Article 5-14 of the Hague Convention on Child Protection establishes which states’ authorities can take measures to protect a child. Decisions concerning protection measures are made in accordance with the legislation of the state that has the jurisdiction to make decisions.
Article 5 of the convention stipulates that it is the authorities in the state of habitual residence of the child that typically have jurisdiction to take decisions on the implementation of protection measures covered by the convention, including the placement of children outside the home. If the child’s state of habitual residence is changed to another contracting state, jurisdiction passes to the authorities in the state of the child’s new habitual residence.
Article 6 of the convention concerns jurisdiction in relation to refugee children, children who, due to disturbances occurring in their country, are internationally displaced, and children whose habitual place of residence cannot be established. In such cases, the authorities in the state in which the child is present shall have the same jurisdiction as described in Article 5 of the convention.
If a child has been abducted, then the authorities in the state from which the child has been abducted retain jurisdiction in accordance with Article 7 of the convention.
However, Article 11 allows the authorities in whose territory the child is present to take any necessary measures of protection in all cases of urgency. This would apply, for example, if a child is in Denmark on holiday or another form of short-term visit, and a municipality discovers that the child has an urgent need for protection.
Article 12 gives the authorities in a state where the child is present the jurisdiction to take temporary protection measures with a territorial effect limited to the state in question.
It therefore follows from the provisions of the convention that, generally, it is only the authorities of the state of the child’s habitual residence that can take protection measures for a child or young person, including, for example, decisions regarding placement outside of the home.
The starting point must be the situation of the child, for which reason it is generally not relevant where and in which state a parent or custodial guardian lives. If it is only the parent or custodial guardian who lives in the state concerned, while the child lives in another state, then there is no jurisdiction under the convention to take decisions concerning the child. Similarly, the child’s nationality is not relevant to where the child has habitual residence.
The term ‘habitual residence’ refers to the residence of the child or young person – i.e. the place where the child or young person has their home and where the child or young person’s property is generally located. It is also the place where the child or young person stays when they are not elsewhere as a result of special circumstances, such as illness, holiday or a study trip.
Whether or not a child or young person is resident in Denmark within the meaning of the convention thus depends on a concrete assessment of the circumstances.
If a child or young person moves from Denmark and takes up residence in another state during the processing of a placement case, the Danish authorities lose jurisdiction to continue processing the case and the case must be closed.
However, the municipality must be aware of its obligation to notify in connection with international social cases. The municipality has an obligation to notify the authorities in another state if a child is exposed to serious danger and the municipality discovers that the child is resident in that state. This applies in cases where, prior to the child’s departure, the municipality had taken a decision to implement protection measures or had considered doing so.
Read more about notifying authorities abroad