What is International Child Abduction?
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.
What Can be Done in the Case of International Legal Abduction?
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:
- return the child;
- obtain the right to see the child.
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.
What Does the Ministry of Justice Do?
The Serbian Ministry of Justice, as the appointed central body, is authorized to:
- Receives Letter of Request;
- Carries out committal proceedings (determines whether the requirements are fulfilled for further proceeding);
- Takes all the necessary actions, such as: to locate the place where the child is, to take all the necessary measures to protect the interests of the child or the applicant (implementation of mediation, interventions of operational services, public prosecutor, police), to inform requested authority and the person who spoke to him on the measures taken, as well as to inform the Court about the need to without delay initiate and conduct proceedings for the return of illegally removed or retained the child.
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.
Relationship between the Hague Convention and the European Convention on Human Rights (ECHR)
Problems with the Implementation of the Hague Convention in Serbia
Implementation of the Convention in Serbia is difficult due to various procedural obstacles, such as:
- Inconsistent and confusing actions of the court (in comparison with the application of substantive and procedural civil law);
- Poor coping in the choice of methods of legal protection (litigation, non-litigation or enforcement proceedings?);
- Failure to comply with demands for urgent proceeding and deadlines established by the Convention for making a decision on the return (6 weeks, according to Article 11 of the Convention);
- Delays in the implementation of procedures to ensure the contacts of the child with the parent from which is illegally taken.
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.
Judgment of the European Court of Human Rights in the Case Ignaccolo Zenide v. Romania
Is the Mechanism Effective?
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”.