Other Legal Basis
Apart from the HC 96, two federal acts apply in relation to the international protection of children.
The Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults (FA-ACA; CC 211.222.32) came into force on July 1 2009. In respect of the international protection of children, it defines the jurisdiction of the central federal authority and the central cantonal authorities in the context of the HC 96.
Under art. 85 para. 1 of the Federal Act of 18 December 1987 on International Private Law (FAPIL ; CC 291), in relation to the protection of children, the jurisdiction of the Swiss judicial or administrative authorities, the applicable law and the recognition and execution of foreign decisions or measures are governed by the HC 96.
Under art. 85 para. 3 FAPIL, the judicial or administrative authorities also have jurisdiction when the protection of a person or their property so requires. This allows the Swiss authorities to take measures relating to children domiciled abroad who need protection, where the authorities of the State where they are habitually resident neglect to do so. This applies primarily to people who are habitually resident in a non-Contracting State and who are Swiss citizens. The Federal Supreme Court confirmed that the HC 96 applies to non-Contracting States as well. Only the provisions on the co-operation between authorities (Chapter V of the HC 96) apply solely between Contracting States.
Finally, paragraph 4 provides for the recognition of the measures ordered in a State that is not party to the HC 96 if the measures have been ordered or recognised in the State where the child concerned is habitually resident.
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