Maintaining and facilitating family unity helps to ensure their protection, physical care, emotional well-being, self-reliance and can promote the sustainability of durable solutions.
The paper will set out UNHCR’s guidelines on international legal standards concerning family reunification and relevant procedures for refugees and other beneficiaries of international protection. It will seek to demonstrate that in the particular situation of refugees and other beneficiaries of international protection refusal to maintain family unity or ensure family reunification in the country of asylum may be considered an interference with the right to family life. The right of a child to family unity is particularly protected under the Convention on the Rights of the Child (CRC). In order to ensure the effective respect for a child’s right not to be separated, States as a result have a positive obligation to adopt measures to ensure family reunification. This is particularly the case in situations involving unaccompanied or separated children. Processing applications for family reunification in a “positive, humane and expeditious manner” (Article 10(1), CRC) is often the only way to give effect to children’s right to family life and the only safe pathway to be granted international protection.

The Russian Federation is a Contracting State of two international conventions that provide regulation for the solutions of international child-related family conflicts:
- the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – hereinafter referred as HC1980,
- the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children – hereinafter referred as HC1996.
If a parent or another person leaves Russia with a child who has been living in Russia and who is so far habitually resident in Russia, a left-behind parent or any other person or body who has rights of custody for a child under the applicable Russian Family law could ask the Russian Central Authority for assistance which is the Ministry of the Enlightenment, not the Ministry of Justice as in some other countries, Contracting states of HC1980.
In most cases an abducting parent will be disabled from taking a child abroad in violation of the other parent or another person’s custody rights and from obtaining a judicial decision on the rights of custody in that jurisdiction. The HC1980 places a Contracting State in obligation to enable the summary return of a child. An application for return of a child to Russia who was abducted into some other Contracting States has good chances of being granted as a general rule if the following necessary conditions are met:
- the HC1980 was in force between Russia and a Contracting State which is involved at the moment of wrongful removal or retention,
- a child was habitually resident in Russia immediately before the wrongful removal or retention,
- a left –behind parent or another person-applicant had the rights of custody at the time of the wrongful removal and actually exercised it immediately before the removal,
- a child was under 16 years old.
There is a very good recent example between Russia and Israel of such an out-coming case.

However, in the situation of the child abduction to Russia, the situation is different.
The judicial authorities of the Russian Federation may exceptionally return a child but in most cases as a general rule the abducted children will stay in Russia.
If under the HC1980 as a rule the nationality of a child and his parents does not play a key role, in the Russian international child abduction disputes, this factor will be taken into account by court. Besides, a mother in Russia is considered as the primary carer of children. If an abducting parent is a Russian mother, there are no adequate chances for success for a left-behind parent, except the situations if a mother is drug or alcohol addicted person.