[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
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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
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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.
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\1\ Law 23857 of October 19, 1990 in Boletin Oficial [B.O.] Oct.
31, 1990.
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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\
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\2\ Law 24190 Ley de Ministerios, art. 17 inc. 11 and Decree 488/92
and Ministerial Resolution 203/94.
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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.
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\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).
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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.
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\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.
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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\
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\8\ Law 24,270 of November 3, 1993, amending the Criminal Code
published in Boletin Oficial, November 25, 1993.
\9\ Id. art.1.
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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\
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\10\ Id. art. 2.
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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\
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\11\ Id. art. 3.1.
\12\ Id. art. 3.2.
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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\
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\13\ Id. at 1034-1035.
\14\ Id. at 1035.
\15\ Id.
\16\ Id.
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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).
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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:
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\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\
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\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\
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\4\ Id. at 37.
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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\
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\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).
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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\
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\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).
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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).
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\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.
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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\
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\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
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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\
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\11\ Hutchinson, supra note 8, at 66.
\12\ Id. at 67.
\13\ Family Law Act 1975, Sec. 68L.
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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\
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\14\ Supra, note 7, para. 17.8[29].
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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\
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\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).
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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\
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\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.
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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].