The convention also contains rules on which states' authorities have competence (international jurisdiction) to make decisions on protection measures, e.g. placement of a child outside the home. The convention also contains rules on the transfer of jurisdiction in placement cases from one contracting state to another, as well as a special procedure for when a Contracting States intends to place a child or young person in care in Denmark.
Denmark cooperates with a number of countries in accordance with the Convention. You can see which countries at our webpage about the convention.
Note that the obligation to notify foreign authorities if a child is in danger also applies if the child resides in a country with which Denmark does not cooperate.
Jurisdiction – Articles 5 to 14
Articles 5 to 14 set out which authorities of a State can make decisions on protective measures against a child.
It follows from Article 5 of the Convention that the starting point is that the authorities of the State in which the child has habitual residence (i.e. residence) have the power to decide on protective measures covered by the Convention, including the placement of children outside the home.
However, under Article 11, the authorities in whose territory the child is present may take all necessary protective measures in an emergency.
Article 12 empowers the authorities of a State in which the child is present to take interim protective measures having a territorially delimited effect in that State.
Decisions on protective measures must be taken in accordance with the law of the country, which has jurisdiction to decide on the matter.
Find more information (in Danish) on rules of competence etc. according to the Hague Convention of 1996
Decisions regarding transfer of jurisdiction – Article 8 and 9
Articles 8 and 9 of the convention contain rules, which allow for transfer of jurisdiction from one contracting state to another, e.g. in cases of care-orders.
In accordance with these articles, the jurisdiction to decide on protective measures against a child can therefore be transferred to an authority in another contracting state, if this is in the best interests of the child, and the authorities of both states agree to it. This may, for example, be the competence to make a decision on placement outside the home.
In accordance with article 8, a transfer of jurisdiction may occur if the competent authority finds it to be in the child’s best interest. In this case, they may request a competent authority in a Contracting State to assume jurisdiction. The receiving authority can only accept the request if it is in the best interests of the child.
Likewise, article 9 allows the authorities of a Contracting State other than the Contracting State in which the child has his/her habitual residence to request the jurisdiction of the competent authority of the child's habitual residence. The authority requesting the transfer of jurisdiction may not consider the matter until the competent authority has positively agreed to transfer the jurisdiction to that authority.
The above-mentioned rules on the transfer of jurisdiction presuppose to a large extent co-operation between the authorities involved, e.g. through exchange of views. Please refer below concerning exchange of information between authorities.
In Denmark, it is the municipalities that process requests for jurisdiction transfer in placement cases.
The decision to submit, accept or reject a request to take over the competence in a placement case is made by the municipal council. This is a decision within the meaning of the Danish Public Administration Act, which is why the general rules on hearing of parties etc. must be observed. The municipality's decision can be brought before the National Board of Appeal by persons and authorities with a legal interest in the case. The Ministry can provide further guidance on the general rules for the transfer of competence in placement cases.
Request for localization of a child – Article 31 c
Article 31 of the Convention provides for the possibility of requesting the assistance of the authorities of another Contracting State to determine the whereabouts of a child if the child may be in that State and in need of protection.
Request for a report on the situation of the child or the need to take protective measures – Article 32
If an authority is concerned about a child living abroad, the authority may obtain information about the child or request that protective measures be taken concerning the child in accordance with article 32.
In accordance with article 32 (a), an authority may request a report on the situation of the child, and under article 32 (b), an authority may request the authorities of the country in which the child has habitual residence to take protective measures.
Questions concerning the disclosure of the information shall be governed by the law of the State, which receives the request.
Please refer below concerning exchange of information.
International care-order for children – Article 33
Article 33 stipulates a special procedure to be used in cases where a foreign authority wants a child with habitual residence abroad placed in Denmark, for example because the future foster parents live in Denmark.
Before the placement decision, the foreign authority must submit the case to the Danish Central Authority. As part of this, the foreign authority must submit a report with a justification for the intended placement or the intended care relationship. The Danish competent authority must then approve the decision to place the child in Denmark. The child cannot be placed in Denmark until the Danish authorities have approved the foreign decision in this regard, taking into account the child's best interests. In Denmark, it is the municipalities that decide on a request pursuant to Article 33. The decision to approve or reject the request is made by the municipal council. The decision can be appealed to the National Board of Appeal by persons and authorities with a legal interest in the case.
Article 33 does not apply if a Danish authority wishes to place a child abroad. The procedure laid down in Article 8 or 9 might be applicable for that situation.
Concern for a child who is present in another State – Article 36
Article 36 contains a duty to notify across borders if an authority considers that a child abroad is in serious danger.
This means that if a Danish municipality assesses that a child who is abroad is in serious danger, the municipality must notify the relevant authorities in the country in question. This applies to situations where measures to protect the child have been initiated in Denmark, or where such measures are under consideration. The municipality must thus inform the foreign authorities of the concern and of the measures that have been initiated or are being considered.
Article 36 also applies to cases where the child resides in a country with which Denmark does not cooperate under the Convention. Please refer below concerning exchange of information.
Procedure for sending notifications/requests abroad
If a Danish municipality wishes to send a notification or a request in accordance with (an) article(s) of Convention to a Contracting State, this can be done through the Ministry of Social Affairs and Senior Citizens, which is designated as the central authority in Denmark.
The notification/request and other relevant documents must be translated into the language of the country in which the child resides or, if this is not possible, into English or French. Once the ministry has received all the documents, they are forwarded to the central authority abroad. The central authority will then forward the request/notification to the relevant social authorities, which will assess whether measures should be taken in relation to the child. It is not a requirement under the Convention that a notification under Article 36 be sent through a central authority. According to the rules of the Convention, a notification can be sent directly to the relevant social authorities abroad, taking into account other legislation.
Disclosure of information to an authority or person abroad is covered by e.g. data protection legislation. Please refer below concerning exchange of information.
Procedure for notifications/requests sent to Denmark
When the Ministry receives requests/notifications from another Contracting State about a child residing in Denmark, the Ministry forwards the request/notification to the relevant Danish municipality.
It is then up to the municipality to take a position on the request/notification in accordance with the applicable Danish rules on the implementation of protection measures etc. towards children and young people.
Exchange of information with foreign authorities
Disclosure of information to an authority or person abroad is regulated by the Data Protection Regulation and the Data Protection Act. Reference is made in particular to Chapter II of the Regulation (Articles 5-10). Chapter V of the Regulation contains additional rules on transfers of personal data to third countries, ie. non-EU Member States. Please refer to the instructions on the transfer of personal data to third countries in the website of the Danish Data Protection Agency.
It is noted that the Data Protection Regulation and the Data Protection Act contain a number of general principles that must be complied with. These include pursuant to Article 5 (1) 1 (c) of the Data Protection Regulation on the principle of data minimization, according to which personal data must be sufficient, relevant and limited to what is necessary in relation to the purpose of the processing.
The rules of data protection law are supplemented by Article 37 of the Convention, which contains a restriction on the exchange of information about the child. It thus contains a prohibition on requesting or disclosing information about a child if the information could endanger the child or pose a serious threat to the child's family members.
For further information on data protection legislation, please refer to the Danish Data Protection Agency's website and guidelines.