[Senate Prints 106-76]
[From the U.S. Government Publishing Office]


106th Congress                                                  S. Prt.
 2d Session                 COMMITTEE PRINT                      106-76
_______________________________________________________________________

 
           HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION

 Applicable Law and Institutional Framework Within Certain Convention 
                               Countries

                               __________

                                A REPORT

                                 TO THE

                     COMMITTEE ON FOREIGN RELATIONS


                          UNITED STATES SENATE

                                 BY THE

                        LAW LIBRARY OF CONGRESS

                       One Hundred Sixth Congress

                             Second Session

                              October 2000

                                     


CHUCK HAGEL, Nebraska              JOSEPH R. BIDEN, Jr., Delaware
GORDON H. SMITH, Oregon            PAUL S. SARBANES, Maryland
ROD GRAMS, Minnesota               CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas              JOHN F. KERRY, Massachusetts
CRAIG THOMAS, Wyoming              RUSSELL D. FEINGOLD, Wisconsin
JOHN ASHCROFT, Missouri            PAUL D. WELLSTONE, Minnesota
BILL FRIST, Tennessee              BARBARA BOXER, California
LINCOLN D. CHAFEE, Rhode Island    ROBERT G. TORRICELLI, New Jersey

                  Stephen E. Biegun, Staff Director
               Edwin K. Hall, Minority Staff Director

                                (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page

Foreword.........................................................     v
Letter of Transmittal............................................   vii
Introduction.....................................................    ix

Countries party to the Convention in this report:
    Argentina....................................................     1
    Australia....................................................     5
    Austria......................................................    14
    Republic of Belarus..........................................    20
    Canada.......................................................    26
    Cyprus.......................................................    32
    Czech Republic...............................................    38
    Denmark......................................................    40
    France.......................................................    43
    Republic of Georgia..........................................    50
    Germany......................................................    55
    Greece.......................................................    62
    Hong Kong....................................................    70
    Republic of Ireland..........................................    74
    Israel.......................................................    80
    Italy........................................................    91
    Luxembourg...................................................    95
    Monaco.......................................................    97
    The Netherlands..............................................   101
    Panama.......................................................   105
    Poland.......................................................   107
    South Africa.................................................   119
    Sweden.......................................................   124
    United Kingdom...............................................   127
    Zimbabwe.....................................................   136

                                Appendix

Text of Hague Convention [TIAS 11670]............................   141
Party Countries and Effective Dates with United States...........   149


                                FOREWORD

                              ----------                              

                                                      January 2001.
    In recent years, the Committee on Foreign Relations has 
devoted considerable attention to the problem of international 
parental abduction, which occurs when one parent removes or 
retains a child overseas in violation of a custody order or 
agreement. In October 1998, the Committee conducted a hearing 
on this issue, and received testimony from the Attorney General 
and several parents who have been ``left-behind'' (that is, 
their children were taken abroad by the other parent). In 1998 
and 1999, the Committee included legislative provisions in the 
annual Foreign Relations Authorization Acts addressing this 
issue, namely by requiring the Department of State to submit 
thorough reports to Congress on the issue and by mandating that 
the Department provide additional manpower to the Office of 
Children's Issues, which is the Department of State's lead 
office for handling these cases.
    This compendium was prepared by the Law Library of Congress 
at our request following the aforementioned Committee hearing. 
During the hearing, one witness expressed frustration that 
there was ``no central repository of reliable information'' 
with basic data on foreign legal systems. This report begins to 
close this information gap by reviewing the laws and procedures 
of certain nations which are party to the Hague Convention on 
the Civil Aspects of International Child Abduction. The initial 
report covers 25 countries which are party to the Convention. 
The Law Library is continuing work on reports about several 
other Convention countries.
    We express our deep appreciation to the Law Library staff 
members who contributed to this report. We hope the report and 
subsequent editions will be useful to parents and other 
readers.
                                     Honorable Jesse Helms,
                   Chairman, Senate Committee on Foreign Relations.

                            Honorable Joseph R. Biden, Jr.,
             Ranking Member, Senate Committee on Foreign Relations.




                         LETTER OF TRANSMITTAL

                              ----------                              

                           The Library of Congress,
                Law Library, Directorate of Legal Research,
                                   Washington, DC, August 28, 2000.

Honorable Jesse Helms, Chairman
Honorable Joseph R. Biden, Jr., Ranking Member

Senate Committee on Foreign Relations,
Dirksen Senate Office Building,
Washington, DC.

    Dear Senator Helms and Senator Biden:

    The attached reports are submitted in response to your 
request that the Law Library of Congress prepare a series of 
reports concerning the Hague Convention on International Child 
Abduction. The purpose of these reports is to identify the 
applicable law and institutional framework within each of the 
Convention countries as an aid in understanding how the 
Convention is implemented domestically in those nations.
    The initial series of reports covers 25 countries that are 
party to the Convention. Work is underway to complete the next 
phase which will provide reports for an additional 8 of the 
remaining 29 Convention countries (excluding the United 
States). As some of the foreign legal specialists who are 
developing the reports are responsible for more than one 
country (in some cases up to six countries), we anticipate that 
the remaining reports, apart from the 8 that constitute the 
next phase, will be submitted to the Committee over the course 
of a number of months.
    We trust that these reports will be of value to the 
Committee and to other readers.
            Sincerely,
                                             David M. Sale,
                                        Director of Legal Research.




                              INTRODUCTION

                              ----------                              

    At the request of the Senate Foreign Relations Committee, 
the Directorate of Legal Research of the Law Library of 
Congress is preparing a series of reports concerning the 
implementation of the Hague Convention on the Civil Aspects of 
International Child Abduction. The purpose of these reports is 
to identify the applicable law and institutional framework 
within each of the Convention countries as an aid in 
understanding how the Convention is implemented by the nations 
that are party to this treaty. This work is being developed in 
stages and the initial reports cover 25 countries that are 
parties to the Convention.
    For each country covered in this initial installment, the 
reports contain a uniform format with the following five major 
categories of assessment specifically relating to the 
Convention: domestic laws and regulations implementing the 
Convention (Part I), domestic laws regarding child abduction 
and parental visitation (Part II), the court system and 
structure for the courts responsible for handling cases arising 
under the Convention (Part III), the law enforcement system 
(Part IV), and legal assistance programs (Part V). The reports 
are current as of the date indicated on each document. In 
addition to identifying applicable statutes, the reports also 
note case law developments in those countries where domestic 
courts have applied the Convention.
    The mission of the Directorate of Legal Research is to 
provide research and reference services to the Congress on 
foreign, international, and comparative law. These initial 
reports involve the work of 17 members of the Directorate's 
current staff of 23 multilingual foreign legal specialists. The 
reports were edited by Ms. Alicia Byers, principal editor, and 
by Ms. Natalie Gawdiak and Ms. Sandra Jones.
                                             David M. Sale,
                                        Director of Legal Research,
                                           Law Library of Congress.
                               ARGENTINA

                              Introduction

    The Hague Convention on the Civil Aspects of International 
Child Abduction adopted on October 25, 1980, during the XIVth 
Session of the Hague Conference on Private International Law, 
was ratified by Argentina \1\ effective June 1, 1991. On May 
31, 1998, pursuant to art. 45 of the Convention, the 
Argentinean government transmitted a declaration rejecting the 
extension of the Convention to the Falkland Islands by the 
United Kingdom of Great Britain and Northern Ireland. Argentina 
also reaffirmed its sovereign rights over the Malvinas, South 
Georgia and South Sandwich Islands.
---------------------------------------------------------------------------
    \1\ Law 23857 of October 19, 1990 in Boletin Oficial [B.O.] Oct. 
31, 1990.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Central Authority for the Convention in Argentina is 
the Direccion General de Asuntos Juridicos-Direccion de 
Asistencia Judicial Internacional of the Ministry of Foreign 
Affairs, International Commerce and Worship.\2\
---------------------------------------------------------------------------
    \2\ Law 24190 Ley de Ministerios, art. 17 inc. 11 and Decree 488/92 
and Ministerial Resolution 203/94.
---------------------------------------------------------------------------


  a. restitution requested from abroad when the child was taken into 
                               argentina


    The Central Authority has only administrative and 
informational functions since it is always the judiciary that 
will decide on the restitution of the child or the visitation 
schedule. Once an application for restitution has been 
received, the Central Authority will verify that the petition 
complies with all the requirements provided for under the 
Convention. Before seeking a child's restitution or voluntary 
visitation from the parent in whose residence the child is 
located, the Central Authority must obtain the prior approval 
of the requesting parent.
    If the child's restitution or voluntary visitation schedule 
does not take place at this first stage, the petition will have 
to be submitted by a private attorney to the competent court. 
The Central Authority will provide the pertinent court with a 
general background of the Convention and will also offer its 
assistance to the court during the proceedings.
    However, the Central Authority does not provide legal 
assistance to private individuals during the proceedings before 
Argentine courts. Therefore, a private lawyer will have to be 
hired to carry out the judicial part of the request. Those who 
cannot afford a private lawyer and qualify for it may obtain 
the assistance of a public defender.


 b. restitution requested from argentina when the child has been taken 
                         into a foreign country


    The petitioner will have to fill out a standard set of 
forms from the Central Authority and return them to the Central 
Authority in triplicate. This form requests all the information 
necessary to locate the child, including identity information 
concerning the child and the person who has taken the child; 
the child's date of birth; the reasons for claiming the 
restitution; and information on the presumptive domicile of the 
child. A copy of the judicial decision or agreement on the 
custody of the child may also be attached.\3\ Seeking legal 
counsel is recommended in order to complete the form, although 
this is not required. In case the petition is addressed to a 
non-Spanish speaking country, the forms will have to be 
submitted both in English and Spanish.
---------------------------------------------------------------------------
    \3\ Jose Carlos Arcagni, La Convencion de la Haya sobre los 
Aspectos Civiles de la Sustraccion Internacional de Menores y el 
Derecho Internacional Privado Tuitivo, 1995-D Revista Juridica 
Argentina La Ley, Sec. Doctrina, 1032 (Buenos Aires, 1995).
---------------------------------------------------------------------------
    Once all documents have been submitted, the Central 
Authority will evaluate whether the case meets all the 
requirements of the Convention. If the case is admitted, the 
Central Authority will send the restitution and visitation 
petition to the Central Authority of the requested country. The 
proceedings abroad, of course, will depend on the internal 
regulations of the respective Central Authority together with 
the procedural norms applied by the competent courts. In many 
cases the petitioner will have to hire a private attorney in 
the requested country. If this is unaffordable for the 
petitioner, he or she may investigate whether they qualify 
under Argentine law to receive free legal advice and therefore 
become eligible for such assistance abroad.
    The petitioner will be kept informed by the Argentine 
Central Authority about the status of his or her case since 
both Central Authorities will be in constant contact about the 
case.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation

    Under the Criminal Code,\4\ anyone who takes and hides a 
minor of 10 years of age or younger from the control of his or 
her parents, guardian, or person in charge of him or her is 
punished with imprisonment of 5 to 15 years.\5\ Scholarly 
opinion is not clear on whether a parent who takes a child from 
the other parent is guilty of this crime.\6\ However, a number 
of court decisions \7\ have decided that any parent who takes 
and keeps a child out of the control of the parent who has been 
judicially assigned the custody of the child is guilty of this 
crime.
---------------------------------------------------------------------------
    \4\ O. y Florit, Codigo Penal de la Republica Argentina, Editorial 
Universidad, Buenos Aires, 1997.
    \5\ Id. art. 146.
    \6\ Id. at 347.
    \7\ Camara Nacional Criminal y Correccional, Sala II, December 3, 
1987, in Boletin de Jurisprudencia Camara Nacional Criminal y 
Correccional, 1987, No. 4 at 1680; Sala III, May 27, 1992 in Boletin de 
Jurisprudencia Camara Nacional Criminal y Correccional, 1992, No. 2, at 
141; Sala I, June 28, 1994, in Boletin de Jurisprudencia Camara 
nacional Criminal y Correccional, 1994, No. 2, at 77.
---------------------------------------------------------------------------
    Law 24270 \8\ created the crime of Impedimento de Contacto 
der Hijos Menores con sus Padres no Convivientes (impeding 
minors from having contact with the non-custodial parent). 
Therefore, the parent or a third person who illegally prevents 
or obstructs contact between a minor and his or her parents not 
living with him or her will be punished with imprisonment of 
one month to one year. If the child is younger than 10 years of 
age or handicapped, the punishment is imprisonment of six 
months to three years.\9\
---------------------------------------------------------------------------
    \8\ Law 24,270 of November 3, 1993, amending the Criminal Code 
published in Boletin Oficial, November 25, 1993.
    \9\ Id. art.1.
---------------------------------------------------------------------------
    The same sanctions would apply to the parent or third 
person who, in order to prevent the parent not living with the 
child from contacting him or her, takes the child to another 
domicile without judicial authorization. If, with the same 
purpose, such a person takes the child out of the country, the 
punishment would increase up to double the minimum and half of 
the maximum.\10\
---------------------------------------------------------------------------
    \10\ Id. art. 2.
---------------------------------------------------------------------------
    In such cases, the court must take all necessary measures 
to restore the parent's contact with the child within ten 
days.\11\ The court must also establish a provisional 
visitation schedule to be applied for not more than three 
months or, if there is already a visitation schedule, must 
enforce it.\12\
---------------------------------------------------------------------------
    \11\ Id. art. 3.1.
    \12\ Id. art. 3.2.
---------------------------------------------------------------------------
    Although articles 5 and 21 of the Convention guarantee some 
type of visitation schedule during the restitution proceeding, 
the courts have interpreted these provisions narrowly 
considering that the Convention does not expressly require 
member countries to establish or enforce a visitation schedule 
during the conventional procedure.\13\ There are some scholarly 
opinions to the contrary--some authors \14\ have interpreted 
the Convention as very clear in requiring Central Authorities 
to file petitions for visitation as well as restitution 
purposes. According to J.C. Arcagni, the Convention does not 
require the precondition of enforcing parental visitation 
rights to the issue of abduction itself. According to this 
author, the narrow interpretation that the courts have adopted 
may be due to the fear that visitation rights--which may 
require taking the child out of his or her habitual residence 
or domicile--may create the risk of abduction.\15\ Thus, in 
order to avoid such risks and conflicts, the Central 
Authorities will have to play a very important role to secure 
the conditions and timing of the visits through permanent and 
effective supervision over the minors.\16\
---------------------------------------------------------------------------
    \13\ Id. at 1034-1035.
    \14\ Id. at 1035.
    \15\ Id.
    \16\ Id.
---------------------------------------------------------------------------
    According to sources from the Argentine Central Authority, 
Dr. Ignacio Goicoechea, to date, all Argentine courts have 
waited for the court deciding on the issue of the custody of 
the child to establish the visitation schedule provided for 
under Article 21 of the Convention. However, in many cases a 
voluntary agreement between the parties was reached during the 
return proceedings.

 III. Court System and Structure--Courts Handling the Hague Convention

    When Argentina is the requested country and there is no 
voluntary restitution of the child, the competent court for 
return proceedings under the Convention will be either the 
civil ordinary courts in the Federal Capital and national 
territories or the provincial courts--which may be family 
courts in those provinces that have such--or the civil courts. 
The case may be appealed to the respective Court of Appeals 
and, if admissible, to the Supreme Court. So far, there has 
been only one case that has reached the Supreme Court.\17\ In 
this case, the Supreme Court finally ordered the restitution of 
the child who was illegally taken from Canada to Argentina by 
her mother. The child went back to Canada after an extremely 
protracted process (over a year), under the Convention's 
standards (not more than six weeks).

                       IV. Law Enforcement System

    Both the Central Authority and the courts have requested 
assistance from the police and INTERPOL to locate children and 
secure the enforcement of authorities' orders.\18\
    According to the Argentine Central Authority, until April 
12, 1999, there have been 181 requests, including restitution 
and visitation ones, based on the Hague Convention. From those 
181 requests, 46 children who were illegally transferred or 
kept out of their habitual residence have been returned.

                      V. Legal Assistance Programs

    Not available. A private attorney has to be hired if a 
voluntary restitution fails and judicial proceedings need to be 
started. However, a public defender may be available if the 
claimant can prove that he or she cannot afford a private 
attorney.

                             VI. Conclusion

    The experience of the application of the Convention in 
Argentina appears to have been a success, particularly in 
expediting the restitution of minors. The Convention is an 
example of the humanization of private international law, with 
its most important goal being the well-being of the child. Of 
all the cases to which the Convention was applied, the one 
reaching the Supreme Court in 1995 has had an extensive media 
coverage. This promotion of the Convention raised public 
awareness and Argentineans became more conscious about the 
serious issues involved in International Parental Child 
Abduction.

    Prepared by: Graciela I. Rodriguez-Ferrand, senior legal 
specialist, Directorate of Legal Research, Law Library of 
Congress, December 1999.



    \17\ Supreme Court, June 14-1995, ``Wilmer, E.M. c/ Oswald, M.G'', 
La Ley, 1996-A, 260.
    \18\ Soraya Nadia Hidalgo, Restitucion Internacional de Menores en 
la Republica Argentina, 1996-C Revista Juridica Argentina La Ley 1393 
(Buenos Aires, 1996).

                                ------                                


                               AUSTRALIA

                              Introduction

    The Commonwealth of Australia is a federation of the six 
States of New South Wales, Queensland, Victoria, South 
Australia, Tasmania and Western Australia, and the Australian 
Capital Territory and Northern Territory. It has a common-law 
based system of law. The Constitution of Australia adopts the 
enumerated powers doctrine, under which the federal Parliament 
may make laws ``for the peace, order, and good government of 
the Commonwealth,'' while the undefined residue of powers is 
left to the States. Commonwealth laws are guaranteed to prevail 
over inconsistent State laws, but there is nothing to stop a 
State from legislating on the subject of a power granted to the 
Commonwealth. In section 51 (xxi) and (xxii) of the 
Constitution the federal Parliament is granted legislative 
power over marriage, divorce, parental rights and the custody 
and guardianship of infants.
    The exercise of the federal power over family matters is 
represented by the enactment of a Commonwealth statute, the 
Family Law Act 1975 (``FLA''), as amended. The FLA set up a 
federal Family Court, a superior court of record with 
jurisdiction in family laws, including issues relating to 
children. Many constitutional challenges were mounted against 
the FLA, most of which have now been resolved, but the State of 
Western Australia continues to apply its own laws.
    It is in pursuance of the powers contained in the FLA that 
Australia ratified the 1980 Hague Convention on the Civil 
Aspects of International Child Abduction, and it came into 
force in 1987.\1\ The number of child abductions is reported by 
the Australian Law Council, a statutory body which advises the 
federal Attorney General, to be 80-100 child abductions a year 
to or from Australia, involving signatory countries to the 
Hague Convention.\2\ The number in relation to countries not 
covered by the Convention may be much higher. The effect of 
such abductions on the child can be dramatic and long lasting, 
and the Council considers them to be a cause for serious 
concern. It believes that even when an abduction is carried out 
by a parent it cannot be assumed that children do not suffer as 
a result of abduction. In the report to the Attorney General, 
the Council endorsed a finding made in the United Kingdom that:
---------------------------------------------------------------------------
    \1\ Australian Treaty Series 1987, No. 2.
    \2\ Family Law Council, Parental Child Abduction, Discussion Paper 
3 (Feb. 1997) (http://law.anu.edu.au/flc).

          The main sufferers of abductions of this type are the 
        children themselves. They endure the trauma of being 
        kidnapped and often the continuing nightmare of an 
        upbringing dominated by a parent that has violated the 
        right to maintain contact with a mother or father. The 
        harm which a child suffers as a result of an abduction 
        cannot be underestimated, however high-minded the 
        motive of the abductor . . .\3\
---------------------------------------------------------------------------
    \3\ Family Law Council, Parental Child Sbduction, A Report to the 
Attorney-General 20 (Jan. 1998) (id.).

    The cost to the taxpayer of locating abducted children in 
Australia is also significant. In the case of a child abducted 
from the United States to Victoria, the Commonwealth Attorney-
General's Department estimated the cost in police resources, 
Commonwealth and State public resources and legal fees to be in 
excess of A$1m.\4\
---------------------------------------------------------------------------
    \4\ Id. at 37.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Family Law (Child Abduction Convention) Regulations 
(``Child Abduction Regulations'') issued pursuant to the powers 
contained in the FLA 1975 Sec. 111B give effect to the 
Convention. The Convention by itself is not part of Australian 
law, and only the Child Abduction Regulations are so 
accorded.\5\ Accordingly, the provisions of the Convention 
cannot override the terms of the Regulations.\6\
---------------------------------------------------------------------------
    \5\ McCall and McCall; State Central Authority (Applicant); 
Attorney-General (Commonwealth) (Intervener), (1995) FLC para. 92-551 
at pp. 81,507, 81,509, 81,517.
    \6\ Anthony Dicky, Child Abduction In Family Law (CCH, 1999).
---------------------------------------------------------------------------
    The Hague Convention applies to any child who has attained 
the age of 16 years who was habitually resident in a 
Contracting State immediately prior to the removal or 
retention. The term ``habitually resident'' is not defined in 
the Convention, but under Australian case law it is to be 
understood according to the ordinary and natural meaning of the 
two words; its determination is a question of fact and is often 
based on the conduct of the parties.\7\ The Australian Family 
Court is stated to favor a slightly wider interpretation of the 
Convention than courts in England, and changing a child's 
residence requires proof that both parents had a shared 
intention to remain in a new country.\8\
---------------------------------------------------------------------------
    \7\ 17 Laws of Australia, Family Law, para. 17.8[23]-[25].
    \8\ Anne-Marie Hutchinson, Rachel Roberts and Henry Speight, 
International Parental Child Abduction 67 (1998).
---------------------------------------------------------------------------
    Under the Child Abduction Regulations, when a child has 
been removed from a Convention country to Australia, or 
retained in Australia, an application must be sent to the 
Commonwealth Central Authority \9\ which must be satisfied that 
it is in accordance with the Convention (reg. 12). The 
Commonwealth Central Authority may seek an amicable resolution 
of the differences between the applicant and the person 
opposing the return of the child or the voluntary return of the 
child. ``Removal'' and ``retention'' of a child are defined as 
being in breach of the rights of custody of a person or 
institution if at the time of removal those rights were 
actually exercised or would have been so exercised except for 
the removal (reg. 3).
---------------------------------------------------------------------------
    \9\ The location is: Attorney General's Dept., Civil Law Division, 
International Civil Procedures Section, Robert Garran Offices, Barton 
ACT 2600, Australia. Tel: (61) 6 250 6724 Fax: (61) 6 250 5917.
---------------------------------------------------------------------------
    The information required to be included in the application 
should be in the form of an affidavit stating that the child 
was habitually resident in the requesting country at the time 
of the wrongful removal or retention. The affidavit should 
include information on the child's place of residence, the 
person with whom the child lived, any period spent outside the 
country, the name of the school and the time spent there, the 
child's grade, etc. The right of custody over the child should 
also be described based on the law of the state or country of 
habitual residence. The affidavit must also explain the 
incidents and circumstances surrounding the removal of the 
child in order to provide a proper understanding of the 
situation. A copy of any court order granted prior to the 
removal must be included, and a copy of the applicable statute 
on custody must also be supplied. Evidence that the applicant 
was actually exercising the right of custody over the child 
should be provided in the form of an affidavit from the 
applicant's lawyer stating how those rights were being 
exercised.\10\
---------------------------------------------------------------------------
    \10\ For fuller details of the information to be included in the 
affidavits in support of the application, see the United States 
Department of State Web site: http://travel.state.gov/abduction--
australia.htm
---------------------------------------------------------------------------
    Once accepted by the Commonwealth Central Authority, the 
application will be forwarded to the relevant State or 
Territory Central Authority in which the child is located. If a 
child's exact location is not known, a warrant may be issued by 
a court for the possession of the child. The State or Territory 
Central Authority will also assess whether it is appropriate to 
negotiate a voluntary return and may make initial contact with 
the abducting party.\11\ If the negotiations fail or 
negotiations are considered inappropriate, the case will be 
forwarded to the Crown Solicitor (State Attorney) who will file 
an application with the Family Court. Direct contact between 
the applicant and the Crown Solicitor is discouraged, and 
communications are normally handled by the Central Authority. 
The application must be listed for a preliminary hearing before 
the Family Court within seven days, at which time a date will 
be set for the defending party to file a response and for a 
full hearing. The hearing is before a single family specialist 
judge, and the judgment is usually formulated on the basis of 
the documentary evidence, together with any affidavits deemed 
necessary. The court may require a family and child counselor 
or welfare officer to report on such matters that are relevant 
to the proceedings, and the reports may include any other 
matters that relate to the welfare of the child (reg. 26). Oral 
evidence may be called in cases in which there is a wide 
discrepancy in the evidence. The Court will take into account 
the wishes of a child who has sufficient maturity to understand 
the proceedings.\12\ A child of an appropriate age and degree 
of maturity should be separately represented, and the court 
should make an order for the presence of such 
representative.\13\
---------------------------------------------------------------------------
    \11\ Hutchinson, supra note 8, at 66.
    \12\ Id. at 67.
    \13\ Family Law Act 1975, Sec. 68L.
---------------------------------------------------------------------------
    The Court, if satisfied that it is desirable to do so, may 
make an order for the return of the child to the country in 
which he or she habitually resided immediately before the 
removal or retention, or make any other order it considers to 
be appropriate to give effect to the Convention (reg. 15). It 
must make an order for the return of the child if the 
application was filed less than 1 year after the day on which 
the child was removed to, or first retained in, Australia (reg. 
16(1)). The Court may refuse the return of the child if the 
person opposing the return establishes that the following 
prescribed exceptions to the return apply:

          (a) the applicant was not actually exercising rights 
        of custody when the child was first removed to, or 
        retained in, Australia and those rights would not have 
        been exercised if the child had not been so removed or 
        retained; or

          (b) return would expose the child to physical or 
        psychological harm or otherwise place the child in an 
        intolerable situation; or

          (c) the child objects to being returned and has 
        attained an age and degree of maturity at which it is 
        appropriate to take his views into account; or

          (d) return would not be permitted by the fundamental 
        principles of Australia relating to the protection of 
        human rights and fundamental freedoms (reg. 16).

    If a period in excess of one year has elapsed prior to an 
application being made for the return of a child, the Court is 
required (subject to the above prescribed exceptions) to make 
an order for the return of the child immediately, unless it can 
be proved that the child is now settled in his new environment 
(reg. 16(2)).\14\
---------------------------------------------------------------------------
    \14\ Supra, note 7, para. 17.8[29].
---------------------------------------------------------------------------
    The Court must refuse to make an order to return the child 
if it is satisfied that:

          (a) the removal or retention of the child was not 
        within the meaning of the Child Abduction Regulations; 
        or

          (b) the child was not a habitual resident of a 
        Convention country immediately before removal or 
        retention; or

          (c) the child had attained the age of 16; or

          (d) the child was removed to, or retained in, 
        Australia from a country which at that time was not a 
        Convention country; or

          (e) the child is not in Australia.

    The burden for ``substantiating settlement lies with the 
defending parent who must demonstrate that the child is both 
physically established in a new location and is emotionally 
settled and secure.'' \15\ The rationale of the Hague 
Convention is considered as being clear in that the object is 
the expeditious return of the child, and therefore the function 
of the Court should not be hampered by interpretations which 
interfere with the administration of the Convention.\16\ 
Similarly, terms in the Convention should be given their 
literal meaning, and its expressions should be understood 
according to their ordinary and natural meaning and should not 
be treated as terms of art with special meaning. The Family 
Court of Australia has had recourse to the explanatory report 
of the drafters and negotiators of the Hague Convention.\17\
---------------------------------------------------------------------------
    \15\ Hutchinson, supra note 8, at 67.
    \16\ For citations to Australian case law on this and the following 
points of interpretation of the Convention, see supra note 7, para. 
17.8[14].
    \17\ Hague Conference on Private International Law, Convention and 
Recommendations adopted by the 14th Session and Explanatory Report by 
Elisa Perez-Vera (The Hague, 1982).
---------------------------------------------------------------------------
    On an order of return being made by the court, the 
responsible Central Authority must make the necessary 
arrangements for the return of the child to the country of 
habitual residence. Unless the court order is stayed within 
seven days of its making, the child must be returned to the 
country of habitual residence.
    The Child Abduction Regulations also make provisions 
granting rights of access to a child in Australia (reg. 24). 
The Hague Convention, Art. 21, calls on Central Authorities to 
promote the peaceful enjoyment of access rights, and the Child 
Abduction Regulations require the Commonwealth Central 
Authority to take such steps as are necessary for the purpose 
of enabling the performance of the obligations under the 
Article.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. CHILD ABDUCTION


    The FLA, section 65Y, makes provisions against the removal 
of a child who was the subject of a custody order from the 
person who had care and control of the child. The penalty for 
the offense is imprisonment for up to three years. In 1983 
amendments were enacted creating a further offense to remove a 
child from Australia during pending proceedings or in 
contravention of a court order.\18\ For children abducted from 
overseas into Australia, the FLA provides authority for the 
issuance by a court of a ``location order'' and a ``recovery 
order.'' A location order calls for any person to obtain and 
provide to the Registrar of the court information on where a 
child is to be found. Once located, a recovery order authorizes 
the return of the child to the person seeking his recovery 
without exposing the abductor to any violence. The Act grants 
various enforcement powers to search premises, places, 
vehicles, aircraft and to arrest, remove or take possession of 
the child.\19\
---------------------------------------------------------------------------
    \18\ FLA, Sec. 65Y(1) & 65Z(1).
    \19\ FLA, Sec. 67Q.
---------------------------------------------------------------------------
    According to the Family Law Council, the provisions of the 
Family Law Act have not proven effective in preventing children 
from being unlawfully removed from or retained outside 
Australia. First, the offense is limited to cases in which 
court orders are in force or proceedings are pending. Secondly, 
the provision has no application to the common situation in 
which a parent takes a child abroad with the consent of the 
other parent and then retains the child. In a majority of cases 
of domestic abductions, the parent from whom the child is taken 
has no court order, and the abducting parent has not committed 
a criminal offense.
    Under State laws, criminal provisions exist, including 
child stealing and abducting a child under the age of 16 years. 
These provisions were not specifically designed to cover 
parental child abduction, although there are some provisions 
which may be applicable in cases of such abductions.
    The (Commonwealth) Criminal Code Act 1995, Division 27, 
section 27.2, contains provisions relating to kidnaping, child 
abduction and unlawful detention. Under it kidnaping is 
extended to cover the situation in which a person takes or 
detains another person without consent with the intention of 
taking the person out of the jurisdiction. A person who takes 
or detains a child is deemed to be acting without the child's 
consent. It is a defense if the person removing the child is 
that child's lawful custodian or acts with the consent of the 
custodian.
    The Commonwealth Criminal Code is based on a States-based 
Model Criminal Code. Proposed clauses in the Model Code 
relating to child abduction have been drafted, but it 
specifically excludes parents from the child abduction offense 
but not from kidnaping.\20\
---------------------------------------------------------------------------
    \20\ Supra note 3, at 25.
---------------------------------------------------------------------------
    The Family Law Council evaluated all the arguments in favor 
and against the criminalization of parental child abduction and 
recommended that, neither at the domestic nor at the 
international level, should abduction by a parent be 
criminalized.\21\ The Council suggested that alternative means 
of improving the recovery rate of abducted children should be 
explored.
---------------------------------------------------------------------------
    \21\ Id. at 37.
---------------------------------------------------------------------------
    A note is made of the change in terminology in Australia 
regarding custody and access. In 1996 these were replaced by a 
system of shared parenting based on parental responsibility. 
The joint responsibility is applicable whether or not the 
parents are married.\22\ Reference is now made to a child's 
``residence,'' that is, with whom the child lives, and the 
``contact'' that the child has with certain persons. The 
change, however, does not affect the use of the terms 
``custody'' and ``access'' in the Hague Convention, as the 
statute specifically provides that the terminology of the 
Convention continues to apply to Australian parents.\23\
---------------------------------------------------------------------------
    \22\ In Western Australia unmarried mothers alone continue to 
exercise parental responsibility and residence rights over the child.
    \23\ Family Law Reform Act 1995, Sec. 111B(4).
---------------------------------------------------------------------------
    With regard to the effect of the change of terminology on 
abductions when both parents have responsibility of the child, 
the removal of a child by one parent prevents the other parent 
from exercising his responsibilities. This amounts to a 
parental abduction arising from the taking over of all 
responsibilities for a child's care without regard for the 
other parent who shares those responsibilities.\24\
---------------------------------------------------------------------------
    \24\ Supra note 3, at 37-38.
---------------------------------------------------------------------------


                         B. PARENTAL VISITATION


    The concept of parental responsibility introduced by the 
1995 Act is defined to include ``all the duties, powers, 
responsibilities and authority which, by law, parents have in 
relation to children.'' \25\ Each of the parents of a child who 
is not 18 has parental responsibility for the child, and any 
change in the nature of the relationship of the parents does 
not result in a change in the responsibility. ``It is not 
affected, for example, by the parents becoming separated or by 
either of them marrying or re-marrying.'' \26\ Thus, the 
parents generally retain the same responsibilities they 
exercised over the children before the breakup of their 
marriage. This is the situation irrespective of whether the 
child resides with one parent and the other has contact with 
the child.
---------------------------------------------------------------------------
    \25\ Family Law Act 1995, Sec. 61B.
    \26\ Id. Sec. 61C(2).
---------------------------------------------------------------------------
    The 1995 Act encourages the parents of a child to agree 
about matters concerning the child, giving the best interests 
of the child paramount consideration, rather than seeking an 
order from a court. A ``parenting plan'' may be drawn up 
dealing with various matters, including the person with whom 
the child is to live; contact between the child and another 
person; maintenance of the child; and any other aspect of 
parenting responsibility. The plan may be registered in a 
court, and if so done, the court may vary the child welfare 
provisions in the best interests of the child.\27\
---------------------------------------------------------------------------
    \27\ Id.Sec. 63B.
---------------------------------------------------------------------------
    The Hague Convention also requires that rights of access 
granted in the laws of members states be respected. The Child 
Abduction Regulations (reg. 24) vest upon the Central Authority 
the duty to promote the enjoyment of those rights, a duty which 
is administrative and non-mandatory in nature. The Central 
Authority may thus initiate or instruct legal representatives 
to seek an access order. Moreover, while the Convention does 
not place an absolute obligation on the Court, it may consider 
the best interests of the child in determining whether an 
access order should be made. If a foreign access order is in 
existence, it is given the ``greatest weight'' and would be 
overridden only by the paramount consideration of the welfare 
of the child.\28\
---------------------------------------------------------------------------
    \28\ Supra note 7, para. 7.8[44].
---------------------------------------------------------------------------

   III. Court System and Structure--Courts Handling Hague Convention

    The federal Family Court deals with all legal matters which 
follow from family breakups and divorce, the custody and 
welfare of children, access arrangements and property disputes. 
In Western Australia, a separate Family Court of Western 
Australia exists to exercise federal and non-federal 
jurisdiction in family law and adoption matters. Under a system 
of cross-vesting of jurisdiction between federal, State and 
Territory courts, the Family Court of Australia is vested with 
the full jurisdiction of the State and Territory Supreme 
Courts.\29\ Cross-vesting reduces uncertainties as to the 
jurisdictional limit of the courts and ensures that proceedings 
which ought to be tried together are tried in one court.
---------------------------------------------------------------------------
    \29\ Jurisdiction of Courts (Cross-Vesting) Act 1987. Recently, the 
Australian High Court invalidated parts of the cross-vesting 
arrangements in Re. Wakim, [1999] HCA 27 (17 June 1999). The 
Jurisdiction of Courts Amendment Bill 2000 has been introduced in 
Parliament to address some of the objections of the Court.
---------------------------------------------------------------------------
    An appeal may be brought as a matter of right to the 
Appeals division of the Family Court of Australia sitting with 
three judges, and a further appeal may be made to the High 
Court of Australia, if the Appeals division or the High Court 
certifies that a question of law has arisen.
    The nature of the litigation arising in administering the 
Hague Convention is considered to be in a class by itself and 
is described as being neither adversarial nor inquisitorial. As 
in other family matters, applications under the Convention are 
processed expeditiously. Hearings are held in open court, but 
the names of the persons involved in the proceedings must not 
be disclosed by the media, the sanction against which is a 
criminal penalty.
    The Child Abduction Regulations (reg. 2(1)) confer 
jurisdiction of child abduction cases on any court which 
exercises jurisdiction under the Family Law Act. This includes 
a court of summary proceedings.
    In the majority of cases, a Central Authority makes an 
application for an order for the return of a child as the 
Regulations grant them primary responsibility for instituting 
proceedings. However, the Full Court of the Family Court 
expressed the view in Panayotides v. Panayotides \30\ that such 
proceedings can be properly brought by any person, institution, 
or other parties whose rights of custody have been breached by 
the removal or retention.
---------------------------------------------------------------------------
    \30\ (1997) FLC para. 92-733, at pp. 83,883-83,884.
---------------------------------------------------------------------------
    In State Central Authority v. Ayob,\31\ the Court ruled 
against a literal interpretation of the Child Abduction 
Regulations because of the clear import of provisions in the 
Convention. It is accepted in Australia that the Convention is 
to be interpreted broadly, without attributing to it any 
specialist meaning which it may have acquired under domestic 
law.\32\ Thus, important expressions in the Convention on 
``rights of custody'' and ``habitually resident'' have been 
interpreted more broadly than under Australian domestic 
law.\33\
---------------------------------------------------------------------------
    \31\ (1997) FLC para. 92-746 at pp. 84,072, 84,074.
    \32\ As stated by the Family Court in England in Re. F [1995] 2 Fam 
LR 31, 41.
    \33\ Dickey, supra note 6, para. 211.
---------------------------------------------------------------------------
    The reason for the prompt return of the child is to ensure 
that the courts in the home country determine who should have 
parental responsibility, and as such, where the child should 
live.\34\ It is assumed that the issues are best determined by 
the courts of the country in which the child has the most 
obvious and substantial connection.\35\
---------------------------------------------------------------------------
    \34\ Re S (A Minor), [1993] Fam 242, 250.
    \35\ Dickey, supra note 6, para. 202.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    The procedure of the Hague Convention is designed to enable 
a court or administrative authority to immediately return the 
child to its country of habitual residence.
    In granting an order for the return of a child, a court may 
grant to the Commonwealth or State Central Authorities:

   a warrant for the apprehension or detention of the 
        child, including the right to stop and search a 
        vehicle, vessel, or aircraft, or to enter and search 
        such premises;

   an order that the child not be removed from a 
        specified place;

   that the child be placed with an appropriate person 
        or institution pending the determination of the 
        application for return.

    The procedure is designed to enable the authorities to 
return the child to the person seeking the child's recovery 
without exposing the abductor to possible violence.
    However, it is acknowledged that as parental abduction 
remains solely a civil matter, it does not obtain a priority of 
police resources, nor are detection procedures, such as 
telephone interception and the use of listening devices, made 
available.

                      V. Legal Assistance Programs

    Applications made in Australia under the Hague Convention 
are automatically funded by the Government and no means test is 
applicable. The Hague Convention, Art. 26, paragraph 3, allows 
a contracting state to make a reservation that it will not be 
bound to meet certain costs of recovery of a child. Australia 
has not made such a reservation, while a significant number of 
countries have done so.
    The Australian Central Authority does require foreign 
applicants to deposit sufficient funds with their legal 
representatives to cover the costs of the air fares, prior to 
processing an application through the courts. There is an 
Overseas Custody (Child Removal) Scheme to compensate 
Australian applicants who do not have the financial means for 
air travel.
    Under the Child Abduction Regulations (reg. 30), the Court 
can order the abducting parent to pay the expenses of the 
applicant, including necessary traveling expenses, costs 
incurred in locating the child, legal representation costs, and 
other costs incurred for the return of the child. However, in 
family matters each party bears its own expenses and order for 
the payment of costs are rarely made.
    The parties to a Hague Convention application may engage 
legal representatives at their own expense and apply for legal 
aid (assistance). Legal aid is available in all of Australia, 
subject to means and merits tests. Each State and Territory 
adopts its own eligibility criteria.

                             VI. Conclusion

    Given the object of the Hague Convention to expeditiously 
return children taken from one country to another, the Family 
Court of Australia has interpreted the Convention in a manner 
which accords with its spirit. As required under the Vienna 
Convention on the Law of Treaties, the Court has followed the 
primary rule of interpreting the Hague Convention in good faith 
in accordance with the ordinary meaning to be given to its 
words. It has also made use of the Explanatory Report to the 
Convention to confirm the meaning arrived at or to remove an 
ambiguity or overcome a manifestly absurd or unreasonable 
result.\36\
---------------------------------------------------------------------------
    \36\ Supra, note 7, para. 17.8[14].
---------------------------------------------------------------------------
    The number of cases of parental abduction has increased 
since the Hague Convention came into force in Australia in 
1988. One explanation for the increase may be the significant 
increase in the number of countries that have ratified the 
Convention and the resulting greater awareness of the problem. 
The Attorney-General's Department, however, notes that the 
increase has mainly been in relation to the United Kingdom, the 
United States and New Zealand.\37\
---------------------------------------------------------------------------
    \37\ Supra, note 3, at 15.
---------------------------------------------------------------------------
    The statutory Family Law Council after investigating 
several issues relating to child abductions referred to it by 
the Attorney-General, has made several recommendations, 
including that:

   Steps be undertaken to improve the data collected on 
        child abductions.

   Parental child abduction, whether internally or from 
        other countries, should not be criminalized and 
        alternative means should be adopted for improving the 
        recovery rate of abducted children.

   The courts be given broad discretionary powers to 
        recover the costs associated with the recovery of 
        children abducted from abroad from the person 
        responsible for the abduction.

    Prepared by: Kersi B. Shroff, chief, Western Law Division, 
Directorate of Legal Research, Law Library of Congress, March 
2000.

                                ------                                


                                AUSTRIA

                              Introduction

    Austria ratified the Convention on the Civil Aspects of 
International Child Abduction \1\ [hereinafter Hague 
Convention] in September 1988 \2\ and it became effective on 
October 1, 1988.\3\ Austria made no reservations to the 
Convention and the implementing legislation provides effective 
and generous mechanisms for processing Hague Convention 
requests. Nevertheless, it has been alleged that refusals to 
return a child to a foreign country are a frequent occurrence 
in Austria,\4\ while requests for visitation rights appear to 
be rare.
---------------------------------------------------------------------------
    \1\ The Hague, Oct. 25, 1980 T.I.A.S. 11670.
    \2\ Promulgated Sept. 14, 1988, Bundesgesetzblatt [BGBl, official 
law gazette for Austria] no. 1988/512.
    \3\ Bundesgesetzblatt [official law gazette of Germany] 1991 II at 
336.
    \4\ A German newspaper article suggested that Austria was almost as 
reluctant as Germany to return abducted children [C. Brinke, Im Zweifel 
fur den Kidnapper, Suddeutsche Zeitung 12 (Oct. 21, 1999)].
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    In June 1988, Austria enacted an Implementing Act for the 
Hague Convention [hereinafter Implementing Act] that was 
promulgated in September 1988 \5\ and became effective together 
with the Convention on October 1, 1988. The Implementing Act 
designates the Austrian Federal Ministry of Justice 
[hereinafter Ministry] as the Central Authority within the 
meaning of article 6 of the Hague Convention \6\ and makes 
provision for fitting Hague Convention requests into the 
Austrian administration of justice.
---------------------------------------------------------------------------
    \5\ Bundesgesetz zur Durchfuhrung des Ubereinkommens vom 25. 
Oktober 1980 uber die zivilrechtlichen Aspekte internationaler 
Kindesentfuhrung, June 9, 1988, BGBl. no. 1988/513.
    \6\ Requests are to be directed to the Federal Minister at the 
following address:  Der Bundesminister fur Justiz, A 1070 Wien, 
Museumstrasse 7, AUSTRIA.  Tel: 43 1 521 52 0.
---------------------------------------------------------------------------
    When a request arrives from abroad, the Ministry must first 
examine whether the child is located in another country, in 
which case the request will be forwarded in accordance with 
article 9 of the Convention. If it appears that the child is in 
Austria, the Ministry is called upon to have the request and 
the underlying documents translated into German, if they have 
been provided in a foreign language. This is done at the 
expense of the Austrian Federal Government. Thereupon, the 
Ministry must forward the request to the president of the 
Austrian District Court [Bezirksgericht] of the place where the 
child is actually found, and in the absence of such a place, to 
the district court of the parent's abode or residence. If venue 
cannot be established according to these criteria, then it is 
placed with the District Court for the First District of Vienna 
[Bezirksgericht Innere Stadt Wien].\7\
---------------------------------------------------------------------------
    \7\ Jurisdiktionsnorm [JN], Aug. 1, 1895, Reichsgesetzblatt [RGBl.] 
no. 1895/111, Sec. 109.
---------------------------------------------------------------------------
    Upon receipt of the request, the President of the District 
Court must appoint a law clerk to assist and represent the 
requester and must assign the case to the competent judge. The 
court may also involve the youth welfare agencies if this is 
deemed necessary to protect the interests of the child. The 
judge must decide the case promptly, in a non-contentious 
proceeding, unless a voluntary return has been effected. If the 
judge denies the request, he or she must appoint an attorney to 
receive the judgment and to represent the requester in any 
appellate proceedings. The services of this attorney are 
provided free of charge at the expense of the Austrian 
Government, regardless of the financial circumstances of the 
requester.
    The President of the District Court must keep the Ministry 
apprized of any important steps taken in the proceeding. In 
particular, a justifying report must be filed if the proceeding 
is not terminated within six weeks. The Ministry in turn may 
ask about the status of the proceeding, and these inquiries may 
also be directed to counsel representing the requester.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation

    Austrian domestic law on custody, child abduction and 
parental visitation is generally not governing in Hague 
Convention requests, due to the Convention's focus on a prompt 
return of the child and on the prompt implementation of 
visitation rights bestowed by other legal systems. 
Nevertheless, an explanation of Austrian domestic law on issues 
related to child care and custody may help to provide 
understanding of the legal environment in which Hague 
Convention requests are adjudicated. In particular, an 
understanding of the concept of the best interest of the child 
is essential. This concept is of overriding importance in all 
domestic decisions concerning children,\8\ and it is possible 
that this philosophy may carry over into the adjudication of 
Hague Convention requests.
---------------------------------------------------------------------------
    \8\ Allgemeines Burgerliches Gesetzbuch, June 1, 1811, Gesetze und 
Verordnungen im Justizfache no. 946, as amended, Sec. 178 (a).
---------------------------------------------------------------------------
    Currently, a major reform on the law of children is in the 
planning stage. It has been discussed for two years, and it 
appears that a governmental bill is about to be submitted to 
Parliament. The purpose of this reform is to strengthen the 
rights of children in various ways and to give them a hearing, 
whenever possible, on decisions that affect them. It is not as 
yet certain whether the bill will permit the awarding of joint 
custody to divorced parents after a one year cooling off period 
following the parent's divorce. Current Austrian law does not 
foresee joint custody for separated or divorced parents and a 
vigorous discussion on its desirability is currently taking 
place.\9\ Should the reform bill become law, which appears 
likely, it could possibly have an influence on Austrian policy 
on Hague Convention requests.
---------------------------------------------------------------------------
    \9\ Michalek: Neues Gesetz ohne neue Regierung, Die Presse online 
(Dec. 11, 1999).
---------------------------------------------------------------------------
    At present, Austrian law provides that married parents 
exercise custody jointly, unless there is a problem, in which 
case, a judicial decision would be made awarding custody to one 
parent or to another party and specifying visitation rights of 
the non-custodial parent. In doing so, and in all other 
decisions affecting the child, the court must consider the best 
interest of the child as required by article 178 (a) of the 
Austria Civil Code which translates as follows:

          In adjudging the welfare of the child, the 
        personality and the needs of the child must be taken 
        into appropriate consideration, in particular, his or 
        her aptitudes, abilities, inclinations, and potential 
        for development, as well as the lifestyle of the 
        parents.

    Another important principle in proceedings relating to the 
care of children is that they must be asked about their wishes, 
as is expressed in section 178 (b) of the Civil Code:

          Prior to issuing an order relating to the care or 
        education of a child, the court shall hear the child in 
        person, to the extent possible; a child below the age 
        of ten may also be questioned through the provider of 
        youth welfare services or in other suitable ways. The 
        child shall not be heard if his or her welfare could be 
        endangered through the questioning or through a delay 
        in the court order, or if, due to his or her age or 
        developmental stage, the child cannot be expected to 
        utter an opinion.

    In addition to these substantive and procedural provisions, 
Austrian conflicts law may also be of interest, particularly in 
anticipating how Austrian courts may evaluate foreign legal 
decisions. The provisions of the Austrian Conflicts Code \10\ 
are fairly complex, referring for issues akin to guardianship, 
in part, to the citizenship of the child and, in part, to the 
laws of the country which is making the decisions, while 
rejecting the application of any laws that are contrary to 
Austrian public policy. In relationship to ten European 
countries, however, the Hague Convention on the Protection of 
Minors \11\ applies which generally makes the law the habitual 
abode of the child or minor applicable for the taking of any 
protective measures while deferring to the law of his or her 
citizenship for the making of status decisions. This Convention 
also establishes overriding priorities for measures deemed 
necessary in the best interest of the child.\12\
---------------------------------------------------------------------------
    \10\ Bundesgesetz uber das international Privatrecht, June 15, 
1987, BGBl. no. 1978/304, as amended, Sec. Sec. 27 and 6.
    \11\ Convention Concerning the Powers of Authorities and Law 
Applicable in Respect to the Protection of Infants, done Oct. 5, 1961, 
at The Hague, 658 UNTS 143; ratified by Austria Aug. 19, 1975, BGBl. 
no. 446/1975. The Convention applies to young people who according to 
their domestic laws are below the age of majority. In the unofficial 
German translation, the Convention is referred to as the Convention on 
the Protection of Minors.
    \12\ F. Schwind, Internationals Privatrecht 166 (Wien 1990).
---------------------------------------------------------------------------
    A decision of 1997 of the Austrian Supreme Court \13\ is an 
example of how Austrian courts apply the exceptions of articles 
12 and 13 of the Hague Convention. In that case, a request to 
return two children was made by their Australian father, after 
the Austrian mother had taken the children to Austria where she 
was awarded custody by the Austrian court. At her time of 
departure, she was married to the father, but a divorce 
proceeding was pending that later resulted in divorce. When the 
mother left Australia with the children, the husband was 
unemployed, did not have housing, and there was a history of 
alcohol and drug abuse, as well as violence against the mother; 
the latter had led to measures by the Australian authorities. 
The Austrian trial court refused the Hague Convention request 
for a return of the children on November 29, 1996; the 
appellate court's refusal was pronounced on March 21, 1997.
---------------------------------------------------------------------------
    \13\ Oberster Gerichtshof (OGH) decision, June 19, 1997, 38 
Zeitschrift fur Rechtsvergleichung, Internationals Privatrecht und 
Europarecht [ZfRV] 249 (1997).
---------------------------------------------------------------------------
    The Supreme Court upheld the refusals of the lower courts, 
and reasoned that the facts indicated that the father would not 
be capable of caring for the children. The Court also 
questioned whether the father was actually exercising his 
custody rights at the time the mother took the children out of 
the country, which conduct, according to the Court, could 
hardly be called an abduction under the circumstances. However, 
the court did not find it necessary to have this fact proven 
and to adjudge whether the exception of article 13, paragraph 1 
of the Hague Convention would apply. Instead, the Supreme Court 
justified the refusal by holding that the welfare of the child 
had priority over the Hague Convention's overall purpose of 
preventing child abductions.
    The welfare of the child also justified a refusal to return 
the child in a Supreme Court decision of 1998.\14\ In that 
case, an Austrian mother had abducted her marital child from 
France, where she had lived with her French husband with whom 
she shared custody. The Austrian trial court and appellate 
court ruled for a return of the child. Their decisions, 
however, were overturned by the Austrian Supreme Court to 
protect the welfare of the child. While the Hague Convention 
request was pending before the Austrian trial court, a French 
court had granted the mother sole custody. The Austrian trial 
court was informed of the French decision only after it ruled 
for the return of the child; however, the mother was entitled 
according to Austrian procedural law \15\ to plead this new 
development on appeal. The Austrian Supreme court held that a 
return to the French father would hurt the child because the 
execution of the French custody decree would give the child 
back to the mother, and thus the child would be shuttled back 
and forth unnecessarily.
---------------------------------------------------------------------------
    \14\ OGH decision, Apr. 15, 1998, docket no. 7 Ob 72/98h, 
Osterreichische Juristen-Zeitung 667 (1998).
    \15\ Ausserstreitgesetz [AusserStrG], Aug. 9, 1854, RGBl. no. 1854/
208, as amended, Sec. 10.
---------------------------------------------------------------------------
    In another decision of 1997,\16\ the Supreme Court upheld 
concurring decisions of the lower court that refused to return 
a child to Canada, where mother and father resided in 1995. The 
Austrian mother filed for divorce in December 1995 in Quebec 
and the Canadian court promptly issued an interim judgment 
granting custody to the mother and visitation rights to the 
father, who was both an Austrian and Mexican citizen. The 
Canadian court also ordered both parents to remain in Canada. 
The mother left Canada in July 1996 and returned to her native 
Austria where she petitioned the Austrian court to award her 
custody, which was granted. Two days after this Austrian 
decision, the Canadian court awarded custody to the father and 
on August 1, 1996, the father requested a return of the child 
under the Hague Convention.
---------------------------------------------------------------------------
    \16\ OGH decision, Feb. 12, 1997, docket no. 35/97s, 70 
Entscheidungen des osterreichischen Gerichtshofes in Zivilsachen, no. 
27 (1998).
---------------------------------------------------------------------------
    In the Austrian proceeding, the mother argued that the 
Hague Convention did not apply because she alone had custody at 
the time that she removed the child from Canada. She also 
alleged that the father was mentally ill and often under the 
influence of alcohol, that she suspected sexual abuse of the 
child by the father, and that she had no opportunities to 
pursue employment in Canada, and, therefore, had to return to 
Austria to support the child.
    The trial court held for the mother by finding that 
separating the child from the mother would endanger the welfare 
of the child. The appellate court also refused to return the 
child but justified its decision by finding that the 
prerequisites for a request were lacking because the mother had 
sole custody at the time of the request. The Supreme Court 
concurred and distinguished the case from its previous decision 
in 1992 \17\ in which a child was ordered to be returned to 
England because the English court had ordered the mother who 
had custody not to leave England with the children without the 
consent of the father. In the 1992 case, the Austrian Supreme 
Court had reasoned, the English court's order could be 
interpreted as the granting of joint custody, whereas no such 
grant was made by the Canadian court, even though the mother's 
departure from Canada was illegal and violated the Canadian 
court's injunction.
---------------------------------------------------------------------------
    \17\ OGH decision, Feb. 5, 1992, docket no. 2 Ob 596/91, 34 ZfRV 32 
(1993).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    Although Austria is a federated country, procedural law and 
the administration of justice are centralized in the 
Federation. Judicial independence is guaranteed by the 
Constitution which also prohibits forum shopping by requiring 
the courts to assign all cases to judges according to an 
assignment plan made in advance.\18\ The Austrian court system 
is very specialized, providing, in addition to the courts of 
ordinary jurisdiction, special courts for labor disputes and 
administrative matters, while constitutional issues are decided 
by the Constitutional Court.\19\
---------------------------------------------------------------------------
    \18\ Bundes-Verfassungsgesetz, BGBl. no. 1/1930, art. 87, as 
amended.
    \19\ F. Schwind and Fritz Zemen, Austria, in I International 
Encyclopedia of Comparative Law A 67 (Tubingen, 1973).
---------------------------------------------------------------------------
    Hague Convention requests are adjudicated by the courts of 
ordinary jurisdiction, in non-contentious proceedings. These 
tend to be even more inquisitorial than Austrian proceedings in 
general, thus allowing the judge much latitude in how to 
organize the proceeding, while requiring a less formal conduct 
by the parties. The judge decides what use is to be made of the 
youth welfare offices to provide counseling, evaluations, or 
other services. The judge may also call for expert testimony by 
child care professionals. However, in doing so, the judge must 
balance the desirability of investigations with the obligation 
to speed the proceeding as much as possible, as is provided in 
the Convention and the Implementing Statute. In the interest of 
speed, it is even permissible for the Austrian court to deny a 
hearing.\20\ Nevertheless, Austrian case law justifies 
procedural delays to protect the welfare of the child.\21\
---------------------------------------------------------------------------
    \20\ OGH decision, Apr. 28, 1992, docket no. 4 Ob 1537/92, 34 ZfRV 
32 (1993).
    \21\ Supra note 13.
---------------------------------------------------------------------------
    The chain of appeals in Hague Convention requests goes from 
the single judge at the local court [Bezirksgericht] as the 
trial level to a panel of judges at the Regional court 
[Landesgericht] as the first appellate instance,\22\ and from 
there to a panel of judges at the Supreme Court as the second 
and last appellate instance. An important feature of the 
appellate process in non-contentious matters is the 
permissibility of pleading new developments.\23\
---------------------------------------------------------------------------
    \22\ JN Sec. 3.
    \23\ AusserStrG, Sec. 10.
---------------------------------------------------------------------------

                          IV. Law Enforcement

    Once a court decision on a Hague Convention request becomes 
final, it becomes enforceable. If there is no voluntary 
compliance, the winning party may request the local district 
court to order the necessary steps to give effect to the 
decision. The primary means of coercion foreseen by statute are 
the issuance of orders and the imposition of coercive fines or 
detention. The court of execution may also involve the youth 
welfare agencies in effecting the return of the child or in the 
enforcement of visitation rights. If necessary, the court may 
also appoint a warden, at the expense of the non-complying 
party.\24\
---------------------------------------------------------------------------
    \24\ AusserStrG., Sec. 19.
---------------------------------------------------------------------------
    A Supreme court decision of 1996 indicates that the welfare 
of the child can still be raised as an issue even after a court 
decision ordering the return of a child becomes 
enforceable.\25\ In that case, the Supreme Court held that the 
local court called upon to execute the decree to return the 
child must first decide whether this execution would serve the 
welfare of the child. This decision is to be made in accordance 
with Austrian law, while taking into consideration the purposes 
of the Hague Convention. It appears that a decision refusing 
the return of the child at such a late stage in the proceeding 
must be made by the court on its own initiative if the court 
becomes aware of circumstances warranting such a measure. In 
addition, the party ordered to produce the child may also 
request a denial of the execution at this stage. In order to do 
so, the party must bring new evidence of circumstances that 
indicate that the welfare of the child would be seriously 
endangered by the execution. Such execution decisions are again 
appealable in two instances up to the Supreme Court.
---------------------------------------------------------------------------
    \25\ OGH decision, Oct. 15, 1996, docket number 4 Ob 2288/96 s., 38 
ZfRV 33 (1997).
---------------------------------------------------------------------------
    It should not be difficult to locate a child in Austria 
because Austria is a small country and residents and visitors 
must report any changes in their residence or temporary abode 
to the local authorities. Landlords and innkeepers are required 
to cooperate in the observance of these legal provisions that 
are enforced by the Federal police, and in smaller communities, 
by the local administrative authorities.\26\
---------------------------------------------------------------------------
    \26\ Meldegesetz 1991, BGBl. no. 1992/2.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    Austria grants legal assistance to needy parties in 
Austrian proceedings. A party must apply for this benefit with 
the trial court where the case is pending and the decision on 
the granting of legal aid and on the extent and types of 
benefits to be provided is made by that court, after evaluation 
of the circumstances of the indi-


vidual case.\27\ There appears to be little need for legal aid 
in Hague Convention requests, because Austria has made no 
reservation to article 26 of the Convention and, therefore, 
should be willing to bear the expenses of any administrative 
actions and court proceedings. Moreover, Austria has provided, 
in the Implementing Act, that translations of documents will be 
made at the expense of the Austrian Federal Government and that 
legal assistance is provided to requesting parties at the trial 
stage through the assignment of a law clerk, and for appellate 
proceedings, through the appointment of an attorney, both free 
of charge to the party requesting the return of the child or 
the granting of visitation rights. Nevertheless, it may be 
prudent for a requesting party in reduced financial 
circumstances to apply for legal aid by requesting from the 
Federal Ministry the required forms and instructions.

                             VI. Conclusion

    Favorable conditions for Austria's implementation of the 
Hague Convention were created through the Austrian Implementing 
Act of 1988. In the past twenty years, Austria has processed 
and adjudicated numerous requests. The reported court decisions 
reveal that the Austrian courts examine requests for the return 
of a child carefully as to their prerequisites and are willing 
to employ the exceptions of the Convention when this is in the 
best interest of the child. It is possible that in determining 
what is best for the child, the same high standards may be 
imposed in Hague Convention requests that are required by law 
in domestic cases and this may be the reason for the fair 
number of cases in which the return of the child was denied by 
Austria.

    Prepared by: Edith Palmer, senior legal specialist, Legal 
Research Directorate, Law Library of Congress, December 1999.

__________

    \27\ Zivilprozessordnung, Aug. 1, 1895, RGBl. no. 1895/113, as 
amended, Sec. Sec. 63 et seq.

                                ------                                


                          REPUBLIC OF BELARUS

                              Introduction

    The Republic of Belarus, which became an independent state 
in December 1991, is a non-member state of the Convention on 
the Civil Aspects of International Child Abduction because it 
did not participate in the Hague Conference on Private 
International Law at the time of its Fourteenth Session as 
required by article 37 of the Convention. The Republic of 
Belarus acceded to the Convention in 1998. The National 
Assembly (the Parliament) of Belarus ratified the Convention on 
October 13, 1997, and the act of ratification entered into 
force in Belarus on January 13, 1998. 1 The 
accession of Belarus to the Convention has been accepted by the 
following countries:
---------------------------------------------------------------------------
    \1\ Vedamastsi Natsyianalnaga Shodu Respubliki Belarus [Bulletin of 
the National Assembly of the Republic of Belarus, official gazette], 
1998, No. 18, Item 209.

        The Netherlands,
        Israel,
        Finland,
        Czech Republic,
        Austria,
        Argentina,
        Germany,
        Chile,
        China,
        Spain,
        Republic of Georgia,
        Greece.

    According to article 38 of the Convention, Belarusian 
accession to the Convention is effective only between Belarus 
and those contracting states that have declared their 
acceptance of the accession. The United States has not 
recognized Belarusian participation in the Convention.

   I. Domestic Laws and Regulations Implementing the Hague Convention

    Even though the Republic of Belarus acceded to the Hague 
Convention along with some other European legal documents with 
the purpose of international recognition and improvement of its 
image on international arena, Belarus' acceding to the 
Convention did not influence the development of the national 
legal system. Unlike those in other newly independent states of 
the former Soviet Union, the Constitution of Belarus does not 
provide for the priority of international obligations over 
domestic regulations, and the conclusion of an international 
agreement by the Belarus authorities does not require automatic 
adoption of national implementing legislation.
    The basic principles of Belarusian legislation in regard to 
family relations and child protection have not substantially 
changed since the mid-1960s. The major documents in this field 
remain the Code of Marriage and Family of 1969 and the Criminal 
Code of the Republic of Belarus adopted in 1960, which followed 
the respective Fundamentals of Soviet Legislation. Amendments 
introduced in both documents during the last eight years in 
order to bring them in accordance with the existing realities 
did not significantly change the content of these laws.
    Although a member of the United Nations since the creation 
of this organization, the Republic of Belarus has very limited 
experience in independent participation in bilateral and 
multilateral treaties. National legal tradition does not 
provide for adoption of special implementation legislation 
after joining international legal instruments. The problem of 
parental child abduction, especially international abductions, 
is not an acute problem for Belarus because of its long years 
of continuing international isolation, the domination of 
conservative Soviet traditions in family relations, the strong 
state interference in private affairs of the citizens, the 
absence of new legislation, and the lack of resources for 
enforcement of already passed laws.
    A major related legislative provision is included in the 
Constitution of Belarus--article 32 states that ``[m]arriage, 
the family, motherhood, fatherhood, and childhood shall be 
under the defense of the State.'' The Constitution establishes 
that ``parents aor persons replacing them shall have the right 
and shall be obliged to nurture children, and be concerned for 
their health, development, and learning. A child must not be 
subjected to cruel treatment or humiliation, enlisted for work 
which may cause harm to his physical, intellectual, or moral 
development.'' In regard to the separation of children from 
their families against the will of the parents and other 
persons replacing them, the Constitution permits such 
separation on the basis of a court ruling, if the parents or 
other persons replacing them do not fulfill their duties. 
2
---------------------------------------------------------------------------
    \2\ Constitution of the Republic of Belarus, Adopted March 15, 
1994, with the changes and additions enacted by referendum on Nov. 24, 
1996.
---------------------------------------------------------------------------
    The Law of the Republic of Belarus on Acceding to the 
Convention on Civil Aspects of International Child Abduction, 
adopted simultaneously with the instruments of ratification, 
assigns the Ministry of Justice of the Republic of Belarus to 
be a Central Authority, with the responsibilities prescribed in 
article 7 of the Convention. 3 Belarus is a unitary 
state, and the Ministry of Justice has jurisdiction over all 
the country including all administrative provinces and regions; 
therefore the Convention extends to all Belarusian territory as 
required by article 40. Despite the fact that Belarus 
established a state union with the Russian Federation and the 
Union Treaty provides for equal rights of citizens of both 
countries and the unification of legislation as its ultimate 
goal, 4 Belarusian international obligations do not 
extend on Russian territory.
---------------------------------------------------------------------------
    \3\ Supra note 1.
    \4\ Supra note 1, 1999, No. 32, Item 863.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    According to the Criminal Code of the Republic of Belarus, 
the abduction or exchange of a strange child for mercenary 
purposes or for other vile motives is punishable by deprivation 
of freedom for a term not exceeding five years. 5 
The Law considers as an abduction the kidnapping of a child 
without the consent of its parents or legal guardians if it was 
committed for a particular purpose. The abduction may be open 
or hidden, and be a result of deceit, misuse of trust, or of 
restraining the child. Under the Law, a child is any person 
under 16 years of age. The child's consent, regardless of his 
understanding of the significance of the unlawful activity, 
does not eliminate the criminal responsibility of the abductor. 
The Law determines ``mercenary purposes'' as the intention to 
receive material profits from the abduction, i.e., ransom or 
taking a child's clothes. Vile motives are those that 
contradict moral principles, for example, taking revenge on a 
child's parents. If a childless woman abducts a child with the 
purpose of educating him and creating a good family environment 
for him, such an abduction does not qualify as an abduction 
from vile motives. 6
---------------------------------------------------------------------------
    \5\ Criminal Code of the Republic of Belarus, art. 123.
    \6\ Vestnik Verkhovnogo Suda SSSR [Bulletin of the USSR Supreme 
Court]. On Practice of Resolution of Family Law Cases by the Courts. 
1974, No. 2, at 10.
---------------------------------------------------------------------------
    Parental kidnaping is not considered a criminal offense in 
Belarus. Only those who abduct somebody else's child may bear 
criminal responsibility for a child's abduction. Hence 
biological and adoptive parents may not be prosecuted as 
kidnappers or child abductors. If divorced or separated parents 
disagree in regard to who will keep the child, the abduction of 
one's own child from the other parent or from an orphanage or 
another special institution is not considered to be an 
abduction under Belarusian criminal legislation. The Law also 
prohibits prosecuting close relatives of a child (for example, 
grandparents) for abduction, if they acted in the child's 
interests, even if these interests were misunderstood. It 
should be noted that the criminal legislation of Belarus does 
not impose punishment for removal of a child from the country 
or for retaining a child outside Belarus with intent to 
obstruct the lawful exercise of parental rights. Retainment is 
not considered as a separate felony.
    Criminal acts such as child abduction occur very seldom in 
Belarus. If a foreigner whose home country recognizes the 
participation of Belarus in the Convention commits such a 
crime, the child is subject to return. All other cases fall 
under the laws of the respective state. In such cases the 
Ministry of Justice of the Republic of Belarus, which was 
designated as a National Central Authority to discharge the 
duties imposed by the Convention, must cooperate with foreign 
authorities in order to discover the child, to prevent possible 
harm to the child, and to secure the child's return.

                         B. Parental Visitation

    Family legislation in Belarus is based on the Code of the 
Republic of Belarus on Marriage and Family of 1969, which is 
currently in force. The Code was slightly amended after Belarus 
adopted its new Civil Code in 1996. The major principle of 
Belarusian family law is that decisions relating to a minor 
should be based on his best interests; however, no specific act 
regulates issues related to parental visitation.
    Under Belarusian law, both parents have equal rights and 
duties with regard to their offspring--even after divorce--
allowing, however, for court-awarded custody to one of them in 
case of a dispute. Unresolved disputes may be taken to the 
court. The Constitutional Court of Belarus ruled that no other 
institutions or authorities except the courts are eligible to 
decide issues related to granting custody. 7 Parents 
may recover custody of their children unless the court decides 
that this would harm the child. In accordance with tradition, 
custody almost always is awarded to the mother of the child; 
the father sometimes receives the right of access as determined 
by the court. However, there is no means of enforcing court 
decisions and as stories in local newspapers reflect, a 
father's right to visitation is often violated by mothers and 
other relatives who have been awarded custody of the child. 
8
---------------------------------------------------------------------------
    \7\ Judgment of the Constitutional Court of the Republic of Belarus 
On the Conformity Between Part Two of Article 116 of the Code of 
Marriage and Family of the Republic of Belarus and the Constitution of 
the Republic of Belarus No. J 68/98 of June 26, 1998, in Judgments and 
Separate Decisions of the Constitutional Court of the Republic of 
Belarus. 1997-1998. Minsk. 1999, at 181-183.
    \8\ A. Miasnikau, Deti Razdora, Belorusskaia Delovaia Gazeta 
[Belarusian Business Newspaper], March 17, 1999, via 

---------------------------------------------------------------------------
    Usually in the case of the dissolution of a marriage the 
courts decide which of the parents should get custody of the 
child. If the parents are absent, the issue of custody for 
minors is resolved by the guardianship agencies of local public 
education departments. These agencies: decide disputes about 
the exercise of family rights; have the power to deprive access 
to parents living at a distance depending on the interests of 
the child; are party to custody suits; and may commence actions 
that would deprive one or both parents of their parental 
rights.

 III. Court System and Structure--Courts Handling the Hague Convention

    The structure of the judicial system in Belarus is 
determined by the Law on Court Organization. In Belarus, the 
courts consist of the Supreme Court, and regional, city, and 
district courts of general jurisdiction. Justice is 
administered by a trial of civil disputes and criminal cases. 
All cases are tried by a panel that consists of a professional 
judge and two lay assessors. A number of minor administrative 
infractions as well as the majority of family matters are tried 
by a single judge and not by a collegiate court. The judges in 
Belarus are appointed by the President of the Republic, and the 
President may relieve them of their office.
    Except for economic courts, which have exclusive 
jurisdiction in commercial disputes, no other special courts 
exist in Belarus. All cases related to the implementation of 
international obligations as well as family related matters are 
handled by regular courts of law. As the Chief Justice of 
Belarus stated in his interview with the Belarusian newspaper 
Vo Slavu Rodiny, the nation's `judicial system has not been 
brought nearer to the realities of contemporary life. The 
system has proved cumbersome, conservative, and costly.'' 
9 A large-scale reform plan of this system was 
drafted in 1997; however, it has still not been implemented. 
The program provided for the creation of specialized courts, 
including courts for family, juvenile, and other cases.
---------------------------------------------------------------------------
    \9\ Belarus: Supreme Court Head Views Judiciary, via FBIS, Document 
ID: FTS 19971230000387.
---------------------------------------------------------------------------
    Cases of domestic child abduction occasionally are brought 
to the court; however, because of national traditions, such 
cases are usually resolved inside the families. No cases of 
international child abduction or application of the Convention 
on the Civil Aspects of International Child Abduction have been 
reported.

                       IV. Law Enforcement System

    The very low number of international parental abductions in 
Belarus may be attributed in large part to the influence of 
cultural and ideological traditions that have determined the 
features of Belarusian society and have prevented international 
marriages. Other reasons include the international isolation of 
Belarus and bureaucratic difficulties related to acquiring a 
valid travel passport for children.
    International observers conclude that the enforcement of 
the Convention might be associated with some difficulties 
because of the Ministry of Justice's lack of experience in 
dealing with family related issues. 10 Because both 
the Ministry of Justice and the Ministry of Education, which 
supervises local guardianship and curatorship agencies and 
whose personnel is more familiar with the related work are 
empowered with the administrative authority to order the return 
of an abducted child, close interagency cooperation may be 
required.
---------------------------------------------------------------------------
    \10\ Human Rights Watch, Belarus: Abandoned to the State, Report, 
Brussels, 1999, at 119.
---------------------------------------------------------------------------
    Even though the Convention is a direct implementing 
document, it requires adoption of special laws by the 
Belarusian Parliament because the Constitution of the Republic 
of Belarus does not provide priority for and direct application 
of international legal norms. Belarusian courts still did not 
deal with the application of international legal norms and may 
have problems with their enforcement.

                      V. Legal Assistance Program

    Legal assistance in Belarus could be received through the 
attorneys licensed to practice law in this country. Pro bono 
work is also practiced by attorneys, even though not very 
widely. The legal service of the Independent Workers Unions 
provides qualified legal assistance to the citizens of Belarus 
free of charge. Because Unions' lawyers are usually involved in 
civil law matters, they can be of a great help in family-
related matters also. The best source of assistance and 
information are officers of guardianship agencies. Presently, 
the American Bar Association is involved in bilateral projects 
aimed at creating legal aid clinics in Belarus.
    Belarus' authorities do not accept any costs related to the 
implementation or enforcing of the Convention. In signing the 
document, Belarus made a reservation regarding the instrument 
of accession and stated that the state will not assume any 
costs resulting from the participation of legal counsel or 
court proceedings.

                             VI. Conclusion

    The Hague Convention on Civil Aspects of International 
Child Abduction prescribes basic principles of resolution of 
disputes in regard to the parental abduction of children. 
Unlike in other participating states, in Belarus these 
principles did not become the basis for national legislation, 
and the Belarusian legal system has not yet elaborated national 
norms that correspond to the provisions of the Convention. The 
national judiciary continues to reject foreign decisions and 
international legal acts in favor of traditional domestic laws. 
The cooperation among the central authorities in each country 
in order to facilitate the prompt return of children, which is 
emphasized in the Convention, does not include the Ministry of 
Justice of the Republic of Belarus because of the political 
isolation which the country has imposed upon itself. At the 
same time, the Convention is of great significance for Belarus 
whose citizens got the right and possibility of using an 
internationally recognized mechanism for the return of a child 
in case of abduction and the guarantee of the protection of the 
rights of all interested parties if the child was taken to one 
of the few countries that recognize Belarusian accession to the 
Convention.

    Prepared by Peter Roudik, Senior Legal Specialist Eastern 
Law Division, Law Library of Congress, October 2000

                                ------                                


                                 CANADA

                              Introduction

    The problem of international child abduction has received 
considerable attention in Canada. One reason for this was 
stated by the Chief Delegate to the 1980 Hague Conference in 
the following terms:

          [This problem is] serious for a country like Canada, 
        blessed in many ways by its pluralistic ethnic mix, but 
        in the present context afflicted by the fact that one 
        or both spouses may retain recent and substantial 
        connections with their country of origin. This fact 
        makes it attractive and possible to spirit the children 
        away in the hope of achieving a more friendly familial 
        and judicial climate in which to assert custody rights 
        in their favour when their marriages turn sour.\1\
---------------------------------------------------------------------------
    \1\ H. Allan Leal, International Child Abduction in Children's 
Rights in the Practice of Family Law 211 (Toronto, 1986).

    The concern has been demonstrated in Canada's leading role 
in the encouragement of international legal reform.

   I. Domestic Law and Regulations Implementing the Hague Convention

    Although Canada helped initiate and was one of the first 
countries to sign the Convention on the Civil Aspects of Child 
Abduction, the subject matter of that treaty falls under 
provincial jurisdiction. Consequently, rather than attempting 
to legislate for the entire country through one Federal act 
that might well have been found to be unconstitutional, 
Parliament deferred to the provincial Legislative Assemblies. 
All ten of these bodies responded by enacting implementing laws 
that came into force between 1983 and 1987. The exact dates of 
entry are as follows:

 
Alberta                              February 1, 1987
British Columbia                     December 1, 1983
Manitoba                             December 1, 1983
New Brunswick                        December 1, 1983
Newfoundland                         October 1, 1984
Nova Scotia                          May 1, 1984
Ontario                              December 1, 1983
Prince Edward Island                 May 1, 1986
Quebec                               January 1, 1985
Saskatchewan                         November 1, 1986.
------------------------------------------------------------------------


    As for the territories, the Yukon brought the Convention 
into force on February 1,1985, and the Northwest Territories 
followed suit on April 1, 1988.\2\
    In implementing an international convention, Canadian 
legislatures usually enact legislation that incorporates its 
major features in a more or less paraphrased and sometimes 
expanded fashion. This common practice was not generally 
followed in the case of the Convention on the Civil Aspects of 
Child Abduction. Instead, all of the provinces, except Quebec, 
passed new laws or amended extant legislation to refer to the 
Convention and include it as an appendix. Thus, a situation in 
which each province would have different laws, as is generally 
the case with other areas of family law, was avoided. The 
specific provincial and territorial laws that directly adopted 
the Convention in this manner are as follows:

__________

    \2\ Ann Wilton and Judy Miyauchi, Enforcement of Family Law Orders 
and Agreements: Law and Practice 2-34.17 (1999).

 
Alberta                              International Child Abduction Act
                                      \3\
British Columbia                     Family Relations Act \4\
Manitoba                             Child Custody Enforcement Act \5\
New Brunswick                        International Child Abduction Act
                                      \6\
Newfoundland                         Act Respecting the Law of Children
                                      \7\
Northwest Territory                  An Act to Adopt the Convention on
                                      the Civil Aspects of Child
                                      Abduction \8\
Nova Scotia                          An Act to Implement the Hague
                                      Convention on the Civil Aspects of
                                      International Child Abduction \9\
Ontario                              Children's Law Reform Act \10\
Prince Edward Island                 Custody Jurisdiction and
                                      Enforcement Act \11\
Saskatchewan                         Act Respecting the Application to
                                      Saskatchewan of the Convention on
                                      the Civil Aspects of Child
                                      Abduction \12\
Yukon                                Children's Act \13\
------------------------------------------------------------------------
\3\ 1986 S.A., ch. I-6.5.
\4\ R.S.B.C. ch. 128 (1996).
\5\ C.C.S.M. ch. 360 (1999).
\6\ 1982 N.B. Acts, ch. I-12.1.
\7\ R.S.N. ch. C-13 (1990).
\8\ 1987 S.N.W.T. ch. 20.
\9\ R.S.N.S. ch. 67 (1989)
\10\ R.S.O. ch. C.12 (1990).
\11\ R.S.P.E.I. ch. 33 (1988).
\12\ 1986 S.S. ch. I-10.1.
\13\ R.S.Y. ch. 82 (1986).


    Unlike the other provinces, Quebec enacted the Convention 
by restating its major provisions in a provincial statute.\14\ 
In the event of any inconsistency between the provincial law 
and the Convention, the former would prevail. However, Quebec's 
law appears to be substantially the same as that of the other 
provinces. The reason it did not simply adopt the Convention 
instead of incorporating it in a statute relates to that 
province's desire to conduct a separate, but not always 
different, foreign policy.
---------------------------------------------------------------------------
    \14\ An Act Respecting the Civil Aspects of International and 
Interprovincial Child Abduction. R.S.Q. ch. A-23.01.
---------------------------------------------------------------------------
    The Hague Convention on the Civil Aspects of International 
Child Abduction was created to discourage parents from taking 
children away from their established homes by providing that 
disputes over custody and access should be resolved by the 
courts of a child's habitual residence. The courts of the 
member countries are generally bound to return an abducted 
child for that purpose or to enforce an extant order. However, 
there are exceptions to this rule that will be discussed under 
a later section dealing with the relevant Canadian case law.
    Canada has a Central Authority for the Federal Government 
and for each of the provinces.\15\ The Federal Central 
Authority generally serves as a liaison between foreign Central 
Authorities and the provincial Central Authorities. The Federal 
Central Authority can help locate children whose province of 
residence is unknown.
---------------------------------------------------------------------------
    \15\ Department of Foreign Affairs (JDS), Lester B. Pearson 
Building, Tower C, 7th Floor, 125 Sussex Drive, Ottawa, Ontario K1A 
0G2. (613) 992-6486.
---------------------------------------------------------------------------
    Foreign Central Authorities can deal directly with 
provincial Central Authorities. The provincial Central 
Authorities are all Ministers of Justice, Departments of 
Justice, or Attorneys General. These offices attempt to secure 
the voluntary return of abducted children as is required by the 
Hague Convention.
    Assistance in locating an abducted child can be sought 
through a number of channels. The Child Find organization is a 
non-profit group that has offices in a number of provinces. Le 
Reseau Enfants Retour is this organization's Quebec 
counterpart. Another non-profit group, the International Social 
Service, has an office in the capital city of Ottawa.
    The Royal Canadian Mounted Police maintains a Missing 
Children's Registry. Canada Customs has a Project Return 
program that has reportedly been amalgamated with the Missing 
Children's Registry at the Royal Canadian Mounted Police's 
headquarters. Addresses and phone numbers for assistance in 
locating abducted children have been published.\16\
---------------------------------------------------------------------------
    \16\ Ann Wilton and Judy Miyauchi, Enforcement of Family Law Orders 
and Agreements: Law and Practice, 2-4.4 to -2-6 (1999).
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                          A. Child Abduction.

    Canada has general child abduction laws that pertain to 
persons who are not the subject's parents or guardians and 
specific laws that apply to a subject's parents and guardians. 
Under the former, abduction of a person under 16 and abduction 
of a person under 14 are indictable offenses punishable with 
imprisonment of up to 5 and 10 years, respectively.\17\ These 
sections have been in force for many years. Because they 
prescribe penalties that were often thought to be too severe in 
a family context, parents were not often charged with these 
crimes. To address this situation, more flexible provisions 
respecting parents and guardians were created in 1982.
---------------------------------------------------------------------------
    \17\ Criminal Code, R.S.C. ch. C-46, ss. 280-281 (1985).
---------------------------------------------------------------------------
    Abduction by a parent, guardian, or person having the 
lawful care or charge of a person under the age of 14 in 
contravention of a custody order made in Canada with intent to 
deprive a parent or guardian of the possession of that person 
is an offense that can be prosecuted by way of an indictment or 
in summary proceedings.\18\ In the former case, the maximum 
sentence is 10 years imprisonment; but in the latter case, it 
is only 6 months.
---------------------------------------------------------------------------
    \18\ Id. S. 282(1).
---------------------------------------------------------------------------
    A parallel provision to the one just quoted states that any 
parent or guardian who ``takes, entices away, conceals, 
detains, receives or harbors'' a person under the age of 14 
``with intent to deprive a parent or guardian . . . of the 
possession of that person'' is also guilty of an offense that 
can be prosecuted by way of an indictment or in summary 
proceedings. In these cases, the existence of a valid custody 
order is not required, but no prosecution can be commenced 
without the consent of the Attorney General of Canada.
    The Criminal Code creates one major exception to the 
abduction offenses. No person who takes, entices, conceals, or 
detains a young person to protect him or her from imminent harm 
can be found to be guilty of an abduction offense. The onus of 
proving that an abduction was necessary to protect a young 
person is on the accused.\19\ An honest but mistaken belief 
will bring the accused within the exception if the 
circumstances thought to have existed would have posed a real 
danger.\20\
---------------------------------------------------------------------------
    \19\ Id. S. 285.
    \20\ R. v. Adams, 12 O.R. (3d) 248 (Ont.C.A. 1993).
---------------------------------------------------------------------------
    It is not a defense to the abduction provisions to prove 
that the young person consented to the conduct of the 
accused.\21\
---------------------------------------------------------------------------
    \21\ Supra note 16, ch. C-46, s. 286 (1985).
---------------------------------------------------------------------------
    The Criminal Code is a Federal statute that applies 
throughout Canada. Sanctions that are sometimes referred to as 
``civil'' or `quasi-criminal'' in nature can also be imposed 
under provincial legislation. For example, under the Children's 
Law Reform Act, the Ontario Court (Provincial Division) can 
impose sentences of up to Can$5,000 and imprisonment for up to 
90 days for ``any wilful contempt of or resistance to its 
process or orders in respect of custody or access to a child.'' 
\22\ An order for imprisonment under that section can be made 
to be conditional upon default so as to put a party on notice 
as to the consequences of his or her actions in contempt of 
court.\23\ Similar penalties are available for violations of a 
restraining order.\24\ Ontario's legislation also provides that 
a police officer can arrest a person he or she believes, on 
reasonable and probable grounds, to have contravened a 
restraining order without first obtaining a warrant.\25\
---------------------------------------------------------------------------
    \22\ Supra note 10, ch. C.12, s.38(1) (1990).
    \23\ Id. S. 38(2).
    \24\ Id. S. 35(2).
    \25\ Id. S. 35(3).
---------------------------------------------------------------------------

                        B. Parental Visitation.

    Custody and access are normally governed by provincial 
legislation. In British Columbia, the Family Relations Act 
provides that if the mother and father of a child live apart, 
the parent with whom the child usually resides may normally 
exercise custody over him or her.\26\ However, if custody 
rights exist under a written agreement or under a court order, 
those rights prevail.\27\ There is no presumption in favor of 
joint custody, but joint custody can be awarded. The Provincial 
Courts and the Supreme Court have jurisdiction to award custody 
on application of one of the parties. An order for access may 
be made whether or not a custody order is made.\28\
---------------------------------------------------------------------------
    \26\ Supra note 4, ch. 128, s. 34(b) (1996).
    \27\ Id. S. 34(c) and 34(d).
    \28\ Id. S. 35(2).
---------------------------------------------------------------------------
    Throughout Canada, the general rule is that a parent who 
has been denied custody is granted access unless access might 
endanger a child's upbringing.\29\ It is generally accepted 
that it is normally in the best interests of a child to have 
contact with both parents. The courts can order supervised or 
unsupervised visits. However, the right of access usually 
includes the right to take a child to an access parent's normal 
living accommodations.
---------------------------------------------------------------------------
    \29\ Roy v. Roy, 19 Man. R. (2d) 278 (C.A. 1983).
---------------------------------------------------------------------------
    Orders as to custody and access can be made ancillary to 
the granting of a divorce under the Divorce Act. The Divorce 
Act is a Federal law and orders made under it supercede orders 
made under provincial family laws.\30\ However, after a custody 
or access order has been made under the Divorce Act, an 
application to have the issue reexamined under provincial 
legislation can be filed in an appropriate provincial court. 
Such an application may be struck out as an abuse of process if 
the court believes that it has been brought prematurely, but 
otherwise it will be heard in a similar manner to a request to 
revise a custody or access order under provincial legislation. 
The most common standard that must be met in applying to have a 
custody or access order varied is that there has been a 
``material change in circumstances that affects or is likely to 
affect the best interests of [a] child.'' \31\
---------------------------------------------------------------------------
    \30\ 1986 S.C. ch. 4, as amended.
    \31\ Children's Law Reform Act, supra note 10, ch. C.12, s. 29 
(1990).
---------------------------------------------------------------------------
    The courts generally have broad discretionary powers in 
deciding applications for custody or access. They are also 
empowered to appoint trained persons to assess the needs of a 
child and the ability or willingness of the parents to satisfy 
those needs.\32\
---------------------------------------------------------------------------
    \32\ Id. S. 30(1).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    Canada does not have parallel systems of Federal and 
provincial courts. Instead, it has several levels of provincial 
courts, a national Supreme Court that has jurisdiction to hear 
appeals from provincial courts, and several specialized Federal 
courts. Applications to enforce the provisions of the Hague 
Convention are filed in the superior provincial courts listed 
in the various provincial laws adopting that Convention. Such 
applications will be heard by a provincial trial judge. In some 
provinces, the judge may be a designated family court judge. In 
all cases, the decision of this judge may be appealed to the 
Court of Appeal with the leave of the judge or the Court 
itself. As the highest provincial courts, the Courts of Appeal 
normally decide cases in panels of three justices. Decisions of 
the Courts of Appeal may, themselves, be appealed with leave to 
the Supreme Court of Canada. There are nine judges on Canada's 
highest court. The entire Supreme Court hears almost all 
appeals.

                       IV. Law Enforcement System

    The heart of the Hague Convention is the general 
requirement that abducted children under the age of 16 be 
returned to their habitual residence in compliance with a 
custody order from that jurisdiction or for a determination of 
a custody issue by a court of that jurisdiction. However, this 
general requirement is subject to exceptions. Even if an 
application is filed within a year, a court of a member state 
can refuse to order a child's return if it would expose him or 
her to physical or psychological harm or would otherwise place 
him or her in an intolerable situation. These safeguards were 
needed to secure the agreement of many member states, but they 
clearly create potential problems. A court that approaches the 
issue in bad faith defeats the purpose of the Convention by 
interpreting the exceptions very broadly.
    A review of the available Canadian case law indicates that 
Canada's courts are generally well aware that in order to be 
effective, the Convention requires not only good faith, but a 
willingness to approach questions differently than is often the 
case in domestic disputes. In the leading case of Thomson v. 
Thomson, the Supreme Court held that in weighing Hague 
Convention applications, judges are not to employ the usual 
standard of determining what is in the best interests of a 
child. They must, instead, follow the language of the 
Convention.\33\ In Thomson v. Thomson, the Supreme Court held 
that only rarely will the risk of separation rise to the level 
of risk envisioned by the Convention. In that case, an order to 
return a child to his father in Scotland was issued to a mother 
who had wrongfully removed him to Manitoba.
---------------------------------------------------------------------------
    \33\ [1994] 3 S.C.R. 551.
---------------------------------------------------------------------------
    In another case of wrongful removal from the United 
Kingdom, a young girl suffering from a debilitating disease was 
allowed to stay with her Canadian mother. However, her sister 
was ordered to be returned as the court found that the two 
cases had to be weighed independently of one another.\34\ The 
onus of showing that a grave risk of harm exists is on the 
defendant. This means that evidence supporting the allegations 
will normally be required.
---------------------------------------------------------------------------
    \34\ Chalkley v. Chalkley, [1995] 3 W.W.R. 589 (Man. C.A.).
---------------------------------------------------------------------------
    Another safeguard built into the Convention states that a 
court may refuse to order the return of a child who objects and 
who has attained a sufficient degree of maturity. In one 
reported case, the court found that a 10 year-old had reached 
the required degree of maturity but did not respect her stated 
wish because it believed the child had been pressured by her 
mother.\35\
---------------------------------------------------------------------------
    \35\ Thorne v. Drydenhall, 148 D.L.R. 4th 508 (B.C.C.A. 1997).
---------------------------------------------------------------------------
    An application made more than one year after a child's 
removal may be rejected if the child is found to be well 
settled in his or her new environment. In one reported case, 
the Quebec court of Appeal held that determining whether a 
child is well settled requires an examination not only of 
activities and outward signs, but also of a state of mind.\36\
---------------------------------------------------------------------------
    \36\ 58 Q.A.C. 168.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    On signing the Hague Convention, Canada made a reservation 
respecting the cost of legal proceedings. Canada apparently 
took this view in agreement with the United States that ``legal 
aid should be made available [to a] foreign applicant but on 
terms that would not bestow on foreign nationals a more 
advantageous grant in aid than is available to . . . nationals 
under the local legal aid plan.'' \37\ Due to its reservation, 
Canada's provinces are not obliged to assume the cost of legal 
proceedings to enforce the Hague Convention except to the 
extent that their legal aid systems provide for financial 
support. Thus, anyone filing an application in Canada can apply 
for financial assistance from a provincial legal aid fund. The 
Central Authorities assist in directing parties to the 
appropriate offices. A number of variables determine whether a 
party may be eligible for legal aid and the amount of the 
support that may be provided. Each province has its own plan.
---------------------------------------------------------------------------
    \37\ Leal, supra note 1, at 232.
---------------------------------------------------------------------------

                             VI. Conclusion

    It is difficult to determine from the reported cases 
whether Canadian courts have tended to show a bias in favor of 
persons who have abducted children to Canada. Most judges have 
been careful to give compelling reasons for their decisions 
that are based on factual determinations that cannot be 
independently assessed. One notable development that does stand 
out in the reported cases is that a majority of approximately 
70 percent of the Hague Convention applications filed in Canada 
have been filed by fathers. At the time the Convention was 
being considered, most of the cases that had attracted media 
attention involved fathers abducting children to foreign 
countries. This points to the fact that the problem of child 
abductions to Canada appears to typically be of a different 
nature.

    Prepared by: Stephen Clarke, senior legal specialist, 
Directorate of Legal Research, Law Library of Congress, 
November 1999.

                                ------                                


                                 CYPRUS

                              Introduction

    The Convention on the Civil Aspects of International Child 
Abduction (hereafter the Convention) was adopted on October 
24th 1980 by the Fourteenth Session of the Hague Conference on 
Private International Law and was signed on October 25th.\1\
---------------------------------------------------------------------------
    \1\ TIAS 11670.
---------------------------------------------------------------------------
    The Convention's key objective, as reflected in its 
Preamble and Article 1, is the protection of the best interests 
of children, not over the age of sixteen, who have been 
wrongfully removed or retained in any contracting state and to 
ensure the restoration of the status quo; that is, their prompt 
return. It also seeks to ensure that rights of custody and 
access under the national laws of a contracting state are 
effectively respected in other contracting states.
    The Convention requires that contracting states designate 
Central Authorities to discharge the duties imposed upon them, 
such as discovering the whereabouts of a child who has been 
wrongfully retained or removed, securing its return, and 
exchanging information relating to the social background of the 
child and others. It also requires that Central Authorities 
closely cooperate with each other to achieve the goals of the 
Convention.
    Cyprus, as a non-Member of the Hague Conference, acceded to 
the Convention by virtue of Decision No. 39284 of the Council 
of Ministers issued on May 12, 1993 and ratified the Convention 
in 1994, as discussed below. Cyprus's accession to the 
Convention is effective only between Cyprus and those 
Contracting States which have declared, or will declare their 
acceptance of the accession.\2\ The Convention entered into 
force in Cyprus on February 1, 1995, and between the United 
States and Cyprus on March 1, 1995.
---------------------------------------------------------------------------
    \2\ 
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    Cyprus ratified the Convention by Law No. 11(III) of 
1994.\3\ Law No. 11 is cited as 1994 Ratification Law of the 
Convention on the Civil Aspects of International Child 
Abduction. The Law includes the text of the Convention in 
English and Greek. Pursuant to Article 169.3 of the Cyprus 
Constitution, the Convention has acquired superior force to any 
domestic law since its publication in the Official Gazette.
---------------------------------------------------------------------------
    \3\ Episeme Ephemerida tes Kypriakes Demokratias (EEKD) [Official 
Gazette of the Republic of Cyprus], Part I, at 181 (1994).
---------------------------------------------------------------------------
    Cyprus, as required by Article 6 of the Convention, 
designated the Ministry of Justice and Public Order as the 
Central Authority to exercise the duties and rights arising 
from the Convention.

   II. Domestic Law Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    The Criminal Code of Cyprus contains several articles that 
may be applicable to cases involving child abduction and 
retention.\4\ Article 185 applies to cases that involve 
stealing of a child, where as Article 246 deals specifically, 
as its title indicates, with kidnaping from a lawful guardian. 
Both articles apply to children under the age of fourteen. 
However, Article 246 raises the cut-off age for female children 
to the age of sixteen.
---------------------------------------------------------------------------
    \4\ The Criminal Code, Ch. 154 as amended.

---------------------------------------------------------------------------
    Article 185 on child stealing reads as follows:

          Article 185: Any person who, with intent to deprive 
        any parent, guardian or other person who has the lawful 
        care or charge of a child under the age of fourteen 
        years, of the possession of such a child--

          (a) forcibly or fraudulently takes or entices away, 
        or detains a child; or

          (b) receives or harbors the child, knowing it to have 
        been taken or enticed away or detained, is guilty of a 
        felony, and is liable to imprisonment for seven years.

          It is a defense to a charge of any of the offenses 
        defined in this section to prove that the accused 
        person claimed in good faith a right to the possession 
        of the child, or in the case of an illegitimate child 
        is its mother or claimed to be its father.

    Article 246 reads as follows:

          Any person who takes or entices any minor under 
        fourteen years of age if a male, or under sixteen years 
        of age, if a female, or any person of unsound mind, out 
        of the keeping of the lawful guardian of such minor or 
        person of unsound mind, without the consent of such 
        guardian, is said to kidnap such a minor or person from 
        lawful guardianship.

    Article 248 deals with punishment of kidnaping:

          Any person who kidnaps any person from the Republic 
        or from lawful guardianship is guilty of a felony, and 
        is liable to imprisonment for seven years, and is also 
        liable to a fine.

    Article 250 deals with secret and wrongful confinement of a 
person and reads as follows:

          Any person who kidnaps or abducts any person with 
        intent to cause that person to be secretly and 
        wrongfully confined, is guilty of a felony and is 
        liable to imprisonment for seven years.

                         B. Parental Visitation

    The relations of parents and children are regulated by Law 
No. 216, the Parents and Children Relations Law of 1990 and 
1995,\5\ as amended.\6\ Parental care is a right and a duty of 
both parents, who can exercise it jointly.\7\ Parental care 
includes the right to name a child, care for him or her, 
administer his or her property, and represent the child in 
every transaction related to his or her person or property.\8\ 
Care of a child is defined as including the bringing up of the 
child, supervision, education, and training, including the 
designation of the child's place of residence.\9\ Every 
decision of the parents pertaining to the exercise of parental 
care must aim at the interest of the child. The Family Court of 
the district where the child resides, which is the court that 
has jurisdiction in cases involving relations between parents 
and children, must also apply the same standard when the 
entrusting of parental care or the manner of its exercise is at 
issue.\10\ The court may also ask the opinion of the child, 
depending on the child's maturity, prior to rendering a ruling 
pertaining to parental care. Every court decision on parental 
care must respect the equality of the parents and must not 
discriminate on the basis of sex, language, religion, beliefs, 
citizenship, and national or social origin or property.
---------------------------------------------------------------------------
    \5\ EEKD, supra n.3, Part I, at 2030 (1990).
    \6\ Law No. 2, 1997 and Law No. 21(I), 1998.
    \7\ Id. Art. 5 (1)(a).
    \8\ Id. Art. 5(1)(b).
    \9\ Id. Art. 9(1).
    \10\ Id. Art. 6(2)(b).
---------------------------------------------------------------------------
    The court regulates the exercise of parental care in case 
of divorce, separation, annulment of the marriage, or void 
marriage.\11\ The court, based on an application by the 
parents, may also decide on the exercise of parental care, if 
the parents disagree and if the interest of the child requires 
that a decision must be made.\12\ Exercise of parental care may 
be assigned to one of the two parents, or both jointly. In the 
latter case, parents must come to an agreement as to the place 
of residence of the child. The court has the power to assign 
the exercise of parental care to a third person. In this 
respect, prior to reaching a decision, the court will take into 
consideration the child's relationship with the parents, with 
siblings, if any, and of any agreement between the parents that 
relates to this issue. In such cases, ``the main criterion 
shall always be the interest of the child.'' \13\
---------------------------------------------------------------------------
    \11\ Id. Art. 14(1).
    \12\ Id. Art. 7.
    \13\ Id. Art. 14(3).
---------------------------------------------------------------------------
    The Law clearly provides for the right of personal 
communication between a non-residential parent and a child.\14\ 
The court decides on how the right to personal communication 
will be exercised in case the parents cannot reach an 
agreement.
---------------------------------------------------------------------------
    \14\ Id. Art. 17(1).
---------------------------------------------------------------------------
    The standard of care that the parents are required to show 
during the exercise of parental care is the same care that they 
show for their own affairs.\15\
---------------------------------------------------------------------------
    \15\ Id. Art. 13(1).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention


                        A. Right to Seek Return

    In case the custody rights of a person have been violated 
by the wrongful removal and retention of a child by another, 
that person is entitled to obtain return of the child based on 
the Hague Convention. One of the ways to do so is to file an 
application through the designated Central Authority. In the 
case of Cyprus, the designated Central Authority as required by 
Article 6 of the Convention is the Minister of Justice and 
Public Order. The Minister is empowered to exercise any 
authorities vested under the Convention. The second way is for 
the agreed person to proceed through the court system. These 
two ways are not mutually exclusive. The Ratification Law 
states that ``any judicial process pursuant to the provisions 
of the Convention commences with the filing of an application 
by summons supported by an affidavit as provided by the Rules 
on Civil Procedure, mutatis mutandis.'' \16\
---------------------------------------------------------------------------
    \16\ EEKD, supra note 3.
---------------------------------------------------------------------------
    Cyprus has a two-level system of courts: (a) first instance 
courts; and (b) the Supreme Court. The main first instance 
courts are the District courts, which are made up of district 
judges, senior district judges, and presidents. The Supreme 
Court stands as the court of last resort in issues involving 
constitutional and administrative law.
    The judicial system of Cyprus also provides for four Family 
Courts as first instance courts.\17\ For this purpose, Cyprus 
is divided into four provinces, and each Family Court is 
located in a province. Issues related to Family Courts are 
regulated by Law No. 23/1990 on nomos you pronoei gia ten 
idryse, synthese, dikaiodosia kai tis eksousies ton 
oikogeneiakon dikasterion [Law Providing for the Establishment, 
Composition, Jurisdiction, and the Authorities Vested in the 
Family Courts] \18\ as amended. In any dispute, except in case 
of divorce, a Family Court is composed of a single secular 
judge of the family court. Decisions of the first instance 
Family Courts are subject to appeal before the second instance 
Family Courts. The latter are composed of three judges of the 
Supreme Court, who are appointed by the Supreme Court for a 
period of two years.
---------------------------------------------------------------------------
    \17\ Other first instance courts are the Assize courts, military 
courts, industrial disputes courts, and the Rent Control Tribunals.
    \18\ EEKD, supra n.3, Part I, No. 2485 (1990).
---------------------------------------------------------------------------
    Pursuant to the above Law, Family Courts, in general, may 
exercise all the duties assigned to them, based on Article 111 
of the Constitution, on this Law and on any other law. Family 
Courts also have territorial jurisdiction to hear cases if: (a) 
one of the parties has his residence or his business within the 
province where the Family Court is located, and (b) the dispute 
concerns a minor and the minor resides in the province of the 
Family Court.
    In 1998, Law No. 23/1990 was amended by Law No. 26(I) of 
1998. Article 2 of the Law uses very explicit language as to 
the jurisdiction of Family Courts. It states that Family Courts 
have subject matter jurisdiction especially in ``issues 
involving marital relations which are initiated in judicial 
proceedings arising from bilateral or multilateral conventions 
to which Cyprus has adhered'' and also in ``issues related to 
parental care, maintenance, recognition of a child, adoption, 
property issues between the spouses and any other marital or 
family dispute provided that the parties or one of them is a 
resident of the Republic.'' Residence is defined as a 
uninterrupted stay of more than three months.

                            B. Case in Point

    In 1996, the District Court of Nicosia decided a case 
involving the wrongful removal of a minor, whose father was a 
citizen of Cyprus and whose mother was a U.S. citizen.\19\ Both 
parents were awarded temporary custody by a N.Y. court order. 
The child lived with the mother, while the father had 
visitation rights. In April 1996, the father brought the child 
to Cyprus in violation of custody orders.
---------------------------------------------------------------------------
    \19\ District Court of Nicosia, Appl. No. 405/96 (Dec. 18, 1996), 
http://www.hiltonhouse.com/cases/Cy-cyprus.txt (unofficial text).
---------------------------------------------------------------------------
    In examining the facts of the case and in evaluating the 
evidence, the District Court first analyzed the inquiry as to 
whether there was a wrongful removal of the minor from the 
United States to Cyprus pursuant to Article 3 of the 
Convention. Upon examination of certain factual and legal 
elements, the Court held that the removal of the minor was in 
breach of custody assigned to the mother based on a judgment 
issued by the Family Court in New York. It also held that the 
mother was indeed exercising custody over the child prior to 
its being removed. Subsequently, the Court examined whether the 
prerequisite of Article 12 of the Convention had been met, that 
is, whether a period of less than a year had elapsed from the 
date the child was wrongfully removed. Again, it answered the 
question in the affirmative.
    Furthermore, the Court inquired whether it should use its 
discretion to refuse to order that the child be returned. In 
this respect, the Court noted that the child did not possess 
the necessary maturity because of her young age (7 years of 
age) to allow her views to be taken into account. It also noted 
that the child did not refuse to return to the United States 
but it merely ``expressed its desire to stay in Cyprus.'' 
Moreover, the Court in examining the question as to whether or 
not the mother had acquiesced to her daughter's staying in 
Cyprus held that the mother had not.
    Finally, the Court dealt with a jurisdictional issue. The 
advocate of the respondent had raised the argument that the 
Nicosia District Court lacked jurisdiction because the 
Ratification Law clearly states that the Family Court has 
jurisdiction on the basis of Article 111 of the Cyprus 
Constitution and laws 23/90 and 88/94.
    The Nicosia District Court rejected the claim that the 
Family Courts had jurisdiction over the case. The Court made a 
distinction between the subject matter that falls within the 
jurisdiction of the Family Court and the case under 
consideration. It clearly pointed out that this case involved 
the wrongful removal and retention of the minor from the United 
States to Cyprus and that it was called upon to decide whether 
or not it should order that the child be returned to the United 
States. Therefore, the Court continued, based on Article 16 of 
the Convention, which prohibits judicial authorities to decide 
on the merits of rights of custody, and Article 19, which 
states that any decision made ``shall not be taken as a 
determination on the merits of any custody issue,'' that it, 
not the Family Courts, had jurisdiction to deal with the 
case.\20\
    Subsequently, the Court ordered that the child be returned 
to her mother in New York and that the father pay 
transportation expenses.

                      III. Law Enforcement System

    In Cyprus, orders issued by the Family Courts on whether a 
child should be returned or not are immediately enforceable 
after being served to the respondent. Their execution is 
effected by the Central Authority, that is, the Minister of 
Justice and Public Order, as stated above. The latter is 
assisted either by the police or another government agency, 
such as the Welfare Department.

                             IV. Legal Aid

    No legal assistance is provided in civil cases under the 
judicial system of Cyprus. However, in cases arising under the 
Hague Convention, petitioners who opt to proceed through the 
Central Authority do not pay any legal fees because the filing 
of the application is undertaken by the Ministry of Justice and 
Public Order.

                             V. Conclusion

    Since Cyprus became a contracting State of the Hague 
Convention in 1994, it has designated the Ministry of Justice 
and Public Order as the Central Authority to handle cases 
involving international abduction of children. Cyprus' well-
developed judicial system and especially its law related to 
children--which is based on best interest of the child 
principle--provide the requisite foundation for effective 
application of the provisions of the Hague Convention.

    Prepared by: Theresa Papademetriou, senior legal 
specialist, Directorate of Legal Research, Law Library of 
Congress, November 1999.

__________

    \20\ It has not been possible to ascertain whether the case was 
appealed because of lack of jurisdiction. However, the recently enacted 
Law No. 21, 1998 leaves no ambiguity that the Family Courts have 
subject matter jurisdiction in cases involving international abduction 
and retention of children.

                                ------                                


                             CZECH REPUBLIC

                              Introduction

    The Hague Convention on the Civil Aspects of International 
Child Abduction was signed by the Czech Republic on December 
28, 1992. It was approved by parliament and ratified, and the 
instrument of ratification was deposited with the government of 
the Kingdom of the Netherlands on December 15, 1997, with the 
reservation according to Article 42 of the Convention, that the 
Czech Republic shall not be bound to assume any costs referred 
to in Article 26, paragraph 2, of the Convention, resulting 
from the participation of legal counsel or advisers or from 
Czech court proceedings, except insofar as those costs may be 
covered by its legal system of legal aid and advice. The 
Convention entered in force for the Czech Republic on March 1, 
1998.\1\
---------------------------------------------------------------------------
    \1\ Announcement of the Ministry of Foreign Affairs of March 5, 
1998, No. 34, Collection of Laws.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    In accordance with Article 6, paragraph 1, the Czech 
Republic has designated as the Central Authority the Central 
Agency for International Legal Protection of Youth, Benesova 
22, 602 00 Brno, Czech Republic. The Agency will represent the 
applicant under a power of attorney in proceedings under the 
Convention before Czech courts. The proceedings are exempt from 
the payment of court fees.
    According to the Constitution of the Czech Republic,\2\ the 
Convention became part of the legal order of the Republic upon 
its approval by parliament, its ratification and publication, 
and the courts will apply it whenever called upon.
---------------------------------------------------------------------------
    \2\ Constitution of the Czech Republic of December 16, 1992, No. 1 
of 1993, Collection of Laws, arts. 49(1) and 52.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    For a decision relating to the wrongful removal and 
retention of a child, the competent court will be the district 
court of the place where the child resides by parental 
agreement, decision of the court, or any other reason.\3\ This 
court will also be competent in proceedings under the Hague 
Convention. The proceedings are governed by the provisions of 
the Code of Civil Procedure.
---------------------------------------------------------------------------
    \3\ Code of Civil Procedure, Law of December 4, 1963, No. 99, 
Collection of Laws, Consolidated Text of March 20, 1996, No.62, 
Collection of Laws, as amended, arts. 9, 88a and c, 176-177.
---------------------------------------------------------------------------
    Child abduction may be prosecuted under article 216 
(Abduction) of the Criminal Code,\4\ which provides that 
whosoever shall take away a child (a person under 18) from the 
care of the person who has the duty under the law or under an 
official decision to care for him shall be punished by a fine 
or imprisonment of up to three years. A parent who, for 
example, takes a child abroad against the will of the other 
parent pretending that it is only an excursion may be 
prosecuted under article 209 (Abuse of rights of others) of the 
Criminal Code.\5\ The punishment is a fine or imprisonment of 
up to two years.
---------------------------------------------------------------------------
    \4\ Criminal Code, Law of November 29, 1961, No. 140, Collection of 
Laws, Consolidated Text of April 7, 1994, No.65, Collection of Laws, as 
amended.
    \5\ Id.
---------------------------------------------------------------------------

                         B. Parental Visitation

    For a decision relating to parental visitation, the 
competent court will be the district court of the child resides 
by parental agreement, decision of the court, or any other 
reason.\6\ This court will also be competent in proceedings 
under the Hague Convention. The proceedings are governed by 
provisions of the Code of Civil Procedure.
---------------------------------------------------------------------------
    \6\ Supra note 3.
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    General trial courts in civil matters are the District 
courts; one is located in each territorial district. Appeal 
against their decisions goes to the Regional Courts, which have 
also specified trial jurisdiction. Appeal against decisions of 
the Regional Courts in their trial jurisdiction goes to the 
Courts of Appeal. A further appeal against decisions of the 
Regional Courts as courts of appeal and against decisions of 
the Courts of Appeal goes to the Supreme Court. Trial courts in 
child-return proceedings, visitation, and enforcement of 
related orders under domestic Czech law as well as under the 
Hague Convention are the District courts.\7\
---------------------------------------------------------------------------
    \7\ Supra note 3, arts. 7-12.
---------------------------------------------------------------------------
    In criminal matters, the structure is identical; however, 
because the Supreme Court deals only with petitions alleging 
violation of law by lower courts and prosecutors the Courts of 
Appeal are the final courts of criminal appeal.\8\
---------------------------------------------------------------------------
    \8\ Code of Criminal Procedure, Law of November 29, 1961, No. 141, 
Collection of Laws, Consolidated Text of April 20, 1994, No. 69, 
Collection of Laws, as amended, arts. 13, 252, 266.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    The District courts enforce their decisions. They are 
immediately enforceable. As regards decisions relating to child 
return, visitation, and related matters, the court may first 
request the obligated party to carry out the court decision 
voluntarily and call upon the pertinent municipal or district 
office of Legal Protection of Children for its assistance. If 
there is no result, the court may impose successive fines of 
2000 crowns each (US$1 = 35 crowns) on the obligated party. It 
may, however, acting in cooperation with the above referred to 
offices, order the immediate enforcement of its decision by the 
proper state organs (court bailiffs and the police). The court 
acts appropriately according to the circumstances of the 
case.\9\ In the Hague Convention proceedings requiring (A) the 
return of the child or (B) visitation by the left-behind 
parent, the court will proceed as above. Under (C), 
determinations as to the custody of the child, the court will 
apply articles 15-20 of the Hague Convention.
---------------------------------------------------------------------------
    \9\ Supra note 3, arts. 171, 272-273a.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    General care and protection of children, both socially and 
legally, are entrusted to the Office of Legal Protection of 
Children within the district and municipal administration 
created by social security legislation and are regulated by 
Chapter 2 of the Family Code.\10\ The Office supervises the 
healthy development of children and their education, and 
protects their legitimate interests, including property 
interests. Any person may contact the office in these matters 
and request assistance.
---------------------------------------------------------------------------
    \10\ Family Code of December 4, 1963, No. 94, Collection of Laws, 
Consolidated Text of September 11, 1998, No. 210, Collection of Laws, 
arts. 27(4), 41-50. Law on the Jurisdiction of Offices of Social 
Security of the Czech Republic of June 27, 1988, No. 114, Collection of 
Laws, as amended by Law of March 26, 1991, No. 144, Collection of Laws, 
arts. 15 and 19.
---------------------------------------------------------------------------

                             VI. Conclusion

    The Czech Republic is in full compliance with the Hague 
Convention. The compliance is insured by the Central Authority 
of the Czech Republic, the Central Agency for International 
Legal Protection of Youth, which holds the power of 
implementation and which exercises its legal powers on behalf 
of the Ministry of Justice in matters pertaining to the 
Convention.

    Prepared by: George E. Glos, special law group leader, 
Eastern Law Division, Directorate of Legal Research, Law 
Library of Congress, April 1999.

                                ------                                


                                DENMARK

                              Introduction

    The provisions concerning the implementation of the 1980 
Convention on the Civil Aspects of International Child 
Abduction [hereinafter the Convention] are contained in the 
Danish Law, known as ``the International Child Abduction Act'' 
[hereinafter the Act].\1\ In conformity with the relevant 
provisions of the Convention, the Act does not apply to 
children who have reached the age of 16.
---------------------------------------------------------------------------
    \1\ Law Nr. 793, November 27, 1990. (see Karnovs Lovsamling, 1995, 
vol. 3, pp. 4911 ff.).
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Central Authority is the Civil Law Directorate of the 
Danish Ministry of Justice, which discharges its duties in 
accordance with the rules set out in the Convention.
    Section 10 of the Act prescribes rules on the return of a 
child to the person who has the legal custody of the child. 
Section 11 of the Act contains provisions on the denial of a 
request for the return of the child. Accordingly, a request for 
the return of a child, who has been unlawfully removed or 
retained may be denied if:

          (1) at the time of the application for proceedings 
        one year has passed since the child was removed or 
        retained, and the child has already settled in his new 
        environment;

          (2) there is a serious risk that the return of the 
        child harms the child's psychological or physical 
        health or otherwise the child will be subjected to a 
        situation which cannot be acceptable;

          (3) the child himself opposes the return, and he has 
        reached such age and maturity that his wishes should be 
        respected; and

          (4) the return of the child is incompatible with the 
        fudamental principles regarding the protection of human 
        rights and freedom as charished in Denmark.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    Chapter 23 of the Danish Penal Code prescribes rules 
concerning the crime against family. According to the 
provisions of Chapter 23:215, the removal of a child under 18 
years of age by one parent from the jurisdiction of a person 
who has the custody of the child is punishable by the penalties 
prescribed in section 261 of the Penal Code. The penalty 
according to section 261 is imprisonment of up to 4 years. In 
minor offenses, a milder punishment will be imposed. However, 
in certain aggravated cases the punishment may be from one year 
to as much as 12 years imprisonment.

                         B. Parental Visitation

    The answers to questions relating to a child's custody and 
the right to visitation are contained in the Danish Law on 
Parental Custody and Visitation.\2\ Accordingly, a child born 
to a married couple enjoys the custody of both parents. The 
custody continues until the child is 18 years old. The mother 
of an illegitimate child is the sole custodian of the child, 
unless an agreement has been reached by the parents to the 
effect that both parents should have the custody of the child. 
Parents who are separating or divorcing may conclude a similar 
agreement for the custody of the child. When the custody is 
disputed, the district court makes the decision on questions of 
custody and visitation. Under all circumstances, such decisions 
must be made with due consideration to what is in the best 
interest of the child. If a child has reached the age of 12, 
he/she must be heard before a decision on the custody or 
visitation is made. However, if the circumstances indicate that 
questioning the child would be harmful to the child' mental 
health, the child does not need to be interviewed.
---------------------------------------------------------------------------
    \2\ Law Nr. 387, June 14, 1995. (see Karnovs Lovsamling, 1995, 
vol.3, pp. 4870 ff.).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    The matters concerning the custody of a child are handled 
by the district court, which in principle is the district in 
the area where the parties reside. The matters regarding the 
return of a child are dealt within fogderetten (a bailiff's 
court which enforces the judgments, both domestic and foreign) 
in the place where the child has been retained. The decisions 
of both courts can be appealed to the regional court of 
appeals. The highest instance is the Danish Supreme Court.

                       IV. Law Enforcement System

    As was stated above, the questions relating to the 
enforcement of the Convention rules are dealt with by 
fogderetten. The court must handle the matter of a child's 
return as quickly as possible. If a case has not been resolved 
within six weeks, the applicant is entitled to question the 
court as to the reason for the delay (the Act Sec. Sec. 12-15). 
However, if appropriate, the court may arrange a meeting with 
the abductor to negotiate voluntary return of the child before 
making a decision. Moreover, the court must obtain information 
about the child's wishes before making a final decision in the 
case if the child has reached the age and maturity where due 
consideration should be given to his/her wishes (the Act 
Sec. 16).
    Upon application to it, the court may decide that the child 
should temporarily stay with one of the parents or, if there is 
a possibility that the child will be removed, the court may 
issue an interim order to place the child in the temporary 
custody of social services (the Act Sec. 17).
    According to Sec. 19:1 of the Act, if an application for 
the enforcement of the Convention has been made, no decision on 
the question of custody can be made in Denmark before the 
matter of the return of the child is decided by the 
fogderetten. Moreover, if the Central Authority informs the 
court dealing with a custody case that the child concerned has 
been unlawfully brought to or retained in the country, the 
court shall not make a decision in the custody case even if no 
application has yet been submitted to the fogderetten for the 
return of the child. In such cases, a reasonable time must be 
given for the filing an application in the ``fogderetten'' for 
the return of the child (Sec. 19:2).

                      V. Legal Assistant Programs

    The Danish rules on legal assistance are contained in the 
1997 Ordinance on Legal Aid.\3\ A person covered by the 1980 
Convention can obtain legal aid in Denmark. However, it should 
be noted, firstly, that the grant of legal aid is subject to a 
means test. Secondly, Demark has made a reservation to Article 
26 of the Convention to the effect that except for the legal 
aid that covers the court and attorney expenses, no other 
expenses involved in the process of the return of a child is 
compensated.

    Prepared by: Fariborz Nozari, senior legal specialist, 
Directorate of Legal Research, Law Library of Congress. May 
1999.

__________

    \3\ Ordinance Nr. 866, November 25, 1997. (see Karnovs Lovsamling, 
1997, vol.7, pp.10544-10545).

                                ------                                


                                 FRANCE

                              Introduction

    The Hague Convention on the Civil Aspects of International 
Child Abduction [hereinafter the Convention] was adopted on 
October 25, 1980. Its objectives are to combat international 
parental abduction and wrongful retention of children and to 
ensure the effective exercise of visitation rights across 
international borders. The Convention sets forth a procedure 
designed to restore the status quo ante existing prior to the 
child's wrongful removal or retention. Once it has been 
established that the removal or retention was wrongful within 
the meaning of the convention,\1\ the court, hearing a petition 
for return, is obliged to return the child to his or her 
country of residence, where disputes about custody rights will 
be heard. The duty to return is absolute unless the defendant 
establishes one of the exceptions provided for in the 
Convention.\2\
---------------------------------------------------------------------------
    \1\ The court will verify that the removal or retention of the 
child is in breach of custody rights attributed to the applicant, 
rights arising by operation of the law of the state in which the child 
was habitually resident immediately before the removal, or by reason of 
an agreement having legal effect under the law of that state, or by 
reason of a judicial or administrative decision.
    \2\ Article 12 provides that the court is not obligated to return 
the child when return proceedings are commenced a year or more after 
the removal or retention, and it is demonstrated that the child is 
settled in his new environment.
    Article 13 provides three exceptions: (13a) the person claiming the 
breach of custody rights was not exercising his/her custody rights or 
had subsequently acquiesced to the removal or retention; (13b) return 
of the child would expose him to physical or psychological harm or 
would place him in an intolerable situation; and (13c) a mature child 
objects being returned.
    Article 20 allows a court to refuse to order the return of a child 
if such return ``would not be permitted by the fundamental principles 
of the requested states relating to the protection of human rights and 
fundamental freedoms.''
---------------------------------------------------------------------------
    There are approximately 50 cases pending between France and 
the United States under the Hague Convention. Most cases deal 
with the return of children rather than visitation rights. Of 
these fifty cases, France and the United States are each 
seeking the return of children from the other in one half of 
the cases.\3\
---------------------------------------------------------------------------
    \3\ Letter 002630 of April 8, 1999, from the French Central 
Authority.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Hague Convention was published by Decree No. 83-1021 of 
November 29, 1983, and became effective on December 1, 1983, at 
first only between France, Portugal and Canada.\4\ Under French 
law, treaties have an authority superior to that of ordinary 
laws and are automatically incorporated into domestic law, 
provided they have been correctly ratified and published, 
provided, however, that each agreement is applied 
reciprocally.\5\ The Convention came into force between the 
United States and France on July 1, 1988, following the 
enactment of the International Child Abduction Remedies Act by 
the United States.
---------------------------------------------------------------------------
    \4\ Journal Officiel [hereinafter J.O.], Dec. 1, 1983, at 3466.
    \5\ 1958 Const. art. 55.
---------------------------------------------------------------------------
    The Ministry of Justice, and more specifically, the Bureau 
de l'entraide judiciaire en matiere civile et commerciale, has 
been designated as the Central Authority for France to carry 
out the duties imposed by the Convention.\6\ Upon receipt of an 
application for return, the Central Authority will check that 
it satisfies Convention criteria and is accompanied by the 
proper documentation. This authority will consider only those 
applications which are drawn up in French or are accompanied by 
a translation into French.\7\ The file is forwarded to the 
public prosecutor (Procureur de la Republique) attached to the 
civil court of general jurisdiction in the jurisdiction where 
the defendant resides. This court, known as the tribunal de 
grande instance, has exclusive jurisdiction over family 
matters. Initially, the parties are systematically encouraged 
to reach an agreement; if necessary, an experienced mediator 
will be involved. In addition, all necessary measures will be 
taken to locate the child, protect his well-being, and prevent 
the child from being abducted or concealed before the final 
disposition of the case. If mediation fails, the petition for 
return will be heard before a specialized judge, the juge aux 
affaires familiales (family affairs judge). However, the judge 
may decide to remand the case to a panel of three judges. Such 
remand is mandatory if it is requested by one of the 
parties.\8\ The decision rendered by the judge or the court is 
appealable. Provisional enforcement pending the appeal may be 
granted but the court is not compelled to do so.
---------------------------------------------------------------------------
    \6\ Ministere de la Justice, Direction Des Affaires civiles et du 
Sceau, Bureau de l'entraide Judiciaire, en matire civile et 
commerciale, 13, Place Vendome, 75042 Paris Cedex 01. Telephone: 33 1 
44 86 14 66. Fax: 33 1 44 86 14 06.
    \7\ This is in accordance with the provisions of article 42 and 
pursuant to article 24, paragraph 2 of the Convention.
    \8\ Code Civil (C. civ.) art 247, (Ed. Dalloz 1999) & Code de 
l'organisation judiciaire (C. org. jud.) art. L.312-1 (Ed. Dalloz 
1999).
---------------------------------------------------------------------------
    Alternatively, the petitioning parent may choose to bypass 
the Central Authority and instead proceed directly to the 
tribunal de grande instance. This option was confirmed by the 
Cour de Cassation (the highest judicial court in France) in 
1995.\9\ The petitioning parent's attorney will use an 
emergency procedure known as refere. The opposing party is 
informed of it. Application for a refere is made by an 
assignation en refere, which is similar to an emergency writ of 
summons. Special sessions for the hearing of refere 
applications are usually held once a week, more often in the 
larger cities, or in case of extreme urgency, immediately at a 
fixed time, in court or at the residence of the judge, even on 
public holidays. Bypassing the Central Authority may save time, 
but the public prosecutor services will not be available, and a 
local attorney experienced in dealing with the Convention will 
be required. In addition, when the child's whereabouts are 
unknown, the prosecutor can ask the police to investigate 
further. Such help will not be so easily obtainable if the 
parent goes directly to court.
---------------------------------------------------------------------------
    \9\ Cass. 1ere., June 7 1995, Bull.civ. I, n deg. 234.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    The Penal Code contains several provisions covering 
parental child abduction and withholding access rights from a 
person entitled to such rights. The offenses are listed in the 
Code under the heading ``Encroachment to the exercise of 
parental authority.'' They are as follows:

     Withholding access rights from a person entitled 
to these rights is punishable by one year imprisonment and a 
100,000 FF fine (approximately US$ 16,500);\10\
---------------------------------------------------------------------------
    \10\ Code penal (C. pen.), art. 227-5 (Ed. Dalloz, 1999).
---------------------------------------------------------------------------
     Failure by the person with whom the child 
habitually resides to give notice within one month of any 
change in the child's residence to whoever has access rights to 
the child resulting from a judicial decision or an agreement 
approved by a court is punishable by six-month prison term and 
a 50,000 FF fine (approximately US$ 8,250);\11\
---------------------------------------------------------------------------
    \11\ Id. art. 227-6.
---------------------------------------------------------------------------
     Abduction of a minor by a legitimate, natural or 
adoptive parent either from a person with parental authority or 
from a person he was placed with, or from a person with whom he 
habitually resides, is punishable by one year imprisonment and 
a 100,000 FF fine (approximately US$ 16,500);\12\
---------------------------------------------------------------------------
    \12\ Id. art 227-7.
---------------------------------------------------------------------------
     Abduction of a minor without fraud or violence by 
a person other than the persons mentioned in the previous 
article from a person with parental authority or from a person 
he was placed with or from a person he habitually resides with, 
is punishable by five years' imprisonment and a 500,000 FF fine 
(approximately US$ 83,000);\13\
---------------------------------------------------------------------------
    \13\ Id. art. 227-8.

    The penalties imposed by articles 227-5 and 227-7 are 
doubled when (1) the child is retained for more than 5 days and 
information with regard to the child's whereabouts is withheld; 
and (2) when the child is taken out of the territory of the 
French Republic.\14\ These penalties will be tripled up to 
three years' imprisonment and a 300,000 FF fine (approximately 
US$ 50,000) when the guilty party has lost parental 
authority.\15\
---------------------------------------------------------------------------
    \14\ Id. art. 227-9.
    \15\ Id. art. 227-10.
---------------------------------------------------------------------------
    Criminal prosecution may result in a formal judicial 
investigation conducted by an investigating judge. This judge 
has broader investigatory powers than a civil judge. 
Prosecution may also be used as a negotiating tool with the 
abductor, and in some cases has a dissuasive effect. However, 
in other cases, prosecution may impede any chance of 
reconciliation as it tends to exacerbate the situation. 
Therefore, recourse to criminal prosecution is decided on a 
case-by-case basis.

                         B. Parental Visitation

    Parental rights and duties referred to as authorite 
parentale \16\ are vested jointly in parents on the birth of 
the child. Divorce does not in principle affect the 
relationship of rights and duties of former spouses in relation 
to their children.\17\ It is customary for joint parental 
authority to continue while one parent is awarded custody 
unless this is deemed to be contrary to the child's interests. 
A non-custodial parent will retain access rights and the right 
to influence major decisions affecting the child. The juge aux 
affaires familiales has full authority to decide who will 
exercise parental authority and who will be awarded custody. 
The judge will take into account any agreement he ordered, 
including any agreement between the spouses, reports prepared 
by social workers,\18\ and wishes of the child (provided that 
the child has a sufficient degree of understanding). Parents 
are free to seek the modification of an order if a change in 
circumstance has occurred.
---------------------------------------------------------------------------
    \16\ Supra note 8, art. 371-2.
    \17\ Id. art. 373-3.
    \18\ Id. art. 287-2.
---------------------------------------------------------------------------
    Article 16 of the Convention prohibits a court from making 
substantive custody decisions during the proceedings. 
Therefore, only provisional measures in the best interests of 
the child will be taken by the judge. When return of the child 
to the country of habitual residence is denied, parental 
authority and custody will be decided according to the rules 
stated above.

   III. Court System and Structure--Courts Handling Hague Convention

    France has a dual system of courts, judicial courts on the 
one hand and administrative courts on the other hand. Judicial 
courts have two functions, civil and criminal. They carries 
distinct names depending on which function they exercise. This 
report discusses only the judicial courts which may be involved 
in handling Hague Convention child return proceedings.
    As seen above, the tribunal de grande instance is the court 
of first instance which will hear the application for return. 
Such courts are located in each departement,\19\ though some 
larger departments have more than one. They are competent to 
hear all civil disputes, apart from disputes which are 
expressly attributed to another court by reason of their nature 
or the amount involved. The tribunaux de grande instance are 
the ordinary courts for family matters (marriage, divorce, 
affiliation, and nationality), as well as for property, patent 
matters and civil liability. They usually sit as a three-judge 
panel, although specialized judges, sitting alone, such as the 
juge aux affaires familiales, adjudicate ordinary cases. In 
principle, the tribunal de grande instance of the defendant's 
residence has territorial competence. When exercising its 
criminal jurisdiction, the tribunal de grande instance is 
referred to as the tribunal correctionnel. Offenses regarding 
parental abduction listed above in Part II would be heard 
before the tribunal correctionel.
---------------------------------------------------------------------------
    \19\ France is divided into 22 regions and there are 96 
departements within these regions.
---------------------------------------------------------------------------
    Appeals of both civil and criminal decisions of the 
Tribunaux de grande instance lies to the Cour D'appel (court of 
appeals). Their territorial jurisdiction generally covers three 
departements. The court of appeals sits in panels, with a 
minimun of three members. They re-examine the facts and the 
legal points of a case. The courts review the files as 
presented by the lower courts and order additional 
investigations if necessary.
    The supreme judicial court is the Cour de Cassation. The 
court currently has six chambers: three chambres civiles, a 
chambre commerciale et financiere, a chambre socials, and a 
chambre criminally. The Court is referred to as the guardian of 
the law. It decides whether the rule of law has been correctly 
interpreted and applied by the lower courts. Usually, it does 
not substitute its own decision for a lower court's judgment 
with which it disagrees, but merely quashes the judgment and 
remits the case for rehearing by another court of the same 
rank. This lower court is not bound to accept the Cour de 
Cassation's view of the law, but will ordinarily do so. If it 
refuses to do so, and its decision is in turn appealed to the 
Cour de Cassation on the same grounds as before, the court will 
sit as an assemblee pleniere (full Court). If the court again 
quashes the lower court decision, it will either remit the case 
to a third lower court which will this time be bound by the 
Cour de Cassation's interpretation of the law, or it may decide 
the case itself.
    In most cases it appears that the French courts have 
ordered the return of the children.\20\ The two defenses most 
often raised are (a) the lack of custodial rights of the 
petitioner, or (b) a grave risk of harm/intolerable situation. 
As to the first defense, the Court of Appeal of Aix en Provence 
and the Cour de Cassation on two occasions have concluded that 
a person having visitation rights, the legal right to be 
consulted and the right to consent to any change in the child's 
residence, had rights of custody within the meaning of the 
Convention.\21\ For a grave risk/intolerable situation defense 
to be successfully raised, the Cour de Cassation requires that 
the grave risk of harm or the intolerable situation be 
evaluated in regard to the conditions that the child will find 
upon his return and not in regard to past facts.\22\ The courts 
will consider the wishes of the children who have reached the 
``age of understanding'' (generally from the age of 10 or 11 
years old). These children may be assisted by their own 
attorney (who will be always appointed on legal aid). The judge 
will hear the child separately with only the child's attorney 
present.
---------------------------------------------------------------------------
    \20\ It appears that only three decisions, one of them rendered by 
the Cour de Cassation, have denied the return of the children. The Cour 
de Cassation denied the return of the child on the grounds that such 
return would subject him to a grave risk of psychological harm. The 
child had been kidnapped by his mother when he was 6 months old, and, 
at the time of the court decision, she was the only person he had ever 
known. See Hubert Bosse-platiere, l'application par les tribunaux 
Francais des Conventions visant a lutter contre les deplacements 
illicites d'enfants, l'enfant et les conventions internationales, at 
413 (Presse Universitaire de Lyon, 1997), and Jacqueline Rubellin-
Devichi, Droit de la famille, at 659, (Ed. Dalloz, 1999).
    \21\ Hubert Bosse-Platiere-platiere, l'application par les 
tribunaux Francais des Conventions visant a lutter contre les 
deplacements illicites d'enfants, l'enfant et les conventions 
internationales, at 417.
    \22\ Id. at 420,421.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    Judgments are enforceable only after they have been given 
force de chose jugee, i.e. where they are not subject to 
appeals suspending their enforcement, or where appeals have not 
been made within the time limits.\23\ In principle, judgments 
cannot be enforced until an expedition (first authentic copy of 
the judgment which contains the formule executoire (enforcement 
formula) is delivered to the successful party. This enforcement 
formula specifically requires all huissiers de justice,\24\ 
public prosecutors and commanders and officers of the police 
force, to lend their assistance when it is requested. The 
judgment must be then served on the defendant unless provided 
otherwise.\25\
---------------------------------------------------------------------------
    \23\ Nouveau code de procedure civile (N.c.pr.c.), arts. 500 & 501, 
(Ed. Dalloz, 1999).
    \24\ The huissiers de justice have the exclusive right to notify 
all procedural acts in relation to legal proceedings and they are 
responsible for the enforcement of court orders and judgments.
    \25\ N.c.pr.c., art. 502.
---------------------------------------------------------------------------
    French law possesses no law of contempt of court for the 
enforcement of civil judgments and other court orders. 
Therefore, in the absence of voluntary compliance with a 
judgment or court order, there is no other option than the 
execution forcee (forced compliance).\26\ Orders requiring the 
return of a child under the Hague Convention or orders 
concerning visitation rights will be enforced with the 
assistance of the public authorities as specified in the 
enforcement formula contained in the judgment.
---------------------------------------------------------------------------
    \26\ Supra note 3.
---------------------------------------------------------------------------
    French courts have also developed the technique of 
astreintes designed to induce compliance with court orders. An 
astreinte is a specified amount of money that the court orders 
to be paid for every day, week or month during which a person 
fails to perform its order.

                      V. Legal Assistance Programs

    France made the following reservation to Article 26 of the 
Convention:

          In accordance with the provision of Article 42 and 
        pursuant to Article 26, paragraph 3, the Government 
        declares that it will assume the costs referred to in 
        paragraph 2 of Article 26 only insofar as those costs 
        are covered by the French system of legal aid.\27\
---------------------------------------------------------------------------
    \27\ http://www.hcch.net/e/status/stat28e.htm

    When the person seeking the return of the child uses the 
services of the Central Authority and of the public prosecutor, 
no fee will be incurred. The public prosecutor is a civil 
servant and he appears in court on behalf of the State. His 
service is justified on the ground that compliance with 
international conventions on judicial cooperation is in the 
public interest. However, a person bypassing the Central 
Authority will incur costs, though civil litigation is 
considerably less expensive than in the United States, unless 
he/she qualifies for legal aid.
    Subject to a means test, legal aid is available in France 
either for legal advice or for litigation. It is available in 
all civil, criminal, and administrative litigation to 
plaintiffs as well as defendants. An application must be filed 
with specially constituted bodies, known as bureaux d'aide 
jurisdictionelle, which are composed of judges, lawyers, public 
officials, and ``consumers.'' These bureaus are found in each 
tribunal de grande instance and the Cour de Cassation. They may 
grant partial or full legal aid, depending on the means of the 
applicant. Legal aid is available to French citizens, citizens 
of the Member States of the European Community, foreign 
nationals residing in France, minors whatever their status may 
be, and, exceptionally, to a person who does not fit into any 
of these categories but whose situation is of a particular 
interest due to the subject of the litigation or the 
foreseeable cost of the trial.\28\
---------------------------------------------------------------------------
    \28\ Law N deg. 91-647 of July 10, 1991, J.O., jul 13, 1991, at 
9170.
---------------------------------------------------------------------------
    It may be also possible for the winning party to recover 
some of the costs. French law addresses the recovery of costs 
incurred in civil litigation as follows:

          The Code of Civil Procedure provides for a list of 
        expenditures known as depens, which include expenses 
        incurred by witnesses, remuneration of experts, court 
        fees, emoluments of officiers publics,\29\ and 
        attorneys fees where recourse to an attorney before the 
        court in question is compulsory.\30\ In principle, the 
        loser of a case pays the depens of the other side as 
        well as his own, but the court has discretion to place 
        all or part of them on another party to the 
        litigation.\31\
---------------------------------------------------------------------------
    \29\ This expression covers various categories of practitioners 
(such as, for example, the huissiers de justice as seen above) who have 
obtained from the administration the exclusive right to perform certain 
legal acts and/or execute certain legal instruments.
    \30\ N.c.pr.c., art. 695.
    \31\ Id. art. 696.
---------------------------------------------------------------------------
          The costs which do not count as depens (for example, 
        attorney fees when resort to an attorney is not 
        compulsory), may be also recovered by the winning 
        party. In principle, the person who is ordered to pay 
        the depens is also to be ordered to pay any other 
        costs. However, taking into account what is equitable, 
        the court may in its discretion decline to make such an 
        order or make only a reduced one. In addition, if the 
        losing party has been unfair or vexatious, then he/she 
        may be liable for the loss this causes any other party 
        to the litigation.\32\

                             VI. Conclusion

    Based upon the available information and the reported 
cases, it appears that France has been in compliance with the 
Hague Convention, and that French courts have applied the 
Convention strictly and without national bias. The Convention 
has been viewed as a major breakthrough and as an effective 
tool when applied in good faith.\33\ French authorities, 
however, have expressed concerns that the national reflexes and 
protectionism of some foreign courts have undermined its 
effectiveness and resulted in an increase in the number of 
kidnappings.\34\ They argue that only true political will to 
comply with the terms of the Convention by the Central 
Authorities of such countries will change the courts' attitude.

    Prepared by: Nicole Atwill, senior legal specialist, 
Directorate of Legal Research, Library of Congress, June 1999.

__________

    \32\ Id. arts. 32-1 (dilatory or abusive suit); 559 (dilatory or 
abusive appeal); 628 (abusive pourvoi en cassation).
    \33\ Les Petites Affiches, Francoise Thomas-Sassier, La 
soustraction internationale d'enfants, Oct 1, 1997. (Ms. Thomas-Sassier 
is one of the judges in charge of the application of the Convention at 
the French Central Authority).
    \34\ Id. at 6: Ms. Thomas-Sassier notes that abductions by German 
parents have quadrupled within the last four years because of the 
unwillingness of German courts to return children to France.

                                ------                                


                          REPUBLIC OF GEORGIA

                              Introduction

    The Republic of Georgia, which became independent from the 
Soviet Union in 1991, is a non-member state to the Convention 
on the Civil Aspects of International Child Abduction. The 
Republic of Georgia cannot become a member of the Convention 
because it did not participate in the Hague Conference on 
Private International Law at the time of its Fourteenth Session 
as required by article 37 of the Convention; even the national 
Law on Private International Law is not yet adopted in Georgia. 
Georgia acceded to the Convention in 1997. The Parliament of 
Georgia ratified the Convention on July 24, 1997, and the act 
of ratification entered into force in Georgia on October 1, 
1997. The accession of Georgia has been accepted by the 
following countries:

        Argentina
        Australia
        Czech Republic
        Finland
        Germany
        Hong Kong
        Ireland
        Israel
        Kingdom of Netherlands
        New Zealand
        Spain
        United Kingdom

    In accordance with article 38 of the Convention, Georgian 
accession to the Convention is effective only in the 
relationship between Georgia and those contracting states that 
have declared their acceptance of the accession.

   I. Domestic Laws and Regulations Implementing the Hague Convention

    Georgia acceded to the Hague Convention along with many 
other international legal documents at the time of its 
international recognition and admission to European and 
international organizations and institutions. Georgia's 
acceding to the Convention, however, did not influence the 
development of the Georgian legal system. The issue of 
international child abduction is not an acute problem for 
Georgia because of its long years of international isolation, 
the domination of conservative Soviet traditions in family 
relations, internal armed conflicts, absence of new 
legislation, and lack of resources for enforcement of already 
passed laws.
    After the Convention was ratified by the Georgian 
Parliament, the Minister of Justice of the Republic of Georgia 
issued an executive instruction assigning the International Law 
Department of the Ministry of Justice to be a Central 
Authority, with the responsibilities prescribed in article 7 of 
the Convention.\1\ Because Georgia is a federal state, although 
with two autonomous provinces, the Ministry of Justice has 
jurisdiction over all the country; therefore the Convention 
also extends to all Georgian territories as required by article 
40.
---------------------------------------------------------------------------
    \1\ Legal Acts of Georgia, 1998, No. 2-3, at 37.
---------------------------------------------------------------------------
    In an attempt to join European and international 
institutions, the Parliament of Georgia ratified 171 
international agreements and conventions during 1995-1998. The 
Convention on the Civil Aspects of International Child 
Abduction is among them. Most of these documents are still not 
implemented because the implementing legislation has not yet 
been passed. This problem was emphasized in Georgian President 
Eduard Shewardnadze's address to the Georgian Parliament on 
February 16, 1999, concerning the state of the country's 
foreign and domestic policy.\2\ He stated that implementation 
of laws and court decisions is the weakest point in the 
activities of the Georgian government. Even though the 
legislation of the Republic has been significantly amended 
during the last three years, a new Family Code and Criminal 
Code have not been adopted. It is expected that necessary 
changes will be made in the newly drafted legislation. A new 
draft Criminal Code, which is the first coded legal act in the 
sphere of criminal law drawn up in independent Georgia, has 
been presented to the Parliament as part of the Georgian 
president's legislative initiative.
---------------------------------------------------------------------------
    \2\ Shevardnadze's State of Nation Address. Sakartvelos-Respublika, 
Feb. 17, 1999, at 1, translated by the FBIS, electronic version, 
document ID: FTS19990301000810.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    According to the old Georgian Criminal Code which is in 
force, the abduction of a child for mercenary purposes or for 
other base motives is punishable by deprivation of freedom for 
a term not exceeding five years. The same action committed for 
other purposes or motives is punishable by deprivation of 
freedom for a term not exceeding one year or by corrective 
labor for the same term. The Law considers as an abduction the 
kidnaping of a child without the consent of parents or legal 
guardians regardless of the purpose of this action. The 
abduction may be open or hidden, and be a result of deceit, 
misuse of trust, or of restraining the child. Under the Law, a 
child is any person under 14 years of age. The child's consent, 
regardless of his understanding of the significance of the 
unlawful activity, does not eliminate the criminal 
responsibility of the abductor. The Law determines ``mercenary 
purposes'' as intending to receive material profits from the 
abduction, i.e., ransom or taking a child's clothes. Base 
motives are those that contradict moral principles, for 
example, taking revenge on a child's parents. If a childless 
woman abducts a child with the purpose of educating him and 
creating a good family environment for him, such an abduction 
does not qualify as an abduction from base motives.\3\
---------------------------------------------------------------------------
    \3\ Bulletin of the USSR Supreme Court, No. 2 (1974) at 10.
---------------------------------------------------------------------------
    Parental kidnaping is not considered a criminal offense in 
Georgia. Only those who abduct somebody else's child may bear 
criminal responsibility for a child's abduction. Hence 
biological and/or adoptive parents may not be prosecuted as 
kidnappers or child abductors. In case of disagreement among 
divorced or separated parents, the abduction of one's own child 
from the other parent or from an orphanage or another special 
institution is not considered to be an abduction under Georgian 
criminal legislation. It may be labeled as arrogation, which is 
the ``unwarranted exercise in violation of a legally 
established order, of one's actual or supposed right, causing 
substantial harm to citizens or to state or social 
organizations.'' \4\ Arrogation is punishable by correctional 
work for a term up to six months, or by a fine, or by a social 
censure. The Law also prohibits prosecuting close relatives of 
a child (for example, grandparents) for abduction, if they 
acted for the sake of the child, even if the interests of the 
child were misunderstood.\5\
---------------------------------------------------------------------------
    \4\ Georgian Soviet Socialist Republic. Tbilisi, Techinformi, 1996, 
art. 128.
    \5\ Commentaries to the Criminal Code of the Georgian Soviet 
Socialist Republic. Approved by the Ministry of Justice of the Republic 
of Georgia. Tbilisi, 1992, at 510.
---------------------------------------------------------------------------
    Furthermore, Georgian criminal legislation does not provide 
for punishment of removal of a child from the country or for 
retaining a child outside Georgia with intent to obstruct the 
lawful exercise of parental rights. Retainment is not 
considered as a separate felony.
    Criminal acts such as child abduction occur very seldom in 
Georgia. If a foreigner whose home country recognizes the 
participation of Georgia in the Convention commits such a 
crime, the child is subject to return. All other cases fall 
under the laws of the respective state. In such cases, the 
International Law Department at the Ministry of Justice of 
Georgia, which was designated as a National Central Authority 
to discharge the duties imposed by the Convention, must 
cooperate with foreign authorities in order to discover the 
child, to prevent possible harm to the child, and to secure the 
child's return.

                         B. Parental Visitation

    Family legislation in Georgia is based on the Code of the 
Georgian Soviet Socialist Republic on Marriage and Family of 
1969, which is currently in force. The Code was slightly 
amended after Georgia gained its independence in 1991. The 
major principle of Georgian family law is that decisions 
relating to a minor should be based on his best interests. One 
of the proposed amendments to the Code provides for increasing 
the age of a minor from 14 to 16 years. This amendment was 
submitted to the Parliament at the end of 1998, and, if 
accepted, may bring Georgian legislation in accordance with the 
international standard. A draft Law on Private International 
Justice has also been drawn up by the executive branch. In 
regard to the protection of a child's rights, the Law on State 
Support of Children was drafted and submitted to the Parliament 
for consideration. However, this act does not regulate issues 
related to parental abduction. Other legislation relating to 
this field also failed to pass.
    Under Georgian law, both parents have equal rights and 
duties with regard to their offspring, even after divorce, 
allowing, however, for court-awarded custody to one of them in 
case of a dispute. Unresolved disputes may be taken to the 
agency of guardianship and curatorship, and/or to the court 
depending on the particular situation. Parents may recover 
custody of their children unless the court decides that this 
would harm the child. In accordance with tradition, custody 
almost always is awarded to the mother of the child; the father 
sometimes receives the right of access as determined by the 
court. However, there is no means of enforcing court decisions 
and as stories in local newspapers reflect, a father's right to 
visitation is often violated by mothers and other relatives who 
have been awarded custody of the child.\6\
---------------------------------------------------------------------------
    \6\ Georgia: UNICEF Official Comments on Family Related Court 
Rulings. Moscow, Interfax in English. Published by FBIS. Document ID: 
FTS 19990212001179.
---------------------------------------------------------------------------
    Usually, in the case of the dissolution of a marriage the 
courts decide which of the parents should get custody of the 
child. If parents are absent, the issue of custody for minors 
shall be resolved by the guardianship agencies of local public 
education departments. These agencies decide disputes about the 
exercise of family rights; have the power, taking into 
consideration the interests of the child, to deprive access to 
parents living at a distance; should be, but apparently are not 
always, a party to custody suits; and may commence actions that 
would deprive a parent or parent of their parental rights.

 III. Court System and Structure--Courts Handling the Hague Convention

    The court system in Georgia is based on provisions of the 
Constitution and the Law on the Judiciary. The Constitution 
states that judicial power is independent and is exercised only 
by the courts (art. 82-91). The courts are the Supreme Court of 
Georgia and district and city courts at the lower levels of 
state administration. Justice is administrated in Georgia by a 
trial of civil disputes and a trial of criminal cases. Lawful 
penalties are applied to those found guilty of crimes and those 
found not guilty are acquitted. Declaratory statements are 
elicited from the court through non-contentious procedures. A 
number of minor administrative infractions are tried by a 
single judge and not by a collegiate court.
    Except for the courts of arbitration, which have exclusive 
jurisdiction in commercial disputes between legal entities, no 
other special courts exist in Georgia. All cases related to 
implementation of international obligations as well as civil 
and family related matters are handled by regular courts of 
law. Occasionally, cases of domestic child abduction are 
brought to the court; however, because of national traditions, 
such cases are usually resolved by family elders. No cases of 
international child abduction or application of the Convention 
on the Civil Aspects of International Child Abduction have been 
reported.

                       IV. Law Enforcement System

    The very low number of cases of international parental 
abduction in Georgia may be attributed in large part to the 
pervasive influence of cultural and religious traditions that 
have determined the monolithic features of Georgian society and 
have prevented bi-national marriages. Other reasons include the 
difficulty of international travel to Georgia and to the 
bureaucratic difficulties related to acquiring a valid travel 
passport for children.
    Because there have been no requests for return of children 
and no court decisions regarding the problem of parental 
abduction have been reported, one may conclude that this issue 
is not thought to be of great importance in Georgia. However, 
when enforcement of the Convention is required, some 
difficulties may arise because of the Ministry of Justice's 
lack of experience in dealing with family related issues. 
Because both the Ministry of Justice and the Ministry of 
Education, which supervises local guardianship and curatorship 
agencies and whose personnel is more familiar with the related 
work, are empowered with the administrative authority to order 
the return of an abducted child close interagency cooperation 
may be required. Even though the Convention is a direct 
implementing document and the Georgian Constitution provides 
priority for and direct application of international legal 
norms, Georgian courts have never dealt with the application of 
international legal norms and may have problems with their 
enforcement.

                      V. Legal Assistance Programs

    There is little available legal assistance in Georgia: pro 
bono work is not practiced by attorneys, and legal aid services 
are just being established. The best sources of assistance and 
information are officers of the guardianship agencies. 
Presently the American Bar Association is involved in bi-
lateral projects aimed at creating legal aid clinics in 
Georgia.

                             VI. Conclusion

    The Hague Convention prescribes basic principles of 
resolution of disputes in regard to the parental abduction of 
children. These principles serve as the basis for national 
legislation in all participating states. For Georgia, the 
Convention provides a new approach: the rejection of 
traditional provisions in favor of the recognition and 
enforcement of foreign decisions. The Convention also 
emphasizes the importance of fostering cooperation among the 
central authorities in each country in order to facilitate the 
prompt return of children. The Georgian legal system still has 
not elaborated national norms that correspond with the 
provisions of the Convention. However, citizens of the Republic 
of Georgia already have the right and the possibility of using 
an internationally recognized mechanism for the return of a 
child in case of abduction and the guarantee of the protection 
of the rights of all interested parties if the child was taken 
to one of the few countries that recognize Georgia's accession 
to the Convention.

    Prepared by: Peter Roudik, legal specialist, Eastern Law 
Division, Law Library of Congress, April 1999.

                                ------                                


                                GERMANY

                              Introduction

    Germany ratified the Convention on the Civil Aspects of 
International Child Abduction \1\ [hereinafter Hague 
Convention] on April 5, 1990 \2\ and at the same time enacted 
an Act Implementing Custody Agreements [hereinafter: 
Implementing Act] \3\ that implements both the Hague Convention 
and the European Convention on Recognition on Enforcement of 
Decisions concerning Custody of Children and on Restoration of 
Custody of Children.\4\ The Hague Convention entered into 
effect for Germany on December 1, 1990 \5\ and it has been 
applied more frequently in Germany than the European 
Convention.\6\ Most of the requests received under the Hague 
Convention ask for the return of a child; visitation cases are 
rare.\7\
---------------------------------------------------------------------------
    \1\ The Hague, Oct. 25, 1980, T.I.A.S. 11670.
    \2\ Gesetz-Bundesgesetzblatt, Apr. 5, 1990 (BGBl., official law 
gazette of the Federal Republic of Germany, II 206).
    \3\ Gesetz zur Ausfuhrung von Sorgerechtsubereinkommen, Apr. 5, 
1990 (BGBl. I 701).
    \4\ Luxembourg, May 20, 1980, ratified by Gesetz, supra note 2.
    \5\ Bekanntmachung, Nov. 12, 1990 (BGBl. 1991 II 329).
    \6\ P. Finger, Haager Ubereinkommen uber die zivilrechtlichen 
Aspekte internationaler Kindesentfhrung, 86 Zentralblatt fur 
Jugendrecht [ZfJ] 15 (1999); other recent articles on the German 
practice are A. Bach, Das Haager Kindesentfuhrungsubereinkommen in der 
Praxis, 44 Zeitschrift fur die gesamte Familienrchtspraxis [FamRZ] 1051 
(1997); N. Lowe and A. Perry, Die Wirksamkeit des Haager und des 
Europaischen Ubereinkommens zur internationalen Kindesentfuhrung 
zwischen England und Deutschland, 45 FamRZ 1073 (1998); M. D Kruger, 
Das Haager Ubereinkommen uber die zivilrechtlichen Aspekte 
internationaler Kindesentfuhrung, 52 Monatsschrift fur Deutsches Recht 
695 (1998).
    \7\ Information given by the Central Authority to the German 
Parliament in 1994 (Bundestag Drucksache [BT-DRs]13/160 at 18).
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Implementing Act \8\ designates the Federal Public 
Prosecutor of the Federal Court of Justice as the Central 
Authority \9\ for both Conventions. The Central Authority is 
called upon to undertake all necessary measures to locate a 
child and to effect its return to the claimant from the 
requesting country and to assist in visitation cases. For these 
purposes, the Central Authority is empowered to communicate 
with other German and foreign authorities, file appropriate 
actions in German courts, represent the claimant from the 
requesting state in and out of court, and to act on its own 
initiative to uphold purposes of the Convention. Decisions of 
the Central Authority can be appealed to the Appellate Court 
for the district where the Central Authority is located.
---------------------------------------------------------------------------
    \8\ Supra note 3.
    \9\ On August 1, 1999, the Central Authority moved from Berlin to 
Bonn. The new address is: Der Generalbundesanwalt beim 
Bundesgerichtshof--zentrale Behorde nach dem Sorgerechtsubereinkommens-
Ausfuhrungsgesetz, Heinemannstrasse 6, 53175 Bonn, Germany. Tel: 49 228 
580. Fax: 49 228 584800.
---------------------------------------------------------------------------
    Claimants under the Hague Convention may submit their 
applications either to the German Central Authority or by 
routing the application through the Central Authority of the 
requesting country. They also may forego the services of either 
Central Authority and make their claims directly in the German 
court. In cases where a voluntary solution appears unlikely, 
the latter approach may save time. In either event, 
applications and accompanying documents must be translated into 
German.
    The German Central authority will check received 
applications for propriety and completeness. Then, the person 
who has abducted the child will be requested to return the 
child within five days. If there is no compliance, the Central 
Authority will first work toward a voluntary return of the 
child before recommending legal action. Throughout the pendency 
of an application the Central Authority may involve the German 
youth welfare offices to provide various services, to 
facilitate the voluntary return of the child. If a child cannot 
be located, the Central Authority may ask the Federal 
Prosecutor for assistance.\10\ If the abductor continues to 
refuse cooperation, a court proceeding will be initiated (see 
below). In visitation cases, the process is similar, also 
involving the youth welfare offices.
---------------------------------------------------------------------------
    \10\ A. Hutchinson, Rachel Roberts, and Henry Setright, 
International Parental child abduction 100 (London, 1998).
---------------------------------------------------------------------------
    Generally, it appears that the German authorities and 
courts comply with the Hague Convention. Criticism, however, 
has been voiced to the effect that the German courts are 
inclined to apply the article 12 and 13 exceptions of the Hague 
Convention too readily in favor of the abducting German parent, 
and also that some proceedings are slow.\11\ There is, however, 
some expectation that recent reforms and clarifying court 
decisions may change this state of affairs (see below).
---------------------------------------------------------------------------
    \11\ Complete statistics on convention requests appear to be 
unavailable. However, some figures for the years 1993 through 1996 have 
been evaluated. They lead to the conclusion that roughly 25% of 
Convention request end up before the courts and it is these cases that 
are likely to be reported to the Permanent Office in the Hague. Between 
1993 and 1996, a total of 38 cases were reported by Germany. Of these, 
the return of the child was ordered in 20 cases and was refused in 17 
cases [N. Lowe and A. Perry, Die Wirksamkeit des Haager und des 
Europaischen Ubereinkommens zur internationalen Kindesentfuhrung 
zwischen England und Deutschland, 45 FamRZ 1073 (1998)].
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation

    In most requests for the return of a child, substantive 
German law on custody and child abduction will not become 
applicable because the German courts will determine, in 
accordance with article 3 of the Hague Convention, whether the 
claiming parent has custody according to the laws of residence 
of the child. Nevertheless, an understanding of the German 
substantive provisions may be helpful in understanding the 
German practice in Hague Convention requests, particularly its 
constitutional overtones, the general philosophy of the law on 
children and parents, and the intertwining of substantive and 
procedural law. Moreover, a custody decision may be made by the 
German courts if the child cannot be returned, and this 
decision may at times be governed by German substantive law.
    In December, 1997, Germany enacted a major reform on the 
law of children and parents that became effective in 1998.\12\ 
Its purpose was to modernize German law by removing any 
vestiges of discrimination of children born out of wedlock. The 
reform also introduced the possibility of giving joint custody 
to divorced parents. Until now the German courts have been 
reluctant to award joint custody even in cases where the 
foreign law called for its application. Hopefully, under the 
new legislation the German courts will be more inclined to 
honor joint custody decisions and this also may have a positive 
effect on visitation cases.
---------------------------------------------------------------------------
    \12\ Gesetz zur Reform des Kindschaftsrechts, Dec. 16, 1997, BGBl. 
I at 2942.
---------------------------------------------------------------------------
    The reform also strengthened the rights of the child, by 
allowing the family court to appoint counsel to represent the 
interests of the child when there is doubt as to whether the 
parents are properly representing those interests or when there 
may be a conflict s between the interests of the child and the 
parent. In addition, the reform ensures that children are 
heard, even at an early age, in all proceedings concerning 
them.
    In German domestic law, child abductions are governed by 
Sec. 1632 of the Civil Code.\13\ This section provides that 
custody over a child includes the right to claim the child from 
anyone who keeps it unlawfully. If one parent claims the child 
from the other parent, then jurisdiction lies with the local 
family court. In the ensuing court proceeding, the judge 
examines any arising custody issues and also hears the child. 
German domestic law does not have a summary proceeding that 
would correspond to the Hague Convention's return mechanism. 
Instead, each German domestic request for the return of an 
abducted child may lead to a review of the custody issue, and 
it is generally advisable for a parent who leaves the marital 
home to take the children with him or her, as long as they do 
not take the child abroad. It has been suggested that this 
practice in domestic cases may also lead the German courts to 
conduct a more thorough evaluation of the circumstances in 
Hague Convention requests \14\ for the return of the child than 
might be done in other countries.\15\
---------------------------------------------------------------------------
    \13\ Burgeriches Gesetzbuch, Aug. 18, 1896, Reichsgesetzblatt 
[RGBl., official law gazette of the German Reich] at 195, as amended.
    \14\ It would, however, be unadvisable to take the children abroad 
when there are unresolved custody or visitation issues. Such a removal 
of the child to a foreign country may constitute the criminal offense 
of the abduction of a minor [Strafgesetzbuch, re-enacted March 10, 
1987, BGBl. I at 945, as amended, Sec. 235]. In a decision of February 
11, 1999, the German Federal Supreme Court [Bundesgerichtshof] upheld a 
conviction of a German parent of Pakistani origin who had custody over 
his child for removing him to Pakistan to be educated by the child's 
grandfather and this violated the visitation rights of the mother 
[docket no. 4 StR 594/98].
    \15\ W. Gutdeutsch and J. Rieck, Kindesentfuhrung--ins Ausland 
verboten--im Inland erlaubt, 45 FamRZ 1488 (1998).
---------------------------------------------------------------------------
    According to German substantive law, custody is held 
jointly by a married couple until the child reaches the age of 
18. For children born out of wedlock, custody is usually held 
by the mother; however, the father may obtain joint custody 
together with the mother through a joint declaration made 
before a notary or by marrying the mother. During and after 
divorce proceeding, the family court awards custody either 
jointly to the parents or to one parent while giving rights of 
visitation to the other, unless this would be harmful to the 
child under the circumstances. In all custody decisions, the 
guiding principle of the court is the welfare of the child, and 
the decision will be made so a to promote this purpose.\16\
---------------------------------------------------------------------------
    \16\ BGB, Sec. Sec. 1627-1671.
---------------------------------------------------------------------------
    The Civil Code provisions on visitation (Sec. Sec. 1684 
through 1688) have been reformed in the above described 1998 
reform of family law, thus expanding visitation rights to 
grandparents and siblings. If a German court were called upon 
to rule on a Hague Convention request for visitation, it is 
conceivable that the court might apply the law of the state of 
residence of the child, in keeping with Germany's membership in 
the Hague Convention on the Protection of Minors.\17\ 
Nevertheless, it appears that the German courts would not apply 
any foreign law in a manner that would not be deemed to be in 
the best interest of the child.
---------------------------------------------------------------------------
    \17\ Convention Concerning the Powers of Authorities and Law 
Applicable to the Protection of Infants, done Oct. 5, 1961, at The 
Hague, 658 UNTS 143; ratified by Germany April 30, 1971, BGBl. II at 
217.
---------------------------------------------------------------------------
    An important aspect of German law are the human rights 
guarantees of the Federal Constitution, in particular, article 
6 guaranteeing the family and rights of children and parents, 
articles 1 and 2, guaranteeing human dignity and liberty, as 
well as article 103, guaranteeing due process. These come into 
play in adjudicating both domestic and international child 
abductions. Three recent decisions of the Federal 
Constitutional Court may indicate how various aspects of German 
domestic law may influence decisions to return a child under 
the Hague Convention, particularly on how the exceptions of 
articles 12 and 13 are applied.
    The first case [hereinafter Tiedman case] \18\ involved two 
children of a French mother and a German father. The children 
had first been abducted to France by the French mother, 
contrary to a German court order, and had then been re-abducted 
by the German father and brought back to Germany. The mother's 
request for a return of the children was granted by the German 
appellate Court; however, this decision was reversed by the 
Federal Constitutional Court. The Court held that a careful 
examination of the welfare of the child is constitutionally 
mandated in re-abduction cases so that the child will not be 
shuttled back and forth due to conflicting court decisions of 
different countries. Moreover, the Court held that the 
Constitution mandates the appointment of special counsel for a 
family court proceeding on child abductions if there is a 
possibility that the interests of the child may conflict with 
those of the parents, as is required since the 1998 law reform 
(see above). In the case at issue, such counsel had been 
appointed and had initiated the complaint to the Federal 
Constitutional Court.
---------------------------------------------------------------------------
    \18\ Decision of Bundesverfassungsgericht [BVerfG], Oct. 29, 1998, 
Docket No. 2 BvR 1206/98, Europaische Grundrechte-Zeitschrift 612 
(1998).
---------------------------------------------------------------------------
    In the second case \19\ the Federal Constitutional Court 
upheld the decisions of the lower courts that ordered the 
return of two children to Sweden from where their German mother 
had abducted them. The court distinguished the case from the 
Tiedman case by stating that it did not involve a re-abduction 
and the possibility of having the children moved back and forth 
on the basis of contrary court decisions.
---------------------------------------------------------------------------
    \19\ BVERFG decision March 9, 1999, Docket No. 420/1999.
---------------------------------------------------------------------------
    In the third case, the Federal Constitutional court upheld 
decisions of a German family court and appellate court that 
refused to return a child under a Hague Convention request. The 
Court upheld the use of the exception of article 12 because the 
children had been questioned about their preference and stated 
that they preferred to stay with the German parent.\20\ The 
Court held that there is no rigid minimum age for considering 
the wishes of the child within the meaning of article 13, 
paragraph 2 of the Hague Convention. In the case at issue, the 
children were seven and four years old when they were 
questioned. One of the lower courts had held that the 
statements of the older child were relevant and that separating 
the children would have been too hard on the children.
---------------------------------------------------------------------------
    \20\ BVERFG decision, May 3, 1999, Docket No. 2 BvR 6/99, reprinted 
46 FamRZ 1053 (1999).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    Germany is a federated country that consists of 16 states. 
Nevertheless, substantive and procedural law on domestic 
relations is federal law. There is one uniform court structure 
under which the trial courts and appellate courts are state 
courts whereas the courts of last resort are federal 
courts.\21\ Hague Convention requests are adjudged by the 
family courts which are divisions of the local courts 
(Amtsgericht).
---------------------------------------------------------------------------
    \21\ W. Heyde, Justice and the Law of the Federal Republic of 
Germany 7 (Heidelberg, 1994).
---------------------------------------------------------------------------
    Until recently, venue for Hague Convention requests was 
placed in the court of the district where the child was 
located. This provision of the Implementing Act, however, has 
been amended in 1999 \22\ so as to centralize jurisdiction over 
Hague Convention requests in one family court in each higher 
appellate court district and to allow each of the states to 
have an even more centralized jurisdiction over Hague 
Convention requests by designating one family court to have 
jurisdiction over all or several appellate court districts 
within the state. It is hoped that the more centralized 
jurisdiction over Hague Convention requests will lead to more 
uniformity in the decisions, which until now had been 
lacking.\23\
---------------------------------------------------------------------------
    \22\ Gesetz zur Anderung von Zustandigkeiten nach dem 
Sorgerechtsubereinkommens-Ausfuhrungsgesetz, Apr. 13, 1999, BGBl. I at 
702.
    \23\ P. Finger, Haager Ubereinkommen uber die zivilrechtlichen 
Aspekte internationaler Kindesentfhrung, 86 Zentralblatt fur 
Jugendrecht [ZfJ] 15 (1999).
---------------------------------------------------------------------------
    A petition to the family court to have a child returned 
under the Hague Convention should be accompanied by motions to 
have the costs awarded and to have the decision executed. The 
petition should be to have a child returned must be accompanied 
by a written justification describing family relationship and 
the age, citizenship, and residence of the children. In 
addition, all existing decisions dealing with the divorce of 
the parents, and with custody and right of access must be 
presented, preferably translated by a translator that is sworn-
in and recognized by the court. Moreover, the abduction of the 
child must be described, and details must be furnished on the 
social and cultural circumstances, family structures and 
relationships, on the language spoken in the home, and on the 
efforts undertaken to have the child returned voluntarily.\24\
---------------------------------------------------------------------------
    \24\ M. D Kruger, Das Haager Ubereinkommen uber die 
zivilrechtlichen Aspekte internationaler Kindesentfuhrung, 52 
Monatsschrift fur Deutsches Recht 695 (1998).
---------------------------------------------------------------------------
    Proceedings on Hague Convention requests are non-
contentious.\25\ The judge moves the proceeding and orders 
whatever measures and testimony are deemed necessary, including 
the involvement of the youth welfare agencies. It is advisable 
that the parents are represented by counsel. In addition, the 
court may appoint on its own initiative counsel for the child, 
if in situations where there may be conflicting interests 
between the child and the parent. The judge may also insist on 
granting the children are hearing, even if they are quite 
young. The family court may involve the youth welfare office to 
give information on the social circumstances of the parties. In 
addition, the family court may also request an expert opinion 
of a psychologist. However, because this might delay the 
proceeding, this should only be done in exceptional cases.\26\
---------------------------------------------------------------------------
    \25\ Zivilprozessordnung, re-enacted Sept. 12, 1950, BGBl.I at 533, 
as amended, Sec. 621 et seq.; Gesetz uber die Angelegenheiten der 
freiwilligen Gerichtsbarkeit, re-enacted May 20, 1898, BGBl. I at 771, 
as amended.
    \26\ Bach, supra note 6 at 1056.
---------------------------------------------------------------------------
    Allegedly, delays in proceedings have been a problem. It 
was the legislative intent of the German Implementing Act to 
have the family court decide Convention requests within six 
weeks.\27\ Nevertheless, the Federal Supreme court found that 
the due process guarantees of the German constitution were not 
violated when a proceeding before the family court for the 
return of a child took eleven months.\28\ In that case, the 
court reasoned, the fault for the delay lay not with the German 
family court. Instead, the delay was caused by the courts' 
request that the applicant furnish a decision of the French 
court of residence of the child to prove that the removal of 
the child from France was wrongful, as is foreseen in article 
15 of the Convention. In the absence of special circumstances, 
however, the court indicated that a six week's time limit for 
the decision of the family court was appropriate.
---------------------------------------------------------------------------
    \27\ BT-DRs. No. 11/5314 at 54, note 105.
    \28\ Supra note 20.
---------------------------------------------------------------------------
    Decision of the family court can be appealed to the higher 
regional court [Oberlandesgericht], and an appeal usually stays 
enforcement.\29\ The decisions of the appellate court is final 
and enforceable and the only remedy against such a decision 
could be a constitutional complaint to the Federal 
Constitutional Court, alleging alleging the violation of civil 
rights through the proceeding or the applied legislation. 
Ordinarily the lodging of a constitutional complaint does not 
stay the execution of a final judgment. However, in exceptional 
cases, the Federal Constitutional Court may issue an injunction 
to postpone execution. The Federal Constitutional Court accepts 
constitutional complaints only if they are significant from a 
constitutional point of view and have a reasonable chance of 
succeeding.\30\
---------------------------------------------------------------------------
    \29\ FGG, Sec. 24.
    \30\ Bundesverfassungsgerichtsgesetz, re-enacted Aug. 11, 1993, 
BGBl. I at 1473, as amended, Sec. Sec. 90 et seq.
---------------------------------------------------------------------------

                          IV. Law Enforcement

    If a German court decides that a child should be returned 
in response to a Hague Convention request, the judgement will 
usually order the retaining parent to return the child to the 
claiming parent or other designated agent who then can remove 
the child to the requesting country. The retaining parent will 
not be ordered to take the child to the foreign country, but 
merely to hand it over in Germany. If there is no compliance, 
then the Court may impose a coercive fine or coercive detention 
and the costs of the execution proceeding on the person 
detaining the child.\31\ The fine is to be commensurate with 
the income of the party to be coerced but may not exceed 
Deutsche Mark 50,000 (approx. U.S. $30,000). A fine can be 
imposed repeatedly, yet must always be proceeded by a 
warning.\32\ In addition, the court may order the use of force 
through the marshal of the court who in turn may ask for the 
assistance of the local police. If the child is not found, the 
court may order the party responsible to bring the child forth 
to give an explanation under oath as to the child's 
whereabouts.
---------------------------------------------------------------------------
    \31\ Gesetz uber die Angelegenheiten der freiwilligen 
Gerichtsbarkeit [FGG], re-enacted May 20, 1898, RGBl. At 771, Sec. 33.
    \32\ P. Bassenge and G. Herbst, Gesetz uber die Angelegenheiten der 
freiwilligen Gerichtsbarkeit 172 (Heidelberg, 1995).
---------------------------------------------------------------------------
    Decisions on visitation rights are enforced in a similar 
manner. However, in all such cases, the courts will aim at 
achieving the desired results as much as possible with non-
coercive means, such as involvement of the youth welfare 
offices, the appointment of special counsel for the child, and 
the acting of the court as a mediator.\33\ The tools for the 
application of such gentler pressures have been given to the 
courts in the 1998 reform of family law.\34\
---------------------------------------------------------------------------
    \33\ S. Motzer, Die gerichtliche Praxis der 
Sorgerechtsentscheidung, 46 FamRZ 1101 (1999).
    \34\ FGG, as amended, Sec. Sec. 50, 52, and 52 (a).
---------------------------------------------------------------------------
    Finding a child in Germany should be facilitated by the 
registrations laws that require all individuals to register 
their residence or their place of sojourn with the police. 
These registration requirements are regulated and implemented 
by the states, on the basis of the Federal Framework Act on 
Registration.\35\ The police may also become involved in 
finding a child or the abducting parent either through the 
involvement of the Federal Prosecutor, upon referral by the 
Central Authority or through an international warrant of arrest 
through INTERPOL. Nevertheless, there may be circumstances 
under which it might be advisable for a Hague Convention 
claimant to hire a private detective to find the child.\36\ 
Moreover, even if the police locate a child or parent in an 
INTERPOL request, Germany does not extradite a parent for 
foreign criminal charges of child abduction.\37\
---------------------------------------------------------------------------
    \35\ Melderechtsrahmengesetz, re-enacted June 24, 1994, BGBl. I at 
1430, as amended.
    \36\ Finger, supra note 23.
    \37\ Kruger, supra note 24.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    Germany ratified the Hague Convention under the reservation 
that Germany will assume the costs of attorneys and court 
proceedings of a requesting party only to the extent that the 
applicant is deserving of legal aid according to German law. In 
keeping with this reservation, the German Central Agency may 
require that an applicant submit a payment for the expected 
fees in advance. The work of the Central Agency itself is 
provided free of charge. If an applicant wishes to claim legal 
aid, an application to that effect should be submitted.
    Legal aid for court costs is governed by sections 114 
through 127 a of the Code of Civil Procedure.\38\ According to 
these provisions, the court will grant legal aid for court 
costs and for counsel in the proceeding if representation is 
required or advisable. The party must apply for legal aid to 
the court, however, the Cental Authority will apply for the 
claiming parent.
---------------------------------------------------------------------------
    \38\ Zivilprozessordnung [ZPO], re-enacted Sept. 12, 1950, BGBl. I 
at 533, as amended.
---------------------------------------------------------------------------
    Legal aid will be granted if the party is unable to defray 
these costs from current income or other available assets, and 
if the intended legal action has an adequate chance of success 
and does not appear to be vexatious. The court has some 
discretion to consider individual circumstances in the granting 
of legal aid. However, the statutory income thresholds are 
quite low. For 1999, they have been set at a net monthly income 
of DM 672 (approx. U.S. $420) for each party, plus DM 672 for 
the spouse of the party, plus DM 473 for each dependent child 
of the party.\39\ Parties of higher income levels that still 
have difficulties paying for their court costs must pay the 
incurred expenses in monthly installments that are graduated in 
accordance with the income level.
---------------------------------------------------------------------------
    \39\ Prozesskostenhilfebekanntmachung 1999, June 6, 1999, BGBl. I 
at 1268.
---------------------------------------------------------------------------
    Legal aid for attorney services outside of a proceeding may 
also be granted under conditions similar to those prevailing 
for court costs. Such assistance is governed by the Federal Act 
on Counseling Assistance \40\ which is further implemented by 
state legislation. Consequently, there may be local changes in 
how this form of assistance is granted. In most of the states, 
however, the petitioner will be given a voucher that he can use 
with the attorney of his choice. It appears that no legal 
assistance is available for the services of private detectives. 
However, the court decision on the return of the child may 
award the expenses of the detective to the successful 
claimant.\41\
---------------------------------------------------------------------------
    \40\ Beratungshilfegesetz, June 18, 1980, BGBl. I at 689, as 
amended.
    \41\ Finger, supra note 23.
---------------------------------------------------------------------------

                             VI. Conclusion

    Germany appears to have a high incidence of cases in which 
the return of a child is refused. In particular, a decision to 
keep the child in Germany may be made in cases of re-abductions 
and conflicting court decisions and also when children of a 
relatively young age express their preference to stay with the 
German parent. However, some improvements in the German 
practice may result from a recent reform that centralizes the 
venue for Hague Convention cases in larger court districts.

    Prepared by: Edith Palmer, senior legal specialist, Western 
Law Division, Legal Research Directorate, Law Library of 
Congress, November 1999.

                                ------                                


                                 GREECE

                              Introduction

    On October 25, 1980, Greece was among the first four 
countries which signed the Final Act of the Fourteenth Session 
of the Hague Conference on Private International Law. The Final 
Act contained the text of Hague Convention on the Civil Aspects 
of International Child Abduction (hereafter the Convention) and 
a Recommendation on the model form to be used for applications 
requesting the return of children who fall under the scope of 
the Convention. Greece ratified the Convention more than ten 
years later, on December 2, 1992. The Convention entered into 
force between United States and Greece on June 1, 1993.
    The Convention's central purpose is to protect children not 
over the age of 16 from wrongful international removal or 
retentions. Greece is required by Article 2 of the Convention 
as a contracting state to take all appropriate steps to 
implement the Convention's objectives as established in article 
1: (a) to ensure the prompt return of children who have been 
wrongfully removed or retained; and (b) to ensure that rights 
of custody and access under the law of other contracting states 
are respected.

   I. Domestic Laws and Regulations Implementing the Hague Convention

    On December 2, 1992, Greece enacted Law No. 2102/1992 on 
Ratification of the Convention on the Civil Aspects of 
International Child Abduction.\1\ Pursuant to Article 28, 
paragraph 1, of the Greek Constitution of 1975, upon its 
ratification the Convention constitutes an integral part of the 
domestic legal system and prevails over any contrary provision 
of the law. The ratifying law, which comprises the entire 
Convention, in English and Greek, entered into force as of its 
publication in the Official Gazette of Greece on December 2, 
1992.
---------------------------------------------------------------------------
    \1\ Ephemeres tes Kyverneseos tes Hellenikes Demokratias 
[Government Gazette of the Hellenic Republic], part. A. No. 193, Dec. 
2, 1992.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    The Hague Convention does not deal with the criminal 
aspects of child abduction. Hague cases brought before Greek 
courts are civil disputes. Under the Greek Criminal Code, a 
child abduction by a parent is a criminal offense as well. The 
Criminal Code contains a specific article on abduction of 
minors which is also applicable in case the child is removed by 
a parent.

          Art. 324: \2\ A person who abducts a minor from his 
        parents, guardians or anyone who has custody of the 
        child by law, or one who assists the voluntary escape 
        from the authority of such persons shall be punished by 
        imprisonment for not more than three years. If the life 
        of the minor or his physical health, because of lack of 
        care, was endangered, the perpetrator shall be punished 
        by imprisonment of at least a year.

    \2\ 4 Kodikes: Poinikos Kodikas [4 Codes: Criminal Code] (Nomike 
Vivliotheke, 1995) at 741.
---------------------------------------------------------------------------
          If the minor has not completed 14 years of age, the 
        perpetrator shall be punished by imprisonment up to 10 
        years, unless the act was committed by parents, in 
        which case the previous paragraph is applicable. In 
        case the perpetrator committed the act for profit or 
        with the intent to engage the minor in immoral 
        activities or to alter the family unity of the minor, 
        he/she shall be punished by imprisonment up to 10 
        years.
          If the perpetrator intended to ask for ransom or to 
        compel one to act or not take some action, he/she shall 
        be punished by imprisonment. The perpetrator shall be 
        punished by jailing if he frees and returns the child 
        safe and sound voluntarily and before any of his 
        requests were fulfilled.

                         B. Parental Visitation

    Relations between parents and children during marriage and 
in case of divorce, separation or annulment of marriage, are 
dealt with in chapter 11 of the Family Law of the Civil 
Code.\3\ Articles 1510 and 1511 provide for parental care of a 
minor child, which is a right and obligation of the parents and 
is exercised jointly. Parental care includes the care of the 
child, administration of his property, and representation of 
the child in any legal act or before the court. Under Greek 
family law and on the principle of equality of sexes, both 
parents have the right and obligation jointly to care for the 
child during marriage.
---------------------------------------------------------------------------
    \3\ 4 Kodikes, astikos kodikas [Civil Code] art. 1505-1541 (Nomike 
Vivliotheke, 1995).
---------------------------------------------------------------------------
    Article 1518 defines child care as nurturing, supervision, 
education, and guidance as well as determination of the child's 
place of residence. Parents may request the appropriate 
judicial authority for assistance and support in the exercising 
of their right to parental care. The latter are obliged to 
conform.\4\
---------------------------------------------------------------------------
    \4\ Id. art. 1519.
---------------------------------------------------------------------------
    In case of a divorce, separation, or annulment of a 
marriage and if both parents are alive, the exercise of 
parental care is decided by the court. Custody may be assigned 
to one parent. Custody may also be assigned to both parents if 
they both agree and if the parents mutually decide upon the 
child's place of residence. The court may opt to decide 
otherwise, especially to divide custody between the parents, or 
to assign custody to a third person.\5\
---------------------------------------------------------------------------
    \5\ Id. art. 1513 and 1514.
---------------------------------------------------------------------------
    Every decision of the parents that relates to the child 
must be in the best interests of the child. The court must also 
apply the same standard when it decides custody issues, 
including who will be assigned custody and how it will be 
exercised. Every court decision must be based on the equality 
of the sexes, without discriminating on the basis of ethnicity, 
race, sex, political or religious beliefs or social status.\6\ 
A non-residential parent has the right of personal access to a 
child.\7\ Parents cannot bar contact between child and that 
child's grandparents unless there are serious reasons to do so. 
The right to access is determined by the appropriate court in a 
detailed manner.\8\
---------------------------------------------------------------------------
    \6\ Id. art. 1511.
    \7\ Id. art. 1520.
    \8\ Id.
---------------------------------------------------------------------------
    The care of minor children born out of wedlock belongs to 
the mother. If the child is subsequently recognized by his 
father, then the father has the right to care for the child in 
the following two instances: (a) if the mother ceases to care 
for the child, or (b) if the mother is unable to exercise such 
care due to legal or factual reasons. The father may request 
that he be assigned total or partial custody of the child by 
the court, if the mother agrees to it.\9\
---------------------------------------------------------------------------
    \9\ Id. art. 1515.
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention


                        A. Right to Seek Return

    When a person's custody rights have been violated by 
another's wrongful removal or retention of the child, that 
person may request the return of the child based on the 
Convention. There are two means to do so. One is through 
application to the designated Central Authority, and the other 
is through direct application to the appropriate court in the 
place where the child is located.
    As required by article 6 of the Convention, Greece 
established the Ministry of Justice as the Central 
Authority.\10\ Thus, in Greece, the aggrieved person may file a 
request with the Ministry of Justice. Greece further designated 
the local offices of the Legal Counsel or the Judicial Offices 
of the Legal Council of the State to perform judicial acts on 
behalf of the Central Authority. Where such offices do not 
exist, then this responsibility will be assigned to a 
government attorney by the President of the Legal Council of 
the State.
---------------------------------------------------------------------------
    \10\ Supra note 1.
---------------------------------------------------------------------------
    The application and all attached documentation must be 
translated into Greek. Pursuant to the Convention, translations 
need no authentication. After the application is examined for 
accuracy and completeness, it is forwarded to the Public 
Prosecutor through the local office of the Ministry of Justice 
where the child is presumed to be. Police assistance is sought 
if the child is not found. At this point, the non-custodial 
parent is notified and negotiations are arranged for the 
child's voluntary return. If the child is not returned 
voluntarily, the Public Prosecutor will file an application 
with the district court.\11\ An interim order may be also 
requested to ensure that the child remains in Greece.\12\
---------------------------------------------------------------------------
    \11\ International Parental Abduction, ``Greece,'' 104-108 (1998).
    \12\ See Arts. 731 and 735 of the Code of Civil Procedure. Under 
the latter, the competent court has the authority to decide who has the 
temporary custody of children, to remove the custody of the child from 
his parents, and to arrange visitation rights.
---------------------------------------------------------------------------
    Since the Hague Convention requires that abduction cases be 
expedited, such cases in Greece are handled pursuant to 
articles 682-703 on provisional remedies (safety measures) as 
provided by the Code of the Greek Civil Procedure.\13\ 
Provisional remedies are ordered by the courts in emergency 
situations or in order to avert imminent danger, to sustain a 
right, or to regulate a situation. Provisional remedies can be 
ordered by the court where the main litigation is pending.\14\
---------------------------------------------------------------------------
    \13\ Supra note 2, Kodikas Politikes Dikonomias [Code of Civil 
Procedure] at 520.
    \14\ Code of Civil Procedure art. 682.
---------------------------------------------------------------------------
    The courts that are competent to handle child abductions 
are one-member first instance courts (Monomele Protodikeia), 
since they are able to order provisional remedies.\15\ 
Provisional remedies may be ordered also by the court which is 
nearest to the place where the provisional measures will be 
enforced, provided that the court has subject-matter 
jurisdiction.\16\
---------------------------------------------------------------------------
    \15\ Id. art. 683, para. 1.
    \16\ Id. para. 3.
---------------------------------------------------------------------------
    Article 16 of the Convention prohibits domestic courts, 
upon receiving notice of wrongful removal and retention, from 
passing a judgment on the merits of the custody issue. This is 
contrary to Greek Civil Procedure, which provides that a 
decision on provisional measures does not prevent the 
adjudication on the merits.\17\
---------------------------------------------------------------------------
    \17\ See id. arts. 693 and 695. However, art. 16, because of the 
superior force of the Convention in the legal system of Greece, will 
apply. See the analysis of the Convention and its effect on the Greek 
legal system in I. Voulgares, The Hague Convention of 1980 on Civil 
Aspects of International Abduction of Children [in Greek] Harmenopoulos 
23 (1990).
---------------------------------------------------------------------------

                           B. Cases on Point

    As a rather recent contracting state, Greece has dealt with 
a relatively small number of child abduction cases. The most 
significant problem that the Greek courts have faced in 
applying the Convention has been procedural. In Greece, civil 
disputes involving international child abduction are handled 
pursuant to the procedure provided by the Code of Civil 
Procedure on provisional measures. The burden of proof required 
by law under an application for provisional measures is based 
on probability,\18\ rather than on the more substantial 
standard required by the Convention. Another question is 
whether or not a decision on provisional measures is subject to 
appeal. Pursuant to article 699, decisions which allow or deny 
provisional measures are not subject to appeal, unless provided 
otherwise. The Supreme Court of Greece (Areios Pagos) has held 
that such decisions are subject to appeal, whereas the Appeals 
Court of Corfu has held otherwise.\19\
---------------------------------------------------------------------------
    \18\ Supra note 14, art. 690.
    \19\ 7 Harmenopoulos 895 (1996).
---------------------------------------------------------------------------
    The following two cases indicate how the Greek courts have 
interpreted and applied the 1980 Hague Convention, especially 
articles 12 and 13. No definite conclusions may be drawn, since 
the number of cases examined in the preparation of this report 
is minimal. It is also unclear whether domestic courts tend to 
favor ``home forum'' litigants. In the first case, the father, 
a Greek citizen, was awarded the custody of the two children. 
In the second case, the siblings were separated and the custody 
of only the boy was awarded to his Greek father. However, as 
stated above, Greek courts, when deciding custody issues, are 
prohibited from discriminating on the basis of the ethnicity, 
race, sex, or social status of the parents.
    The Court of First Instance in Thessaloniki passed the 
following judgment (No. 13601/1996) \20\ concerning an 
abduction case. The mother, a resident of Alaska, was awarded 
custody of the two children ages 7 and 9, by virtue of a 
divorce decree while the father, a Greek citizen was granted 
visitation rights. In 1994, the father brought the children to 
Greece without the required authorization. Two years after the 
children were removed, the mother filed an application on 
wrongful removal and retention through the appropriate office 
of the Central Authority in Greece. The competent court of 
Thessaloniki established its international jurisdiction to 
decide the case, since one party was a Greek citizen. The court 
for purposes of expediency decided the case based on article 
682 of the Code of Civil Procedure and subsequent articles on 
provisional measures. The court then made a determination as to 
the wrongfulness of the conduct within Article 3 of the 
Convention. The court, taking into consideration Article 1511 
of the Civil Code, which mandates application of the principle 
of the best interest of the child in custody issues, held that 
parental custody must be granted to the father for the 
following reasons: pursuant to article 12 of the Convention, if 
the petition is filed within a year from the unlawful removal, 
the court is compelled to return the child immediately. If the 
petition is filed after the year, the court is obliged to 
return the child unless it is proven that the child has 
adjusted to its new environment. Thus, the court in applying 
the exception of Article 12, paragraph 2 of the Convention, 
held that the children ``were well adjusted in the new 
environment, happily living with their father and grandmother 
and doing extremely well in school.'' In deciding whether to 
send the children back to Alaska to live with their mother, the 
court noted that such a dramatic change would have a severe 
psychosomatic impact upon the children. Therefore, the court 
temporarily awarded the custody of both children to their 
father.
---------------------------------------------------------------------------
    \20\ http://www.hiltonhouse.com/cases/Meredith-grc.txt
---------------------------------------------------------------------------
    The second case was handled on appeal by the Appeals Court 
of Thessaloniki.\21\ Apart from the court's having ordered the 
separation of siblings, this case is noteworthy because the 
Supreme Court of Greece (Areios Pagos), which annulled the 
decision of the Court of Appeals due to the insufficient 
standard of proof as required by the Convention, decided on the 
question of whether or not civil disputes arising from the 
Convention which are handled pursuant to the provisional 
measures of the Civil Procedure are subject to appeal. The 
court answered the question in the affirmative.
---------------------------------------------------------------------------
    \21\ The Supreme Court of Greece (Decision No. 1382/1995 published 
in Harmenopoulos 355 (1995) annulled the decision of the Court of 
Appeals of West Macedonia on the grounds that the court based its 
decision on returning the children to Sweden on probability. The 
Supreme Court ordered that the case be remanded to the one-member Court 
of First Instance of Grevena.
---------------------------------------------------------------------------
    The facts of the case involve a Greek father and a Swedish 
mother both of whom lived in Sweden and who had joint custody 
of their two children, pursuant to the Swedish family law. In 
1989, the couple moved to Grevena, Greece and established their 
residence. In 1992, they decided to move back to Sweden. A year 
later the couple visited Greece temporarily. The parents could 
not agree as to their permanent place of residence. The mother 
secretly attempted to take the children back to Sweden. Her 
attempt was thwarted by the police authorities at the 
instigation of the father. The mother returned to Sweden and 
submitted an application to the Minister of Justice in Sweden 
in order to start proceedings based on the 1980 Hague 
Convention. The Minister of Justice of Greece ordered a social 
worker to examine the case. The report of the social worker 
indicated that the wish of the children, especially that of the 
boy, was to remain in Grevena because of their many friends and 
relatives. The lower court (a one-judge court of first instance 
of Grevena) handled the case pursuant to the procedure of 
provisional measures and held that the children must remain in 
Grevena because it was their habitual place of residence. It 
also held that the court was not bound to return the children 
to Sweden, based on the presumption that the children were 
settled in Grevena. The mother appealed the case to the Court 
of Appeals of West Macedonia. The Court held that Sweden was 
most likely the children's habitual place of residence and that 
the requirements of article 13 of the Convention were not met. 
The father requested that the Supreme Court annul the decision 
of the Court of Appeals of West Macedonia. The Supreme Court 
(decision 327/1994) suspended the decision of the Court of 
Appeals regarding the return of the boy because the child was 
well settled with the father in Grevena. It also annulled the 
decision of the Court of Appeals because its decision was based 
on insufficient proof. Thus, the Court of Appeals had not met 
the standard of proof as required by the Hague Convention. The 
case was remanded to the Court of Appeals of Thessaloniki.
    The Thessaloniki Court of Appeals in its Decision No. 1587/
1996 \22\ partially upheld the decision of the lower court and 
stated that the civil dispute that arose due to the 
international abduction, as provided by the 1980 Hague 
Convention, is not a provisional measure as provided for in 
article 682 of the Code of Civil Procedure, nor is it a measure 
regulating a situation. It is adjudicated on the basis of 
article 2 and 11, paragraph 1, of the Convention only for 
purposes of expediency. Thus, in Greece such expedient 
procedure is provided by article 682 of the Civil Procedure. 
Therefore, the Court, following the Supreme Court Decision 
1382/1995, held that the decision which adjudicates the case 
arising from the Convention is subject to appeal, irrespective 
of article 699 of the Code of Civil Procedure, which holds 
otherwise. The Court of Appeals in applying article 13, ordered 
that the boy stay in Grevena with his father after taking into 
consideration the stated wishes of the boy and his level of 
maturity and also because his return to Sweden would endanger 
his physical and mental well-being. Moreover, the court ordered 
that only the girl should be returned to her mother in Sweden 
because it could not establish any of the exceptions which 
allow a court not to order the return of a child.
---------------------------------------------------------------------------
    \22\ Supra note 19, at 890-895.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    Greece has designated the Ministry of Health, Welfare and 
Social Insurance, through its appropriate offices and based on 
a prior authorization by the local public prosecutor, to be 
responsible for the temporary safeguarding of the child until 
the latter is returned to the rightful parent.
    Following a court order, the return of the child to the 
rightful parent can be effected under the power of the bailiff. 
In the Greek legal system the bailiff (dikastikos epimeletes) 
is authorized to enforce court orders pertaining to custody 
issues.\23\
---------------------------------------------------------------------------
    \23\ Pursuant to art. 950 of the Code of Civil Procedure.
---------------------------------------------------------------------------
    Pursuant to article 19 of the Convention, a decision of a 
Greek court regarding the return of a child is not a final 
determination on the merits of the custody issue. Thus, 
remaining issues involving visitation rights by the non-
custodial parent and determinations of custody of children will 
be decided pursuant to articles 681B, paragraph b, and 681, 
paragraph 2, of the Code of Civil Procedure. In accordance with 
these articles, disputes concerning parental custody of the 
child, the joint exercise of parental care, and parental and 
grant-parental access during marriage and in case of divorce, 
or in case of children born out of wedlock are dealt with by a 
one-judge district court or by an appointed judge of a three-
member court. The judge has the discretion to contact the 
child, if it is deemed necessary, before passing a 
judgment.\24\
---------------------------------------------------------------------------
    \24\ Supra note 13, at 519.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    It appears that the Ministry of Justice will provide free 
legal assistance only for proceedings under the Hague 
Convention before the appropriate court in Greece.\25\ That 
means that no pro bono legal advice will be given for court 
proceedings related to divorce or custody issues unless the 
applicant meets the requirements of legal aid as provided by 
Greece's judicial system. This is in accordance with a 
reservation made by the Greek government pursuant to Article 42 
of the Convention. Under this Article, Greece reserved its 
right not to be bound to assume any expenses provided for in 
paragraph 2 of article 26 pertaining to the participation of 
legal counsel or advisers or court proceedings except to the 
extent that these expenses concern instances of free legal or 
judicial aid as provided by the Greek judicial system. In 
addition, Greece is a signatory to the 1977 European Agreement 
on the Transmission of Applications for Legal Aid.
---------------------------------------------------------------------------
    \25\ http://travel.state.gov./abduction-greece.html
---------------------------------------------------------------------------
    In general, the domestic rules on legal aid are provided by 
articles 194-204 of the Code of Civil Procedure.\26\ The terms 
of its provision are detailed and cumbersome. Legal aid is 
granted upon furnishing proof that one may not cover legal 
expenses without jeopardizing his own and his family's support. 
Legal aid also is provided to foreigners as well on condition 
that they meet the requirement of need and under the clause of 
reciprocity.
---------------------------------------------------------------------------
    \26\ Supra note 13, at 388-391.
---------------------------------------------------------------------------
    Legal aid is given based on application to the one-member 
court of first instance or the president of the court where the 
case is pending. The judge who decides on this issue has the 
discretion to request additional proof, and may examine 
witnesses including the applicant, with or without requiring 
them to take an oath.\27\
    The application to receive legal aid must be supported by 
documentation. One must submit a certificate from the mayor in 
the place where the person resides--certifying his 
professional, financial and family status, along with a 
certificate from the tax authorities pertaining to his tax 
return. If the applicant is a foreigner, he must also submit a 
certificate from the Minister of Justice verifying the 
reciprocity clause.\28\

                             VI. Conclusion

    Since the ratification of the Hague Convention in Greece in 
1992, it appears that the number of cases involving 
international abduction of children that have been tried is 
relatively small. Overall, the Greek legal system provides the 
necessary judicial remedies in order to facilitate and ensure a 
speedy return of wrongfully removed or retained children. The 
system also provides for an aggrieved person to enforce his or 
her right to seek return of a child, either through an 
application to the Minister of Justice, as the designated 
authority, or through the appropriate court. In the two cases 
examined in this report, Greek judges followed the provisions 
of the Hague Convention. As stated above, no definite 
conclusions can be made as to whether the courts in Greece tend 
to favor ``home forum'' litigants.

    Prepared by: Theresa Papademetriou, senior legal 
specialist, Western Law Division, Directorate of Legal 
Research, Law Library of Congress, June 1999.

__________

    \27\ Id. art. 196.
    \28\ Id.

                                ------                                


                               HONG KONG

                              Introduction

    Since 1997, the former British Crown Colony of Hong Kong 
has been a Special Administrative Region (SAR) of the People's 
Republic of China (PRC). The PRC is not a party to the Hague 
Convention on the Civil Aspects of International Child 
Abduction, but it has made the Convention applicable to the 
Hong Kong SAR.\1\
---------------------------------------------------------------------------
    \1\ T.I.A.S. 11670.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Hong Kong Child Abduction and Custody Ordinance, 
promulgated in September 1997,\2\ is subtitled ``An Ordinance 
to give effect in Hong Kong to the Convention on the Civil 
Aspects of International Child Abduction signed at The Hague on 
25 October 1980.'' This implementing law thus makes the Hague 
Convention part of the domestic law on child abduction since 
1997.
---------------------------------------------------------------------------
    \2\ 31 laws of hong kong, Cap. 512.
---------------------------------------------------------------------------
    Section 3 of the Ordinance stipulates that the provisions 
of the Convention as set out in Schedule I shall have the force 
of law in Hong Kong. Section 4 states that for the purposes of 
the Convention as it has effect under this Ordinance, the 
Contracting States are those specified by an order issued by 
the Governor and published in the Gazette under this section. 
It further provides that an order under this section shall 
specify the date of the coming into force of the Convention 
between Hong Kong and any State specified in the order. Also, 
unless the order provides otherwise, the Convention will apply 
between Hong Kong and that State only in relation to wrongful 
removals or retentions that occur on or after that date.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    In addition to the Child Abduction and Custody Ordinance 
cited in Part I above, the following domestic law contains 
provisions pertaining to child abduction:

   the Protection of Children and Juveniles Ordinance, 
        which specifically provides that any person who 
        unlawfully takes or causes any unmarried female infant 
        to be taken, or any young person or child to be taken 
        against the father's or mother's will or any other 
        person having the lawful care or charge of such infant 
        or young person or child is guilty of a misdemeanor.\3\
---------------------------------------------------------------------------
    \3\ 14A, Laws of Hong Kong, Cap. 213, Sec. 26.

   the Guardianship of Minors Ordinance, which 
        stipulates that a mother and father are to have equal 
        rights and authority in the custody or upbringing of a 
        minor child; \4\
---------------------------------------------------------------------------
    \4\ 3 Laws of Hong Kong, Cap. 13, Sec. 3.

   the Separation and Maintenance Orders Ordinance, 
        which gives the District Court power to issue an order 
        providing that the legal custody of any children of the 
        marriage be given to the husband or to the wife.\5\
---------------------------------------------------------------------------
    \5\ Id. Cap. 16, Sec. 5(b).

   the Matrimonial Causes Ordinance, under whose 
        provisions the Supreme Court or the District Court is 
        empowered to make orders providing for the custody of 
        children.\6\
---------------------------------------------------------------------------
    \6\ 14 Laws of Hong Kong, Cap. 179, Sec. 48.

    It should be noted that the Child Abduction and Custody 
Ordinance itself states that an order issued by the High Court 
in the exercise of its jurisdiction relating to wardship, so 
far as it gives the care and control of a child to any person, 
is within the definition of a custody order. Under the 
Convention, the removal or retention of a child would be 
considered wrongful if the removal or retention is in breach of 
custody rights granted under the law of Hong Kong (regarding a 
child who was a habitual resident immediately before such 
removal or retention). Such custody rights may arise, according 
to the Convention, either by operation of law or by reason of a 
judicial or administrative decision, or by reason of a legal 
agreement under the law of that State.

                         B. Parental Visitation

    Domestic laws governing questions of parental visitation 
are the Child Abduction and Custody Ordinance, previously 
cited, and the following:

        the Guardianship of Minors Ordinance, which contains a 
        number of sections on court orders for custody and 
        maintenance of minors, and specifically regarding the 
        right of access to the minor of either parent. Both the 
        High Court and the District Court are authorized under 
        this ordinance to make such orders.\7\
---------------------------------------------------------------------------
    \7\ 2 Laws of Hong Kong, Cap. 13, Sec. 2.
---------------------------------------------------------------------------

   III. Court System and Structure--Courts Handling Hague Convention

    In the Hong Kong SAR, the hierarchy of the court system is 
as follows: the Court of Final Appeal (taking the place of the 
Judicial Committee of the Privy Council), the Court of Appeal, 
the Court of First Instance, the District Court, and the 
Magistrates Court. A number of other courts and tribunals are 
also part of the court system; these bodies include the 
Coroner's Court, the Lands Tribunal, and the Juvenile Court, 
rulings from which may be appealed to either the Court of First 
Instance or the Court of Appeal. The High Court (formerly 
called the Supreme Court) is the amalgamation of the Court of 
Appeal and the Court of First Instance.\8\
---------------------------------------------------------------------------
    \8\ See I. Dobinson and D. Roebuck, introduction to law in the Hong 
Kong Sar (Hong Kong, Sweet & Maxwell, 1996), Chap. 6, 68-71.
---------------------------------------------------------------------------
    The Court of Appeal hears both civil and criminal appeals 
arising from the Court of First Instance, the District Court, 
and the Lands Tribunal. Cases are heard by a panel of judges 
(usually three) but only after ``leave'' or special permission 
has been granted by the court to do so. The Court of First 
Instance has unlimited jurisdiction in both civil and criminal 
matters, and it has original or first instance jurisdiction in 
all civil matters that involve damages, where the claim 
involves an amount over HK$120,000. It also exercises exclusive 
jurisdiction over such matters as bankruptcy, adoption, and 
probate. The Court of First Instance tries serious crimes, 
although court proceedings in these cases are first heard by a 
Magistrates Court unless the accused waives the right to 
committal and has the case go straight to the Court of First 
Instance. Criminal cases coming before the Court of First 
Instance are heard by a judge and a jury made up of seven or 
nine jurors. This Court also hears appeals from decisions of 
the Magistrates Courts, the Labour Tribunal, and the Small 
Claims Tribunal.
    In its Article 7, the Convention refers to Central 
Authorities, and the Hong Kong Child Abduction and Custody 
Ordinance provides that the functions under the Convention of a 
Central Authority are to be discharged by the Attorney General. 
The Ordinance further stipulates that any application made 
under the Convention by or on behalf of a person outside Hong 
Kong may be addressed to the Attorney General as the Central 
Authority in Hong Kong.\19\
---------------------------------------------------------------------------
    \19\ Supra note 2, Sec. 5.
---------------------------------------------------------------------------
    Under the Hong Kong Child Abduction and Custody Ordinance 
cited above, the High Court, which is the Court of Appeal and 
the Court of First Instance, has the jurisdiction to hear and 
determine an application under the Convention on International 
Child Abduction.\10\
---------------------------------------------------------------------------
    \10\ Id. Sec. 6.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    Reports are available on only two Hong Kong cases that 
involve child abduction or removal and they were heard after 
the Convention came into force for Hong Kong in September 1997: 
the case of S. v. S.,\11\ heard by the Court of First Instance 
in March, 1998 and the case of N. v. O.,\12\ which came before 
the same court in October of that year. S. v. S. was initiated 
in January 1998 by the Department of Justice by means of an 
originating summons. The child had been abducted by the 
defendant-mother from the United Kingdom, after the Ordinance 
implementing the Convention had come into force in Hong Kong. 
On the plaintiff's application, the Lord Chancellor of Great 
Britain made a request to the Secretary for Justice in Hong 
Kong for the return of the child under the Convention. 
Application was also made to secure the whereabouts of the 
child and for an injunction order to prevent mother and child 
from leaving Hong Kong pending the hearing of the originating 
summons, and for the surrender of their passports. These orders 
were made by the court ex parte.
---------------------------------------------------------------------------
    \11\ [1998] 2 HKC 316, retrieved from the Lexis-Nexis database.
    \12\ [1999] 1 HKLRD, at 68.
---------------------------------------------------------------------------
    The case of N. v. O. involved an application made by the 
plaintiff-father, a citizen of Luxembourg, for custody of his 
child, who had been taken by the defendant-mother, a U.S. 
citizen, to Hong Kong. The judge in this case issued a number 
of orders, including one making the child a ward of the Hong 
Kong court, one that this Court itself would resolve the matter 
of the child's custody, and one that, pending the determination 
of the custody issue, the child was to remain in the care and 
control of his mother, the defendant. Another order was issued 
granting the father reasonable rights of access to the child, 
to be exercised only in Hong Kong. The Court forbade either 
party from removing the child from Hong Kong without first 
obtaining the leave of the Court.
    The Rules of Court which govern civil procedure in Hong 
Kong will be followed in giving effect to and enforcing orders 
made by the Hong Kong courts,\13\ including orders issued by 
the High Court in cases involving international child abduction 
regarding return of the child, visitation, or custody 
determinations. The Rules of Court dealing with the enforcement 
of judgments and orders in civil cases detail the methods by 
which such judgments are to be executed, e.g., judgments for 
payment of money, for possession of land, delivery of goods, or 
for an act to be done or not done. Where a judgment or order 
requires an act to be done, such as the return of a child to a 
parent, the procedure is set out in detail in the rules, 
including such steps to be taken as serving a copy of the order 
on the person required to do the act. If a party does not obey 
the order, a writ of execution may be issued.
---------------------------------------------------------------------------
    \13\ 2A Laws of Hong Kong, Cap. 4.
---------------------------------------------------------------------------
    The Court may also exercise its power to punish a 
disobedient party for contempt of court by an order of 
committal. Civil contempt, or contempt in connection with civil 
proceedings, arises from the breach of a court order or from 
the breach of an undertaking made to the Court. Under the Rules 
of Court, ``committal is available to enforce orders which are 
prohibitory or injunctive in nature and those mandatory orders 
which specify a time within which the act(s) must be done 
(mandatory `time' orders).'' \14\
---------------------------------------------------------------------------
    \14\ G. N. Heilbronn, C. N. Booth, and H. McCook, Enforcement of 
Judgments in Hong Kong (Hong Kong, Butterworth, 1998), 129.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    The Legal Aid Ordinance, Chapter 91 of the Laws of Hong 
Kong, makes provision for the grant of such aid in civil 
actions, according to a test of eligibility that embraces both 
income and capital.\15\ In order to be eligible for legal aid, 
a ceiling is set on the amount of the person's financial 
resources. For most proceedings in the High Court or the Court 
of Appeal, the ceiling is now HK$169,700 (US$21,842.90).\16\ 
Corporated or incorporated bodies of persons are not eligible.
---------------------------------------------------------------------------
    \15\ 8 Laws of Hong Kong, Cap. 91.
    \16\ Id. Sec. 5.
---------------------------------------------------------------------------
    The original Ordinance was amended in 1984 to add a system 
of supplementary legal aid for any person not eligible under 
the provisions cited above because his financial resources 
exceed the ceiling, which at the time was HK$120,000 
(US$15,445.80). The ceiling for such supplementary aid was 
readjusted in 1997 at HK$471,600 (US$60,702).\17\
---------------------------------------------------------------------------
    \17\ Id. Sec. 5A(6).
---------------------------------------------------------------------------
    The Ordinance defines the scope of legal aid as consisting 
of representation by the Director of Legal Aid \18\ or by a 
solicitor, and so far as necessary, by counsel, including all 
such assistance as is usually given by solicitor or counsel in 
the steps preliminary or incidental to any proceedings or in 
arriving at or giving effect to a compromise to bring to an end 
any proceedings.\19\
---------------------------------------------------------------------------
    \18\ This may include a Deputy Director of Legal Aid, Assistant 
Director of Legal Aid, or any Legal Aid Officer. Supra note 15, Sec. 6.
    \19\ Id. Sec. 5A.
---------------------------------------------------------------------------
    Legal aid is available to any eligible person, whether 
plaintiff or defendant, including a person ``taking, defending, 
opposing or continuing . . . proceedings or being a party 
thereto.'' \20\ The language of the Ordinance would make legal 
aid extendable to appellate proceedings.
---------------------------------------------------------------------------
    \20\ Id. Sec. 10(3).
---------------------------------------------------------------------------
    In the Magistrates Courts, there is a duty lawyer system 
whereby barristers and solicitors are assigned to provide ``on-
the-spot'' advice as well as to represent persons accused of 
certain crimes. Free legal advice is also available, given in 
the evenings by volunteer (i.e. unpaid) lawyers at offices in 
different locations.\21\ Like the duty lawyer system, this 
program is administered by the Law Society.\22\
---------------------------------------------------------------------------
    \21\ P. Wesley-Smith, An Introduction to the Hong Kong Legal System 
(Hong Kong, Oxford University Press, 1987), 100.
---------------------------------------------------------------------------

                             VI. Conclusion

    Hong Kong has been extremely strict in its application of 
its Child Abduction and Custody Ordinance, the legislation 
passed to implement the Hague Convention. S. v. S., discussed 
above, was the first ruling made in Hong Kong under this 
Ordinance. After the decision was handed down, the abducting 
wife was ordered to hand her child over to her husband, who was 
planning to take the child back with him to the United Kingdom. 
The case was heard in chambers before Justice William Waung 
Sik-ying between March 30 and April 3. On April 13, the wife 
killed both the child and herself by lethal injection. Social 
workers in Hong Kong have urged the Government to be more 
flexible in implementing the law.\23\

    Prepared by: Mya Saw Shin, senior legal specialist, Eastern 
Law Division, Law Library of Congress, February 2000.

__________

    \22\ The Law Society is the governing body for solicitors, with 
responsibility for maintaining professional and ethical standards, and 
for considering complaints filed against solicitors. For barristers, 
the governing body is the Bar Committee.
    \23\ New law was used on mother in killing (South China Morning 
Post, April 18, 1998), 4.

                                ------                                


                          REPUBLIC OF IRELAND

                              Introduction

    The Republic of Ireland is comprised of 26 counties grouped 
together in four provinces. The Republic covers a great deal of 
the island of Ireland; the remainder, Northern Ireland, a part 
of the United Kingdom. Ireland is a sovereign and independent 
democratic state.
    The Constitution of Ireland recognizes the family as the 
natural and primary fundamental unit group of Society; being a 
moral institution possessing inalienable and imprescriptible 
rights, antecedent and superior to all positive law. As a 
result of this high regard, the State guarantees protection of 
``the family'' in its Constitution and authority, as the 
necessary basis of social order and as indispensable to the 
welfare on the Nation and the State. 1
---------------------------------------------------------------------------
    \1\ Irish Constitution, Art. 41, 1.
---------------------------------------------------------------------------
    The Guardianship of Infants Act 1964 2 deals 
with the care of children upon the breakup of a marriage:
---------------------------------------------------------------------------
    \2\  No. 7.

          Sec. 3. Where in any proceedings before any court the 
        custody, guardianship or upbringing of an infant, or 
        the administration of any property belonging to or held 
        on trust for an infant, or the application of the 
        income thereof, is in question, the court, in deciding 
        that question, shall regard the welfare of the infant 
---------------------------------------------------------------------------
        as the first and paramount consideration.

    The Act seeks to give joint guardianship to both parents. 
It also provides for court orders for custody, access, 
maintenance and fit person orders. The Act's intent is to 
provide an order that promotes the well being of the child in 
question.
    The Status of Children Act 1987 3 eliminated the 
differences between legitimate and illegitimate children, 
allowing for the protection of both. The Judicial Separation 
and Family Law Reform Act 1989 4 refined the idea of 
custody in cases of judicial separation.
---------------------------------------------------------------------------
    \3\  No. 26.
    \4\  No. 6.
---------------------------------------------------------------------------
    While Ireland holds the family in high regard, it sees the 
welfare of children as of the utmost importance. The 1964 Act 
is a prime example of the importance Ireland places on the 
health and welfare of children.

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Child Abduction and Enforcement of Custody Orders Act 
1991 5 gives effect to the Hague Convention on the 
Civil Aspects of International Child Abduction. Section 6 of 
the Act gives the Convention the force of law in the Irish 
State, and therefore it receives judicial notice 6. 
The Act originally gave the power to act under the Convention 
to the Minister of Justice, working through the Department of 
Justice, as Ireland's Central Authority. The Act was amended in 
1997 to include the Minister for Justice, Equality and Law 
Reform, but this was merely a technical matter 7. 
The 1991 Act applies to children under the age of 16 who are 
habitual residents in a contracting state.
---------------------------------------------------------------------------
    \5\  No. 6.
    \6\  Id., Sec. 6.
    \7\  Children Act 1997, No. 40, Sec. 18.
---------------------------------------------------------------------------
    Pursuant to its powers, the Irish Central Authority will 
take steps to locate a child who has been abducted into the 
State. It will also seek the return of the child or secure 
access to the child. If required, the Central Authority will 
also arrange for court proceedings to secure the return of or 
secure access to the child Should a child be abducted from the 
State, the Central Authority will assist the wronged party in 
seeking the return of the child. The Central Authority will 
also take upon itself the task of gathering and sending 
information about the abducted child to other Central 
Authorities. The Central Authority will not impose charges in 
relation to applications submitted to it, but it may however 
recoup the expenses it incurred in bringing the child back 
home.
    The High Court of Ireland has jurisdiction to hear and 
determine applications under the Hague Convention. Prior to the 
enactment of the Hague Convention, the High Court was the 
proper place to hear child abduction cases. It is available 
twenty-four hours a day, which satisfies the expediency 
requirement of the convention. There are cases where the Court 
will have to make a child a ward of the court, which is within 
the jurisdiction of the High Court. The High Court is also 
experienced in child abduction cases which arise in an 
international setting that also raise constitutional questions. 
As a result, the High Court may receive direct applications 
from those seeking help. The High Court also has the power to 
discharge any order regarding the custody of, or access to, the 
child so long as it is making an order under the Hague 
Convention. 8
---------------------------------------------------------------------------
    \8\ Child Abduction and Enforcement of Custody Orders Act 1991 
Sec. 6.
---------------------------------------------------------------------------
    Prior to its determination of an application under the 
Convention, the High Court may also give interim directions as 
it thinks fit, on its own motion or on an application, for 
securing the welfare of the child, or preventing prejudice to 
interested persons or changes in the circumstances relevant to 
the determination of the application. The High Court also has 
the authority to order any person to disclose any relevant 
information regarding the whereabouts of the child. As a 
result, the person revealing information may not rely on the 
rule against self incrimination or the incrimination of a 
spouse. However, the same person is protected from having the 
information admitted to prove perjury and perjury of a spouse.
    While there is an obligation to follow the convention the 
High Court does have room to refuse the return of a child. In 
certain cases, the Court may refuse to return a child if (1) 
the person opposing the return of the child establishes that 
the person who had the child in the other state did not 
exercise rights of custody at the time of his removal, (2) 
there is a grave risk that return of the child would expose him 
to physical or psychological harm or place him in an 
intolerable situation, or (3) the child objects to being 
returned and has reached an age and degree of maturity at which 
it is appropriate to take account of his views. The court may 
also refuse the return of a child if it would be contrary to 
the fundamental principles of the State relating to the 
protection of human rights and fundamental freedoms.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    In dealing with child abduction, Ireland passed the 
Nonfatal Offences Against the Persons Act, 1997. 9 
Under this Act, a person is guilty of an offense, who takes, 
sends or keeps a child under the age of sixteen years out of 
the state or causes a child under that age to be so taken, sent 
or kept, (a) in defiance of a court order, or (b) without the 
consent of each person who is a parent, or a guardian or a 
person to whom custody of the child has been granted by a court 
unless the consent of the court was obtained. This offense 
applies to a parent, guardian, or a person to whom custody of 
the child has been granted by a court, but does not apply to a 
parent who is not a guardian of the child.
---------------------------------------------------------------------------
    \9\  No. 26.
---------------------------------------------------------------------------
    Section 17 of the same Act states that a person, other than 
to whom section 16 applies, is guilty of an offense who, 
without lawful authority or reasonable excuse, intentionally 
takes or detains a child under the age of sixteen years or 
causes a child under that age to be so taken or detained, (a) 
so as to remove the child from lawful control of any person 
having lawful control of the child; or (b) so as to keep him or 
her out of the lawful control of any person entitled to lawful 
control of the child. This section serves two purposes. First, 
it codifies the common law offense of kidnaping. The section 
also protects Garda Siochana (Police) from any cause of action 
which occurred while performing their duty under the Hague 
Convention 10
---------------------------------------------------------------------------
    \10\ The Act allows for those acting withing their lawful authority 
to act in securing the safety and well-being of a child in question.
---------------------------------------------------------------------------

                         B. Parental Visitation

    The Guardianship of Infants Act 1964 11 deals 
with parental rights of guardianship, custody and access to 
children upon the breakup of a marriage. The High Court has 
jurisdiction for all matters dealing with the guardianship of 
infants. In response to a parental application to it, the Court 
may give directions as to what it thinks is proper regarding 
the right of access to the infant by the mother or father. 
Section 18 deals with custody upon separation of the parents. 
This section was repealed, however, by the Judicial Separation 
and Family Law Reform Act 1989. 12 Article 41 of the 
1989 Act states that when the court grants a decree of judicial 
separation, it may declare either spouse to be unfit to have 
custody of any dependent child of the family. 13
---------------------------------------------------------------------------
    \11\  No. 7
    \12\  No. 6.
    \13\  Id. Sec. 41 (3).
---------------------------------------------------------------------------

   III. Court System and Structure--Courts Handling Hague Convention

    The courts receive their authority from articles 34 through 
37 of the Irish Constitution. The High Court may receive cases 
from the Central Authority, or the Court may take cases 
directly without intervention of the Central Authority. While 
the High Court has the jurisdiction, and is the best place to 
hear cases arising under the Hague Convention, the Supreme 
Court of Ireland has the authority to review the High Court's 
decisions.
    The 1991 Act implementing the Hague Convention uses the 
Judicial Separation and Family Law Reform Act 1989 to express 
the requirements of court proceedings. It calls for an informal 
and fair process. It states that Family law proceedings before 
the High Court shall be as informal as is practicable and 
consistent with the administration of justice. 14 In 
hearing and determining such proceedings as are referred to in 
subsection (3) of this section, neither judges sitting in the 
High Court, nor barristers or solicitors appearing in the 
proceedings, wear wigs or gowns. 15 These 
requirements are used to foster an expedient result, which is 
necessary in cases arising under the Hague Convention.
---------------------------------------------------------------------------
    \14\  Id. Sec. 33 (3).
    \15\  Id. Sec. 33 (4).
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    The Garda is given the power to detain a child who he 
reasonably suspects is about to be or is being removed from the 
State in a breach of an order of the High Court. When this 
occurs the Garda must at the earliest opportunity return the 
child to the custody of the person in favor of whom a court has 
made an order of custody of or right of access to the child. If 
the child in question is in the custody of the Health Board the 
Garda must return the child immediately to the Health Board,. 
When this occurs, the Garda is required to inform the child's 
parent, the person acting in loco parentis or the Central 
Authority, as soon as possible.

                      V. Legal Assistance Programs

    The Central Authority refers cases to the Legal Aid Board. 
Law Centres were set up in Ireland by the Scheme of Civil Legal 
Aid and Advice in 1980. 16 This was a response to 
the fact that Ireland had become a party to the European 
Agreement on the Transmission of Applications for Legal Aid in 
1977. This three-year gap caused a number of problems which led 
Ireland to establish the scheme to set up Law Centres to give 
legal aid in family law matters. The Legal Aid Board was 
created by the Civil Legal Aid Act 1995. 17 The Act 
gave the Scheme official statutory basis and set out to 
regulate the powers and duties of the board. It also sets out 
to establish the criteria for the granting of legal aid and 
advice as well as the initiation of litigation for which it is 
proper to have legal aid. The Law Centres are staffed by full 
time solicitors and provide mainly family law services.
---------------------------------------------------------------------------
    \16\  Report on Civil Legal Aid in Ireland, Ch. 3, at 4.
    \17\  No. 32.
---------------------------------------------------------------------------
    In order to receive legal aid a person must pass both a 
merits and a means test. The merits test consists of numerous 
standards. Initially there must be a reasonable case in the 
law. The process of law must be the best means of solution. 
Also, the probable outcome must justify the legal costs 
necessary to achieve it. The means test includes requirements, 
such as, a disposable income that does not exceed Irish punt 
7,350 (US$8,175). Disposable capital of a potential recipient 
must not exceed Irish punt 200,000 (US$223,000). Applicants 
under the Convention are entitled to legal aid.

                         VI. Concluding Remarks

    In cases of parental abduction, Ireland has consistently 
looked to the best interests of the child. This had been the 
case prior to Ireland becoming a Member State of the Hague 
Convention. There have been cases in which children have been 
returned, and others in which children were allowed to stay 
with the offending party, because the child's best interest lay 
with that party. Ireland's judiciar has helped to shape the way 
in which the spirit of the Convention is incorporated into its 
own laws. In Northampton County Council v. ABF and MBF 
18, the return of a child to England was refused 
because doing so would have created an adoption without consent 
of one of the parents. In this decision, the Court relied 
heavily on Article 41 of the Irish Constitution. It understood 
Article 41 to grant the father the right to enforce his rights 
as the natural father in a foreign jurisdiction. The Court 
believed that this result was in concert with the protection of 
the rights of the father and the infant pursuant to Article 41.
---------------------------------------------------------------------------
    \18\  (1982) I.L.R.M. 164 (MC).
---------------------------------------------------------------------------
    In Kent County Council v. C.S., 19 the Court 
returned a child abducted from England. The court found that 
although the family receives the highest protection from the 
Constitution, it would be in the best interests of the child to 
be returned to England. This decision shows that although 
Ireland was late in adopting the Convention, its judicial 
decisions incorporate the ideology of the Convention.
---------------------------------------------------------------------------
    \19\  (1984) I.L.R.M. 292 (MC).
---------------------------------------------------------------------------
    In more recent decisions, Irish courts have continued their 
tradition of acting in the best interests of the child. In 
T.M.M. v. M.D., 20 two children were removed from 
England to Ireland by their maternal grandmother. In looking at 
the circumstances of the situation, including the opinion of 
one of the children 21, the children were not 
returned to their mother due to the grave risk of physical and 
psychological harm it would have caused.
---------------------------------------------------------------------------
    \20\  (1999) I.E.S.C. 8.
    \21\  Judge McGuinness spoke with the older of the children who was 
eleven years old. The Judge found the child to be mature enough to 
appropriately take her views into account, pursuant to Article 13 of 
the Hague Convention.
---------------------------------------------------------------------------
    In W.P.P. v. S.R.W., 22 the Court differentiated 
between rights of custody and rights of access. A mother who 
had full custody of her children removed them from California 
to Ireland. The Court held the father's right to access did not 
require the return of the children to the jurisdiction in which 
they had been habitual residents.
---------------------------------------------------------------------------
    \22\ (2000) I.E.S.C. 11.
---------------------------------------------------------------------------
    The most recent statistics on how Ireland has dealt with 
cases arising under the Convention are from 1997. The Minister 
for Justice, Equality and Law Reform compiled and released the 
statistics, which show a 14 percent increase from the previous 
year. There were sixty nine cases in which children were 
brought into the State twenty of which required the return of 
the children. There were fifty six cases in which the children 
were removed from the State, in eighteen of these cases the 
children were returned. In cases arising under the Convention, 
eighty percent dealt with the United Kingdom, while only eight 
percent concerned the United States.
    Prepared by Kersi B. Shroff, Chief, Western Law Division, 
and Matthew Nugent, Law School Extern, Western Law Division, 
Law Library of Congress November 2000

                                ------                                


                                 ISRAEL

                              Introduction

    The 1980 Hague Convention on the Civil Aspects of 
International Child Abduction was incorporated into Israeli law 
in December of 1991. The implementing law offers a speedy route 
for the return of minors to the country from which they were 
illegally removed so that the courts of the other country are 
able to deal with the issue of custody. The remedy under the 
Convention is return of the status quo that existed prior to 
the abduction.\1\
---------------------------------------------------------------------------
    \1\ Civil appeal 7206/93 John Dow v. Jane Doe, 97(1) Takdin-Elyon 
(Juridisc data base, decisions of the Supreme Court) (5757/58-1997).
---------------------------------------------------------------------------
    According to statistical data submitted by the State of 
Israel in March 1997 to the third conference of the Special 
Commission to Review the Operation of the Hague Convention, 
Israeli courts ordered the return of abducted children in 70 
percent of cases. Similarly, children abducted from Israel to 
other countries were returned in 70 percent of cases.\2\
---------------------------------------------------------------------------
    \2\ Referred to by Z. Hanegbi, Minister of Justice in response to 
an inquiry before the Knesset (Israel's Parliament) on March 11, 1998, 
.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention


The Implementing Law

    The Knesset passed the Hague Convention (Return of Abducted 
Children Law), 5751-1991 \3\ on May 29, 1991. The law 
incorporates the Convention on the Civil Aspects of 
International Child Abduction, signed in the Hague on Oct 25, 
1980 (hereinafter the Convention),\4\ into Israeli domestic law 
subject to a reservation regarding the reimbursement for legal 
expenses in accordance with article 26 of the Convention.\5\
---------------------------------------------------------------------------
    \3\ Sefer Hachukim [Book of Laws, official gazette] No. 1355 (5751-
1991).
    \4\ T.I.A.S. No.11670, available at .
    \5\ Supra note 3, see also .
---------------------------------------------------------------------------
    According to the law,\6\ the Attorney General's Office is 
designated as the Central Authority for the purpose of 
discharging the duties under the Convention.\7\ The Attorney 
General is authorized to designate qualified welfare officers 
within the meaning of Welfare Services Law, 5718-1958,\8\ in 
order to carry out necessary tasks in accordance with the 
Convention.
---------------------------------------------------------------------------
    \6\ Id. Sec. 4.
    \7\ The address is: The Attorney General, International Department, 
Ministry of Justice, P.O.B. 1087, Jerusalem 91010, Israel. TL: 972(2) 
670-8797; Fax: 972(2) 628-7668.
    \8\ 12 Laws of the State of Israel (hereinafter LSI) 120 (5718-
1957/58).
---------------------------------------------------------------------------
    The delivery of information necessary for implementing the 
Convention depends on a receipt of a guarantee of secrecy by 
the Attorney General and a promise that the information shall 
not be used for any purpose other than that for which it was 
delivered.\9\
---------------------------------------------------------------------------
    \9\ Supra note 4, Sec. 5.
---------------------------------------------------------------------------
    The law designates the family court as the authorized court 
to adjudicate suits involving application of the 
Convention.\10\ In accordance with Article 16 of the Hague 
Convention, after the government receives notice of a wrongful 
removal or retention of a child, no decision on the merits of 
rights of custody of the minor can be made until it is 
determined that the child is not to be returned under the 
Convention. Therefore, any proceedings relating to custody of 
children, either in civil or religious courts in Israel, will 
cease until a determination is made on the status of return 
under the Convention.
---------------------------------------------------------------------------
    \10\ Id. Sec. 6.
---------------------------------------------------------------------------

Procedure in Hague Convention Actions

    The implementing law authorizes the Minister of Justice to 
pass implementing regulations. In accordance with Civil Law 
Regulations (Amendment) 5756-1995,\11\ Chapter 22(1) titled 
``Return of Abducted Children Abroad'' was added to the 
principal regulations. The regulations provide that an action 
for the return of a child abroad under the Convention shall 
begin with the delivery of a pleading to the court in the 
geographical jurisdiction in which the child is present. If the 
location of the child is unknown, the pleading should be filed 
with the authorized court in Tel-Aviv.\12\
---------------------------------------------------------------------------
    \11\ Kovets Hatakanot [Regulations] (Sept. 29, 1995).
    \12\ Civil Courts Regulations, 5754-1984, as amended, Sec. 258c, 
Kovets Hatakanot [Regulations] 4685, p. 2220 (5754-Aug. 12, 1984); see 
also 6 Dinim [Laws] 3037 (1991).
---------------------------------------------------------------------------
    The pleading should be in the form of an affidavit that 
includes personal information regarding the child and the 
parents such as names, place of birth, passport and Israeli 
identity card, place of marriage, place of last shared 
residence, information regarding the person holding the child, 
and circumstances of the transfer of the child to a different 
address. The affidavit should be accompanied by the following: 
an authentic original or copy of a decision or an agreement 
regarding the plaintiff's right to have the child in his 
custody; any other document substantiating the pleading, 
including proof of the law governing in the child's regular 
place of residence; and an affidavit from any other person the 
plaintiff deems necessary.
    At the time of filing the request, the plaintiff may 
request any relevant temporary relief. The court may decide ex 
parte (in the presence of the plaintiff only) in the following 
matters:\13\
---------------------------------------------------------------------------
    \13\ Id. Sec. 295(5).

          (1) the issuing of exit orders against an abductor 
---------------------------------------------------------------------------
        and/or a child to prevent their departure from Israel;

          (2) the prohibition of the removal of a child from a 
        location specified in the orders;

          (3) the issuing of a decree for deposit of the 
        child's passport or a passport where the child is 
        registered;

          (4) the issuing of an order for the police to 
        investigate the circumstances of the abduction, locate 
        the child and assist a welfare officer to bring the 
        child before the court;

          (5) the issuing of an order directed at other 
        judicial or administrative agencies not to review the 
        matter;

          (6) the issuing of any order necessary to prevent any 
        additional harm to the child or to the rights of the 
        parties or that will guarantee the return of the child 
        by consent or by peaceful means.

    A notice on the date of the hearing and a copy of the 
pleading and any order handed by the court should be provided 
to the respondent, who is under an obligation to respond not 
later than two days before the hearing. The respondent should 
provide an affidavit and any document or any other person's 
affidavit substantiating his response. The hearing should take 
place not later than 15 days following the filing of the suit.
    Before reaching a decision, the court may order the 
plaintiff to provide proof of a decision or a determination 
from the authorities of the country of the child's regular 
residence indicating that the child's removal was carried out 
illegally. A respondent who claims that the return of the child 
would deprive him of the protection of human rights and 
fundamental freedoms will similarly be requested to provide 
clear and convincing evidence to substantiate such a claim.\14\
---------------------------------------------------------------------------
    \14\ Rule 295(11).
---------------------------------------------------------------------------
    The Court may order the immediate return of the child to 
his regular place of residence, even in the presence of one 
party, as long as a summons for the hearing was delivered to 
the respondent or his designee. When such an order is issued, 
the court will provide instructions as to the return of the 
child to all relevant parties as well as to a welfare officer 
and the Israeli police.\15\ The court should provide a detailed 
decision no later than six weeks following the filing of the 
suit.
---------------------------------------------------------------------------
    \15\ Id.
---------------------------------------------------------------------------
    An appeal on the decision or on any other order should be 
filed within seven days from the date it was made. Copies of 
the appeal pleading should be delivered by the appellant to all 
parties at the time of the filing.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    The taking or enticement of a minor under sixteen years of 
age from the custody of his lawful guardian without the consent 
of such guardian is punishable by twenty years of 
imprisonment.\16\ If the abduction involves removing of the 
minor from the country, the perpetrator may be subject to an 
additional penalty of twenty years imprisonment.\17\
---------------------------------------------------------------------------
    \16\ Penal Law, 5737-1977, LSI Special Volume (5737-1977), 
Sec. 373(a), as amended in Penal Law (Amendment No. 12) Law, 5740-1980, 
Sec. 28 (34 LSI 125 (5740-1979/80).
    \17\ Id. Penal Law, Sec. 370.
---------------------------------------------------------------------------
    Although there are some cases where abducting parents were 
convicted for criminal violations of the penal law, it has been 
suggested that the preferred policy should be to avoid 
resorting to criminal intervention as long as civil remedies 
are available.\18\
---------------------------------------------------------------------------
    \18\ P. Shifman, 2 Family Law in Israel 238 (1989). See also Family 
Appeal 41/97 Lifmanovitz v. Kovaliakov, 97(2) Takdin Mehozi [District 
Court Decisions on Takdin] at 54 (5757/58-1997).
---------------------------------------------------------------------------

                         B. Parental Visitation

    Israeli law recognizes the principle of equality in respect 
to guardianship of children. Although both parents are 
considered ``the natural guardians of their children,'' a 
competent court is authorized to determine guardianship ``with 
the interest of the children as the sole consideration.'' \19\
---------------------------------------------------------------------------
    \19\ Women's Equal Rights Law, 5711-1951, as amended, 5 LSI 171 
(5711-1950/51).
---------------------------------------------------------------------------
    According to the Capacity and Guardianship Law, 5722-
1962,\20\ as amended, parents of a minor who live separately 
may agree on custody arrangements of the minor, including 
visitation rights.\21\ The court will determine custody and 
visitation arrangements only in cases where the parents either 
have not reached such an agreement or have not carried out the 
agreement they had reached. In so doing, ``[t]he Court may 
determine it to be the best interest of the minor: Provided 
that children up to the age of six shall be with their mother 
unless there are special reasons for directing otherwise.'' 
\22\
---------------------------------------------------------------------------
    \20\ 16 LSI 106 (5722-1961/62).
    \21\ Id. Sec. 24.
    \22\ Id. Sec. 25.
---------------------------------------------------------------------------
    A decision by an authorized court in Israel under the Hague 
Convention does not determine the merits of any custody 
issue.\23\ Rather, such a decision offers an emergency remedy: 
by ordering the immediate return of an abducted child, the 
Israeli court enables the court of the country in which the 
abduction took place to deal with custody related issues.\24\
---------------------------------------------------------------------------
    \23\ The Hague Convention Sec. 19.
    \24\ See, e.g. Civil Appeal 7206/93 Doe et al. v. Joe, 51(2) Piske 
Din, [Decisions of the Supreme Court] 241 (5757/58-1997) [hereinafter 
PD].
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention


Court System and Structure

    In accordance with a 1995 amendment of the Hague Convention 
(Return of Abducted Children Law), the authorized court for 
purpose of implementation of any judicial or administrative 
function relating to abducted children is the family court.\25\ 
The latter court, thus, handles all Hague Convention child-
return proceedings, visitation, and enforcement of related 
orders.
---------------------------------------------------------------------------
    \25\ Supra note 4, Sec. 6. See also, The Family Courts Law, 5755-
1995, as amended, Sec. 1(5), Sefer Hachukim [Book of Laws, Official 
Gazette] issue No. 1537 at 393 (August 7, 1995).
---------------------------------------------------------------------------
    Family courts are magistrates' courts that have been 
designated as family courts by a decree signed by the Minister 
of Justice, with the consent of the Chief Justice of the 
Supreme Court. Judges can be appointed to the family court if 
they prove to have knowledge and professional experience in 
this area.\26\
---------------------------------------------------------------------------
    \26\ Id. Sec. 2 & 3.
---------------------------------------------------------------------------
    The Israeli court system is composed of a general court 
system and a number of specialized courts. The general court 
system is comprised of three instances: magistrates' courts, 
district courts, and the Supreme Court.\27\ As explained above, 
the courts that have jurisdiction over implementation of the 
Hague Convention are the family courts, which are magistrates' 
courts and thus part of the general court system.
---------------------------------------------------------------------------
    \27\ Basic Law: Adjudication, Sec. 1(a), 38 Laws of the State of 
Israel (hereinafter LSI) 101 (5744-1983/84).
---------------------------------------------------------------------------
    Appeals on decisions of magistrates' courts are entertained 
by district courts. The five Israeli district courts are 
located in Jerusalem, Tel Aviv, Haifa, Beer- Sheva, and 
Nazareth. District courts have residual jurisdiction over all 
criminal and civil matters that do not fall within the 
jurisdiction of the magistrates' courts, and general residual 
jurisdiction to hear any matter that is not under the exclusive 
jurisdiction of any other court or tribunal.\28\
---------------------------------------------------------------------------
    \28\ Courts Law (Consolidated Version), 5744-1984, Sec. 40, 38 LSI 
282 (5744-1983/84).
---------------------------------------------------------------------------
    The Supreme Court sits in Jerusalem and has jurisdiction 
throughout the whole country. Its substantive jurisdiction lies 
mainly in two areas: it hears appeals against judgements and 
other decisions of the district courts, and also sits as a High 
Court of Justice. ``When so sitting, it shall hear matters in 
which it deems it necessary to grant relief for the sake of 
justice and which are not within the jurisdiction of another 
court . . .'' \29\
---------------------------------------------------------------------------
    \29\ Id. Sec. 15.
---------------------------------------------------------------------------
    In addition to the general system of courts, Israel has 
some special courts, including labor courts, military courts, 
and religious courts. The rulings of the appellate tribunals of 
these courts are subject to a limited review by the Supreme 
Court sitting as a High Court of Justice.
    Although family courts have exclusive jurisdiction over 
requests for implementation of the Hague Convention,\30\ the 
issue of permanent custody may be adjudicated by either the 
family court or the appropriate religious court.
---------------------------------------------------------------------------
    \30\ Hague Convention (Return of Abducted Children Law), 5751-1991, 
Sec. 6, supra note 4.
---------------------------------------------------------------------------
    The religious courts in Israel have jurisdiction in matters 
of personal status relating to members of their communities. 
According to the Rabbinical Court Jurisdiction (Marriage and 
Divorce) Law, 1953,\31\ ``matters of marriage and divorce of 
Jews in Israel, being nationals or residents of the State, 
shall be under the exclusive jurisdiction of the rabbinical 
courts.'' \32\ Matters incidental to divorce, including suits 
for maintenance and custody of children, however, are not 
within the exclusive jurisdiction of the rabbinical courts. 
Jurisdiction by a family court may be established by filing an 
action there before filing an action for divorce and other 
incidental matters in the Rabbinical court. The Christian 
religious courts and the Druze courts have jurisdiction similar 
to that of the rabbinical courts. The religious courts of the 
Muslim community (the Sharia courts), enjoy the highest level 
of substantive independence in that they are empowered with 
general exclusive jurisdiction over all personal status 
matters, not merely over marriage and divorce.\33\
---------------------------------------------------------------------------
    \31\ 7 LSI 139 (5713-1952/53).
    \32\ Id. Sec. 1.
    \33\ S. Shetreet, Justice in Israel: A Study of the Israeli 
Judiciary 105-108 (1994).
---------------------------------------------------------------------------

Court Decisions

    Numerous cases involving implementation of the Hague 
Convention (Return of Abducted Children Law) have been 
entertained by Israeli courts. In most cases the Israeli courts 
have ordered the return of the children. The Supreme Court 
repeatedly held that the general rule dictated by the 
Convention is the return of an abducted child to the country of 
habitual residence and the protection of rights of access. 
While the general rule enjoys broad interpretation, exceptions 
to it are interpreted very restrictively. In the absence of 
proof of severe harm to the child expected as a result of the 
return, the child should be returned. The time that lapsed 
since the abduction, the child's positive adjustment to the new 
place and the strong contact with the abductive parent are all 
important considerations in the determination of custody. 
Israel's highest court, however, held that such considerations 
should be evaluated by the court of the country from which a 
child was abducted during the process of determining the 
custody of a child based on the best interest of the child.\34\
---------------------------------------------------------------------------
    \34\ Dr. Gonzburg v. Elena Gail Grinwald, 49(3) Piske Din 
(Decisions of the Suprme Court, hereinafter PD) 282 (5755/56-1995).
---------------------------------------------------------------------------
    The following is a summary of recent decisions of the 
Supreme Court on this matter reflecting its approach to 
implementation of the convention. According to the rule of 
Stare decisis as applicable in Israel decisions by this court 
bind all other courts.

     Joe v. Doe \35\--Decision rendered on April 29, 1999.
---------------------------------------------------------------------------
    \35\ Civil Appeal Request 2610/99, 99(2) Tadkin Elyon 55 (5760-
1999).
---------------------------------------------------------------------------
            Facts:
    The petitioner, (the mother), was married to the respondent 
(the father). They lived in Italy and had two daughters. In 
accordance with the divorce agreement, the mother was awarded 
custody of the daughters and the father visitation rights. The 
mother was prohibited from taking them out of Italy. In 
violation of the agreement, the mother took the girls to 
Israel. Following the district court decision to return the 
daughters to Italy based on the Hague Convention, the mother 
petitioned to the Supreme Court to allow an appeal.
            Decision of the Supreme Court:
    After reviewing all the evidence including the testimony of 
the psychologist, Justice Strasberg-Cohen held that although 
the girls have adjusted to life in Israel, their arrival there 
was wrong, being in violation of a court order given in Italy. 
Their continued stay in the country was also in violation of 
Israeli court orders. The continued efforts of the mother to 
avoid compliance with her obligation by repeatedly disappearing 
and changing her address convinced the Court that the mother 
should not be given even temporary custody. Furthermore, the 
lapse of time since the petitioner abducted the daughters was 
not in her favor, since the Hague Convention did not recognize 
extending legal proceedings as a defense.

    D.S. v. A.S.\36\--Decision was rendered on June 1, 1999.
---------------------------------------------------------------------------
    \36\ Appeal Request 3052/99, 99(2) Takdin-Elyon (Juridisc) 1129 
(5759/60-1999).
---------------------------------------------------------------------------
            Facts:
    The petitioner, the mother, was born in Israel, left the 
country as a child and settled in the U.S. with her parents. 
She had dual U.S. and Israeli nationality. The respondent, the 
father, was born in Israel, and was an Israeli citizen who 
resided in the U.S. for 23 years and held an American work 
permit. The parties married in the U.S. in 1979 where they had 
a child born in 1986. They maintained close contacts with 
Israel and visited it frequently. The child was bilingual. They 
planned to move to Israel. For this purpose, they sold their 
residence and deposited the proceeds in their joint account in 
a bank in N.Y. In 1998, the relationship between the parties 
deteriorated and the petitioner reversed her plan to immigrate 
to Israel. She conveyed her decision to the respondent and to 
the child and filed for custody with the authorized court in 
New York. The respondent then withdrew all the money from their 
joint account and transferred it to Israel. He convinced the 
child to immigrate with him to Israel using a new passport 
based on a false claim that the child's passport, which was 
held by the mother, was lost. The petitioner filed a request 
for the return of her son with the Haifa family court. The 
respondent's defense was that the petitioner agreed that the 
child would live in Israel and that the child objected to being 
returned. An appeal to the Supreme Court was lodged following 
the district court decision accepting an appeal over the family 
court decision accepting the request for return.
            Decision of the Supreme Court:
    The Court accepted the appeal and determined that the child 
should be returned to the U.S. Justice Dorner held that a 
child's objection was not sufficient for the application of the 
exception to the rule of return. Rather, the Court should apply 
its own discretion by interpreting the exceptions specified by 
the Convention very restrictively. Moreover, the Court should 
always presume that the best interest of the child is not to be 
abducted by one parent and lose contact with the other parent. 
The child's wish to remain in the country to which he was 
abducted and his positive adjustment to it are considerations 
that should be reviewed in the process of determining custody. 
The determination over custody, in accordance with the best 
interest of the child, is to be made by the court of the 
country from which he was abducted.
    In the circumstances of the case, it was determined that 
the child loved his mother. The need to choose between his 
parents resulted in a deep anguish to him. The court found that 
the child was not mature enough to make a determination based 
on consideration of all the circumstances. In light of the 
restrictive interpretation of the exception laid by Article 13 
of the Convention, the Court accepted the appeal and ordered 
the return of the child to the U.S.

    T.D. v. S.D.\37\--Decision was rendered on June 14, 1999.
---------------------------------------------------------------------------
    \37\ Appeal Request 7994/98, 99(2)Takdin-Elyon (Juridisc)1472 
(5759/60-1999).
---------------------------------------------------------------------------
            Facts:
    The parties were Israeli citizens and did not hold any 
additional citizenship. They arrived in the U.S. in the summer 
of 1994 for a two-week visit to the petitioner's parents who 
had been living there for twenty years. During the visit, they 
agreed to stay in the U.S. for a period of two years during 
which the petitioner would develop a business and the 
respondent would study. They applied for a green card and 
bought an apartment. The petitioner established a company with 
his father. The respondent completed her studies for a masters' 
degree and started looking for a job in the U.S. In December 
1995, the minor--the subject of the request--was born. He was 
an American citizen. In 1996, the respondent, with the consent 
of her husband, flew to Israel with her one year old son for a 
visit. Although their tickets were round trip tickets, the 
respondent and the child did not return to the U.S. on the date 
specified on the tickets as the date of return. Both parties 
started custody proceedings--the petitioner in New Jersey, 
U.S.A., and the respondent in Israel. The petitioner submitted 
a request for return of the minor to New Jersey under the Hague 
Convention. The Israeli family court accepted the petitioner's 
request for return of the child to the U.S., holding that he 
was removed from his regular place of residence and was 
illegally prevented from returning to it. This determination 
was reversed by the district court.
            Decision of the Supreme Court:
    In accepting an appeal on the decision of the district 
court, Justice Beinish analyzed several aspects of the Hauge 
Convention. She held that the court's role in handling requests 
under the convention was viewed as ``putting out fires'' or the 
provision of ``first aid,'' for the purpose of nullifying the 
results of the abduction and preventing the abductor from 
benefitting from the abduction by returning the status quo 
prior to the abduction. According to Justice Beinish, the 
Convention presumes that any court by virtue of its nature and 
its judicial role will do the utmost to make sure that the 
abducting parent will not benefit from the abduction. The court 
will refrain from ordering the return of an abducted minor only 
in rare cases enumerated by the Convention, such as high 
probability of physical, psychological or other harm to the 
child. Determination of the custody should rely on the best 
interest of the child. The latter, however, is to be decided by 
the court in the country of habitual residence and not by the 
court in the country to which the child was abducted.
    In the circumstances of the case, Justice Beinish held that 
the respondent abducted the child. The date of the return 
ticket was the date of the ``abduction'' for the purpose of 
implementation of the Hague Convention. There was insufficient 
evidence to conclude that the petitioner gave up his claim to 
the return of his child. In her decision, Justice Beinish 
recognized the anguish of the mother who wished to continue her 
life in Israel, supported by her family and in the social and 
cultural environment she was best familiar with. The 
Convention, however, does not recognize these circumstances as 
justification for not returning the minor to the U.S. Although 
holding that the child should be returned, the court 
recommended that the parties reach an agreement rather than 
continue litigation.
    As noted above, exceptions to implementation of the general 
rule regarding the return of abducted children are interpreted 
very restrictively. However, in accordance with article 20 of 
the Convention, when the court is satisfied that the return of 
a child contradicts Israel's fundamental principles, the 
Supreme Court held that it would refuse a return of a child. 
One such case is where the child's return is requested to a 
country which would sever his contact to the other parent. This 
holding was made in reference to decisions made by Spanish 
courts in the matter of John Dow v. The Minister of Foreign 
Affairs, the Minister of Justice, the Attorney General and two 
others.\38\ The decision exemplifies the extent of injustice to 
the parties and to the child which may result from manipulation 
and deception by abductive parents.
---------------------------------------------------------------------------
    \38\ High Court of Justice 4365/97, 99(1) Takdin-Elyon 7 (5759/60-
1999).

    John Dow v. The Minister of Foreign Affairs, the Minister 
of Justice, the Attorney General and two others--Decision 
rendered on July 1, 1999.
            Facts:
    The petitioner (the husband) married the respondent (the 
wife) in Israel in a Jewish ceremony. The couple resided in 
Israel. Following the birth of their daughter, the relationship 
between the spouses deteriorated. The respondent sued the 
petitioner for alimony in the district court. The petitioner, 
on his part, filed for divorce at the rabbinical court. As part 
of the proceedings before the latter court, the petitioner 
initiated a proceeding aimed at declaring his wife as Isha 
Moredet (``rebellious'' wife).\39\ At the time all these 
proceedings were pending before the Israeli courts, the 
respondent and her daughter disappeared. They were found half a 
year later in Barcelona, Spain, residing in proximity to the 
wife's relatives, among whom was Mr. M., the wife's uncle, who 
at the time served as Honorary Consul of Israel in Barcelona. 
During the search for the mother and daughter, the rabbinical 
court issued an ex parte injunction for the wife to return the 
child to Israel and to transfer custody of the minor to the 
petitioner. After the discovery of their whereabouts, the 
petitioner requested the Israeli authorities to start 
proceedings under the Hague Convention.
---------------------------------------------------------------------------
    \39\ According to Jewish law, Isha Moredet is a wife who 
persistently refuses to cohabit with her husband either because of 
anger or quarrelling, or for other reasons offering no legal 
justification, or because she cannot bring herself to have sexual 
relations with him and can satisfy the court that this is for genuine 
reasons, which impel her to seek a divorce. In both cases, the moredet 
immediately loses her right to maintenance, and in consequence thereof, 
her husband loses the right to her handiwork since he is only entitled 
to this in consideration of her maintenance. Ultimately, this may lead 
to a divorce. See M. Elon, The Principles of Jewish Law 381 
(Encyclopaedia Judaica, 1975).
---------------------------------------------------------------------------
    The Spanish family court in Barcelona rejected the Israeli 
request for return of the minor to Israel. An appeal lodged by 
the respondent to the Spanish court of appeal was also 
rejected. Both courts applied Article 20 of the Convention in 
deciding that the transfer of the custody of the child from the 
mother to the father was against the basic principles of 
Spanish law, and that the child would be severely harmed if the 
mother would be declared a rebellious wife, and as a 
consequence, lose all her custodial rights. Custody of the 
child was given to the wife while the petitioner was awarded 
very limited visitation with his daughter under conditions 
described as de facto not conducive to establishing any 
meaningful parent child relationship.
    In his suit, the petitioner requested that the Court order 
the Israeli authorities to resort to any legal or diplomatic 
means, to change the Spanish ruling in the matter. The 
petitioner also requested assistance in financing legal 
representation, a psychologist, and an interpreter in Spain, 
for the purpose of guaranteeing the return of the minor to 
Israel.
            Decision of the Supreme Court:
    The Supreme Court reviewed the decisions of the Spanish 
courts in the process of evaluating the petitioner's claim. 
Justice Cheshin concluded that the Spanish courts' decisions 
were detrimentally influenced by a false document signed by the 
wife's uncle, Mr. M., on formal stationery of the Israeli 
Consulate. The document purported to describe the consequences 
of the potential declaration of the wife as Isha Moredet by the 
Israeli Rabbinical Court. According to the statement, such a 
declaration would result in the full and lifelong disconnection 
between the mother and her child.
    Justice Cheshin held that the Israeli court, faced with 
proof of a similar rule applied by another country, would 
decide the same way the Spanish court did in this case. He 
stated the following:

          An Israeli court would not even imagine, under 
        Israeli law, to ``extradite'' a child to a country 
        which is about to disconnect him from his mother only 
        because of a quarrel between the mother and the 
        father.\40\
---------------------------------------------------------------------------
    \40\ Supra note 39, translated by the author, R.L.

    Thus the Spanish courts applied a just rule. The problem, 
though, was that they were misled by Mr. M's statement. The 
statement by the wife's uncle was provided without authority or 
permission. Not being an expert on the Israeli legal system, 
Mr. M. was not authorized to provide such a legal opinion. Such 
a document would not be admissible in Israeli courts. Moreover, 
the statement was completely false. A declaration of a wife as 
Isha Moredet has nothing to do with her rights toward her 
children. The implications of such a declaration may only 
affect the relationship between the husband and the wife, 
mostly in financial issues and not her custodial or visitation 
rights. A legal opinion explaining the meaning and implications 
of such a declaration was submitted to the Barcelona court of 
appeals by the chief Rabbi of Israel, who served as the 
president of the Rabbinical Court of Appeals, a person who was 
regarded as the top rabbinic legal authority on the subject in 
the State of Israel. The Spanish Court of Appeals, however, 
refused to accept the Chief Rabbi's expert opinion into 
evidence.
    As to the specific remedies requested by the petitioner 
against Israeli authorities, the Court concluded that such are 
not normally provided. Justice Cheshin recognized that the 
Ministry of Foreign Affairs could not have foreseen the 
irresponsible action of Mr. M. Once the false statement was 
made, the Ministry should have resorted to stronger measures in 
order to contradict the statement in Mr. M.'s document. 
According to the Court, this would have prevented a personal 
harm to the petitioner, and a harm to the State of Israel, 
which was falsely identified as a backward country which 
removes custodial rights from a mother due to controversy with 
the father. Considering that Mr. M. resigned from his voluntary 
post as an honorary consul, that the Ministry of Justice in 
Israel assisted and continue to assist the petitioner, and as 
the nature of the remedies requested, the Court rejected the 
petition, but the Court expressed the wish that the Spanish 
courts would revisit the case in total disregard of the 
statement issued by Mr. M.

                       IV. Law Enforcement System

    The Execution Law, 5727-1967,\41\ as amended, regulates the 
enforcement of court decisions for the ``surrender of a 
minor.'' The law provides:
---------------------------------------------------------------------------
    \41\ 21 LSI 112 (5727-1966/67).

          62. (a) Where the judgment directs that a minor shall 
        be surrendered, or that contact, interviews or 
        communication between the parent and the minor child 
        not in his custody shall be enabled or that anything 
        else shall be done in connection with the minor, the 
        Execution Officer shall take all steps required for the 
        execution of the judgment, and for that purpose he 
        shall avail himself of the assistance of a welfare 
        officer, within the meaning of the Welfare (Procedure 
        in Matters of Minors, Sick Persons and Absent Persons 
        Law), 5715-1955.\42\
---------------------------------------------------------------------------
    \42\ 9 LSI 139 (5715-1954/55).

          (b) Where the Execution Officer finds that the 
        judgment can only be executed against the will of the 
        minor and, in his opinion, the minor is capable of 
        understanding the matter, or where the execution of 
        judgement involves other difficulties, the Chief 
        Execution Officer may apply to the court which gave the 
---------------------------------------------------------------------------
        judgment for directions.

    Although requests for stay of enforcement until a final 
decision in an appeal is made can be filed, the courts normally 
do not grant such stays in cases where there is no clear chance 
for winning on appeal. This policy is based on the essence of 
the Convention itself, which is designed to return children 
immediately to the country from which they were kidnaped.\43\
---------------------------------------------------------------------------
    \43\ Lifmanovitz v. Kovaliakov, supra note 21.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    Israel has made a reservation on Article 26 of the 
Convention. Accordingly:

        [T]he State of Israel hereby declares that, in 
        proceedings under the Convention, it shall not be bound 
        to assume any costs resulting from the participation of 
        legal counsel or advisers or from court proceedings, 
        except insofar as those costs may be covered by its 
        system of legal aid and advice.\44\

    Legal aid is provided to those applicants who would qualify 
in their own jurisdiction.\45\ Clients resorting to private 
attorneys are usually charged $10,000, exclusive of taxation at 
17%, or more to handle the case in the family court. Appeals 
are billed separately.\46\ The party held by the court liable 
for the abduction may be ordered to cover legal and related 
expenses, such as hotel stay and travel expenses of the other 
party.

                             VI. Conclusion

    Following its adoption of the Hague Convention on the Civil 
Aspects of International Child Abduction, Israel incorporated 
the Convention into its domestic law and passed implementing 
regulations to enable proceedings under the Convention. A study 
of relevant court decisions indicates an overall compliance 
with the obligations under the Convention.
    According to Israel's Minister of Justice, neither the 
actual implementation of the Convention, nor the policy of his 
office and the Office of the Attorney General include any 
reference to the religion of the minor or the parents.\47\ 
Return will be denied only under the limited reasons enumerated 
by the Convention.

    Prepared by: Ruth Levush, senior legal specialist, Eastern 
Law Division, Directorate of Legal Research, Law Library of 
Congress, September 1999.

__________

    \44\ .
    \45\ A. Hutchinson et al., 2 International Parental Child Abduction 
(1998).
    \46\ Id.
    \47\ Minister of Justice Z. Hanegbi, in response to a Constituent 
Request .

                                ------                                


                                 ITALY

                              Introduction

    Italy ratified and implemented the Convention on the Civil 
Aspects of International Child Abduction (hereafter the 
Convention), done at The Hague on October 25, 1980, through Law 
No. 64 of January 15, 1994.\1\ Following ratification, the 
Convention entered into force in Italy on May 1, 1995.\2\
---------------------------------------------------------------------------
    \1\ Gazzetta Ufficiale della Repubblica Italiana [official law 
gazette of Italy, G.U.] No. 23 of Jan. 29, 1994, Ordinary Supplement.
    \2\ G.U. No. 97 of April 27, 1995, Ordinary Supplement.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    According to article 3 of Law No. 64, the Central Office 
for Juvenile Justice at the Ministry of Justice has been 
designated the Italian Central Authority pursuant to article 6 
of the Convention. In the discharge of its responsibilities, 
the Central Authority avails itself, whenever necessary, of the 
assistance of a state attorney (Avvocatura dello Stato), as 
well as of the Juvenile Services of the Justice administration 
(Servizi minorili). It may further request the cooperation of 
any public administrative body, the police, or any agency or 
authority whose objectives correspond with the functions 
entrusted to the Central Authority under the Convention.
    Any judicial documents for the implementation of Law No. 64 
in the judicial proceedings initiated at the request of the 
Central Authority are free of any charge or fee, including the 
stamp-duty and registration tax.
    Applications for the return of a removed child or for 
securing the effective exercise of the rights of access are 
filed through the Central Authority pursuant to articles 8 and 
21 of the Convention; however, the interested party may apply 
directly to the appropriate authorities, according to article 
29 of the Convention.\3\
---------------------------------------------------------------------------
    \3\ Law No. 64, art. 7.
---------------------------------------------------------------------------
    According to Law No. 64, the Italian Central Authority, 
having made the necessary preliminary investigations, must 
expeditiously send all documents to the Public Prosecutor 
attached to the Juvenile Court of the place where the minor was 
found, for the purpose of making an urgent request to this 
Court to order the return of the minor or the effective 
exercise of the rights of access. The date of the hearing in 
chambers is set by the presiding judge and is communicated to 
the Central Authority. The applicant is informed by the Central 
Authority of the date of hearings so that he/she may appear, 
being responsible for his/her own expenses, and may be heard. 
The Court should issue a decision within 30 days from the date 
the application was received. The person having the care of the 
minor, the public prosecutor, and, when appropriate, the minor 
must be heard.
    The decree of the Court is immediately enforceable. The 
filing of an appeal to the Supreme Court (ricorso per 
Cassazione) does not stay its enforcement. The public 
prosecutor, with the cooperation of the Juvenile Services of 
the Justice Administration when needed, provides for the 
enforcement of the decisions of the Court and immediately 
informs the Central Authority.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    Under Italian penal law, removing a child under the age of 
fourteen from a parent exercising parental authority, a 
guardian, or from anyone having supervision or custody of him, 
or detaining a child against the will of those persons, 
constitutes a crime punishable, on complaint of the offended 
party, by imprisonment of from one to three years. Removing or 
detaining a minor who has attained the age of fourteen without 
the minor's consent entails the same punishment.\4\
---------------------------------------------------------------------------
    \4\ See art. 574 of the Italian Penal Code, in T. Padovani, ed. 
Codice Penale (Milano, Giuffre', 1997).
---------------------------------------------------------------------------
    The crime may be committed by anyone, including the parent 
who does not have custody rights over the minor, and by either 
one of the two parents inasmuch as parental authority is 
exercised by mutual agreement of both parents, according to 
article 316 of the Civil Code.\5\ Furthermore, when the removed 
or retained child is also deprived of his personal freedom, the 
perpetrator of the crime may also be subject to the provisions 
of article 605 of the Penal Code on abduction (sequestro di 
persona) and may be subject to more severe punishment.\6\
---------------------------------------------------------------------------
    \5\ Id. at 2089 and 2091.
    \6\ Id. at 2091 and 2179.
---------------------------------------------------------------------------

                         B. Parental Visitation

    Family relations and the resulting rights and obligations, 
whether the parents are married or unmarried, as well as 
guardianship, adoption, separation, and divorce are regulated 
by numerous provisions of the Civil Code and by special 
legislation.\7\
---------------------------------------------------------------------------
    \7\ See Law No. 184 of 1983, as amended, on Adoption and Custody of 
minors; and Law No. 898 of 1970, as amended, on the Dissolution of 
Marriage, in G. De Nova, ed. Codice Civile e Leggi Collegate [Civ. C.] 
(Bologna, Zanichelli, 1996/97).
---------------------------------------------------------------------------
    Parental authority is exercised by mutual agreement by both 
married parents.\8\ The same criterion applies to unmarried 
parents who live together. When unmarried parents do not live 
together, parental authority normally belongs to the parent 
with whom the child lives, but the judge, in the exclusive 
interest of the child, can provide otherwise. The judicial 
authority can also exclude both parents, whether married or 
unmarried, from the exercise of the parental authority and 
provide for the appointment of a guardian.\9\
---------------------------------------------------------------------------
    \8\ Id., Civil Code, art. 316.
    \9\ Id., Civil Code art. 317 bis, 330, and 343.
---------------------------------------------------------------------------
    Civil courts (tribunali) deciding cases of separation or 
divorce provide for the custody of children. They also provide 
for access rights for the parent not entitled to custody and 
adopt any other measure relating exclusively to a child's moral 
and material interests. The courts establish the extent and the 
manner of the non-custodian parent's contribution to the 
support, education, and rearing of the child. The parent may 
petition the court if he or she deems that decisions 
prejudicial to the interest of the child have been adopted.

 III. Court System and Structure--Courts Handling the Hague Convention

    Competence in matters pertaining to family relations, 
guardianship, adoption, and custody of minors, as well as to 
separation and divorce, belongs to Juvenile Courts (Tribunali 
per i minorenni), to Civil Courts (Tribunali ordinari), and to 
Guardianship Judges (Giudici Tutelari). In a few special 
situations pertaining to suspension or loss of parental 
authority in connection with penal matters, competence belongs 
to the Penal Courts. Appeals are heard in the Court of Appeals.
    Applications for the enforcement of the provisions of the 
Convention are submitted, according to Law No. 64 (see supra 
under Part I) to the Juvenile Courts, which are part of the 
Italian judicial system. Ordinary magistrates, as well as 
honorary magistrates selected from among citizens for their 
expertise in the fields of biology, psychiatry, criminal 
anthropology, education, and psychology and who have 
distinguished themselves in community service, sit on these 
courts.
    These Courts avail themselves of the cooperation and 
assistance of the Juvenile Services of the Justice Department 
and of the welfare services instituted at the local government 
level for all the needs of minors, for their support and 
protection, as well as for emotional and psychological 
assistance to them.

                       IV. Law Enforcement System

    Enforcement of Italian court orders in Hague Convention 
cases is carried out by the Public Prosecutor (see supra under 
Part I). It has been pointed out that in the event that an 
abductor refuses to comply with the order, it becomes the duty 
of the Chief Public Prosecutor in the region of the child's 
residence to ask the police Minor Division for assistance in 
removing the child, usually with the support of social 
services.\10\
---------------------------------------------------------------------------
    \10\ A. Hutchinson and H. Straight, International Parental Child 
Abduction, (Family Law, Reunite, 1998) at 135.
---------------------------------------------------------------------------
    Under the provisions of the Italian System of Private 
International Law,\11\ any judicial rulings by foreign 
authorities relating to the existence of family relations are 
effective in Italy if they have been issued by the authorities 
of the state to which reference is made in the Italian law, 
provided that they do not conflict with the requirements of 
public policy and provided that the fundamental rights of the 
defense have been complied with.
---------------------------------------------------------------------------
    \11\ Law No. 218 of May 31, 1995, G.U. No. 128 of June 3, 1995, 
Ordinary Supplement.
---------------------------------------------------------------------------
    Regarding determinations pertaining to the custody of a 
child, a recent ruling of the Italian Supreme Court (Corte Di 
Cassazion) needs to be considered.
    In 1997 the Italian Supreme Court decided an appeal in a 
case of removal of a child by his father from Australia to 
Italy, and upheld a Juvenile Court's decision that ordered the 
immediate return, in application of the Convention, of the 
removed child to his mother, who had been assigned custody of 
him by an Australian family court.\12\
---------------------------------------------------------------------------
    \12\ Carte Di Cassation, Decision No. 507 of January 18, 1997, in 
Rivista Di Diritto Internazionale Privato e Processuale, No. 1 (1998), 
at 145-149.
---------------------------------------------------------------------------
    The Supreme Court rejected challenges of constitutional 
illegitimacy of Italian Law No. 64 implementing the Convention, 
on the consideration that the Convention aims at the protection 
of minors from the wrongful behavior of their parents or 
relatives independently of any control over the merits of the 
case by the authorities of the requested contracting state.
    Having acknowledged the Convention's primary purpose--
namely the protection of the minor from the harmful effects of 
wrongful removal or retention in breach of custody rights--the 
Court underscored the fact that the main objective in such 
cases is to discourage any form of ``legal kidnaping'' by a 
parent or relative. This is done by providing forms of 
protection that attempt, above all, to reestablish the 
preexisting conditions and to neutralize any interest of the 
perpetrator of the removal or retention to obtain through his 
wrongful behavior any beneficial effect from forum shopping.
    The Court excluded any conflict with article 30 of the 
Constitution, which pertains to parents' rights and obligations 
to support and educate their children, on the basis of two 
considerations: (a) that the Convention is a duly accepted 
international instrument, whose function is the effective 
protection of minors against wrongful behavior of parents or 
relatives; and (b) that the limitations imposed on the 
requested state's judicial authority pertaining to any control 
over the merits of the case are not applicable when it is 
determined that a serious risk exists that the child would be 
exposed to physical or psychological harm or would be placed in 
an intolerable situation upon his return.
    The Court stated that only in the presence of such a risk 
may Italy's judicial authority refuse to restore custody and 
review the merits of the case. The existence of a situation of 
risk, the Court observed, was not invoked by the removing 
father, and the condition that allows the judicial authority to 
ascertain whether or not the child objects to being returned 
was not met.\13\
---------------------------------------------------------------------------
    \13\ The Convention, art. 13.
---------------------------------------------------------------------------
    The Court went on to clarify that in the Italian system the 
decision to return the child, as such, is not even potentially 
capable of conflicting with the decision to be issued in the 
separation case between the two parents pending before an 
Italian court.
    In the same decision, the Court also confirmed that Hague 
Convention-related cases are adjudicated by the court of the 
place where the minor is found, pointing out that such a 
legislative solution regarding territorial competence is not a 
novelty, but rather is found in the Law on Adoption as 
well.\14\
---------------------------------------------------------------------------
    \14\ Supra note 7.
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    Legislation enacted in 1990 contains adequate provisions on 
legal aid for minors in a criminal proceeding; however, a 
satisfactory regulation is still missing regarding civil 
matters.\15\ It has been pointed out that there is no automatic 
right to legal aid. It is granted only to individuals who are 
able to prove that they have minimal income and are resident in 
Italy. The creation of additional legal aid resources is not 
envisaged for the future.\16\ Article 25 of the Convention 
applies.
---------------------------------------------------------------------------
    \15\ As stated in the report to the Minister of Justice by the 
Committee for the Study of Organizational Problems of Juvenile Justice, 
in Esperienze Di Giustizia Minorile, No. 3-4, 1995, at 19.
    \16\ International Parental Child Abduction, supra note 10, at 136.
---------------------------------------------------------------------------

                             VI. Conclusion

    With the ratification and implementation of the Convention, 
Italy has provided its legal system, although after a long 
delay, with an instrument whereby it can confront situations of 
great social relevance, such as abduction of minors.
    The Italian implementing legislation has fully adhered to 
the principles contained in article 2 of the Convention, which 
requires the use of the most expeditious procedures available 
in cases of abduction of minors. The implementing legislation, 
accordingly, mandates proceedings in chambers, imposes a short 
term for deciding the case, and limits appeals to a petition to 
the Court of Cassation. Such a petition, however, does not stay 
the enforcement of the lower court's order.
    Judging from the decisions discussed in Part IV of this 
report, which are among the very few reported,\17\ it appears 
that the rulings of Italian courts strictly adhere to the 
spirit of the Convention, which is aimed at the protection of 
children, a concern of paramount importance in matters relating 
to their custody.

    Prepared by: Giovanni Salvo, senior legal specialist, 
Western Law Division, Law Library of Congress, October 1999.

__________

    \17\ See also Carte Di Cassation, Decision No.10090 of October 15, 
1997, in Rivista Di Diritto Internazionale Privato e Processuale, No. 4 
(1998), at 831-836.

                                ------                                


                               LUXEMBOURG

                              Introduction

    The Hague Convention on the Civil Aspects of International 
Child Abduction was signed by the Grand-Duchy of Luxembourg on 
December 18, 1984. It was ratified on October 8, 1986, with the 
reservation according to article 42 of the Convention, that the 
Grand-Duchy of Luxembourg shall not be bound to assume any 
costs referred to in article 26, paragraph 2, of the 
Convention, resulting from the participation of legal counsel 
or advisers or from court proceedings, except insofar as those 
costs are covered by the Luxembourg system of legal aid and 
advice. The Convention entered in force for the Grand-Duchy on 
January 1, 1987. 1
---------------------------------------------------------------------------
    \1\ Law of May 16, 1986, on the Approval of the Convention, 
Memorial A-41, May 24, 1986, p. 1379, rectified in Memorial A-63, 
August 20, 1986, p.1808, further rectified in Memorial A-79, October 6, 
1986, p. 2064.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    In accordance with article 6, paragraph 1, the Grand-Duchy 
has designated as the Central Authority the State Procurator-
General, Batiment de Justice, 1450 Luxembourg, 12, Cote d'Eich.
    According to the Constitution of the Grand-Duchy of 
Luxembourg, 2the Convention became part of the legal 
system of the Grand-Duchy upon its approval by Parliament, its 
ratification and its publication. The courts will apply it 
whenever called upon to do so.
---------------------------------------------------------------------------
    \2\ Constitution of the Grand-Duchy of Luxembourg of October 17, 
1868, consolidated text of June 2, 1999, Memorial A-63, June 8, 1999, 
p.1401, art. 37.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    For a decision relating to the wrongful removal and 
retention of a child, the competent court will be the District 
court (Tribunal d'arrondissement) of the place where the child 
resides or is found, and this court will also be competent in 
proceedings under the Hague Convention. The proceedings are 
governed by the provisions of the Code of Civil Procedure. 
3
---------------------------------------------------------------------------
    \3\ New Code of Civil Procedure, Law of August 11, 1996, Decree of 
August 3, 1998, Memorial A-64, August 17, 1998, p.1106, arts.1108-1116.
---------------------------------------------------------------------------
    Child abduction may also be prosecuted under articles 368-
371-1 (Abduction of Minors) of the Criminal Code. 4 
Abduction of a minor is punishable by imprisonment from 1 to 5 
years and a fine from 10,001 to 200,000 francs (1 dollar equals 
about 45 francs). For abduction of a minor below the age of 16, 
the punishment is imprisonment from 5 to 10 years. If the minor 
below the age of 16 consented and voluntarily followed the 
abductor, the punishment is imprisonment from 6 months to 3 
years and a fine from 10,001 to 80,000 francs. If the abduction 
is done by the father, mother or others to take the minor from 
the person who has custody or in breach of a judicial order, 
the punishment is imprisonment from 8 days to 2 years and a 
fine from 10,001 to 80,000 francs.
---------------------------------------------------------------------------
    \4\ Criminal Code, Law of June 16, 1879, consolidated text of 
January 1, 1997, Ministry of Justice, Luxembourg, 1997.
---------------------------------------------------------------------------

                         B. Parental Visitation

    For a decision relating to parental visitation, the 
competent court will be the District court of the place where 
the child resides or is found. This court will also be 
competent in proceedings under the Hague Convention. The 
proceedings are governed by provisions of the Code of Civil 
Procedure. 5
---------------------------------------------------------------------------
    \5\ Supra, note 3.
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    General trial courts in civil matters are the District 
courts, one in each territorial district. Appeal against their 
decisions goes to the Court of Appeal (Cour d'Appel), which 
also has specified trial jurisdiction. Decisions of the Court 
of Appeal as well as those of the District courts are subject 
to annulment by the Court of Cassation (Cour de Cassation) for 
breach of law. Trial courts in child-return proceedings, 
visitation, and enforcement of related orders under the 
domestic Luxembourg law as well under the Hague Convention are 
the District courts. 6
---------------------------------------------------------------------------
    \6\ Id.
---------------------------------------------------------------------------
    In criminal matters, the structure is identical.

                       IV. Law Enforcement System

    The District courts enforce their decisions. Decisions not 
subject to further remedy are immediately enforceable. This is 
done by court bailiffs and the police.

                      V. Legal Assistance Programs

    The office of the State Procurator-General is entrusted 
with legal assistance under the Hague Convention. Further 
assistance can be obtained from the court in legal proceedings. 
7
---------------------------------------------------------------------------
    \7\ Law of August 18, 1995, on Legal Assistance, Memorial A-81, 
October 3, 1995, p. 1913, and Regulation of September 18, 1995, on 
Legal Assistance, id. at 1916.
---------------------------------------------------------------------------

                             VI. Conclusion

    The Grand-Duchy of Luxembourg is in full compliance with 
the Hague Convention. The powers under the Convention are 
exercised by the Central Authority, the State Procurator-
General and by the pertinent courts.

    Prepared by George E. Glos, Special Law Group Leader, 
Eastern Law Division, Law Library of Congress, September 2000

                                ------                                


                                 MONACO

                              Introduction

    The 1980 Hague Convention on the Civil Aspects of 
International Child Abduction [hereinafter the Convention] was 
incorporated into Monegasque domestic law by ordinance No. 10-
767 of January 7, 1993,\1\ with an effective date of February 
1, 1993. Monaco, which was not a member of the Hague Convention 
Conference on Private International Law, acceded to the 
Convention in accordance with Article 38.\2\ The instruments of 
accession were deposited on November 12, 1992, with the 
Ministry of Foreign Affairs of the Kingdom of The Netherlands. 
The accession has effect only between Monaco and the 
contracting states that have accepted the accession. The 
accession of Monaco was accepted by the United States on March 
5, 1993, and the Convention became effective between the two 
countries on June 1, 1993.\3\
---------------------------------------------------------------------------
    \1\ Journal de Monaco [Official Gazette of Monaco], Jan. 22, 1993, 
at 90.
    \2\ The Convention was open for signature to the state members of 
the Hague Conference on Private International Law. However, Article 38 
provides that any other state may accede to the convention by 
depositing the instruments of accession with the Ministry of Foreign 
Affairs of The Netherlands.
    \3\ Article 38 provides that the Convention enters into force as 
between the acceding state and the state that has declared its 
acceptance of the accession on the first day of the third calendar 
month after the deposit of the declaration of acceptance.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    Article 2 of the ordinance \4\ designates the Direction des 
Services Judiciaires as the Central authority.\5\ Because of 
the size of its territory and the uniqueness of its 
administration and justice, Monegasque authorities perceived 
the designation of a Central Authority as less indispensable 
than larger nations where the petitioner is more likely to face 
problems regarding the courts' territorial competence. However, 
the Central Authority still has its importance, as it will be 
the first to receive the application for return.\6\ Upon 
receipt, the Central Authority will check that the application 
satisfies Convention criteria and is accompanied by the proper 
documentation. At this time, all measures necessary to ensure 
the return of the child or the effective exercise of visitation 
rights will be taken. However, these measures will be decided 
on a case-by-case basis and will depend on the specific 
necessities of each instance since no implementing measures to 
the Convention have been taken, and no specific procedure has 
been set forth.\7\
---------------------------------------------------------------------------
    \4\ Supra note 1.
    \5\ Direction des Services Judiciaires, Palais de Justice, 5, Rue 
Colonel Bellando de Castro, MC 98000 Monaco. Telephone: 3 77 93 15 84 
11. Fax: 3 77 93 50 05 68.
    \6\ Letter of April 26, 1999, from the Director of The Direction 
des Services Judiciaires.
    \7\ Id.
---------------------------------------------------------------------------
    The Direction des Services Judiciaires felt that domestic 
laws already in place offer all the necessary tools for the 
implementation of the Convention. In addition to the 
investigations which can be carried out by the Services de la 
Surete Publique (Public Safety Services), one may resort to the 
procedure of educational assistance before a specialized judge, 
the juge tut3laire, who deals with family problems, including 
guardianship of children. The Code of Civil Procedure contains 
provisions covering legal aid, and the Penal Code contains 
provisions covering parental child abduction and withholding 
access rights from a person entitled to such rights.\8\ These 
provisions are examined in greater detail below.
---------------------------------------------------------------------------
    \8\ Id.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    The Penal Code provides that, when the custody of a child 
has been awarded by a court decision, withholding access rights 
from the person entitled to these rights, or abduction of the 
child from the person who has custody (even without fraud or 
violence by the father, mother or any other person), is 
punishable by imprisonment up to one year, a fine, or both.\9\
---------------------------------------------------------------------------
    \9\ Code penal (C. pen) , art. 294.
---------------------------------------------------------------------------
    In addition, the Code provides that refusal by the person 
in charge of a child to present the child to the person(s) 
entitled to claim him/her is punishable by a minimum 
imprisonment of 5 years and a maximum imprisonment of 10 
years.\10\
---------------------------------------------------------------------------
    \10\ Id. art. 289.
---------------------------------------------------------------------------

                         B. Parental Visitation

    The judge has full authority to decide visitation rights 
and to set the contribution of each parent for the education 
and support of their children. The Code Civil further states 
that, irrespective of the judge's decision, the father and 
mother maintain the right to monitor the education of the 
children and their support. They must contribute to their 
children's support according to their means.\11\
---------------------------------------------------------------------------
    \11\ Code Civil (C. civ.), art. 206-20.
---------------------------------------------------------------------------

   III. Court System and Structure--Courts Handling Hague Convention

    The Tribunal de Premiere Instance (Court of First Instance) 
is the court of general competence. It is competent to hear all 
actions, apart from actions which are expressly attributed to 
another court.\12\ This court functions with a panel of judges, 
presided over by the president. The court hears civil, 
criminal, commercial, and administrative cases. The President 
of the Court of First Instance presides over emergency 
procedures known as referes. The president may order en refere 
any provisional measures whose aim is to prevent imminent harm 
or to end manifestly illegal behavior.\13\
---------------------------------------------------------------------------
    \12\ Code de procedure civile (C. pro. civ.), art. 21.
    \13\ Id. arts. 20 and 414-421.
---------------------------------------------------------------------------
    The juge tutelaire is a judge from the Court of First 
Instance, specialized in family matters.\14\ Under the 
educational assistance procedure, he has exclusive competence 
to take all necessary measures to protect the well-being of 
children whose health, security, morality or education is 
threatened. He may order any type of investigation he feels is 
necessary to help him reach his decision. Petitions before the 
juge tutelaire may be filed by the mother, father, legal 
guardian of the child, the minor himself or the procureur 
general (general prosecutor). In addition, in case of divorce 
or separation, he has full authority to modify a custody order 
if a change in circumstance has occurred. For example, to 
organize visitations rights, and to modify the amount of 
alimony set for the child.\15\
---------------------------------------------------------------------------
    \14\ Id, art. 832.
    \15\ C. civ., art. 317 and following & C. pro. civ., arts. 833 and 
following.
---------------------------------------------------------------------------
    Appeals of decisions of the Court of First Instance and of 
the juge tutelaire lie to the Cour d'Appel (Court of 
Appeals).\16\ The Court of Appeals sits in panel with a minimum 
of three members. It re- examines the facts and the legal 
points of a case. The court reviews the files as presented by 
the lower court and orders additional investigation if 
necessary.
---------------------------------------------------------------------------
    \16\ C. pro. civ., art. 22.
---------------------------------------------------------------------------
    The supreme judicial court is the Cour de Revision. It 
decides whether the rule of law has been correctly interpreted 
and applied by the court of appeal.\17\
---------------------------------------------------------------------------
    \17\ Id. art. 23.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    To be enforceable, a judgment must contain the formule 
executoire (enforcement formula), and it must have been served 
on the defendant.\18\ The enforcement formula requires, in the 
name of the Prince, the sovereign of Monaco, all huissiers de 
justice,\19\ the general prosecutor and the officers of the 
public force to lend their assistance to the enforcement of the 
judgment when requested.\20\
---------------------------------------------------------------------------
    \18\ C. pro. civ., arts. 470 & 478.
    \19\ The huissiers de justice have the exclusive rights to notify 
all procedural acts in relation to legal proceedings, and they are 
responsible for the enforcement of court orders and judgments.
    \20\ C. pro. civ., art. 471.
---------------------------------------------------------------------------
    In the absence of voluntary compliance with a judgment or 
court order, one needs to resort to the execution forcee 
(forced compliance) and request the assistance of the public 
authorities as specified in the enforcement formula.

                      V. Legal Assistance Programs

    Monaco made the following reservation to Article 26 of the 
Convention:

          In conformity with Article 26, paragraph 3, of the 
        Convention, the Principality of Monaco declares that it 
        shall not be bound to assume any costs referred to in 
        Article 26, paragraph 2, resulting from the 
        participation of legal counsels or advisers or from 
        court proceedings, except insofar as those costs may be 
        covered by its system of legal aid and advice.

    Legal aid is available to a person who can show he ``is not 
able to pay for legal expenses without drawing from resources 
which are necessary for his and his family livelihood.'' \21\ 
Applications and justifications must be addressed to the 
general prosecutor.\22\ Decisions are generally made within 15 
days of the application date by a body (bureau d'assistance 
judiciaire) composed of the general prosecutor, a 
representative from the treasury and an attorney designated for 
a year by the President of the Court of First Instance.\23\ The 
decision is notified within 3 days and cannot be appealed.\24\
    Legal aid covers the following expenditures: \25\ court 
fees, expenses incurred by witnesses who have been authorized 
by the court, remuneration of experts, emoluments of officiers 
ministeriels \26\ and attorneys fees.

                             VI. Conclusion

    Although the Principality of Monaco did not establish 
specific procedures for the implementation of the Convention 
after its incorporation into domestic law, the Monegasque court 
structure and its substantive laws offer all the necessary 
tools that are needed to effectively meet the Convention's 
objectives.

    Prepared by: Nicole Atwill, senior legal specialist, 
Directorate of Legal Research, Law Library of Congress, 
September 1999.

__________

    \21\ C. pro. civ., art. 38.
    \22\ Id. art. 40.
    \23\ Id. art. 39.
    \24\ Id. art. 42.
    \25\ Id. art. 44.
    \26\ This expression covers various categories of practitioners who 
have obtained from the administration the exclusive right to perform 
certain legal acts and/or execute certain legal instruments.

                                ------                                


                            THE NETHERLANDS

                              Introduction

    The Netherlands ratified the Hague Convention on the Civil 
Aspects of International Child Abduction (the Convention) on 
December 6, 1990. The Convention entered into force on January 
9, 1990. The text of the Convention was published in the 
Bulletin of Netherlands Treaties.\1\ With respect to cases of 
child abduction, The Netherlands can also apply the European 
Convention regarding the Recognition and Execution of Decisions 
concerning Custody over Children, which was implemented at the 
same time as the Hague Convention.
---------------------------------------------------------------------------
    \1\ Tractatenblad van het Koninkrijk der Nederlanden 139 (1987).
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The Convention was implemented by the Law of May 2, 
1990.\2\ This Law not only implements the Convention but also 
is applicable to those cases relating to the international 
abduction of children that are not covered by the 
Convention.\3\ The designated Central Authority is the 
department dealing with the International Legal Assistance of 
the Ministry of Justice.\4\
---------------------------------------------------------------------------
    \2\ Law of May 2, 1990, Staatsblad [official law gazette of the 
Netherlands, Stb.] 202, as amended.
    \3\ Id. art. 2.
    \4\ Id. art. 4.
---------------------------------------------------------------------------
    When the Central Authority decides not to deal with a 
request for the return of a child or when it decides to halt 
the discussion of a case, this decision is immediately 
communicated to the applicant. The applicant can request the 
Central Authority to document the reasons for its decision in a 
decree. Within one month after receiving the decree, the 
applicant may submit a petition against the decree to the 
District Court in The Hague, which will hear the case.\5\ This 
Court is empowered to quash the decision of the Central 
Authority, allowing the applicant to pursue the matter in the 
Juvenile District Court (see Part III).
---------------------------------------------------------------------------
    \5\ Id. art. 6.
---------------------------------------------------------------------------
    The Central Authority informs the person with whom the 
abducted child resides by registered letter of the request for 
the return of the child and of the grounds on which the request 
is based. The Authority also notifies the person of its plans 
to obtain a court order for the return of the child, unless the 
request is voluntarily complied with within a reasonable time. 
This notification is not carried out if due to the 
circumstances of the case it appears unlikely that the person 
with whom the child is staying will not comply voluntarily or 
because of the urgency of the case.\6\
---------------------------------------------------------------------------
    \6\ Id. art. 10.
---------------------------------------------------------------------------
    The local authorities, the civil registration service, and 
the public prosecutor's office will assist the Central 
Authority by supplying the Authority with all information 
needed and copies of all registries at no cost.\7\
---------------------------------------------------------------------------
    \7\ Id. arts. 8 and 9.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    Under Dutch Penal law, the person who intentionally removes 
a minor from the custody of the person or persons exercising 
legal authority over him or from the supervision of a person 
legally vested with such supervision is liable to a fine or a 
term of imprisonment for a maximum term of six years. If the 
abduction is a ruse, or if an act of violence or threat of 
violence has been used, or if the minor is under the age of 12, 
a maximum 9-year prison term or a fine may be imposed.\8\
---------------------------------------------------------------------------
    \8\ The Penal Code of The Netherlands of March 3, 1881, as amended, 
art. 279.
---------------------------------------------------------------------------
    A person is liable to a fine or imprisonment for a maximum 
term of three years if he or she intentionally hides, or 
conceals from the investigation by judicial officers or police 
officers, a minor who has been removed or had himself removed 
from the custody of the person or persons exercising legal 
authority over him or from the supervision of a person legally 
vested with such supervision. In case the minor has not reached 
the age of 12, a maximum 6-year prison term or a fine may be 
imposed. This provision is not applicable to the person who:

          (a) without delay, communicates the minor's 
        whereabouts to the Child Care Protection Board;

          (b) has been granted funding pursuant to the Law on 
        Assistance to Young Persons \9\ and acts in accordance 
        with certain articles of the Law; or
---------------------------------------------------------------------------
    \9\ Law of August 8, 1989, Stb. 358, as amended.

          (c) acts for the purpose of providing conscientious 
        aid to the minor.

                         B. Parental Visitation

    Family relations and the resulting rights and obligations, 
whether the parents are married or not, as well as custody, 
separation, divorce, and visitation rights, are regulated by 
numerous provisions in the Civil Code.
    During marriage both parents exercise parental authority 
jointly. After divorce the parents can ask the court for 
continuing joint parental custody. If the parents have not 
requested join custody, the court decides which of the parents 
will be entrusted with custody.\10\ Parents who are not married 
and have not lived together can jointly exercise parental 
custody if they have registered their combined request in the 
``Custody Registers.'' \11\
---------------------------------------------------------------------------
    \10\ Civil Code of The Netherlands, Book I, art. 251.
    \11\ Id. art. 244 and 252.
---------------------------------------------------------------------------
    The child and the parent who does not have custody have 
reciprocal right to see and meet each other. The court mandates 
the rules for this access, including the frequency of the 
visits. The court is also competent to deny the parent this 
claim. It will do so only if:

   the contact would be seriously disadvantageous to 
        the child;

   the parent is considered clearly unsuitable or 
        unable to have contact with the child;

   a child who is twelve years or older has serious 
        objections against the visitation rights of his non-
        custodial parent.\12\
---------------------------------------------------------------------------
    \12\ Id. art. 377a

    The parent who has custody over the minor has the 
obligation to inform the non-custodial parent about important 
circumstances concerning the person and the property of the 
child.\13\ The rules about visitation and information can be 
amended by the court if circumstances change.\14\
---------------------------------------------------------------------------
    \13\ Id. art. 377b.
    \14\ Id. art.377e.
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    Justice is administered in criminal and civil cases by 61 
Sub-District Courts, 19 District Courts, 5 Courts of Appeal, 
and the Supreme Court of The Netherlands. All courts are 
presided over by judges appointed for life who retire on 
reaching a certain age set by law. There is no trial by jury. 
The Sub-District Courts and the District Courts are Courts of 
First Instance. Either party may then lodge an appeal with, 
respectively, either a District Court or Court of Appeal. Each 
Court of Appeal has jurisdiction over a number of District 
Courts, each of which in turn has jurisdiction over a number of 
Sub-District Courts. The Supreme Court of The Netherlands is 
the highest court in the country in civil and criminal matters. 
The Supreme Court can also pass judgement in cases that have 
been heard by courts in the Netherlands Antilles and Aruba.
    The Juvenile Judge of the District Court in whose 
jurisdiction the child has been retained is authorized to take 
all cases into consideration with respect to the application of 
the Convention. In case it cannot be determined where the child 
is kept, the Juvenile Judge in the District Court in The Hague 
is authorized to hear the case.\15\ The judge who deals with 
the request of the return of a child must handle the case 
speedily; the court proceedings are closed. A decision shall 
not be made before the child has been given the opportunity to 
express his or her opinion.\16\ If the child is not able to 
come to the court, the judge may interview the child at another 
location.\17\ At the request of the applicant or by virtue of 
his own office a judge may order that the child be placed under 
temporary custody with an institution especially assigned 
custody.\18\
---------------------------------------------------------------------------
    \15\ Supra note 2, art. 11.
    \16\ Id., art. 13, sec. 2.
    \17\ Law on Civil Procedure, Sept. 16, 1896, Stb. 156, as amended, 
art. 802.
    \18\ Supra note 2, art. 13, sec. 4, in conjunction with supra note 
8, art 60.
---------------------------------------------------------------------------
    Appeal from the final decision of the District Court has to 
be made to the Appellate Court within two weeks after the 
decision was made.\19\ The highest instance for decisions made 
by the Appellate Court is the Supreme Court.
---------------------------------------------------------------------------
    \19\ Supra note 2, art. 13, sec. 7.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    If the judge approves an applicant's request, he orders the 
handing over of the child to the person who has the custody of 
the child, or, in case that is not immediately possible, the 
child is temporarily placed in the custody of an especially 
designated institution. The judge can furthermore order that 
each person who is responsible for the international abduction 
of the child make a payment of money for costs incurred as a 
consequence of the abduction and the subsequent return of the 
child. The payment is to be made to the Central Authority or to 
the person who has custody of the child. Each one of the 
persons involved in the abduction is liable for the full 
amount.\20\ The Prosecutor's Office will assist with the 
enforcement of the decisions.
---------------------------------------------------------------------------
    \20\ Id., art. 13, sec. 5.
---------------------------------------------------------------------------
    The Juvenile Judge of the District Court in whose 
jurisdiction the child has been retained is authorized to take 
all circumstances into consideration with respect to visitation 
procedures.\21\
---------------------------------------------------------------------------
    \21\ Id., art. 11.
---------------------------------------------------------------------------
    A judge who has to decide on a petition concerning the 
custody of a child for whose return an application has been 
made with the Central Authority puts his decision on custody on 
hold until an irrevocable decision has been made with respect 
to the return of the child.\22\ If a judge in a custody case 
has good reason to believe that the child has been 
internationally abducted, he waits a reasonable time before 
making a decision on custody.

                      V. Legal Assistance Program

    Anyone who wants to go to court in The Netherlands with 
respect to the application of the Convention or with respect to 
the Law that implements the Convention may be entitled to legal 
assistance if the person's resources are insufficient to pay 
for the litigation.\23\ The matter is governed by the Law on 
Legal Assistance.\24\ However it should be noted that The 
Netherlands made a reservation with regard to the second 
paragraph of Article 26 of the Convention; the reservation 
states that The Netherlands shall not be bound to assume any 
costs referred to in that paragraph resulting from the 
participation of legal counsel or advisors from court 
proceedings, except insofar as those costs may be covered by 
its system of legal aid and advice.

                             VI. Conclusion

    By the Law of May 2, 1990, The Netherlands has implemented 
the Hague Convention on the Civil Aspects of International 
Child Abduction and the European Convention with respect to the 
Recognition and Execution of Decisions Concerning Custody over 
Children. Both Conventions can be applied to the international 
abduction of children.\25\ The Law of May 2, 1990 is also 
applicable to those cases relating to the international 
abduction of children that are not covered by the Conventions. 
The implementing legislation has fully adhered to the 
principles contained in the Conventions, which require 
expeditious procedures, the establishment of a central 
authority insuring compliance, and strict procedural rules.

    Prepared by: Karel Wennink, senior legal specialist, 
Western Law Division, Law Library of Congress, October 1999.

__________

    \22\ Id., art. 15.
    \23\ Id., art. 16.
    \24\ Law of December 23, 1993, Stb. 775, as amended.
    \25\ Supra 2.

                                ------                                


                                 PANAMA

                              Introduction

    Law No. 22 of December 10, 1993 approved the findings of 
the Hague Convention on the Civil Aspects of International 
Child Abduction on October 25, 1980.\1\
---------------------------------------------------------------------------
    \1\ Law No. 22 of Dec. 10, 1993 (Gaceta Oficial, Dec. 15, 1993).
---------------------------------------------------------------------------
    The Convention applies to Panama as a result of 
accession.\2\ Therefore, according to Article 38 of the 
Convention, the accession has effect only regarding the 
relations between Panama and such contracting states as have 
declared their acceptance of the accession.\3\ The Convention 
came into force between the United States and Panama on June 1, 
1994.\4\
---------------------------------------------------------------------------
    \2\ Hague Conference on Private International Law, Convention # 28 
of 25 October 1980 on Civil Aspects of International Child Abduction. 
Http://www.hcch.net/e/authorities/caabduct.html
    \3\ Hague Convention on the Civil Aspects of International Child 
Abduction, 19 I.L.M. 1501 (1980), art. 38.
    \4\ Hague Convention of 25 October 1980 on the Civil Aspects of 
International Child Abduction, .
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    In compliance with Article 6, para. 1, of the 
Convention,\5\ Panama has designated as the Central Authority 
the Direccion General de Asuntos Juridicos y Tratados of the 
Ministry of Foreign Affairs.
---------------------------------------------------------------------------
    \5\ Supra note 3, art. 6.
---------------------------------------------------------------------------
    According to the Political Constitution of Panama, the 
Convention became part of the legal order of the Republic upon 
its enactment, approval and promulgation.\6\ Panama is a party 
to the Vienna Convention on the Law of Treaties,\7\ which 
states that ``[e]very treaty in force is binding upon the 
parties to it and it must be performed by them in good faith.'' 
\8\
---------------------------------------------------------------------------
    \6\ Constitucion Politica de la Republica de Panama (Editorial 
Publipan, Panama, 1993), art. 179, Sec. 9, and 167.
    \7\ Vienna convention on the law of treaties, with annex, 8 ILM 
679.
    \8\ Id. art. 26.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    The competent courts to decide on cases related to the 
wrongful removal and retention of a child are the juzgados 
seccionales de familia of the city where the child resides.\9\ 
There are six juzgados seccionales de familia located in the 
judicial district of Panama City. The procedure involves 
assigning each case to any of the six courts of the judicial 
district that is governed by the Judicial Code of Panama. The 
same rules are applicable to the rest of the country.\10\ 
Panama has promulgated no legislation implementing the Hague 
Convention on the Civil Aspects of International Child 
Abduction. Therefore, courts apply directly the text of the 
Convention on proceedings related to these types of cases.\11\
---------------------------------------------------------------------------
    \9\ Codigo de La Familia, special edition (Asamblea Legislativa, 
Panama, 1996), art. 752.
    \10\ Codigo Judicial (Editorial Juridica Bolivariana, Panama, 
1997), Chapter II.
    \11\ Telephone interview with Carla Ramirez, an attorney and an 
officer at the Central Authority of Panama (Dec. 14, 1999).
---------------------------------------------------------------------------
    Child abduction by close relatives is a criminal offense 
punished with imprisonment from two to six years. However, 
parents are excluded from this provision.\12\
---------------------------------------------------------------------------
    \12\ Codigo Penal de la Republica de Panama, Editorial Mizrachi & 
Pujol, Panama( 1993), art. 212.
---------------------------------------------------------------------------

                         B. Parental Visitation

    The competent courts to decide parental visitation include 
the juzgados seccionales de familia at the place where the 
child resides.\13\ This same court is competent in proceedings 
under the Hague Convention.
---------------------------------------------------------------------------
    \13\ Supra note 9.
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    The trial court is the juzgados seccionales de familia.\14\ 
The court of appeals for these cases are the Tribunales 
Superiores de Familia.\15\ Up until today no decision has been 
issued by the Supreme Court on cases of child abduction under 
the Hague Convention.\16\

                       IV. Law Enforcement System

    Final decisions of the court are enforcable immediately. If 
there is a refusal to comply with the court's final judgment, 
the court may issue an order of imprisonment and request the 
assistance of the police and the immigration authorities to 
prevent the obligated party from leaving the country and taking 
the child with him/her.\17\

                     IV. Legal Assistance Programs

    The Panamanian Central Authority after receiving a Hague 
Convention case presents the case to the Tribunal Superior de 
Familia which then refers the case to the appropriate Juzgado 
Seccional de Familia. In addition, the Central Authority is 
present at court hearings and provides assistance to the judge 
on the interpretation and implementation of the Hague 
Convention if necessary. The Central authority is impartial. It 
does not represent the parties nor does it advocate for them. 
The Fiscalia de Familia, under the authority of Attorney 
General (Ministerio Publico), represents the interest of the 
minor in court. Applicants are free to hire a Panamanian 
attorney to represent their interests in a Hague case.\18\

    Prepared by: Norma C. Gutierrez, senior legal specialist, 
Law Library of Congress, Legal Research Directorate, December 
1999.

__________

    \14\ Id.
    \15\ Id. art. 755.
    \16\ Supra note 11.
    \17\ Telephone interview with Ianna Quadri, head of the Panamanian 
Central Authority (Dec. 16, 1999).
    \18\ Id.

                                ------                                


                                 POLAND

                              Introduction


The Hague Convention

    The Republic of Poland ratified the Hague Convention on 
July 6, 1992, with reservations as to art. 26, para. 3 of the 
Convention.\1\ Pursuant to its provisions, the Convention came 
into force as to Poland on November 1, 1992.\2\ However, the 
publication of the text of the Hague Convention in Dziennik 
Ustaw (Polish official gazette), as required by Polish law, was 
delayed for several years after its ratification. The 
Convention, together with its Polish translation, was published 
in Dziennik Ustaw No.108 on September 25, 1995, thereby 
removing any doubt concerning the Convention's binding affect 
on all Polish courts, government authorities, and citizens.
---------------------------------------------------------------------------
    \1\ See Oswiadczenie Rzadowe z dnia 17 maja 1995 r. w sprawie 
przystapienia Rzeczypospolitej Polskiej do Konwencji dotyczacej 
cywilnych aspektow uprowadzenia dziecka za granice, sporzadzonej w 
Hadze dnia 25 pazdziernika 1980 r. [The Government Declaration of May 
17, 1995, on the Accession of the Republic of Poland to the Convention 
on Civil Aspects of International Child Abduction, Done in The Hague on 
October 25, 1980, [hereinafter the Declaration], Dziennik Ustaw [Polish 
official gazette [hereinafter Dz.U.], No. 108, item 529 (1995). The 
text of the Hague Convention [hereinafter the Convention] was published 
in Dz.U. No. 108, item 528 (1995).
    \2\ See also Ciszewski, J., Konwencja dotyczaca cywilnych aspektow 
uprowadzenia dziecka za granice [The Convention on Civil Aspects of 
International Child Abduction [hereinafter Ciszewski], 2 Przeglad 
sadowy [Court Review (Polish law review)] 23-31 (1994).
---------------------------------------------------------------------------
    The Hague Convention is binding only between Contracting 
States. In the Declaration on Accession of Poland to the 
Convention, the Polish Ministry of Foreign Affairs declared 
that pursuant to article 38 of the Convention, the following 
Contracting States had expressed their acceptance of the 
accession of the Republic of Poland to the Convention: Holland, 
the United States of America, Luxembourg, and the United 
Kingdom of Great Britain and Northern Ireland. Between the 
United States and Poland, the Convention became binding 
immediately, i.e., on November 1, 1992.\3\ Information on 
States which joined the Convention at later dates can be 
obtained in the Department of Laws and Treaties of the Ministry 
of Foreign Affairs in Poland.
---------------------------------------------------------------------------
    \3\ The Declaration, para 5, supra note 1.
---------------------------------------------------------------------------
    Due to the relatively short time span of the application of 
the Hague Convention by Polish courts, there are very few court 
cases available which would apply the Convention. Generally 
accessible materials consist of the text of the two Polish 
Supreme Court decisions and an analysis of twelve district 
court decisions in a scholarly article by W. Skierkowska. There 
are relatively few scholarly legal publications on the topic of 
the Convention. Except for several publications on various 
aspects of the Hague Convention, cited in this report, there 
are no comprehensive analyses of its application in the Polish 
legal system.
    The Hague Convention uses different terminology than Polish 
domestic law--e.g., ``wrongful removal or retention of a 
child'' [translated into Polish in the official text of the 
Convention as ``bezprawne uprowadzenie lub zatrzymanie 
dziecka''], ``rights of custody and of access'' [translated as 
``prawa do opieki i odwiedzin''], etc. Even though these terms 
are defined in the text of the Convention, their application in 
the Polish domestic legal system may cause some problems. 
During the short time since the application of the Convention 
in Poland, neither jurisprudence nor legal scholars--with very 
few exceptions \4\--have been able to develop an appropriate 
and satisfactory way of transferring these terms into the 
Polish legal system. This report, therefore, having a mainly 
informative character, does not attempt to undertake such a 
difficult task, except where it is absolutely necessary.
---------------------------------------------------------------------------
    \4\ See further in the text, e.g., 1997 (unpublished) and 1998 
Supreme Court decision, note 40, infra. See also 30-35 Holewinska-
Lapinska, E., Konwencja Haska: Uprowadzenie dziecka za granice as 
``prawo do opieki'' w prawie polskim [The Hague Convention: 
International Child Abduction and ``the Rights of Custody'' in Polish 
Law], Jurysta [Polish law journal] no. 10-11 (1999) [hereinafter 
Holewinska].
---------------------------------------------------------------------------

Other International Agreements

    Aside from the Hague Convention, the Republic of Poland is 
also bound by other bilateral and multilateral agreements 
dealing with international abductions of children.
    Poland has signed bilateral agreements relating to 
recognition and execution of civil and family judgments dealing 
with child custody with various countries, including, but not 
limited to, France,\5\ former Czechoslovakia,\6\ Hungary,\7\ 
Lithuania,\8\ Byelorussia,\9\ and former USSR.\10\ The Hague 
Convention provides that bilateral agreements between the 
particular Contracting States have priority over the 
Convention. The Convention states the following in article 26:
---------------------------------------------------------------------------
    \5\ Dz.U. No. 4, item 22 and 23 (1969).
    \6\ Dz.U. No. 39, item 210 and 211 (1989).
    \7\ Dz.U. No. 8, item 54 and 55 (1960).
    \8\ Dz.U. No. 35, item 130 and 131 (1994).
    \9\ Dz.U. No. 128, item 619 and 620 (1995).
    \10\ Dz.U. No. 32, item 147 and 148 (1958). Some agreements 
concluded by the USSR were confirmed by several FSU countries.

          Nothing in this Convention shall prevent two or more 
        Contracting States in order to limit the restrictions 
        to which the return of the child may be subject, from 
        agreeing among themselves to derogate from any 
        provisions of this Convention which may imply such a 
---------------------------------------------------------------------------
        restriction.

    The Republic of Poland is also bound by other international 
agreements dealing with international child abduction, 
including, but not limited to, the Convention on the Rights of 
the Child,\11\ the European Convention on Recognition and 
Execution of Judgments Concerning Child Custody and on Return 
to Custody,\12\ and the Convention on the Appropriate 
Authorities and Law for Minors' Protection.\13\
---------------------------------------------------------------------------
    \11\ Adopted by the General Assembly of the United Nations on 20 
November 1989, and ratified by Poland. See Konwencja o prawach dziecka, 
Dz.U. No. 120, item 526 and 527 (1991).
    \12\ Done in Luxemburg on May 20, 1980 [hereinafter the European 
Convention]. Ratified by Poland. See Europejska Konwencja o uznawaniu i 
wykonywaniu orzeczen dotyczacych pieczy nad dzieckiem oraz o 
przywracaniu pieczy nad dzieckiem, Dz.U. No. 31, item 134 (1996), 
correction: Dz.U. No. 32, item 196 (1997).
    \13\ Done in Hague on October 5, 1961, [hereinafter the 1961 Hague 
Convention]. Ratified by Poland. See Konwencja o wlasciwosci organow i 
prawie wlasciwym w zakresie ochrony maloletnich, sporzadzona w Hadze 
dnia 5 pazdziernika 1961 r., Dz.U. No. 106, item 519 (1995). The 1961 
Convention replaced the previous Convention on Minors' Protection, done 
in Hague on June 12, 1902, also ratified by Poland.
---------------------------------------------------------------------------
    When applying the Hague Convention, Polish courts take into 
consideration the provisions of the Convention on the Rights of 
the Child:

          Speaking about the interpretation and application of 
        the 1980 Hague Convention while taking into 
        consideration the provisions of the 1989 Convention on 
        the Rights of the Child, one should mainly consider 
        such provisions of the latter which indicate that the 
        primary and superior value in each proceedings relating 
        to the child is ``interes dziecka'' [``the interest of 
        the child''] (art. 3). According to the resolution of 
        seven justices of the Supreme Court \14\ of June 12, 
        1992, III CZP 48/92; OSNCP No. 10, item 179 (1992) 
        ``the interest of the child'' corresponds with the 
        Polish term ``dobro dziecka'' [``best interest of the 
        child'']. As provided by the Preamble to the 1980 Hague 
        Convention ``interes'' [``interest''] in the meaning of 
        ``dobro'' [``best interest''] of a child is ``of 
        paramount importance in matters relating to its 
        custody.'' Therefore, the general directive for 
        deciding parental conflicts resulting from exercising 
        children's custody, particularly resulting from such 
        situation as in this case when one parent leaves the 
        present residence together with children, should be 
        best interest of children.\15\
---------------------------------------------------------------------------
    \14\ By their own decision, resolutions adopted by a bench composed 
of seven justices of the Supreme Court may become a binding legal 
principle which has a precedence value. See arts. 13, 16, 21, and 22, 
Ustawa z dnia 20 wrzesnia 1984 o Sadzie Najwyzszym [The Law of 
September 20, 1984 on the Supreme Court], consolidated text: Dz.U. No. 
13, item 48 (1994), as amended.
    \15\ See decision, note 28, infra, OSNC No. 9, item 142 (1998) at 
63-64. See also 16 Gronowska, B., Jasudowicz, T., O prawach dziecka, 
Wydawnictwo Comer, Torun 1994.

---------------------------------------------------------------------------
    In another decision, the Polish Supreme Court held:

          When the conditions described in the Convention 
        happen (wrongful removal or retention of a child), its 
        provisions concerning the return of a child should be 
        implemented, unless the circumstances justifying 
        refusal of return provided in article 13 of the 
        Convention will be established, as interpreted and 
        applied taking into consideration ``dobro dziecka'' 
        [``the interest of a child''] defined in the Convention 
        on the Rights of the Child . . .\16\
---------------------------------------------------------------------------
    \16\ Supreme Court decision of March 31, 1999, SN I CKN 23/99.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    In Poland's Declaration of Accession to the Convention 
(art.6), the Ministry of Justice was designated as the Central 
Authority obliged to discharge the duties imposed by the 
Convention on the territory of the Republic of Poland.\17\ An 
aggrieved party may apply to the Ministry of Justice and 
request it to perform its Central Authority duties, 
particularly those described in article 7 of the Hague 
Convention.\18\ The aggrieved party may also bypass the Central 
Authority and apply directly to the judicial or administrative 
authority of a Contracting State, pursuant to Article 29 of the 
Hague Convention.
---------------------------------------------------------------------------
    \17\ Para. 6, supra note 1. Ministerstwo Sprawiedliwosci, Al 
Ujazdowskie 11, 00-950 Warszawa, Poland. Tel. 628-44-31, Fax 628-73-68.
    \18\ Such was the situation in the Supreme Court decision cited in 
note 28 infra, at 60.
---------------------------------------------------------------------------
    In order to help Polish judges in the application of the 
new Conventions and other international agreements ratified by 
Poland, the Polish Ministry of Justice and the Dutch Ministry 
of Justice concluded agreements on mutual cooperation. Pursuant 
to these agreements, Polish judges may refer, free of charge, 
questions concerning private international law to the 
International Legal Institute in The Hague, Holland.\19\ 
Information on these services may be obtained in the Polish 
Ministry of Justice or directly at the International Legal 
Institute in The Hague.
---------------------------------------------------------------------------
    \19\ The address of the Institute is: Hoenstraat 5, 2596 HX's-
Gravenhage, Netherlands. Tel.: 070-356 09 74, Fax: 070-330 71 82. See 
Konwencja o ochronie dziecka oraz Konwencja o uprowadzenia dziecka [The 
Convention on the Protection of the Child and the Convention on Child 
Abduction], 5 Przeglad sadowy 84, 84-88 (May 1995).
---------------------------------------------------------------------------

                          A. The Constitution

    When the Hague Convention was ratified, the Polish 
Constitution that was in force at that time did not define the 
place or implementation of international agreements in the 
domestic legal order. The present Polish Constitution \20\ 
lists explicitly ratified international agreements as a source 
of universally binding law.\21\ The Constitution provides that 
the ratification and denunciation of some categories of 
international agreements requires prior consent granted by a 
statute. Such categories are enumerated in article 89 of the 
Constitution and include those concerning ``freedoms, rights, 
or obligations of citizens, as specified in the Constitution'' 
and ``matters regulated by statute or those for which the 
Constitution requires a statute.'' \22\ The Hague Convention 
falls within these categories.
---------------------------------------------------------------------------
    \20\ Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 
r., [The Constitution of the Republic of Poland of April 2, 1997], 
Dz.U. No. 78, item 438 (1997) [hereinafter Constitution].
    \21\ Id. art. 87, sec. 1.
    \22\ Id. art. 89, sec. 1.
---------------------------------------------------------------------------
    The Constitution is based on principles of direct 
application of international agreements, the so-called 
transformation,\23\ and their supremacy over domestic law. It 
states:
---------------------------------------------------------------------------
    \23\ Banaszak, B., Prawo konstytucyjne [Constitutional Law], C.H. 
Beck, Warsaw (1999) [hereinafter Banaszak], at 126.

          1. The ratified international agreement, after its 
        promulgation in the Official Gazette (Dziennik Ustaw) 
        of the Republic of Poland, constitutes a part of the 
        domestic legal order and applies directly, unless its 
---------------------------------------------------------------------------
        application depends on the enactment of a statute.

          2. An international agreement ratified upon prior 
        consent granted by a statute shall have precedence over 
        a domestic statute if such a statute cannot be 
        reconciled with the provisions of the agreement.\24\
---------------------------------------------------------------------------
    \24\ Supra note 20, art. 91, sec. 1 & 2.

Most international conventions ratified by Poland concerning 
human rights have precedence over domestic laws.\25\
---------------------------------------------------------------------------
    \25\ 30 Holewinska, supra note 4.
---------------------------------------------------------------------------
    The Hague Convention was ratified prior to the entering 
into force of the new Polish Constitution, at a time when there 
was no requirement of prior legislative delegation for its 
ratification. In such a situation, article 241, sec. 1 of the 
present Polish Constitution applies. It provides that some 
international agreements--relating to categories mentioned in 
art. 89, sec. 1 of the Constitution--ratified by the Republic 
of Poland pursuant to previous laws and promulgated in Dziennik 
Ustaw are treated the same as those ratified after prior 
legislative delegation.\26\ The Hague Convention falls within 
this category.\27\
---------------------------------------------------------------------------
    \26\ The Constitution, Chapter XIII: Transitional and Final 
Provisions.
    \27\ Smyczynski, T., (Ed.), Konwencja o prawach dziecka-analiza i 
wykladnia [Convention on the Rights of the Child--Analysis and 
Interpretation], Poznan (1999), [hereinafter Smyczynski Konwencja].

          The content of this provision [art. 241, sec. 1] 
        permits an assumption that, from the moment it came 
        into force, it includes all international agreements 
        ratified until this date. As far as the Convention [on 
        the Civil Aspects of International Child Abduction] is 
        concerned, it permits an assumption that it constitutes 
        a part of the domestic legal order and applies 
        directly, provided that specific provisions of the 
        Convention concerning the civil aspects of child 
        abduction should be interpreted and applied taking into 
        consideration provisions of the Convention on the 
        Rights of the Child, binding Poland, and adopted by the 
        General Assembly of the United Nations on November 20, 
        1989 (Dz.U. No. 120, item 526 (1991)).\28\
---------------------------------------------------------------------------
    \28\ Polish Supreme Court decision of January 16, 1998, 
[hereinafter 1998 Supreme Court decision]. Case No. II CKN 855/97. OSNC 
No. 9, item 142 (1998) at 63.

    According to the Polish law,\29\ the Hague Convention is 
self-implementing, it applies directly and its application does 
not require any implementing domestic laws. After its 
ratification and publication in the Polish official gazette, 
the provisions of the Hague Convention became part of the 
Polish domestic legal order automatically,\30\ pursuant to the 
so-called transformation. Furthermore, pursuant to article 27 
of the Vienna Convention on the Law of Treaties,\31\ ratified 
by Poland on July 2, 1990,\32\ a Party may not rely on its 
domestic law to justify its failure to comply with a 
treaty.\33\
---------------------------------------------------------------------------
    \29\ The Constitution, art. 91, sec. 1.
    \30\ See supra note 28, OSNC No. 9, item 142, summary at 59.
    \31\ Concluded in Vienna on May 23, 1969.
    \32\ Dz.U. No. 74, item 440 (1990).
    \33\ 17 Smyczynski Konwencja, supra note 27.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

1. The Constitution

    The Polish Constitution does not have any provisions 
referring directly to child abduction. However, its article 72 
states:

          1. The Republic of Poland ensures the protection of 
        the rights of the child. Everyone has the right to 
        demand of organs of public authority that they defend 
        children against violence, cruelty, exploitation and 
        demoralization.

          2. A child deprived of parental care has the right to 
        care and assistance provided by public authorities.

          3. Organs of public authority and persons responsible 
        for children, in the course of establishing the rights 
        of a child, shall consider and, as far as possible, 
        give priority to the views of the child.

          4. The statute shall define the competence and 
        procedure for the appointment of the Commissioner for 
        Children's Rights.

2. Administrative Law

    The Regulation of the Council of Ministers of April 29, 
1997, on the Commissioner for Children's Rights \34\ 
established the Office of the Commissioner for Children's 
Rights [hereinafter the Commissioner], and defined his duties. 
Pursuant to the Regulation, the Commissioner is obliged to 
coordinate the implementation of children's rights as 
established by domestic laws, government programs, and 
international agreements and recommendations of international 
organizations.\35\ The Commissioner's duties also include 
cooperating with international organizations and institutions 
dealing with children's affairs, as well as safeguarding 
compliance with international agreements by Poland.\36\
---------------------------------------------------------------------------
    \34\ Rozporzadzenie Rady Ministrow z dnia 29 kwietnia 1997 r. w 
sprawie Pelnomocnika Rzadu do Spraw Dzieci, Dz.U. No. 47, item 302 
(1997) [hereinafter the Regulation].
    \35\ Id. sec. 2.1.
    \36\ Id. sec. 2.3.
---------------------------------------------------------------------------
    A draft law on a Children's Ombudsman has been introduced 
in the Sejm (Polish Parliament).\37\
---------------------------------------------------------------------------
    \37\ Poselski projekt ustawy o Rzeczniku Praw Dziecka, 
Parliamentary Print No. 2456, introduced May 9, 1997.
---------------------------------------------------------------------------

3. Family Law

    The whole concept of parental authority, as specified in 
arts. 92-113 of the Family Code,\38\ is intended to prevent 
wrongful removal or retention of children. It is based on an 
idea that neither parents nor children have any influence on 
the contents of the parental authority. All Family Code 
provisions relating to parental authority constitute ius cogens 
and parents may not ``release'' a child from their parental 
authority.\39\
---------------------------------------------------------------------------
    \38\ Ustawa z dnia 25 lutego 1964 r. Kodeks rodzinny i opiekunczy, 
Dz.U. No. 9, item 59 (1964); amended: Dz.U. No. 45, item 234 (1975); 
Dz.U. No. 36, item 180 (1986); Dz.U. No. 34, item 198 (1990); Dz.U. No. 
83, item 417 (1995); Dz.U. No. 117, item 757 (1998) [hereinafter the 
Family Code].
    \39\ 469 Ignatowicz, J., Kodeks rodzinny i opiekunczy z komentarzem 
[Family and Guardianship Code with a Commentary], Warszawa 1993.
---------------------------------------------------------------------------
    The rights of custody (``prawo do opieki'') protected by 
the Hague Convention, as defined in its article 5, ``. . . 
shall include rights relating to the care of the person of the 
child and, in particular, the right to determine the child's 
place of residence.'' The Convention states in article 3 that 
``the rights of custody . . . may arise in particular by 
operation of law or by reason of a judicial or administrative 
decision, or by reason of an agreement having legal effect 
under the law of that State.''
    The Polish Supreme Court in its decision No. I CKN 653/97 
(unpublished) of October 16, 1997,\40\ equated this right of 
custody with the ``parental authority'' specified in articles 
92-113 of the Family Code. In scholarly legal writings, the 
opinion has been expressed that this ``right of custody'' 
constitutes a significant part of parental authority. However, 
it has been pointed out that in the Polish legal system ``the 
right of custody'' may arise only by operation of law or by 
reason of a judicial decision. It may not arise by reason of an 
administrative decision or by an agreement.\41\
---------------------------------------------------------------------------
    \40\ Also cited in the 1998 Supreme Court decision, supra note 28.
    \41\ 31-32 Holewinska.
---------------------------------------------------------------------------
    The Family Code does not provide the definition of parental 
authority. It only states that ``parental authority includes in 
particular a duty and right of care over a person and property 
of a child, as well as of raising a child.'' \42\ Parental 
authority is defined in the scholarly legal writings as ``the 
totality of rights and duties of parents toward a minor child 
intended to provide care over his person and property.'' \43\ 
It is generally accepted among Polish legal authorities that 
parental authority includes the right to determine the child's 
place of residence.\44\ The Civil Code \45\ states:
---------------------------------------------------------------------------
    \42\ Family Code, art. 95.
    \43\ Smyczynski, T., 134 Prawo rodzinne i opiekuncze [Family and 
Tutelage law], Wydawnictwo C.H. Beck, Warsaw 1997 [hereinafter 
Smyczynski Prawo].
    \44\ 372 Smyczynski Konwencja.
    \45\ Ustawa z dnia 23 kwietnia 1964 r., Kodeks cywilny [The Law of 
April 23, 1964, Civil Code], Dz.U. No. 16, item 93 (1964), as amended 
[hereinafter Civil Code].

          1. The place of residence of a child under parental 
        authority shall be the place of residence of his 
        parents or of one parent who is entitled to exclusive 
        parental authority or to whom the exercise of parental 
---------------------------------------------------------------------------
        authority has been entrusted.

          2. If both parents are equally entitled to parental 
        authority and have separate places of residence, the 
        place of residence of the child is with the parent with 
        whom the child remains permanently. If the child does 
        not remain permanently with either of the parents, his 
        place of residence shall be decided by the guardianship 
        court.\46\
---------------------------------------------------------------------------
    \46\ Id. art. 26.

    In certain situations, a guardianship court may intervene 
into implementation of parental authority.\47\ The court may 
limit, suspend, or, finally, terminate parental authority. 
Parental authority may be limited when the best interest of a 
child is endangered, when the child is in danger of being 
demoralized, or due to a particular situation of the parents. A 
particular situation may be due to actual separation of parents 
or other situation causing limitation of trust in 
implementation of their parental authority.
---------------------------------------------------------------------------
    \47\ 216 Winiarz, J., Gajda, J., Prawo rodzinne [Family Law], 
Wydawnictwa Prawnicze PWN, Warszawa 1999 [hereinafter Winiarz].
---------------------------------------------------------------------------
    Actual separation of parents occurs when:

          1. parents live apart due to a divorce or marriage 
        annulment decree.\48\ Pursuant to art. 58, sec. 1, 
        Family Code, the court issuing the divorce decree is 
        obliged to determine parental authority over minor 
        children of both spouses. This is one of the major 
        duties of the divorce court.\49\ The court may entrust 
        only one parent with parental authority while limiting 
        the other to specifically defined duties and 
        obligations towards the child.\50\
---------------------------------------------------------------------------
    \48\ Family Code, art. 58, sec. 1.
    \49\ Wytyczne Sadu Najwyzszego z dnia 18 marca 1968 r. [Supreme 
Court Directives of March 18, 1968], No. III CZP 70/66 (OSN 1968, item 
77), point V.
    \50\ Family Code, art. 58, sec. 1.

          2. parents are still married but they live apart;\51\ 
        or
---------------------------------------------------------------------------
    \51\ Id. art. 107, sec. 2.

          3. both parents of an out-of-wedlock child living 
        apart have parental authority (acknowledgment of a 
        child or paternity and parental authority established 
---------------------------------------------------------------------------
        by a court).

    The limitation of trust in proper implementation of 
parental authority occurs when both parents have parental 
authority but are not married,\52\ only one parent is entrusted 
with parental authority \53\ or the child has been declared 
totally incompetent.\54\
---------------------------------------------------------------------------
    \52\ Id. art. 107, sec. 1.
    \53\ Id. art. 104.
    \54\ Id. art. 108.
---------------------------------------------------------------------------
    As a rule, parental authority belongs to both parents.\55\ 
However, parental authority may belong to only one parent if 
the other parent is deceased, unknown, or does not have full 
legal capacity; the other parent has been permanently or 
temporarily deprived of parental authority; or the fatherhood 
was established by a court decision and the court did not 
provide the father with parental authority.\56\
---------------------------------------------------------------------------
    \55\ Id. art. 93, sec. 1.
    \56\ 207 Winiarz.
---------------------------------------------------------------------------
    One of the most important provisions protecting children 
from wrongful removal or retention is article 100 of the Family 
Code which states:

          The guardianship court and other state authorities 
        are obliged to provide help to parents when it is 
        necessary for proper exercise of their parental 
        authority. In particular, each parent may petition the 
        guardianship court for return of a child removed by an 
        unauthorized person.

    The right to request the return of a child removed by an 
unauthorized person has its source in parental authority. Only 
a person entrusted with parental authority may request the 
return of a child. When a person's parental authority has been 
limited, he/she may pursue such a request only if his/her 
parental authority provides that the child resides with him/
her.\57\ However, the category of persons entitled to help 
under this article includes not only parents but also foster 
parents, legal guardians, or curators.\58\
---------------------------------------------------------------------------
    \57\ Gajda, J., Kodeks rodzinny i opiekunczy. Komentarz [The Family 
and Guardianship Code. Commentary], Wydawnictwo C.H. Beck, Warszawa 
1999 [hereinafter Gajda], art. 100, comment 9.
    \58\ Id. art. 100, comment 8.
---------------------------------------------------------------------------
    An ``unauthorized person'' in the meaning of article 100 of 
the Code is any person who refuses the return of a wrongfully 
removed child. This category also includes a parent who retains 
the child in contravention of the court decision.\59\
---------------------------------------------------------------------------
    \59\ Id. art 100, comment 10.
---------------------------------------------------------------------------
    ``Other state authorities'' should include all state 
authorities, in particular police, the prosecutors' office, and 
state administration authorities.\60\
---------------------------------------------------------------------------
    \60\ Id. art. 100, comment 7.
---------------------------------------------------------------------------
    There are also other provisions of the Family Code which 
are meant to prevent wrongful removal and retention of 
children. They include those regulating deprivation \61\ and 
limitation of parental authority;\62\ prohibition of personal 
contacts with the child by parents deprived of parental 
authority;\63\ and supervision on exercising custody and 
release of the custodian.\64\
---------------------------------------------------------------------------
    \61\ Id. art. 111.
    \62\ Id. art. 109.
    \63\ Id. art. 113.
    \64\ Id. arts. 165, 168, and 169.
---------------------------------------------------------------------------
    Performing or permitting the wrongful removal of a child 
may be a triggering factor for the court to implement sanctions 
proscribed by these provisions.

4. Civil Procedure

    Article 100 of the Family Code constitutes substantive 
grounds for a request to return a child. Judicial proceedings 
in matters regulated in the Family Code are governed by the 
Code of Civil Procedure \65\ and will be discussed in part III 
of this report.
---------------------------------------------------------------------------
    \65\ Ustawa z dnia 17 listopada 1964 r. Kodeks postepowania 
cywilnego [The Law of November 17, 1964, Code of Civil Procedure] 
[hereinafter the Code of Civil Procedure], Dz.U. No. 43, item 296 
(1964), as amended.
---------------------------------------------------------------------------

5. Civil Law

    Wrongful removal or retention of a child affects his/her 
dignity, freedom, personal inviolability, and the right to 
contact his parents and relatives. These rights constitute 
personal rights protected under articles 23 and 24 of the Civil 
Code.
    When, as a result of wrongful removal or retention, a child 
suffers bodily injury or health impairment, he/she may request 
damages and/or compensation on a tort basis, pursuant to 
article 444 of the Civil Code.

6. Criminal Law

    Wrongful removal or retention of a child may constitute a 
crime and result in criminal prosecution and penalties defined 
in the Criminal Code.\66\ Article 211 of the new Criminal Code 
\67\ states the following:
---------------------------------------------------------------------------
    \66\ Ustawa z dnia 6 czerwca 1997 r. Kodeks karny [The Law of June 
6, 1997, Criminal Code] [hereinafter Criminal Code], Dz.U. No. 88, item 
553 (1997) which came into force in 1998.
    \67\ In the former Criminal Code of 1969, the crime of removal or 
retention (kidnapping) of a minor was dealth with in art. 188.

        [w]hoever, contrary to the will of the person appointed 
        to take care of or supervise, removes or retains a 
        minor less than 15 years old . . . shall be subject to 
---------------------------------------------------------------------------
        the penalty of imprisonment for up to 3 years.

    The purpose of article 211 of the Criminal Code is to 
protect legal institutions of care and supervision [opieki i 
nadzoru], and not to protect the freedom of a person wrongfully 
removed or retained. Removal constitutes the violation of the 
legal order of exercising the rights of care or supervision 
over a minor.\68\ The latter is protected by article 189 of the 
Criminal Code. According to scholarly legal writings, 
``wrongful removal'' is the active removal of a minor from the 
care or supervision of authorized persons. ``Retention,'' on 
the other hand, takes place when a perpetrator authorized to 
have temporary custody does not return a child to the permanent 
custodian.\69\ Removal is an act, while retention constitutes a 
forbearance.\70\
---------------------------------------------------------------------------
    \68\ Andrejew, I, Kodeks karny. Krotki komentarz [Criminal Code. A 
Short Commentary] [hereinafter Andrejew]. Panstwowe Wydawnictwo 
Naukowe. Warszawa 1986, art. 188, comment 1.
    \69\ 374 Wojciechowski, J. Kodeks karny--komentarz, orzecznictwo 
[Criminal Code--Commentary and Jurisprudence]. Warsaw 1997.
    \70\ Marek, A., Prawo karne. Zagadnienia teorii i praktyki 
[Criminal Law. Problems of Theory and Practice] [hereinafter Marek]. 
Wydawnictwo C.H. Beck. Warszawa 1997, note 836.
---------------------------------------------------------------------------
    The commission of a crime under article 211 does not 
require the use of threat, force, or fraud. Permission of a 
minor is immaterial and does not exclude the liability of a 
perpetrator;\71\ it is enough that the perpetrator acted 
against the will of persons authorized to care for or supervise 
the child.\72\ The category of ``authorized persons'' includes 
persons authorized by the Family Code--i.e., natural and 
adoptive parents who have full parental authority, legal 
guardians, or foster parents. It also includes persons 
authorized to exercise care and supervision by other laws--
e.g., teachers.
---------------------------------------------------------------------------
    \71\ Supreme Court decision of December 18, 1992. Inf. Prawn. No. 
7-9 (1992). See also Marek, note 836.
    \72\ 369 Smyczynski Konwencja, supra note 27.
---------------------------------------------------------------------------
    Since the crime of kidnaping has to be committed ``against 
the will of a person authorized to exercise care or 
supervision,'' usually it cannot be committed by a parent or 
legal guardian exercising parental authority. However, when one 
or both parents are divested of parental authority, or their 
parental authority has been suspended or limited pursuant to 
articles 107, 110, and 111 of the Family Code, then such 
parents may become perpetrators of the crime of kidnaping.\73\ 
The fact that the perpetrator did not take a minor under his 
care but abandoned him/her or transferred him to a third 
person, is not a defense.
---------------------------------------------------------------------------
    \73\ Supreme Court Resolution of November 21, 1979, No. VI KZP 15/
79; OSNKW No. 1 (1980), item 2. See also Andrejew, comment to art. 188; 
Marek, note 835 and 836.
---------------------------------------------------------------------------

                         B. Parental Visitation

    The ``rights of access'' protected by the Hague Convention 
``shall include the right to take a child for a limited period 
of time to a place other than the child's habitual residence.'' 
\74\ Polish domestic law does not use the term exactly 
corresponding to the ``rights of access.'' The ``rights of 
access'' has been translated in the Polish version of the Hague 
Convention as ``prawo do odwiedzin'' [visitation rights]. The 
latter term, however, does not have any term exactly 
corresponding to it in Polish domestic law. The closest term in 
Polish law to ``rights of access'' used by the Hague 
Convention, is ``personal contacts with a child'' [osobista 
stycznosc z dzieckiem] used in article 113 of the Family Code. 
Article 113 states the following:
---------------------------------------------------------------------------
    \74\ Supra note 2, The Hague Convention, art. 5.

          1. When an interest of a child so requires, a 
        custodial court will prohibit parents divested of 
---------------------------------------------------------------------------
        parental authority from personal contacts with a child.

          2. In extraordinary situations, a custodial court may 
        limit personal contacts with a child by parents whose 
        parental authority has been limited, by placing a child 
        with a foster family or in a custodial-educational 
        facility.

    In Polish scholarly legal writings, the right of parents to 
personal contacts with a child has its source in a close 
personal and emotional relationship with a child and does not 
depend on parental authority.\75\ Even divesting parents of 
their parental authority does not deprive them of the right of 
personal contacts with the child. Only when the interest of a 
child is endangered, the court may prohibit parents deprived of 
parental authority from personal contacts with a child, 
pursuant to article 113 of the Family Code. Personal contacts 
include not only visitation rights but also all other means of 
contact, e.g., correspondence, telephone conversations.
---------------------------------------------------------------------------
    \75\ 163 Smyczynski Prawo, supra. See also 74 Krzeminski, Z., 
Rozwod [Divorce] [hereinafter Krzeminski]. Kantor Wydawniczy Zakamycze. 
Krakow 1997.
---------------------------------------------------------------------------
    The Supreme Court of Poland has stated that:

          Entrusting one parent in a divorce decree or decree 
        annulling the marriage with parental authority does not 
        deprive the other of the right to personal contacts 
        with a child. Therefore, there is no need for precise 
        definition of this right in a decree. Prohibition or 
        limitation of personal contacts of parents with the 
        child may be declared only when their parental 
        authority has been abrogated or limited and not when 
        the divorce or annulment decree vests parental 
        authority with one parent.\76\
---------------------------------------------------------------------------
    \76\ Supreme Court decision of September 30, 1980, Case No. IICR 
277 (1980); Gazeta prawnicza No. 7-8 (1991).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention.

    Judicial power in Poland has been handled mainly, but not 
exclusively, by the Supreme Court, courts of general 
jurisdiction, administrative, and military courts.\77\
---------------------------------------------------------------------------
    \77\ 169 Majchrowski, J., Winczorek, P., Ustroj konstytucyjny 
Rzeczypospolitej Polskiej [The Constitutional Structure of the republic 
of Poland] [hereinafter Majchrowski], Hortpress. Warszawa 1998.
---------------------------------------------------------------------------
    The matters connected with the application of the Hague 
Convention are handled by the courts of general jurisdiction 
\78\ and the Supreme Court.\79\ Pursuant to article 1, sec. 2 
of the Law on Courts, the following are courts of general 
jurisdiction: district, voivodship (regional), and appellate. 
Together with the Supreme Court, there are four court 
instances.\80\ However, the Polish Constitution guarantees only 
two instances in judicial proceedings.\81\ As a rule, district 
courts have subject matter jurisdiction in all cases except 
those which are transferred to voivodship courts.\82\ Courts of 
general jurisdiction handle criminal, civil, family and 
guardianship matters, as well as labor law and social security, 
except for those which are transferred by law to other courts. 
Different divisions specializing in particular cases, e.g., 
criminal, civil, family, commercial, or labor and social 
security, may be created in courts of general jurisdiction.
---------------------------------------------------------------------------
    \78\ Organized pursuant to Ustawa z dnia 20 czerwca 1985 r. Prawo o 
ustroju sadow powszechnych [The Law of June 20, 1985, on Courts of 
General Jurisdiction], [hereinafter the Law on Courts], consolidated 
text: Dz.U. No. 7, item 25 (1994), as amended.
    \79\ Its organization and functioning has been based on The Law of 
September 20, 1984 on the Supreme Court.
    \80\ See Courts of Law in Poland from Piasecki, K. Organizacja 
wymiaru sprawiedliwosci w Polsce [Organization of Justice 
Administration in Poland], [hereinafter Piasecki], PWSBiA. Warszawa 
1995.
    \81\ The Constitution, art. 176, sec. 1.
    \82\ The Law on Courts, art. 3
---------------------------------------------------------------------------
    The Law on Courts provides that a person who does not 
possess proficiency in the Polish language has the right to use 
his/her native language in court as well as to be provided with 
a translator free of charge.\83\
---------------------------------------------------------------------------
    \83\ Id. art. 8.
---------------------------------------------------------------------------
    The Supreme Court handles annulments [Cour de Cassation]. 
It has four Chambers: Civil, Criminal, Military and 
Administrative, Labor and Social Security Chamber.
    The Code of Civil Procedure gives subject matter 
jurisdiction for requests for return of a child to the 
custodial district court.\84\ Territorial jurisdiction belongs 
to the court of the child's residence or stay.\85\
---------------------------------------------------------------------------
    \84\ The Code of Civil Procedure, art. 568.
    \85\ Id. art. 569, sec. 1.
---------------------------------------------------------------------------
    Judicial procedure for return of a child may be initiated 
at the request of an authorized party or by the court's own 
motion.\86\ The motion may be submitted by any parent provided 
that he/she has parental authority. A copy of a motion is 
delivered to the prosecutor who has to be informed about the 
date of the trial.\87\ However, the prosecutor does not become 
a party to the proceedings unless he submits an official 
joinder.\88\ Therefore, there is no requirement to serve him a 
copy of the court's decision.\89\
---------------------------------------------------------------------------
    \86\ Id. arts. 506 and 570.
    \87\ Id. art. 580
    \88\ Id. art. 60.
    \89\ Id. art. 517. See also Korzan, K., Postepowanie nieprocesowe 
[Non-contentious Procedure], Wydawnictwo C.H. Beck. Warszawa 1997, 
[hereinafter Korzan].
---------------------------------------------------------------------------
    Article 579 of the Code of Civil Procedure contains some 
departures from general rules provided for some family matters 
in articles 568-578, as well as from rules for the non-
contentious procedure provided in articles 506-525, namely: (1) 
the court's substantive decisions on return of a child may be 
made only after a trial; and (2) the decisions become effective 
and enforceable only after they become final. The latter 
constitutes a departure from a general rule provided in article 
578 of the Code of Civil Procedure that substantive decisions 
become immediately effective and enforceable.
    There is no departure from the general rule provided in 
article 577 that a custodial court may change its decision any 
time, even after it becomes final, when the interest of a 
person affected so requires.\90\
---------------------------------------------------------------------------
    \90\ The Code of Civil Procedure, art. 577.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    As a general rule, judgments are enforceable only after 
they become final, i.e., when they are not subject to appeal. 
This rule has exceptions applicable to the return of a child 
which were discussed in part III of this report.
    The Code of Civil Procedure contains a separate Chapter VI 
entitled, The Enforcement of Judgments Concerning the Return of 
a Person Subject to Parental Authority or Care, which contain 
articles 1089-1095(1). These special provisions regulating 
procedure for return of a child are meant to avoid the negative 
impact that use of force could have on a child.
    Pursuant to these provisions, the bailiff should use 
particular care and do everything in order to avoid any 
physical and moral damage to the child.\91\ The forceful 
removal of a child, subject to parental or custodial authority 
and his/her return to the authorized person may take place only 
in the presence of the authorized person or his/her designee. 
The act of return of a child can not take place in absence of 
this person.\92\ When performing his duties connected with the 
return, the bailiff is subject to strict court supervision.
---------------------------------------------------------------------------
    \91\ Id. art. 1092.
    \92\ Id. art. 1091.
---------------------------------------------------------------------------

                          V. Legal Assistance

    The Republic of Poland signed the Hague Convention with 
reservations to article 26, para 3 of the Convention. As a 
result of this reservation, Poland is bound to assume any costs 
resulting from the participation of legal counsel or advisers 
or from court proceedings only to the extent to which those 
costs may be covered by the Polish system of legal aid and 
advice.

                             VI. Conclusion

    Due to the relatively short time in which of the Hague 
Convention has been applied in Poland, it is difficult to 
evaluate the compliance of the Polish government and courts 
with its requirements. There are very few cases available and 
there is no comprehensive official or unofficial analysis of 
its application in the Polish domestic legal system.
    The present report, being the first brief description and 
analysis of the topic, is obviously limited by this lack of 
scholarly writings on the subject. However, a brief analysis of 
the cases to date did not detect any major problems with the 
application of the Hague Convention in the Polish legal system.

    Prepared by: Bozena Sarnecka-Crouch, senior legal 
specialist, Law Library of Congress, November 24, 1999.

                                ------                                


                              SOUTH AFRICA

    In 1996, South Africa ratified the Hague Convention on the 
Civil Aspects of International Child Abduction of 1980. Without 
the benefit of the Convention, it was usual for a child 
abducted from his/her parent in South Africa to remain in a 
foreign country up to two years before being returned, often at 
enormous legal expense.
    Dullah Omer, Justice Minister, praised the Convention in 
that the international cooperation would offer important relief 
to the custodian parent whose child has been abducted by the 
other parent. 1
---------------------------------------------------------------------------
    \1\ Africa News Service of January 27, 1998.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

                                The Law

    The South African Parliament passed the Hague Convention on 
the Civil Aspects of International Child Abduction Act in 
November 1996. 2 The Act, which entered in force on 
October 1, 1997, made the provisions of the Convention part of 
the domestic law of South Africa by incorporating it in full. 
3
---------------------------------------------------------------------------
    \2\ Act No.72 of 1996 in Statutes of the Republic of South Africa 
Classified and Annotated From 1910 191 (Durban, 1967-).
    \3\ Reg. 65 of 1997 in Republic of South Africa Government Gazette, 
No. 18322, Oct. 1, 1997, p. 1.
---------------------------------------------------------------------------
    However, because of the two reservations taken by South 
Africa, the country is not bound to assume any costs and 
expenses arising from court proceedings unless such costs are 
covered by the South African legal aid system. In addition, it 
does not accept applications and documents in French although 
that is one of the official languages of the Convention.
    To fulfill the requirement of the Convention, the Law 
designates the Chief Family Advocate 4 as the 
Central Authority. 5 In writing, he/she may delegate 
his/her powers to any Family Advocate. 6
---------------------------------------------------------------------------
    \4\ The Chief Family Advocate is appointed by the Minister of 
Justice under the provisions of the Mediation in Certain Divorce 
Matters Act, 1987.
    \5\ Supra note 2, art. 3, at 191.
    \6\ Id., art. 4.
---------------------------------------------------------------------------
    Article 5 of the Law authorizes the Minister of Justice to 
make regulations to give effect to additional provisions of the 
Convention. Furthermore, such regulations may prescribe fees 
and provide for the expenditure that is incurred due to the 
application of the Convention.
    The Minister can also prescribe a penalty of imprisonment 
for a period not exceeding twelve months or of a fine for any 
contravention or failure to comply with the regulations. 
7
---------------------------------------------------------------------------
    \7\ Id., art. 5.
---------------------------------------------------------------------------
    The Law also requires the regulations to be tabled in 
Parliament within 14 days after the publication in the 
Government Gazette. Any one of these regulations or any of 
their provisions may be repealed by a resolution passed by both 
houses of Parliament during the session in which such 
regulation has been tabled. 8
---------------------------------------------------------------------------
    \8\ Id. at 192.
---------------------------------------------------------------------------

                               Regulation

    The Minister of Justice issued the regulation required by 
the Act and it also took effect on October 1, 1997. 
9 It regulates certain practical aspects of the 
Chief Family Advocate's duties that are imposed by the 
Convention.
---------------------------------------------------------------------------
    \9\ Supra note 3, reg. No. 1282 of 1996, at 2.
---------------------------------------------------------------------------
    The Chief Family Advocate is authorized to appoint a Family 
Advocate or any persons to assist him/her in discharging his/
her duties that are imposed by the Convention. The appointment 
must be in writing and should contain the conditions of the 
appointment. However, in urgent cases an appointment may be 
given orally with a confirmation in writing made subsequently. 
10
---------------------------------------------------------------------------
    \10\ Id., sec. 3, at 3.
---------------------------------------------------------------------------
    When a person who has the right to custody applies to the 
Chief Family Advocate for assistance under the provisions of 
the Convention, the application constitutes authorization to 
perform all the duties imposed on him/her by the Convention. 
The Chief Family Advocate or the person designated by him/her 
may appear on the applicant's behalf in any proceeding to give 
effect to the provisions of the Convention. 11
---------------------------------------------------------------------------
    \11\ Id., sec. 2.
---------------------------------------------------------------------------
    If the applicant does not want to appoint a legal 
representative and does not qualify for legal aid, ``the Chief 
Family Advocate or a Family Advocate shall appear on behalf of 
an applicant in any court proceedings that may be necessary to 
give effect to the provisions of the Convention.'' 
12
---------------------------------------------------------------------------
    \12\ Id., sec. 5.
---------------------------------------------------------------------------
    Any person who obstructs the Chief Family Advocate or a 
person designated by him/her to carry out the duties he/she is 
charged with by the Convention may be fined or sentenced to 
imprisonment for a period up to a year. 13
---------------------------------------------------------------------------
    \13\ Id., sec. 4.
---------------------------------------------------------------------------
    If an application for the return of a child or for the 
right of access to a child is successful, the Chief Family 
Advocate may recover the expenses or costs incurred by the 
Advocate or persons assisting him/her. The fee for the Chief 
Family Advocate or Family Advocates is 50 rand per hour and a 
maximum amount of 300 rand per day. 14
---------------------------------------------------------------------------
    \14\ Id., sec. 6.
---------------------------------------------------------------------------
    If the person who is assisting a family Advocate is not an 
officer in the public service, such as a tracing agent, the fee 
for locating the child is 280 rand plus expenses. 15
---------------------------------------------------------------------------
    \15\ A rand is equivalent to US$ 1,610, as of June 7, 1999.
---------------------------------------------------------------------------

II. Domestic Laws Regarding Child Abduction and Parental Visitation and 
                            Child Abduction

                 Custody and Parental Visitation Rights

    Under South African law, custody of children vests in both 
parents unless they are divorced or separated. Courts must 
settle the custody issue before they can grant a divorce. 
16
---------------------------------------------------------------------------
    \16\ Supra note 2, act 70 of 1979, sec. 6(1) at 425.
---------------------------------------------------------------------------
    Parents may conclude a custody agreement, which has to 
satisfy the court to be incorporated in the divorce decree. In 
the absence of such an agreement, the court makes the custody 
order by taking into consideration the best interests of the 
child. A custody order does not deprive the non-custodian 
parent of all his/her rights. He/she is entitled to reasonable 
access unless the court finds that it is in the child's best 
interest to deny it.
    The non-custodian parent can obtain access to his/her minor 
child by an arrangement with the custodian parent. In the 
absence of an agreement, the court can make an order regarding 
visitation rights and lay down its particulars. The access 
order may be given when the high court is granting a divorce 
decree or when a parent applies for it. 17
---------------------------------------------------------------------------
    \17\ W. A. Joubert ed., 16 the Law of South Africa 170-172 (Durban, 
1998).
---------------------------------------------------------------------------

                        Parental Child Abduction

    If a non-custodian parent abducts his/her child, he/she may 
be held in contempt of court. A custodian parent whose child 
has been abducted may apply to the court for the child's 
return. ``In such a case a court may order that the child be 
returned to the custodian spouse or it may order that the 
sheriff take possession of the child in order to deliver it to 
the custodian spouse. . . .'' 18
---------------------------------------------------------------------------
    \18\ Id. at 176.
---------------------------------------------------------------------------
    At present, South Africa does not have a special penalty 
for parental abduction.

                   Obstruction of Parental Visitation

    If a custodian parent obstructs the visitation rights of 
the other parent in any way, he/she may be held criminally 
responsible and may be liable to a fine not exceeding two 
hundred rand and/or to imprisonment for a period not exceeding 
one year. 19
---------------------------------------------------------------------------
    \19\ Supra note 2, Law No. 93 of 1962, sec. 1(1), at 181.
---------------------------------------------------------------------------
    A custodian parent is required to notify the other parent 
of any change in his/her residential address in writing. 
Otherwise he/she may be liable to a fine not exceeding one 
hundred rand. 20
---------------------------------------------------------------------------
    \20\ Id., sec. 1(3).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    The South African court system consists of general courts 
and special courts. General courts are the Constitutional 
Court, the Supreme Court of Appeal, the High Courts including 
any high court of appeals, and the Magistrate Courts. Such 
courts as the Water Courts, Income Tax Court, the Patents, 
Trade Marks and Copyright Courts are specialized in certain 
matters.
    The Constitutional Court consists of a president, deputy 
president, and nine members. This Court is the highest court on 
constitutional matters.
    The Supreme Court of Appeal consists of a Chief Justice, a 
Deputy Chief Justice, and as many members as determined by an 
act of Parliament to meet the need of the Court. It is the 
highest court of appeal except for constitutional matters. 
21
---------------------------------------------------------------------------
    \21\ Supra note 2, Law No. 108 of 1966, secs. 167, 168, at 1291.
---------------------------------------------------------------------------
    The High Court may decide on any matter that is not 
assigned to another court because of its nature or the amount 
involved. However, ``the judge president . . . may at any time 
direct that a matter be heard by a full court consisting of as 
many judges as he may determine.'' 22
---------------------------------------------------------------------------
    \22\ Supra note 16, at 103.
---------------------------------------------------------------------------
    The Magistrate Court is a lower court with only a limited 
jurisdiction.
    The High Court is the court of first instance that will 
hear cases when brought under the provisions of the Convention. 
It is also the court that determines the custody of minor 
children and the visitation rights of the non-custodian parent.

                       IV. Law Enforcement System

    As explained above, in the absence of voluntary compliance 
with a court order in regard to the return of an abducted 
child, the court may order the sheriff to take possession of 
the child in order to deliver him/her to the custodian parent.
    Denial of visitation rights is an offense in South Africa, 
and the offender may be prosecuted to force him/her to comply 
with the court order.
    In addition, the penalties prescribed by the regulation for 
obstructing the Chief Family advocate helping the return of a 
child or securing visitation rights under the Convention is a 
serious deterrent.

                      V. Legal Assistance Programs

    The Legal Aid Act 23 establishes the Legal Aid 
Board with the objective of rendering legal aid to indigent 
persons and providing legal representation at State expense. 
24 The Act does not define an indigent person. 
However, the Board lays down ``a means test'' which it revises 
from time to time. 25
---------------------------------------------------------------------------
    \23\ Supra. note 2, act. No. 22 of 1969, at 343.
    \24\ Id., sec. 3.
    \25\ Id., sec. 3(d), at 343(1).
---------------------------------------------------------------------------
    The Board appoints legal aid officers who work under the 
supervision of the Director of Legal Aid. When an application 
for legal aid is made to one of the legal aid officers, he/she 
considers whether an applicant qualifies for aid under the 
guideline established by the Board. Qualified applicants are 
referred to an attorney whose fee is paid by the State.

                             VI. Conclusion

    The Hague Convention on the Civil Aspects of International 
Child Abduction was ratified by South Africa because of the 
enormous legal expense and time spent for the return of an 
abducted child by a parent to his/her custodian parent in South 
Africa. In the opinion of the South African Justice Minister, 
international cooperation due to the Convention would offer 
important relief to such parents.
    South Africa has taken full advantage of the Convention. 
There has been a considerable number of outgoing applications 
for the return of the abducted children to South Africa. 
However, the number of incoming applications has been small, 
and there have been no published cases as yet. Therefore, it is 
unclear how the South African courts will approach the child 
abduction cases under the provisions of the Convention.
    South Africa was well aware of the advantages of the 
Convention when it ratified it. However, it has tried to reduce 
its financial burden by taking reservations to court costs and 
language. Thus, expenses arising from court proceedings must be 
borne by the applying parent unless they are covered by the 
South African legal aid system, and all submitted documents 
must be in English or Afrikaans, so that there will not be any 
translation costs.

    Prepared by Belma Bayar, Senior Legal Specialist, Eastern 
Law Division, Law Library of Congress, October 2000

                                ------                                


                                 SWEDEN

                              Introduction

    Sweden is a participant in the 1980 Hague Convention on the 
Civil Aspects of International Child Abduction (hereafter the 
Convention). Sweden ratified the Convention in 1989. The text 
of the Convention in French and English together with a Swedish 
translation is published in the Swedish Treaty Series.\1\
---------------------------------------------------------------------------
    \1\ Sveriges Overenskommelser med Frammande Makter 1989:7.
---------------------------------------------------------------------------

   I. Domestic Laws and Regulations Implementing the Hague Convention

    Sections 11-23 of a 1989 Law entitled ``On Recognition and 
Enforcement of Foreign Custody Decisions and on Returning of 
Children,'' \2\ contain provisions on the implementation of the 
1980 Convention.
---------------------------------------------------------------------------
    \2\ Svensk Forfattninssamling (SFS) 1989:14, as amended by SFS 
1993:212.
---------------------------------------------------------------------------
    The Swedish Ministry of Foreign Affairs is designated as 
the Central Authority in order to render the task of 
discharging the duties which are imposed by the Convention.\3\
---------------------------------------------------------------------------
    \3\ SFS 1989:177, as amended by SFS 1993:329.
---------------------------------------------------------------------------
    According to Section 2, the law does not apply to a child 
who has reached the age of 16.
    Section 11 deals with the rule on the return of the child. 
According to section 12, the return of the child may be denied 
by the court if:

          (1) at the time of the application for proceedings a 
        full year has passed since the abduction was carried 
        out, and the child has already settled in the new 
        environment;\4\
---------------------------------------------------------------------------
    \4\ This rule is in conformity with Article 12 of the Convention.

          (2) there is a serious risk that the return of the 
        child harms the child's psychological or physical 
        health or otherwise the child will be subjected to a 
---------------------------------------------------------------------------
        situation which cannot be acceptable;

          (3) the child himself opposes the return, and has 
        reached such age and maturity that his wishes should be 
        respected; and

          (4) the return of the child is incompatible with the 
        fundamental principles regarding the protection of 
        human rights and freedom as respected in Sweden.\5\
---------------------------------------------------------------------------
    \5\ This provision is in conformity with Article 20 of the 
Convention.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation

                           A. Child Abduction

    The provisions of Chapter 7:4 of the Swedish Penal Code 
prohibit parental child abduction. Accordingly, if a person 
without authority separates a child under 15 from the person 
who has the custody of the child, he or she will be convicted 
for an arbitrary undertaking with a child to a fine or 
imprisonment up to one year, provided that the action does not 
constitute a deprivation of freedom, in which case a more 
serious punishment will be in order.
    The same rule applies if a person who has joint custody of 
a child under 15, together with another person, who without any 
acceptable reason arbitrarily separates the child from the 
other custodian, or the person who shall have the custody but 
before obtaining the legal authority acts arbitrarily with 
regard to the child. If the crime so committed is considered 
aggravated, the penalty will be imprisonment of a minimum of 
six months and a maximum of four years. According to Chapter 
7:6, the public prosecutor may not ``ex officio'' proceed in 
matters of arbitrary actions regarding the children unless the 
prosecution is necessary from the public point view.

                         B. Parental Visitation

    Chapter 21 of the Swedish Parents and Children Code \6\ 
contains rules on the enforcement of judgments on child custody 
and visitation. The right forum for cases concerning the 
enforcement of custody judgments is the county administrative 
court. The provisions of Chapter 21, sections 9 and 11-16 are 
equally applicable to the questions relating to the 
implementation of the Convention.
---------------------------------------------------------------------------
    \6\ SFS 1995:974.
---------------------------------------------------------------------------
    According to section 9, the measures relating to a child 
must be carried out in a mild and compassionate manner. When a 
child is to be picked up by a court order, a close person to 
the child, who can be of mental support to the child, should be 
present. If there is such person in the capacity of a social 
worker that person should be present. If possible, a 
pediatrician, a child psychiatrist or child psychologist should 
also assist in the process. If due to sickness, a child should 
not be removed, or if there is any other hindrance to the 
execution of the court order, the enforcement should be 
postponed.
    Section 11 empowers the court to order a medical 
examination of the child. According to section 12, the court 
must hold a hearing unless such hearing appears to be 
manifestly unnecessary. Sections 13 and 14 are on the payment 
of the legal expenses, according to which the court may order 
one party to pay the party's expenses. Section 15 empowers the 
court to reconsider a decision, if there are changes of 
circumstances or if other specific reasons call for it. Section 
16 provides for the participation of lay judges in the 
proceedings in the administrative court of appeal (see question 
3).

   III. Court System and Structure--Courts Handling Hague Convention

    According to section 13 of the 1989 implementation law \7\ 
an application for the enforcement of the provisions of the 
Convention must be submitted to the county administrative 
court.
---------------------------------------------------------------------------
    \7\ Supra note 2.
---------------------------------------------------------------------------
    The appeal instance is the regional administrative court of 
appeal. The highest instance for decisions made by the 
administrative courts is the Supreme Administrative Court. The 
proceedings in the administrative courts are carried out by 
application of the rules contained in the Law on Administrative 
Procedures.\8\
---------------------------------------------------------------------------
    \8\ SFS 1971:291, as amended.
---------------------------------------------------------------------------

                       IV. Law Enforcement System

    According to section 15 of the 1989 implementation law,\9\ 
cases concerning the return of children must be handled 
speedily by the courts. If a case concerning the return of a 
child has not been resolved by the court within six weeks after 
the date the application for the enforcement was made, the 
court is obligated to explain the reason for delay, if the 
applicant so requests.
---------------------------------------------------------------------------
    \9\ Supra note 2.
---------------------------------------------------------------------------
    Before the court decides on the enforcement, it may 
instruct an official of the social services to attempt to 
convince the party who is holding the child to return the child 
to the party who has the custody of the child. Even another 
person who conveniently can fulfill this task may be entrusted 
if the court believes that the child can be returned without 
unnecessary delay (sec. 16).
    The court must obtain knowledge about the child's wishes 
before making a final decision on the enforcement and the 
return of the child, unless with due consideration to the 
child's age and maturity obtaining such information appears to 
be impossible (sec. 17).
    If the court decides to issue an order for physical 
enforcement, it may in the first place impose a conditional 
fine, if such decision can lead to the return of the child 
without a delay. Otherwise the court may decide that the child 
should be returned through the enforcement executed by the 
police authority (sec. 18).
    In case a judgment or a decision to be enforced concerns a 
visitation right, the court may order an enforcement by the 
police authority only if it appears that the enforcement by 
other means cannot be carried out (sec. 18:2).
    When there is a risk that the child might be moved to 
another country, or the enforcement of an order on the return 
of the child may cause difficulties later on, the court may 
order that the child should immediately be taken into custody, 
and make a plan on the conditions or timing for visitation. In 
such circumstances, every effort must be made to prevent 
causing harm to the child. If it is possible, a physician and a 
social worker should be present, or as the case may be, a 
person having close contact with the child should be present. 
On the whole, any action taken in this respect must immediately 
be reported to the court, which will decide on the continuation 
of such undertaking (secs. 19 and 20).
    As a matter of principle, parental custody in Sweden is 
jointly held by a married couple from the birth of the child 
until the child reaches the age of 18 or the child marries 
before reaching that age.\10\ Sole custody rests with the 
mother of child born out of wedlock, unless the father of the 
child marries the mother. Unmarried parents may also jointly 
apply for the joint custody of their child.
    The court must raise the question of custody and visitation 
in a divorce proceedings. However, the court must respect an 
agreement between the parents, unless it finds that the 
agreement is not in the child's best interest.
    If it shows that in a case concerning a petition for 
custody of a child an application for the return of the child 
has already been made, the court may not proceed in the custody 
question before the matter relating to the return of the child 
has been duly reviewed and resolved. If in a custody case the 
Central Authority (for Sweden, The Ministry of Foreign Affairs) 
informs the court that the child has been unlawfully brought to 
the country or unlawfully retained in Sweden but no application 
has yet been made, the court may not reach a decision on the 
question of custody before giving a reasonable time for filing 
the application for the return of the child.\11\

                      V. Legal Assistance Programs

    The rules governing the legal assistance program are 
contained in the 1996 Law on Legal Aid.\12\ According to the 
provisions of section 35 of the Legal Aid Regulation,\13\ 
citizens and permanent residents of a country participating in 
the Hague Convention are entitled to legal aid, on the same 
basis as Swedish citizens and permanent residents, in matters 
concerning the application of the Convention. However, it 
should be noted that Sweden has made a reservation with regard 
to Article 26:2 of the Convention, meaning that Sweden shall 
not be bound to assume any costs referred to in that provision 
of the Convention resulting from the participation of legal 
counsel or advisors or from court proceedings, except insofar 
as those costs may be covered by the Swedish system of legal 
aid.

    Prepared by: Fariborz Nozari, senior legal specialist, 
Western Law Division, Law Library of Congress, April 1999.



    \10\ Parents and Children's Code, SFS 1995: 974, Chapter 6 on 
custody and visitation.
    \11\ Supra note 2, sec. 22.
    \12\ SFS 1996:1619.
    \13\ SFS 1997:404.

                                ------                                


                             UNITED KINGDOM

                              Introduction

    The abduction of children, i.e. taking them away without 
the consent or authority of persons who have the lawful right 
to care of them, has long been considered kidnaping, a criminal 
offense at common law, that is also committable by parents. In 
recent years, aided by quick and affordable means of travel, an 
international dimension has been added to the problem by 
children being wrongfully whisked across state frontiers, away 
from their country of habitual residence.
    Acts of local abduction within a country are dealt with by 
state courts, and the rights of the parties are determined 
according to the legal test of what is in the ``best interest 
of the child'' concerned. The problem is felt more acutely when 
a family dispute arises among parents of diverse national 
origins who reside in one country and a parent takes a child to 
the country of his origin to seek protection under its laws. In 
such cases, the rights of the parent from whom the child has 
been abducted cannot effectively be enforced in domestic 
courts. Courts are traditionally hesitant to cede jurisdiction 
to another country when litigants are present within their own 
jurisdiction. Reflecting their own cultures, the courts may 
decide the test of the best interest of a child based on their 
own notions of family relations.
    Increasing concerns about international abductions have led 
to the formulation of international agreements to combat the 
problem. At least two such major agreements have been reached 
in order to deter international child abduction and to provide 
for the quick return of a wrongfully removed child to his or 
her home country. These agreements provide civil law remedies, 
but do not deal with any criminal aspects of child abduction.

   I. Domestic Laws and Regulations Implementing the Hague Convention

    The United Kingdom ratified the Hague Convention on the 
Civil Aspects of International Child Abduction on August 1, 
1986, when the Child Abduction and Custody Act 1985 came into 
effect.\1\ Section 1 of the Act grants the Convention the force 
of law in the United Kingdom and section 2 authorizes the 
issuance of Orders in Council specifying the Contracting States 
to the Convention.\2\ The Convention applies only to children 
under the age of 16 and only in cases in which the child who 
has been wrongfully removed or retained had been habitually 
resident in a Contracting State. Under the Act, a removal or 
retention is considered wrongful when it occurs in breach of 
custody rights under the law of habitual residence, which 
rights were actually exercised or would have been exercised but 
for the removal or retention. A removal that is not in breach 
of domestic law may nevertheless be ``wrongful'' under the 
Convention.\3\ In a case where a person has custody pursuant to 
an interim order of a foreign court, this in itself does not 
justify the child's removal from the foreign jurisdiction, 
particularly when another person had been granted access to a 
child under the order.\4\ The court is bound to order the 
return of a child if the application is brought within 12 
months of the wrongful removal or retention. For applications 
made after the one-year period, the court must still order the 
child's return, unless it is demonstrated that the child is now 
settled in its new environment.
---------------------------------------------------------------------------
    \1\ Ch. 60 (``the Act''). The Hague Convention (``the 
Convention''), signed on October 25, 1980, is set out in Schedule 1 of 
the Act. The Act also ratified the European Convention on the 
Recognition and Enforcement of Decisions concerning Custody of Children 
and on the Restoration of Custody and Children, signed at Luxembourg on 
May 20, 1980. The European Convention is outside the scope of this 
report.
    \2\ The Child Abduction and Custody (Parties to Conventions) Order 
1986, S.I. 1986, No. 1159, as amended.
    \3\ In Re F (A Minor: Abduction, Custody Rights Abroad), [1995] 
Fam. 224, a mother who was not in breach of domestic law in removing 
her child from Colorado was nevertheless held to be in breach of the 
father's right of custody. In relation to unmarried fathers and their 
rights of custody, a Practice Note delineating those rights discusses 
court decisions that expand the concept to include more than strictly 
legal rights: Practice note: Child Abduction and Custody Act 1985, 142 
Sol. J. 114 (Feb. 6, 1998).
    \4\ Re E (A Minor: Abduction) [1989] 1 FLR 135 (CA).
---------------------------------------------------------------------------
    A Contracting State is required to set up a central 
authority, which must undertake several measures, including to:

          (a) discover the whereabouts of the child;

          (b) prevent further harm to the child;

          (c) secure the voluntary return of the child or bring 
        about an amicable resolution of the issues;

          (d) initiate judicial proceedings with a view to 
        return of the child;

          (e) provide legal aid and advice; and

          (f) make necessary and appropriate administrative 
        arrangements to secure the safe return of the child.\5\
---------------------------------------------------------------------------
    \5\ Convention, Art. 7.

    The Act establishes the following Central Authorities 
---------------------------------------------------------------------------
within the United Kingdom:

   In England & Wales--the Lord Chancellor, whose 
        duties in this regard are carried out by a Child 
        Abduction Unit (``CAU'') \6\ under the administrative 
        control of the Official Solicitor of the Supreme Court, 
        an independent, semi-judicial authority.
---------------------------------------------------------------------------
    \6\ The address is: Lord Chancellor's Department, Child Abduction 
Unit, 81 Chancery Lane, London, WC2A 1DD. Telephone: 44 0171 911 7047/
7094. Fax: 44 0171 911 7248. The CAU operates a Web site at the 
following URL:  This report 
concentrates on the practice and procedure followed in England and 
Wales only.

   In Scotland--the Secretary of State, whose functions 
        in this regard are carried out by the Scottish Court 
        Administration.\7\
---------------------------------------------------------------------------
    \7\ Scottish Courts Administration, Hayweight House, 23 Lauriston 
Street, Edinburgh EH3 9 DQ. Tel: 44 131 229 9200. Fax: 44 131 221 6894.

   In Northern Ireland--the Northern Ireland Court 
        Service, as designated by the Lord Chancellor.\8\
---------------------------------------------------------------------------
    \8\ Northern Ireland Court Service, Legal Advisor's Division, 
Windsor House, 5 Bedford Street, Belfast BT2 7LT. Tel: 01232 328 594. 
Fax: 01232 439 110.

    The Central Authority on the Isle of Man, which is not a 
---------------------------------------------------------------------------
part of the United Kingdom, is:

        HM Attorney-General's Chambers.\9\
---------------------------------------------------------------------------
    \9\ HM Attorney General's Chambers, Government Offices, Douglas, 
Isle of Man. Tel: 01624 685 451. Fax: 01624 629 162.

    The Act does not provide specific guidance on how a Central 
Authority is to proceed in undertaking the measures set out in 
Article 7, and, although section 10 of the Act authorizes rules 
of court being made, no such rules have been issued.
    There is no specified form for making an application to a 
Central Authority; an application will be accepted in any form 
provided it includes sufficient details, including:

   the identity of the applicant, the child, and the 
        person alleged to have removed or retained the child;

   the date of birth of the child, if available;

   the grounds on which the claim for return of the 
        child is made; and

   all available information relating to the 
        whereabouts of the child and the identity of the person 
        with whom the child is presumed to be.\10\
---------------------------------------------------------------------------
    \10\ The Convention, Art. 8.

    When a Central Authority receives an application for the 
return of an abducted child, a solicitor (general attorney) who 
has experience in child abductions matters is assigned the 
case. The solicitor will take the applicant's (now the 
client's) instructions; assemble the evidence, if necessary 
with the help of the Central Authority; and file affidavits of 
facts on the relevance of the foreign law. A decision of a 
judicial or administrative authority outside the United Kingdom 
may be proved by a authenticated copy of the decision; a copy 
is deemed to be a true copy unless the contrary is shown.\11\ 
The solicitor is also responsible for applying for legal aid 
under the state program providing assistance to those seeking 
legal services, based on the merits of the case and a means 
test (see below for further details). The solicitor will also 
instruct a barrister (litigation attorney) to represent the 
applicant at the court hearing.
---------------------------------------------------------------------------
    \11\ The Act, Sec. 7.
---------------------------------------------------------------------------
    The solicitor may also obtain an ex parte court order to 
protect the child immediately, including an order for the 
surrender of passports, and for prohibiting the removal of the 
child from the jurisdiction of the court or a particular 
location. If the whereabouts of the child are not known, an 
order will be sought that either authorizes a search for the 
child or requires the disclosure of information from a person 
who is believed to have any relevant information.\12\ It is 
generally not necessary for an applicant seeking the return of 
a child to attend the hearing.
---------------------------------------------------------------------------
    \12\ Id. Sec. 24A.
---------------------------------------------------------------------------
    Article 13 of the Convention provides for certain defenses 
to an application that, if successful, grant a court the 
discretion not to order the return. The defenses arise in cases 
in which the person having the care of the child was not 
actually exercising the custody rights at the time of removal; 
the removal or retention was consented to by the applicant 
parent, or where he or she had subsequently acquiesced to it; 
the return would pose a grave risk of physical or psychological 
harm to the child, or place him or her in an intolerable 
situation; the child objects to being returned, and has reached 
an age or degree of maturity at which it is appropriate to take 
account of those views.
    The United Kingdom has not adopted Article 20 of the 
Convention, which provides that the return of a child ``may be 
refused if this would not be permitted by the fundamental 
principles of the requested State relating to the protection of 
human rights and fundamental freedoms.'' The Article was 
omitted as it was considered unnecessary given the other 
defenses and because at that time it had no clear meaning in 
English law. The United Kingdom has since enacted the Human 
Rights Act 1998,\13\ which incorporates the European Convention 
on Human Rights into domestic law. However, an amendment to 
incorporate Article 20 of the Hague Convention was 
rejected.\14\
---------------------------------------------------------------------------
    \13\ Ch. 42.
    \14\ Parl. Deb. HL, Nov. 27, 1997.
---------------------------------------------------------------------------

  II. Domestic Laws Regarding Child Abduction and Parental Visitation

                           A. Child Abduction

    The common law offense of kidnaping may be committed by a 
parent who takes away by force or fraud his own unmarried child 
under the age of 18, without lawful excuse and without the 
child's consent. Under the Child Abduction Act 1984,\15\ it is 
now an offense for a person connected with a child under the 
age of sixteen to take or send the child out of the United 
Kingdom without the appropriate consent. A ``person connected 
with the child'' is considered to be a parent, a reputed 
father, a guardian, a person who has a residence order with 
respect to the child, or a person who has custody of the child. 
An ``appropriate consent'' can be given by each of the 
following: a child's mother; a child's father, if he has 
parental responsibility for the child; a guardian; anyone with 
a residence order or custody; or a person who has the leave of 
the court. No offense is committed if a person who has a 
residence order takes or sends the child out of the United 
Kingdom for less than one month.
---------------------------------------------------------------------------
    \15\ Ch. 37.
---------------------------------------------------------------------------
    The maximum penalty under the 1984 Act is seven years' 
imprisonment. However, prosecutions can only be brought with 
the consent of the Director of Public Prosecutions and are 
relatively rare.
    The Children Act 1989,\16\ section 8, makes provisions for 
the issuance of a contact order, a prohibited steps order, or a 
residence order; all are referred to as ``a section 8 order,'' 
and impose an automatic prohibition on taking the child out of 
the United Kingdom. Such orders can be made ex parte, if 
necessary. In case of a contact order, if it is feared that the 
child may be abducted by the person exercising contact, the 
order may be varied to provide for the contact to be 
supervised. A child may also be made a ward of the High 
Court,\17\ which prohibits his removal from the United 
Kingdom.\18\ In such cases, a passport issued to a child may be 
required to be surrendered.\19\
---------------------------------------------------------------------------
    \16\ Ch. 41.
    \17\ Supreme Court Act 1981, ch. 54, Sec. 41.
    \18\ Family Law Act 1986, ch. 55, Sec. 38.
    \19\ Id. Sec. 37.
---------------------------------------------------------------------------
    An order preventing the removal of a child from the United 
Kingdom may be enforced by requesting the police to issue a 
``Port Stop'' at points of departure.

                         B. Parental Visitation

    Under the Children Act 1989 married parents have joint and 
equal parental responsibility over a child up to the age of 18 
years. The Family Law Act 1996,\20\ section 11, lists factors 
that a court must take into account in proceedings for a 
divorce or separation order. As regards children of the 
marriage, the court must treat the welfare of the child as 
paramount and have particular regard for:
---------------------------------------------------------------------------
    \20\ Ch. 27.

        the general principle that, in the absence of evidence 
        to the contrary, the welfare of the child will be best 
---------------------------------------------------------------------------
        served by--

          (i) his having regular contact with those who have 
        parental responsibility for him and with other members 
        of his family; and

          (ii) the maintenance of as good a continuing 
        relationship with his parents as is possible. . . .\21\
---------------------------------------------------------------------------
    \21\ Id. Sec. 11(4)(c).

    With regard to living arrangements, a court may issue a 
residence order in favor of two or more persons who do not 
themselves all live together.\22\ The residence order may 
specify the periods during which the child is to live in the 
different households concerned. This order introduces an 
element of ``time-sharing,'' which is a feature of joint 
custodial arrangements in other countries.
---------------------------------------------------------------------------
    \22\ Children Act 1989, Sec. 11(4).
---------------------------------------------------------------------------
    The court may also issue an order requiring a parent with 
whom the child lives to allow him to visit or stay with the 
other parent.\23\ The authority for a contact order is based on 
a presumption of reasonable contact in favor of parents and 
certain other individuals. The order is subject to the 
principle of welfare of the child and the courts' power of 
intervention, but the power to deprive the child and parent of 
contact is not exercised lightly and there must be sound 
justification for doing so. The fact that contact arrangements 
may be difficult to operate, or that the child or the parent 
would prefer not to have contact, does not by itself provide 
justification for refusing it.\24\
---------------------------------------------------------------------------
    \23\ Id. Sec. 8.
    \24\ Andrew Bainham, Children: The Modern Law 128 (2d ed. 1999).
---------------------------------------------------------------------------
    In a great majority of divorces, however, the parties 
themselves work out informally the arrangements for the custody 
of children and rights of contact.

   III. Court System and Structure--Courts Handling Hague Convention

                    A. Family Proceedings Generally

    Jurisdiction in family matters and matters relating to 
children is vested in three levels of courts: the High Court, 
the county courts, and magistrates' Courts. The lowest level of 
proceedings is conducted in the magistrates' courts by lay 
persons assisted by a legally qualified clerk. In major 
metropolitan areas, legally qualified stipendiary magistrates 
sit in these courts. A number of proceedings, such as, for 
example, the issuance of care and supervision orders, parental 
contact, etc., must be commenced in magistrates' courts. 
Divorce and matrimonial matters must be commenced in a county 
court in which decisions are made by a district judge or 
circuit judge. The highest level of family proceedings is the 
Family Division of the High Court, which consists of specialist 
family judges. There is a selective divorce jurisdiction in the 
High Court, which has exclusive jurisdiction to issue an order 
making a child a ward of the court. Cases with an international 
aspect are most appropriately heard in the High Court.
    Hearings in family matters are notionally adversarial, and 
a combative or hostile approach in cases involving children is 
discouraged by the court The welfare of the child is paramount, 
and the court will restrict evidence that detracts from this 
focus. Although it is usual to present oral evidence with a 
chance to cross-examine on contentious facts, affidavits or 
statements in advance are relied upon to a great extent in 
cases involving children. Moreover, such hearings are ``in 
chambers,'' with parties and their lawyers present, but without 
public access. Thus, confidentiality is protected and publicity 
is actively discouraged.\25\
---------------------------------------------------------------------------
    \25\ Anne-Marie Hutchinson and Henry Setright, International 
Parental Child Abduction 180 (1998).
---------------------------------------------------------------------------

                        B. Under the Convention

    All applications for the return of children wrongfully 
brought into the jurisdiction of the court are dealt with in 
London by a judge of the Family Division of the High Court.\26\ 
The Clerk of the Rules, a Court official responsible for 
listing cases, ensures that they are listed for hearing very 
quickly--sometimes in two days. The court exercises control 
over the progress of the case; the litigants are not allowed to 
let the case ``drift,'' and adjournments are limited to a 
maximum of 21 days.
---------------------------------------------------------------------------
    \26\ The vesting of jurisdiction in a single high level court 
avoids the problem of a large number of courts having potential 
jurisdiction to hear Convention applications.
---------------------------------------------------------------------------
    The application brought in the High Court should be 
initiated by originating summons in a prescribed form,\27\ but 
in emergencies applications may be made ex parte. The time 
limited for acknowledging service of an originating summons is 
seven days or such further time as the court may direct.\28\ 
The plaintiff may lodge an affidavit in support of the 
application and serve a copy on the defendant, and the 
defendant may reply again by lodging an affidavit and serve a 
copy on the plaintiff within seven days after service of the 
originating summons. The hearings are heard and determined by a 
judge in chambers unless the Court otherwise directs.\29\ The 
Court may give interim directions as it thinks fit for the 
purpose of securing the welfare of the child or for preventing 
changes in circumstances. Thus, the Court may direct that the 
child is to reside with a specified person or at a specified 
place while the application is being considered.
---------------------------------------------------------------------------
    \27\ Family Proceedings Rules 1991, S.I. 1991, No. 1247, r. 6.2.
    \28\ Id. r. 6.6.
    \29\ Id. r. 6.8.
---------------------------------------------------------------------------
    Hague Convention hearings are usually conducted on written 
evidence and submissions made by lawyers. Oral evidence is 
taken in only a minority of cases. A foreign applicant may 
instruct a solicitor to bring proceedings without approaching 
the Central Authority as an intermediary. Judgments and orders 
are usually given at the end of the final hearing, but in 
difficult cases judgment may be reserved for 14 days or less.

                       IV. Law Enforcement System

    The mandate in Article 12 of the Convention ``to order the 
return of the child forthwith'' is considered to be binding, 
and the Court returns the child speedily, once a decision has 
been made. In many instances, children leave the country within 
seven days of the hearing. In enforcing the return, the Court 
makes frequent use of undertakings, voluntary promises made 
formally in writing by parties, given to the Court. These 
amount to binding orders, and their breach may result in 
imprisonment for contempt. The undertakings are meant to 
regulate and mitigate the effects of a return until a hearing 
is held in the requesting state, and to ensure that conditions 
are met without which a return would be impossible. ``The 
English court is often concerned to ensure that the voluntary 
but binding nature and effect of these undertakings is 
understood and accepted in countries to which the children are 
returned.'' \30\
---------------------------------------------------------------------------
    \30\ Supra note 25, at 186.
---------------------------------------------------------------------------
    The orders made by the High Court are enforceable by the 
Tipstaff, a court official who can seek help from the police. 
Failure to comply with an order of return is also a civil 
contempt punishable by imprisonment for up to two years, 
sequestration of property, or a fine. The Court also uses the 
Tipstaff to find missing children and seize passports and 
travel documents.

                      V. Legal Assistance Programs

    The Legal Aid Act 1988 \31\ allows anyone, whether within 
the jurisdiction or not, to apply for legal aid for instituting 
civil legal proceedings in which such assistance is available. 
The Legal Aid Board applies merits and means tests to determine 
whether a litigant has reasonable grounds for taking or 
defending an action and whether he or she meets the financial 
eligibility criteria. The United Kingdom has made a reservation 
under Article 42 of the Hague Convention that requires Central 
Authorities not to impose any charges in relation to 
applications submitted under the Convention. However, free 
legal aid, not subject to the merits and means tests, is 
available to applicants seeking the return of a child under 
articles 3 and 8. The expenses of returning the child are not 
available from public funds. Legal aid is also available, 
subject to the two tests, to those seeking rights of access 
under the Children Act 1989, section 8.
---------------------------------------------------------------------------
    \31\ Ch. 34.
---------------------------------------------------------------------------
    Applications for legal aid by non-United Kingdom residents 
are made to the Legal Aid Board.\32\ In 1998, a spokesman for 
the Lord Chancellor's Department made the following policy 
statement in response to a question in the House of Commons on 
the availability of legal aid to overseas litigants in child 
abduction cases:
---------------------------------------------------------------------------
    \32\ 29/37 Red Lion Street, London, WC1R 4PP.

          It is the Government's policy that any person whose 
        case is accepted by the Central Authority under the 
        Hague or European Child Abduction Conventions will 
        receive legal aid. This is because of the vital 
        importance of cases affecting the residence of children 
        litigated before the English and Welsh courts. The 
        availability of legal aid in other countries is not 
        considered. The award of legal aid to foreign nationals 
        is perfectly proper under the terms of the existing 
        legal aid scheme.\33\
---------------------------------------------------------------------------
    \33\ 307 Parl. Deb., H.C. (6th ser.) c.712wa (1998).
---------------------------------------------------------------------------

                             VI. Conclusion

    The High Court places a very heavy emphasis on the 
purposive intent of the Hague Convention to return children 
wrongfully removed from their habitual residence jurisdiction. 
The approach is practical, based on the facts of each 
individual case, including an examination of the implications 
for the child of a return or a refusal and the likely outcome 
of litigation thereafter. The Court considers the Convention to 
provide ``a high and reliable standard of justice and 
protection for children.'' \34\
---------------------------------------------------------------------------
    \34\ Supra note 25, at 185.
---------------------------------------------------------------------------
    Several studies bear out the successful working of the 
Convention. An examination of applications dealt with in 1996 
found that while the United States handled 653 applications, 
England and Wales was the next most active Convention 
jurisdiction, making 206 and receiving 166 applications.\35\ Of 
the incoming applications, which involved 271 children, 94 
percent were for the return of the child or children while only 
6 percent concerned access. In the vast majority of the cases, 
the abductor was one of the child's parents, with most often 
the mother being the abductor. Among the incoming cases that 
were completed by the time of the study, 43 percent were 
resolved by a court ordering the child's return and only 5 
percent of the cases resulted in a judicial refusal to return 
the child; twenty-one percent had not been completed, eight 
percent resulted in a voluntary return, and six percent of the 
applications were withdrawn. The authors were able to conclude:
---------------------------------------------------------------------------
    \35\ International Child Abduction--The English Experience, 48 
International and Comparative Law Quarterly 127 (1999).

          The Hague Convention is generally considered to be a 
        success, a fact evidenced by the growing number of 
        countries signing the Convention. . . . None of our 
        evidence suggests that the reputation of the Hague 
        Convention is in any way undeserved: applications are 
        dealt with speedily (England and Wales appears to have 
        the most expeditious system for dealing with Convention 
        applications; in our sample the average length of a 
        completed application here was six and a half weeks 
        compared to an average of 11.5 weeks among ``outgoing'' 
        cases), and relatively few result in refusals to return 
        children.\36\
---------------------------------------------------------------------------
    \36\ Id. at 147 (footnote deleted).

    An earlier study of the cases determined under the 
Convention also showed that the United Kingdom, along with the 
United States, is adhering to the spirit of the Convention by 
---------------------------------------------------------------------------
refusing to liberally construe its limitations and exceptions:

          ``[J]udicial authorities in both countries are 
        consistently demonstrating to parents that an 
        international abduction will no longer aid them in 
        obtaining a favorable custody decree. In decisions to 
        date, the courts in the United States and the United 
        Kingdom have fostered and served the Convention's most 
        important goal deterring international child 
        abduction.\37\

    Prepared by: Kersi B. Shroff, senior legal specialist, 
Directorate of Legal Research, Western Law Division, Law 
Library of Congress, November 1999.

__________

    \37\ Julia A. Todd, The Hague Convention on the Civil Aspects of 
International Child Abduction: Are the Convention's Goals Being 
Achieved? 2 Global Legal Studies Journal (Spring 1995). 

                                ------                                


                                ZIMBABWE

                              Introduction

    The Convention on the Civil Aspects of International Child 
Abduction of October 25, 1980 \1\ emanated from the Final Act 
of the 14th Session of the Hague Conference on Private 
International Law to which about 37 countries were 
participants. The Draft Convention from this Conference was 
then submitted to governments of participating countries for 
accession and adoption. It was modeled on the European 
Convention on Recognition and Enforcement of Decisions 
Concerning Custody of Children and Restoration of Custody of 
Children of 1980.\2\
---------------------------------------------------------------------------
    \1\ 19 I.L.M. 1501-1505 (July-Nov.1980).
    \2\ Id. at 273.
---------------------------------------------------------------------------
    Zimbabwe was not a delegate to the Hague Conference. At the 
time of the Conference, Zimbabwe was just emerging from a neo-
colonial status initially known as Rhodesia and then Zimbabwe 
Rhodesia. To turn the country from minority white rule to 
independence, a Constitutional Conference held at Lancaster 
House in London from September to December 1979 ushered in the 
new independent Republic of Zimbabwe.\3\ In order to render the 
Convention applicable to Zimbabwe, the President of the country 
on May 24, 1996, declared that consistent with Article 2 of the 
Convention on contracting states, the Child Abduction Act of 
1995, to which the Convention was attached as an integral part 
of this law, would become effective as the law of Zimbabwe on 
June 1, 1996, as seen below.\4\ On August 2, 1996,\5\ and June 
6, 1997,\6\ respectively Zimbabwe published a list of countries 
which the country considers its contracting partners with 
respect to the Convention. These include the following:
---------------------------------------------------------------------------
    \3\ Id. at 387-408.
    \4\ Infra notes 7 & 8.
    \5\ Stat. Ins. 154, 1996. Supp. to the Zimbabwean Gazette of August 
2nd, 1996, at 869-870.
    \6\ Stat. Ins. 127, 1997. Supp. to the Zimbabwean Gazette of June 
6, 1997, at 863.

        United States
        United Kingdom of Great Britain and Northern Ireland
        Luxembourg
        The Netherlands
        New Zealand
        Mexico
        Australia
        Chile
        Cyprus
        Ireland
        Norway
        Argentina
        Germany
        Italy
        Switzerland, and
        Spain

   I. Domestic Laws and Regulations Implementing the Hague Convention

    Zimbabwean national law with respect to the Hague 
Convention on the Civil Aspects of International Child 
Abduction is the Child Abduction Act, No. 12 of 1995.\7\ This 
law became operative on June 1, 1996.\8\ The Child Abduction 
Act is a short piece of legislation of 13 sections with a long 
schedule or annex, which is the text of the Convention. The Act 
is enabling legislation, and hence the Convention can be--and 
currently is--enforced as an integral part of Zimbabwean 
national law. In Zimbabwe, therefore, national law is the 
Convention itself.
---------------------------------------------------------------------------
    \7\ 1 Stat. L. of Zimbabwe, Ch. 5:05 (rev. 1996).
    \8\ Stat. Ins. 80, 1996, Supp. to the Zimbabwean Gazette of May 24, 
1996, at 525.
---------------------------------------------------------------------------
    The Convention requires that a Central Authority handle 
matters relating to this instrument. This role in Zimbabwe is 
performed by the Secretary in the Ministry of Justice, Legal 
and Parliamentary Affairs according to section 2 of the Child 
Abduction Act. However, the President of the country enjoys 
discretionary powers to designate any other ministry of the 
government to fulfill this role.

  II. Domestic Laws Regarding Child Abduction and Parental Visitation


                           A. Child Abduction

    Section 10 of the Child Abduction Act requires that the 
High Court on an application for the purposes of Article 15 of 
the Convention by any person who appears to the court to have 
an interest in the matter, may declare that the removal of any 
child from or his retention outside Zimbabwe was wrongful 
within the meaning of Article 3 of the Convention.

                         B. Parental Visitation

    The Children's Protection and Adoption Act, 1972 as 
amended;\9\ the Guardianship of Minors Act as amended,\10\ and 
the Matrimonial Causes Act, 1986 as amended \11\ are relevant 
to Article 16 of the Convention. This Article gives priority to 
decisions relating to the return of a child over decisions 
concerning child custody. According to section 11 of the Child 
Abduction Act, 1996, the reference in Article 16 of the 
Convention to deciding on the merits of rights of custody means 
issuing, altering or evoking appropriate orders for the custody 
of the child in terms of the three above-mentioned pieces of 
legislation.
---------------------------------------------------------------------------
    \9\ Supra note 7, Ch.5:06, 223-247 (rev. 1996).
    \10\ Id. Ch.5:08, 253-256 (1996).
    \11\ Id. Ch.5:13, 277-280 (rev. 1996).
---------------------------------------------------------------------------

 III. Court System and Structure--Courts Handling the Hague Convention

    The primary court for matters arising under the Convention 
is the High Court of Zimbabwe. The High Court enjoys 
jurisdiction to deal with applications and other proceedings 
with respect to the Convention consistent with section 6 of the 
Child Abduction Act. According to section 9 of the Child 
Abduction Act, the Court is also vested with power to issue 
interim directions and other temporary orders to secure the 
welfare of the child or to prevent changes pertinent to the 
determination of issues involved in the case.
    The High Court of Zimbabwe used to sit in two divisions, 
the Appellate Division and the General Division.\12\ On August 
28, 1981, the Appellate Division was named the Supreme Court of 
Zimbabwe, and the General Division was reconstituted as the 
High Court of Zimbabwe as required by the High Court Act of the 
same date.\13\ Currently, the Supreme Court is organized under 
the Supreme Court Act, also of August 28, 1981.\14\ The Supreme 
Court of Zimbabwe constitutes the ultimate court of appeal for 
the country. It does not exercise original jurisdiction. Below 
the Supreme Court and High Court are the Magistrates Courts 
which are administered under the provisions of the Magistrates 
Courts Act (1932), as amended,\15\ and the Local Courts 
established under the Customary Law and Local Courts Act, which 
traces its history to the Customary Law and Primary Courts Act, 
No. 6 of 1981.\16\ Local Courts apply customary law in civil 
cases only. Appeals are sent to Magistrates Courts from Local 
Courts. Magistrates Courts enjoy both civil and criminal 
jurisdiction. Appeals are sent to the High Court from 
Magistrates Courts.
---------------------------------------------------------------------------
    \12\ See generally, R. Redgment, The Legal System of Zimbabwe in 
Modern Systems Cyclopedia (R. Redden ed., 1990 at 200.25; see also, 
Zimbabwe: A Country Study, 199 (1982).
    \13\ Supra note 1, Ch. 7:06, 417-429 (rev. 1996).
    \14\ Id. Ch. 7:13, 485-492 (rev. 1996).
    \15\ Id. Ch.7:10, 439-455 (rev. 1996).
    \16\ Id. Ch. 7:05, 411-416 (rev. 1996).
---------------------------------------------------------------------------

The High Court

    According to the High Court Act of 1981 as amended,\17\ the 
Court is organized in terms of composition, original 
jurisdiction in civil and criminal matters, powers of review, 
appellate jurisdiction in both civil and criminal matters from 
the Magistrates Courts, and appeals from the High Court to the 
Supreme Court.
---------------------------------------------------------------------------
    \17\ Supra note 13.
---------------------------------------------------------------------------
    The doctrine of judicial notice in matters of proof stated 
in Article 14 of the Convention has been adopted by Zimbabwe. 
Therefore, in any proceedings of the High Court of Zimbabwe 
under the Convention, a document purporting to be an 
authenticated copy of a decision or determination of a court or 
judicial authority outside Zimbabwe is admissible on its face 
value as presented to the court. However, this fact does not 
preclude any other inquiry the court may wish to make regarding 
any document presented to it, whether such a document be local 
or foreign.

                      IV. Law Enforcement Systems

    The High Court under the above-mentioned provisions enjoys 
powers to issue orders, as well as their execution by the 
nation's law enforcement agents, pertaining to the return of 
the child under the Convention, visitation by the left-behind 
parent, and determination as to the custody of the child. These 
powers of the High Court as contained in the High Court Act are 
further reinforced by the provisions of the Child Abduction Act 
itself. Sections 9 to 11 confer on this Court the power to 
issue interim orders, declaratory orders and any others deemed 
relevant to enforce the Convention. The nation's law 
enforcement assets for purposes of enforcing the Convention 
include the Sheriff's department, consistent with the 
provisions of sections 19-22 of the High Court Act and the 
Zimbabwe Republic Police under the Police Act, 1995 as 
amended.\18\ Section 3 of the Preservation of Constitutional 
Government Act, 1963 as amended,\19\ further enables law 
enforcement agents to pursue a matter upon a resolution of 
Parliament initiated by the Ministry of Home Affairs declaring 
that any provision of law of Zimbabwe is of extra- territorial 
effect.
---------------------------------------------------------------------------
    \18\ 2 Stat. L. of Zimbabwe, Ch. 11:10, 161-174 (rev. 1996).
    \19\ Id. Ch. 11:11, 175 (rev. 1996).
---------------------------------------------------------------------------
    To this end, such a provision would apply to any person 
resident in Zimbabwe, but abroad at the time when declaration 
is made. If such person acts or speaks in a manner which would 
be considered a violation of the laws of Zimbabwe, law 
enforcement officers have the power to pursue through 
appropriate channels the apprehension of such an individual and 
bring him to justice in Zimbabwe.
    In addition, legislation such as the Civil Matters (Mutual 
Assistance) Act, 1996, as amended,\20\ assure the reciprocal 
enforcement in Zimbabwe of civil judgments issued in foreign 
countries and territories and those of Zimbabwe in the foreign 
countries and territories. Similarly, the Criminal Matters 
(Mutual Assistance) Act, 1991, as amended,\21\ also provides 
reciprocal arrangements in criminal matters between Zimbabwe 
and foreign countries. The Extradition Act, 1990 as 
amended,\22\ further affords an opportunity to any foreign 
country and Zimbabwe itself to extradite any person to and from 
the country to Zimbabwe for appropriate matters as regulated by 
this law. Finally, the general criminal law of Zimbabwe is 
available to parties to the Convention, as recognized by 
Zimbabwe, to ensure that all provisions of the Convention have 
been complied with. Thus an ample regime of law enforcement 
mechanisms is at the disposal of the government of Zimbabwe to 
ensure putting into effect and enforcing orders issued by the 
nation's courts, in particular the High Court with respect to 
matters of the Convention.
---------------------------------------------------------------------------
    \20\ Supra note 7, Ch.8:02, 511-516 (rev. 1996).
    \21\ Id. Ch. 9:06, 563-573 (rev. 1996).
    \22\ Id. Ch.9:08, 657-664 (rev. 1996).
---------------------------------------------------------------------------

                      V. Legal Assistance Programs

    Article 26 of the Convention regulates liability for 
administrative and other costs, expenses, and charges. The 
premise of this Article is that the Central Authorities and 
other public services connected with the contracting states do 
not impose any charges with respect to applications filed under 
the Convention.
    In particular, they may not require any payment from the 
applicant towards the costs and expenses of the proceeding or, 
. . . those arising from the participation of legal counsel or 
advisers. However, they may require the payment of expenses 
incurred or to be incurred in implementing the return of the 
child. However, a Contracting State may, by making a 
reservation in accordance with Article 42 declare that it shall 
not be bound to assume any costs referred to in the preceding 
paragraph resulting from the participation of legal counsel or 
advisers or from court proceedings, except in so far as these 
costs may be covered by its legal system of legal aid and 
advice. Upon the return of a child or issuing an order 
concerning rights of access under this Convention, the judicial 
or administrative authorities may, where appropriate, direct 
the person who removed or retained the child, or who prevented 
the exercise of rights of access, to pay the necessary expenses 
incurred by or on behalf of the applicant, including travel 
expenses, any costs incurred or payments made for locating the 
child, the costs of legal representation of the applicant and 
those of returning the child.
    But section 13 of the Child Abduction Act stipulates that 
Zimbabwe having made a reservation as required by the third 
paragraph of Article 26 of the Convention, the costs referred 
to in that paragraph shall not be the responsibility of the 
State or any government official of Zimbabwe, except in so far 
as they are so borne consistent with the grant of legal aid 
under any legislation.
    Furthermore, the Legal Assistance and Representation Act, 
1969 as amended \23\ ensures granting legal assistance to 
indigent persons appearing in the courts of Zimbabwe with 
respect to criminal proceedings only. There are no identical 
provisions to cover civil cases. The law of 1969 also provides 
terms to compensate attorneys who appear for such persons in 
the High Court and Supreme Court. One should also be mindful of 
section 13 of the Child Abduction Act, noted above, which 
prohibits the state bearing costs as a reservation to Article 
26 of the Convention.

                             VI. Conclusion

    It is hard to gauge the effectiveness of the Convention in 
Zimbabwe in the absence of any case law to this effect. 
However, the fact that Zimbabwe, though not an original 
participant in the Hague Conference of 1980 has deemed it fit 
to integrate the Convention as part of its national law is 
indicative of the importance the government of Zimbabwe 
attaches to the subject of child abduction, internally and 
across national boundaries.

    Prepared by: Charles Mwalimu, senior legal specialist, 
Eastern Law Division, Directorate of Legal Research, Law 
Library of Congress, April 1999 (rev. Sept. 17, 1999).

--------------
    \23\ Id. Ch.9:13, 673 (rev. 1996).
                                APPENDIX

                              ----------                              


HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 
                              [TIAS 11670]

    The States signatory to the present Convention,

    Firmly convinced that the interests of children are of paramount 
importance in matters relating to their custody,

    Desiring to protect children internationally from the harmful 
effects of their wrongful removal or retention and to establish 
procedures to ensure their prompt return to the State of their habitual 
residence, as well as to secure protection for rights of access,

    Have resolved to conclude a Convention to this effect, and have 
agreed upon the following provisions--

                   chapter i--scope of the convention

                               Article 1

    The objects of the present Convention are--

    a. to secure the prompt return of children wrongfully removed to or 
retained in any Contracting State; and

    b. to ensure that rights of custody and of access under the law of 
one Contracting State are effectively respected in other Contracting 
States.

                               Article 2

    Contracting States shall take all appropriate measures to secure 
within their territories the implementation of the objects of the 
Convention. For this purpose they shall use the most expeditious 
procedures available.

                               Article 3

    The removal or the retention of a child is to be considered 
wrongful where--

    a. it is in breach of rights of custody attributed to a person, an 
institution or any other body, either jointly or alone, under the law 
of the State in which the child was habitually resident immediately 
before the removal or retention; and

    b. at the time of removal or retention those rights were actually 
exercised, either jointly or alone, or would have been so exercised but 
for the removal or retention.

    The rights of custody mentioned in sub-paragraph a above, may arise 
in particular by operation of law or by reason of a judicial or 
administrative decision, or by reason of an agreement having legal 
effect under the law of that State.

                               Article 4

    The Convention shall apply to any child who was habitually resident 
in a Contracting State immediately before any breach of custody or 
access rights. The Convention shall cease to apply when the child 
attains the age of 16 years.

                               Article 5

    For the purposes of this Convention--

    a. `rights of custody' shall include rights relating to the care of 
the person of the child and, in particular, the right to determine the 
child's place of residence;

    b. `rights of access' shall include the right to take a child for a 
limited period of time to a place other than the child's habitual 
residence.

                    chapter ii--central authorities

                               Article 6

    A Contracting State shall designate a Central Authority to 
discharge the duties which are imposed by the Convention upon such 
authorities.

    Federal States, States with more than one system of law or States 
having autonomous territorial organizations shall be free to appoint 
more than one Central Authority and to specify the territorial extent 
of their powers. Where a State has appointed more than one Central 
Authority, it shall designate the Central Authority to which 
applications may be addressed fortransmission to the appropriate 
Central Authority within that State.

                               Article 7

    Central Authorities shall co-operate with each other and promote 
co-operation amongst the competent authorities in their respective 
States to secure the prompt return of children and to achieve the other 
objects of this Convention.

    In particular, either directly or through any intermediary, they 
shall take all appropriate measures--

    a. to discover the whereabouts of a child who has been wrongfully 
removed or retained;

    b. to prevent further harm to the child or prejudice to interested 
parties by taking or causing to be taken provisional measures;

    c. to secure the voluntary return of the child or to bring about an 
amicable resolution of the issues;

    d. to exchange, where desirable, information relating to the social 
background of the child;

    e. to provide information of a general character as to the law of 
their State in connection with the application of the Convention;

    f. to initiate or facilitate the institution of judicial or 
administrative proceedings with a view to obtaining the return of the 
child and, in a proper case, to make arrangements for organizing or 
securing the effective exercise of rights of access;

    g. where the circumstances so require, to provide or facilitate the 
provision of legal aid and advice, including the participation of legal 
counsel and advisers;

    h. to provide such administrative arrangements as may be necessary 
and appropriate to secure the safe return of the child;

    i. to keep other each other informed with respect to the operation 
of this Convention and, as far as possible, to eliminate any obstacles 
to its application.

                    chapter iii--return of children

                               Article 8

    Any person, institution or other body claiming that a child has 
been removed or retained in breach of custody rights may apply either 
to the Central Authority of the child's habitual residence or to the 
Central Authority of any other Contracting State for assistance in 
securing the return of the child.

    The application shall contain--

    a. information concerning the identity of the applicant, of the 
child and of the person alleged to have removed or retained the child;

    b. where available, the date of birth of the child;

    c. the grounds on which the applicant's claim for return of the 
child is based;

    d. all available information relating to the whereabouts of the 
child and the identity of the person with whom the child is presumed to 
be.

    The application may be accompanied or supplemented by--

    e. an authenticated copy of any relevant decision or agreement;

    f. a certificate or an affidavit emanating from a Central 
Authority, or other competent authority of the State of the child's 
habitual residence, or from a qualified person, concerning the relevant 
law of that State;

    g. any other relevant document.

                               Article 9

    If the Central Authority which receives an application referred to 
in Article 8 has reason to believe that the child is in another 
Contracting State, it shall directly and without delay transmit the 
application to the Central Authority of that Contracting State and 
inform the requesting Central Authority, or the applicant, as the case 
may be.

                               Article 10

    The Central Authority of the State where the child is shall take or 
cause to be taken all appropriate measures in order to obtain the 
voluntary return of the child.

                               Article 11

    The judicial or administrative authorities of Contracting States 
shall act expeditiously in proceedings for the return of children.

    If the judicial or administrative authority concerned has not 
reached a decision within six weeks from the date of commencement of 
the proceedings, the applicant or the Central Authority of the 
requested State, on its own initiative or if asked by the Central 
Authority of the requesting State, shall have the right to request 
bbbbr. a statement of the reasons for the delay. If a reply is received 
by the Central Authority of the requested State, that Authority shall 
transmit the reply to the Central Authority of the requesting State, or 
to the applicant, as the case may be.

                               Article 12

    Where a child has been wrongfully removed or retained in terms of 
Article 3 and, at the date of the commencement of the proceedings 
before the judicial or administrative authority of the Contracting 
State where the child is, a period of less than one year has elapsed 
from the date of the wrongful removal or retention, the authority 
concerned shall order the return of the child forthwith.

    The judicial or administrative authority, even where the 
proceedings have been commenced after the expiration of the period of 
one year referred to in the preceding paragraph, shall also order the 
return of the child, unless it is demonstrated that the child is now 
settled in its new environment.

    Where the judicial or administrative authority in the requested 
State has reason to believe that the child has been taken to another 
State, it may stay the proceedings or dismiss the application for the 
return of the child.

                               Article 13

    Notwithstanding the provisions of the preceding Article, the 
judicial or administrative authority of the requested State is not 
bound to order the return of the child if the person, institution or 
other body which opposes its return establishes that--

    a. the person, institution or other body having the care of the 
person of the child was not actually exercising the custody rights at 
the time of removal or retention, or had consented to or subsequently 
acquiesced in the removal of retention; or

    b. there is a grave risk that his or her return would expose the 
child to physical or psychological harm or otherwise place the child in 
an intolerable situation.

    The judicial or administrative authority may also refuse to order 
the return of the child if it finds that the child objects to being 
returned and has attained an age and degree of maturity at which it is 
appropriate to take account of its views.

    In considering the circumstances referred to in this Article, the 
judicial and administrative authorities shall take into account the 
information relating to the social background of the child provided by 
the Central Authority or other competent authority of the child's 
habitual residence.

                               Article 14

    In ascertaining whether there has been a wrongful removal of 
retention within the meaning of Article 3, the judicial or 
administrative authorities of the requested State may take notice 
directly of the law of, and of judicial or administrative decisions, 
formally recognized or not in the State of the habitual residence of 
the child, without recourse to the specific procedures for the proof of 
that law or for the recognition of foreign decisions which would 
otherwise be applicable.

                               Article 15

    The judicial or administrative authorities of a Contracting State 
may, prior to the making of an order for the return of the child, 
request that the applicant obtain from the authorities of the State of 
the habitual residence of the child a decision or other determination 
that the removal or retention was wrongful within the meaning of 
Article 3 of the Convention, where such a decision or determination may 
be obtained in that State. The Central Authorities of the Contracting 
States shall so far as practicable assist applicants to obtain such a 
decision or determination.

                               Article 16

    After receiving notice of a wrongful removal or retention of a 
child in the sense of Article 3, the judicial or administrative 
authorities of the Contracting State to which the child has been 
removed or in which it has been retained shall not decide on the merits 
of rights of custody until it has been determined that the child is not 
to be returned under this Convention or unless an application under the 
Convention is not lodged within a reasonable time following receipt of 
the notice.

                               Article 17

    The sole fact that a decision relating to custody has been given in 
or is entitled to recognition in the requested State shall not be a 
ground for refusing to return a child under this Convention, but the 
judicial or administrative authorities of the requested State may take 
account of the reasons for that decision in applying this Convention.

                               Article 18

    The provisions of this Chapter do not limit the power of a judicial 
or administrative authority to order the return of the child at any 
time.

                               Article 19

    A decision under this Convention concerning the return of the child 
shall not be taken to be determination on the merits of any custody 
issue.

                               Article 20

    The return of the child under the provision of Article 12 may be 
refused if this would not be permitted by the fundamental principles of 
the requested State relating to the protection of human rights and 
fundamental freedoms.

                      chapter vi--rights of access

                               Article 21

    An application to make arrangements for organizing or securing the 
effective exercise of rights of access may be presented to the Central 
Authorities of the Contracting States in the same way as an application 
for the return of a child.

    The Central Authorities are bound by the obligations of co-
operation which are set forth in Article 7 to promote the peaceful 
enjoyment of access rights and the fulfillment of any conditions to 
which the exercise of such rights may be subject. The central 
Authorities shall take steps to remove, as far as possible, all 
obstacles to the exercise of such rights. The Central Authorities, 
either directly or through intermediaries, may initiate or assist in 
the institution of proceedings with a view to organizing or protecting 
these rights and securing respect for the conditions to which the 
exercise of these rights may be subject.

                               Article 22

    No security, bond or deposit, however described, shall be required 
to guarantee the payment of costs and expenses in the judicial or 
administrative proceedings falling within the scope of this Convention.

                               Article 23

    No legalization or similar formality may be required in the context 
of this Convention.

                               Article 24

    Any application, communication or other document sent to the 
Central Authority of the requested State shall be in the original 
language, and shall be accompanied by a translation into the official 
language or one of the official languages of the requested State or, 
where that is not feasible, a translation into French or English.

    However, a Contracting State may, by making a reservation in 
accordance with Article 42, object to the use of either French or 
English, but not both, in any application, communication or other 
document sent to its Central Authority.

                               Article 25

    Nationals of the Contracting States and persons who are habitually 
resident within those States shall be entitled in matters concerned 
with the application of this Convention to legal aid and advice in any 
other Contracting State on the same conditions as if they themselves 
were nationals of and habitually resident in that State.

                               Article 26

    Each Central Authority shall bear its own costs in applying this 
Convention.

    Central Authorities and other public services of Contracting States 
shall not impose any charges in relation to applications submitted 
under this Convention. In particular, they may not require any payment 
from the applicant towards the costs and expenses of the proceedings 
or, where applicable, those arising from the participation of legal 
counsel or advisers. However, they may require the payment of the 
expenses incurred or to be incurred in implementing the return of the 
child.

    However, a Contracting State may, by making a reservation in 
accordance with Article 42, declare that it shall not be bound to 
assume any costs referred to in the preceding paragraph resulting from 
the participation of legal counsel or advisers or from court 
proceedings, except insofar as those costs may be covered by its system 
of legal aid and advice.

    Upon ordering the return of a child or issuing an order concerning 
rights of access under this Convention, the judicial or administrative 
authorities may, where appropriate, direct the person who removed or 
retained the child, or who prevented the exercise of rights of access, 
to pay necessary expenses incurred by or on behalf of the applicant, 
including travel expenses, any costs incurred or payments made for 
locating the child, the costs of legal representation of the applicant, 
and those of returning the child.

                               Article 27

    When it is manifest that the requirements of this Convention are 
not fulfilled or that the application is otherwise not well founded, a 
Central Authority is not bound to accept the application.

    In that case, the Central Authority shall forthwith inform the 
applicant or the Central Authority through which the application was 
submitted, as the case may be, of its reasons.

                               Article 28

    A Central Authority may require that the application be accompanied 
by a written authorization empowering it to act on behalf of the 
applicant, or to designate a representative so to act.

                               Article 29

    This Convention shall not preclude any person, institution or body 
who claims that there has been a breach of custody or access rights 
within the meaning of Article 3 or 21 from applying directly to the 
judicial or administrative authorities of a Contracting State, whether 
or not under the provisions of this Convention.

                               Article 30

    Any application submitted to the Central Authorities or directly to 
the judicial or administrative authorities of a Contracting State in 
accordance with the terms of this Convention, together with documents 
and any other information appended thereto or provided by a Central 
Authority, shall be admissible in the courts or administrative 
authorities of the Contracting States.

                               Article 31

    In relation to a State which in matters of custody of children has 
two or more systems of law applicable in different territorial units--

    a. any reference to habitual residence in that State shall be 
construed as referring to habitual residence in a territorial unit of 
that State;

    b. any reference to the law of the State of habitual residence 
shall be construed as referring to the law of the territorial unit in 
that State where the child habitually resides.

                               Article 32

    In relation to a State which in matters of custody of children has 
two or more systems of law applicable to different categories of 
persons, any reference to the law of that State shall be construed as 
referring to the legal system specified by the law of that State.

                               Article 33

    A State within which different territorial units have their own 
rules of law in respect of custody of children shall not be bound to 
apply this Convention where a State with a unified system of law would 
not be bound to do so.

                               Article 34

    This Convention shall take priority in matters within its scope 
over the Convention of 5 October 1961 concerning the powers of 
authorities and the law applicable in respect of the protection of 
minors, as between Parties to both Conventions. Otherwise the present 
Convention shall not restrict the application of an international 
instrument in force between the State of origin and the State addressed 
or other law of the State addressed for the purposes of obtaining the 
return of a child who has been wrongfully removed or retained or of 
organizing access rights.

                               Article 35

    This Convention shall apply as between Contracting States only to 
wrongful removals or retentions occurring after its entry into force in 
those States.

    Where a declaration has been made under Article 39 or 40, the 
reference in the preceding paragraph to a Contracting State shall be 
taken to refer to the territorial unit or units in relation to which 
this Convention applies.

                               Article 36

    Nothing in this Convention shall prevent two or more Contracting 
State, in order to limit the restrictions to which the return of the 
child may be subject, from agreeing among themselves to derogate from 
any provision of this Convention which may imply such a restriction.

                       chapter vi--final clauses

                               Article 37

    The Convention shall be open for signature by the States which were 
Members of the Hague Conference on Private International Law at the 
time of its Fourteenth Session.

    It shall be ratified, accepted or approved and the instruments of 
ratification, acceptance or approval shall be deposited with the 
Ministry of Foreign Affairs of the Kingdom of the Netherlands.

                               Article 38

    Any other State may accede to the Convention. The instrument of 
accession shall be deposited with the Ministry of Foreign Affairs of 
the Kingdom of the Netherlands.

    The Convention shall enter into force for a State acceding to it on 
the first day of the third calendar month after the deposit of its 
instrument of accession.

    The accession will have effect only as regards the relations 
between the acceding State and such Contracting States as will have 
declared their acceptance of the accession. Such a declaration will 
also have to be made by any Member State ratifying, accepting or 
approving the Convention after an accession. Such declaration shall be 
deposited at the Ministry of Foreign Affairs of the Kingdom of the 
Netherlands; this Ministry shall forward, through diplomatic channels, 
a certified copy to each of the Contracting States.

    The Convention will enter into force as between the acceding State 
and the State that has declared its acceptance of the accession on the 
first day of the third calendar month after the deposit of the 
declaration of acceptance.

                               Article 39

    Any State may, at the time of signature, ratification, acceptance, 
approval or accession, declare that the Convention shall extend to all 
the territories for the international relations of which it is 
responsible, or to one or more of them. Such a declaration shall take 
effect at the time the Convention enters into force for that State.

    Such declaration, as well as any subsequent extension, shall be 
notified to the Ministry of Foreign Affairs of the Kingdom of the 
Netherlands.

                               Article 40

    If a Contracting State has two or more territorial units in which 
different systems of law are applicable in relation to matters dealt 
with in this Convention, it may at the time of signature, ratification, 
acceptance, approval or accession declare that this Convention shall 
extend to all its territorial units or only to one or more of them and 
may modify this declaration by submitting another declaration at any 
time.

    Any such declaration shall be notified to the Ministry of Foreign 
Affairs of the Kingdom of the Netherlands and shall state expressly the 
territorial units to which the Convention applies.

                               Article 41

    Where a Contracting State has a system of government under which 
executive, judicial and legislative powers are distributed between 
central and other authorities within that State, its signature or 
ratification, acceptance or approval of, or accession to this 
Convention, or its making of any declaration in terms of Article 40 
shall carry no implication as to the internal distribution of powers 
within that State.

                               Article 42

    Any State may, not later than the time of ratification, acceptance, 
approval or accession, or at the time of making a declaration in terms 
of Article 39 or 40, make one or both of the reservations provided for 
in Article 24 and Article 26, third paragraph. No other reservations 
shall be permitted.

    Any State may at any time withdraw a reservation it has made. The 
withdrawal shall be notified to the Ministry of Foreign Affairs of the 
Kingdom of the Netherlands. The reservation shall cease to have effect 
on the first day of the third calendar month after the notification 
referred to in the preceding paragraph.

                               Article 43

    The Convention shall enter into force on the first day of the third 
calendar month after the deposit of the third instrument of 
ratification, acceptance, approval or accession referred to in Articles 
37 and 38.

    Thereafter the Convention shall enter into force--

    1. for each State ratifying, accepting, approving or acceding to it 
subsequently, on the first day of the third calendar month after the 
deposit of its instrument of ratification, acceptance, approval or 
accession;

    2. for any territory or territorial unit to which the Convention 
has been extended in conformity with Article 39 or 40, on the first day 
of the third calendar month after the notification referred to in that 
Article.

                               Article 44

    The Convention shall remain in force for five years from the date 
of its entry into force in accordance with the first paragraph of 
Article 43 even for States which subsequently have ratified, accepted, 
approved it or acceded to it.

    If there has been no denunciation, it shall be renewed tacitly 
every five years.

    Any denunciation shall be notified to the Ministry of Foreign 
Affairs of the Kingdom of the Netherlands at least six months before 
the expiry of the five year period. It may be limited to certain of the 
territories or territorial units to which the Convention applies.

    The denunciation shall have effect only as regards the State which 
has notified it. The Convention shall remain in force for the other 
Contracting States.

                               Article 45

    The Ministry of Foreign Affairs of the Kingdom of the Netherlands 
shall notify the States Members of the Conference, and the States which 
have acceded in accordance with Article 38, of the following--

    1. the signatures and ratifications, acceptances and approvals 
referred to in Article 37;

    2. the accession referred to in Article 38;

    3. the date on which the Convention enters into force in accordance 
with Article 43;

    4. the extensions referred to in Article 39;

    5. the declarations referred to in Articles 38 and 40;

    6. the reservations referred to in Article 24 and Article 26, third 
paragraph, and the withdrawals referred to in Article 42;

    7. the denunciation referred to in Article 44. In witness whereof 
the undersigned, being duly authorized thereto, have signed this 
Convention.

    Done at The Hague, on the 25th day of October, 1980, in the English 
and French languages, both texts being equally authentic, in a single 
copy which shall be deposited in the archives of the Government of the 
Kingdom of the Netherlands, and of which a certified copy shall be 
sent, through diplomatic channels, to each of the States Members of the 
Hague Conference on Private International Law at the date of its 
Fourteenth Session.

         Party Countries and Effective Dates with United States

Argentina--1 June 1991
Australia--1 July 1988
Austria--1 October 1988
Bahamas--1 January 1994
Belgium--1 May 1999
Belize--1 November 1989
Bosnia & Herzogovina--1 December 1991
Burkina Faso--1 November 1992
Canada--1 July 1988
Chile--1 July 1994
China--
   Hong Kong Special Administra-
      tive Region--1 September 1997
   Macau--1 March 1999
Colombia--1 June 1996
Croatia--1 December 1991
Czech Republic--1 March 1998
Cyprus--1 March 1995
Denmark--1 July 1991
Ecuador--1 April 1992
Finland--1 August 1994
France--1 July 1988
Germany--1 December 1990
Greece--1 June 1993
Honduras--1 June 1994
Hungary--1 July 1988
Iceland--1 December 1996
Ireland--1 October 1991
Israel--1 December 1991
Italy--1 May 1995
Luxembourg--1 July 1988
Former Yugoslav Republic of Macedonia--1 December 1991
Mauritius--1 October 1993
Mexico--1 October 1991
Monaco--1 June 1993
Netherlands--1 September 1990
New Zealand--1 October 1991
Norway--1 April 1989
Panama--1 June 1994
Poland--1 November 1992
Portugal--1 July 1988
Romania--1 June 1993
Slovenia--1 April 1995
South Africa--1 November 1997
Spain--1 July 1988
St. Kitts and Nevis--1 June 1995
Sweden--1 June 1989
Switzerland--1 July 1988
Turkey--1 August 2000
United Kingdom--1 July 1988
   Bermuda--1 March 1999
   Cayman Islands--1 August 1998
   Falkland Islands--1 June 1998
   Isle of Man--1 September 1991
   Montserrat--1 March 1999
Venezuela--1 January 1997
Zimbabwe--1 August 1995

    Note: Convention does not apply to abductions occurring prior to 
the effective date.

    [Revised November 7, 2000].

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