Definition
The requested State is the Contracting State to which a return application under the 1980 Hague Convention is directed, being the State in whose territory the child is present following a wrongful removal or wrongful retention. It is the State whose judicial or administrative authorities are called upon to determine whether the conditions for return under the Convention are satisfied and, if they are, to order the child's return to the State of habitual residence. The identification of the requested State is a precondition for the filing of a valid return application, because the application must be transmitted to or filed with the Central Authority or competent judicial authority of the State where the child is actually located. A State that is not a Contracting Party to the Convention cannot be the requested State for the purposes of the Convention's return mechanism, even if it is the State where the child is physically present.
The requested State occupies a specific and limited role within the Convention's jurisdictional structure. Its authorities are competent to determine the return question — whether the removal or retention was wrongful, whether any exception applies, and whether return should be ordered — but they are not competent to determine the merits of custody. The Convention's non-merits principle, embedded in Articles 16, 17, and 19, prevents the requested State's courts from using the return proceeding as an occasion to adjudicate parental fitness, the child's long-term welfare, or the comparative suitability of the two States as environments for the child's upbringing. Those questions belong to the courts of the State of habitual residence, which the Convention designates as the proper forum for custody adjudication on the merits.
Legal Basis:Articles 2, 6, 7, 8, 9, 10, 11, and 12 of the 1980 Hague Convention collectively establish the obligations and powers of the requested State. Article 2 requires Contracting States to use the most expeditious procedures available. Article 6 requires each State to designate a Central Authority. Articles 8 through 12 establish the procedural framework within which the requested State receives, processes, and determines return applications. The requested State's obligations are treaty obligations binding on the State as a whole, not merely on its judicial authorities, and encompass the conduct of Central Authorities, enforcement agencies, and courts.
Core
The requested State's obligations under the Convention are activated upon receipt of a return application by its Central Authority or, where domestic law permits direct filing, by the competent judicial authority. From that point, the requested State is under a duty to act expeditiously, to take measures to discover the child's whereabouts if not already known, to secure the child's welfare pending the proceedings, to provide the applicant with legal assistance and representation where required, and to bring the matter before the competent judicial authority without undue delay. The six-week benchmark established by Article 11 is addressed to the judicial authority of the requested State and creates an expectation of prompt decision-making that is central to the Convention's deterrent function.
The requested State's judicial authority applies the Convention as an autonomous legal instrument, not as an extension of its own domestic family law. This requires the authority to apply the Convention's definitions — habitual residence, rights of custody, wrongfulness — in accordance with their autonomous international meaning rather than by reference to equivalent concepts in domestic law. The requested State may not substitute its own welfare standards for the Convention's return obligation, impose additional conditions on return that have no basis in the Convention's text, or decline to order return on grounds that the Convention does not recognize. Its discretion is confined to the exceptions that the Convention itself provides and to the further discretion that those exceptions confer.
The enforcement of return orders is one of the most practically significant aspects of the requested State's role. An order of return issued by the requested State's judicial authority must be implemented in practice, and the requested State bears responsibility for ensuring that its enforcement mechanisms are adequate to give effect to the order. Where the taking parent resists enforcement, conceals the child following the order, or removes the child to a third State, the requested State's enforcement authorities must respond with the same urgency that the Convention demands of the judicial proceedings. Failure to enforce return orders effectively is one of the most frequently identified weaknesses in the Convention's operational record and a principal subject of concern in the Special Commission reviews conducted by the Hague Conference.
The requested State's obligations extend beyond the individual case to a systemic commitment to the Convention's objectives. Contracting States are expected to maintain functioning Central Authorities with adequate resources, to designate courts with appropriate expertise in Convention proceedings, to provide accessible legal assistance to applicants, and to ensure that their domestic procedural law does not create structural obstacles to the expeditious determination and enforcement of return applications. States whose implementation falls short of these standards not only fail individual applicants but contribute to the erosion of the Convention's deterrent effect, since the perception that return proceedings in a given State are slow, uncertain, or ineffectively enforced may itself incentivize wrongful removals directed at that jurisdiction.
Authority
Sources
- Manual on International Child Abduction under the 1980 Hague Convention — Mauricio Ejchel
- Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
- Elisa Pérez Vera, Explanatory Report (HCCH, 1982)
- HCCH Guides to Good Practice
- Comparative jurisprudence
