DOES THE CONVENTION HELP TO OBTAIN EFFECTIVE ‘ACCESS’?
In theory, yes, the convention can be invoked where access rights are being denied but in practice this is unlikely, unless the custodial parent has actually also abducted the child. Where the custodial parent has not abducted the child, but has located abroad legally, the Hague Convention has a very limited role, and is rather 'toothless'. Outside of abduction, its role in access is restricted to allowing applications for organising or securing the effective exercise of rights of ‘access’ to be presented to a Central Authority in the same way as an application for the child’s return (Article 21).
The Central Authority is required by Article 21 ‘to promote the peaceful enjoyment of access rights’ and to ‘take steps to remove, as far as possible, all obstacles to the exercise’ of access, and may initiate or assist in the initiation of proceedings to organise or protect access. '
The courts, however, do not have any duties under Article 21. Therefore a person who wants ‘access’ rather than a return of the child, has to apply for an access order under the ordinary law of the country law and this application will be heard on its merits in accordance with the child’s best interests. On receiving an application under Article 21 the Central Authority’s only duty is to make appropriate arrangements to provide lawyers to act on the applicant’s behalf to institute proceedings under domestic law (in Israel this is to apply for an order under the Legal Capacity and Guardianship Law). Even in those countries which provide legal aid for Convention abduction cases, legal aid is not provided for access applications under the domestic law.
In access cases, Convention proceedings end on presentation of the application for access to court.
The Central Authority is required by Article 21 ‘to promote the peaceful enjoyment of access rights’ and to ‘take steps to remove, as far as possible, all obstacles to the exercise’ of access, and may initiate or assist in the initiation of proceedings to organise or protect access. '
The courts, however, do not have any duties under Article 21. Therefore a person who wants ‘access’ rather than a return of the child, has to apply for an access order under the ordinary law of the country law and this application will be heard on its merits in accordance with the child’s best interests. On receiving an application under Article 21 the Central Authority’s only duty is to make appropriate arrangements to provide lawyers to act on the applicant’s behalf to institute proceedings under domestic law (in Israel this is to apply for an order under the Legal Capacity and Guardianship Law). Even in those countries which provide legal aid for Convention abduction cases, legal aid is not provided for access applications under the domestic law.
In access cases, Convention proceedings end on presentation of the application for access to court.
Access