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Separated or divorced parents, in some very difficult situations, manage to literally speaking abduct their children and take them across the border, mostly in the country of their origin. This violates children’s rights, particularly the right to maintain regular contact with each parent. Cross-border child abduction is a complex problem that is a source of both legal and political conflicts between states. It can be said that no nation alone has managed to deal with this problem effectively, which was the reason behind the adoption of Hague Convention on the Civil Aspects of International Child Abduction (October 25, 1980). The main objective of the Convention was to establish coordinated cooperation between different countries, in order to solve the problem more easily and efficiently. The Convention does not provide a mechanism for meritorious decision-making on the child custody but ensures the prompt return of wrongfully taken or retained children, and aims to establish the previous factual situation. In this way, the right to the custody of the child under the law of the country where the child was habitually resident before the abduction applies in all other Contracting States.
The main principle behind the interpretation of each article of the Convention is “the best interests of the child”. However, accessibility and pragmatism of the Hague Convention are facing a major challenge when its mechanism conflicts with the interests of other legal entities, but also with the interest of the child itself.
In some situations, the interests of the child are often artificially incorporated into the mechanism of implementation of the mentioned international treaty. The experience showed that a very problematic situation may exist when domestic violence occurs. Cross-border child removal can be both a response to partner violence, but also the kind of partner violence.
It is clear that domestic violence witnessed by a child or, even worse, experienced by a child, irreversibly affects their emotional, mental and physical development. In relation to this, the question arises whether this fact should be taken into account when deciding on the return of the child, even if the violence does not directly concern the child.
This, however, does not mean that the Convention is entirely dysfunctional, but it means that the mechanism is ready for changes, since in practice it proved to be contrary to the aim for which it has been established. The main idea of this blog post is to show that the interests of the child as a legal subject are most important and that this should not be made invisible inside the mechanism of Convention. In the end, the most important matter to every parent should be his child’s wellbeing.
The first part of this blog post will analyze only acting under Hague Convention, as well as some practical information, while the second part of the paper focuses on certain problems in practice in connection with the proceedings conducted for the return of the child under the Hague Convention.
Any person, institution or authority, who claims that the removal or retention of a child outside the territory of the Republic of Serbia, violated the right to custody or the right to visitation (hereinafter: the applicant) may file a request to the Ministry of Justice of the Republic of Serbia, which has been appointed as the Central Authority to implement the Convention. The request shall be submitted on a form, depending on whether the applicant wishes to:
With the request original documents or certified copies have to be enclosed, for example, a copy of the birth certificate of a child, or a copy of the marriage certificate of the parents, the decision of the court or other authority relating to the custody of the child, the documentation from which it can be determined that the child resided in the territory of Serbia (e.g., record book issued by the school facility, nursery, medical documents and the like), and any other documents which can be regarded as essential in this process. With regard to the documents submitted, it does not require additional legalization nor any similar formalities in this regard.
The request and all documents submitted must be written in the Serbian language. In addition, it must be accompanied by a translation in the official language of the country in which the child was taken, and, if this is not possible, in English or French.
Upon receipt, the request for return or request to see the child will be forwarded to the Central Authority of the State in which the child was taken. Central Authority of that State shall take all appropriate measures to ensure the voluntary return of the child, or the elimination of all obstacles to the fulfillment of the right to see the child and shall notify the court or administrative body.
The Serbian Ministry of Justice, as the appointed central body, is authorized to:
The legal systems have different means which are traditionally used in the fight against the illegal cross-border removal or retention of a child. They can be preventive or repressive. However, if the government wants to improve the protection and safety of children outside national borders, it must naturally take measures to improve international cooperation. In this regard, it is the only mechanism of international cooperation that allows confronting to international abductions. For this reason, coordination between states is very important, as well as the communication itself between selected central authorities of each Contracting Party.
In the context of cases involving the abduction of children, the national courts should be aware that the Hague Convention helps the interpretation of the European Convention on Human Rights (hereinafter: ECHR). In the cases of abduction of children, the European Court of Human Rights found that the positive obligation to reunite parents and children under the ECHR must be interpreted in the light of the Hague Convention, especially if the respondent State is a signatory to the Hague Convention.
However, the Hague Convention itself is subject to review in accordance with the ECHR. The Hague Convention is described as “an instrument that is essentially procedural and not human rights treaty that protects individuals on an objective basis” when justifying its consideration under Article 8 of the ECHR (right to family life). This means that national courts when deciding on the injunction of return and other issues related to the Hague Convention are still required to ensure compliance with Article 8 of the European Convention on Human Rights concerning the right to family life.
Implementation of the Convention in Serbia is difficult due to various procedural obstacles, such as:
Of course, in order to understand and improve the shortcomings in the implementation of the Convention in our country, it is necessary to look at some of the best-known and most striking cases in the practice of other countries. For this reason, in the next paragraph, we focus on the case, which is a precedent in this area.
The applicant, Rita Ignaccolo Zenide, a French citizen who was born in 1953, lived in Metz (France). After the divorce, the French courts made a decision, which became final, that two children are awarded to her for safekeeping. During the summer holidays in 1990, the children went to visit their father who had French and Romanian citizenship and lived in the United States.
However, at the end of summer, he refused to return the children to their mother. Having changed several addresses to escape the US authorities, to whom the case was filed in accordance with the Hague Convention, he managed to move to Romania in March 1994, where he lived since then. The first instance court in Bucharest on 14 December 1994, ordered that the children are supposed to be returned to the applicant. However, the efforts of the applicant to carry out the order was unsuccessful. Since 1990, she has seen her children only once, at the meeting which was organized by the Romanian authorities on 29 January 1997.
This case is very important since the reasoning given by the European Court made it clear that the Article 6 of the ECHR (right to fair trial) applies not only to court proceedings but also imposes an obligation on states to ensure that the decision of the court is executed. The case is also significant because, although there have previously been a number of decisions on the admissibility of applications, this is the first case in which the Court ruled referred to the application of the Hague Convention. The Hague Convention aims to ensure that children who are wrongfully removed to the territory which is outside the jurisdiction of their country of residence, are returned as soon as possible.
Hague Convention does not determine which parent will get custody of the child, nor the country in which the child will eventually live. Based on that, the Court found that the Romanian authorities failed to take appropriate and sufficient measures to qualify the applicant to return to her children, and that, therefore, violated her right to family life guaranteed by Article 8 of the ECHR.
Considering the number of cases that are stalled and how difficult it is in some situations to establish cooperation with the countries in which the children were taken, the question can be raised is this mechanism actually functional? The latest example which encourages us to ask this question is the case of Slavica Buzmanovic. Legal proceedings have been initiated on the basis of the Hague Convention. Slavica Burmazovic tried to get to her children through the courts, the judicial authorities of Serbia and Turkey assigned children to her mother, but she does not know where the children are. Mother has not seen or heard from children for five months, the last three months there is no information about Esma, Aisha and Tariq, that father Sabri Ejup Jundze in August 2015 kidnapped and brought to Turkey.
“The latest information available to the Ministry of Justice when it comes to the case of Slavica Burmazovic, which is obtained from the Ministry of Justice of Turkey, is that her husband had left Turkey, went to Iran and will be detained for six months when he is located, for violating a temporary measure. The Ministry of Foreign Affairs stated that it is a big problem how to locate them, and even if they succeed, he believes there will be a problem with the Iranian legislation. The Ministry of Justice gave the instruction to the Third basic prosecutor’s office in Belgrade, where the criminal proceeding against the father is initiated, what is required to issue an international arrest warrant”. It remains unclear how Ejup Sabri Jundze avoids being located if he uses the same mobile phone and regularly announces on social media.
The interim measure envisaged that the father cannot leave the Turkish territory until a decision on the request of Slavica Burmazovic is made regarding her children to be returned, which was forwarded to the authorities in that country. When the court ruled in favor of the mother, the father complained, but that appeal was rejected at the end of May. However, he filed a request for revision of judgment and then he disappeared. Ministry of Foreign Affairs is included in this case and they stated that they are in a constant contact with the Turkish counterparts.
In our opinion, this example demonstrates limitations of the Hague mechanism. Do we really need a mother to seek help and answer protesting the government? Why things that are regulated cannot be used in accordance with the rules that apply to them? This makes a good case for revision of the Convention in the near future.
It can be concluded that the effect of the frequency of child abduction is globalization in its broadest sense, including among others, the possibilities of the modern world in terms of easier international travel, as well as more international marriages and more divorces present.
The Hague Convention on the Civil Aspects of International Child Abduction insists on the establishment of the previous state that existed until the moment of taking the child, i.e. their return to the usual place of residence. However, it can be reasonably questioned whether the return of the child is always in the “best interests of the child”, which is one of the basic principles of the Convention on the Rights of the Child, which must always be applied in procedures when deciding on his rights. There is a real concern that a reference to one of these extremely vague and broad principles can become just an excuse for the court not to apply the law, or, convenient justification for any judicial decision, particularly those refusing the child’s return to the country in which the child has a “habitual residence”. This can only be achieved if we establish a legal presumption that it is in the “best interests of the child” in the case of illegal cross-border removal to be returned to the country of habitual residence. With regard to the expression “child’s best interest” through assumptions narrows discretionary space of legal subjects that implement principle, these exceptions are discretionary remaining space for individual, or the true use of “child’s best interests”.
However, despite all the shortcomings that the Convention itself has, it is a very important instrument without which the modern world could not function. It protects some of the most important rights of the child and represents his interests. And as much criticism could instruct on account of functionality and operability of the Convention, it should not be judged solely on the basis of the number of children who have returned to the country of habitual residence and the speed of their return. It is necessary to create a wider picture, to adapt to changes that occur from year to year, so that functionality and operability of the Convention gets improved and of course it should not be forgotten that it is always the most important to rule in favor of the “best interests of the child”.