In 1998 the Republic of Belarus acceded to the Convention on the Civil Aspects of International Child Abduction (The Hague, 1980). Of course, this was an important step for Belarus, another demonstration that the country recognizes the priority of the interests of children, strives to ensure the protection of their legal rights, and also guarantees the creation of conditions for the immediate return of children illegally taken from their country of permanent residence. To date, there is a fairly rich practice of applying the provisions of the named international treaty, the participants of which are Great Britain, Germany, Greece, Georgia, Israel, Latvia, Lithuania, Turkey and several dozen other states.
Illegal retention of a child under the Convention on International Child Abduction
The international treaty establishes a certain legal mechanism that the parties to the Convention must use in cases where there has been an illegal transfer of a child or his retention on the territory of the state. According to the Convention, the abduction of a child should be understood as his transfer and retention, if thereby the child’s right to reside in the state that is his usual place of residence, with a person who, from the point of view of the law, is the minor’s guardian, has been violated.
In order to launch the mechanism for the return of a child, provided for by the Convention, it is necessary to apply to the so-called Central Authority responsible for implementing the provisions of the Convention. In Belarus, this body is the Ministry of Justice. Any person interested in the return of the child has the right to submit the package of documents specified in the Convention, which includes all available information about the applicant himself, the child, the circumstances of his abduction, etc. The list of documents sent to the Central Authority may also include court decisions, agreements confirming the applicant’s arguments.
In a similar manner, requests can be submitted to take measures to ensure the right to communicate with the child.
Application of the Convention on International Child Abduction in Belarus
In cases where there are reasons to believe that a child is being illegally detained in Belarus, it is necessary to initiate proceedings by contacting the Ministry of Justice with a request to take appropriate measures, or go to court in the manner prescribed by the procedural legislation.
In Belarus, cases on the return of children are considered by the court with the mandatory involvement of representatives of the prosecutor’s office, as well as guardianship and guardianship authorities. During the trial, interim measures may be applied in the form of a ban on the child leaving the country or changing his place of residence until the court decision enters into force.
With a positive court decision, the child must be returned to the state of his usual residence.
International child abduction: case law
The judicial practice at our disposal indicates that the basis of the subject of proof in this category of cases is the fact that the child was illegally taken out of the country of his permanent residence, i.e. actually kidnapped from his legal guardian.
In 2020, the district court considered the claim of a citizen of the Republic of Armenia, who asked to recognize the movement of the child as illegal, as well as to return the minor to the country where he lived from the moment of his birth.
In the course of examining the evidence presented, the court found that the child arrived in the Republic of Belarus together with his father and mother, i.e. the decision to bring him to the country was approved by both parents. In addition, no documents confirming the applicant’s sole custody were presented to the court; on the contrary, during the judicial investigation it was established that the mother was the main caregiver of the child. Taking into account the fact that before the plaintiff filed an application for the return of the child, a decision was made to dissolve the marriage concluded between the parents and to determine the place of residence of the child in Belarus, the court found no grounds to satisfy the applicant’s claims.
Thus, an important element is the collection of evidence in the country of permanent residence of the child, which can subsequently be presented for evaluation by the court in the Republic of Belarus.
For this reason, in this kind of category of cases, we cooperate with lawyers and lawyers from different jurisdictions: only joint work can ensure the protection of the interests of the child, as well as provide legal assistance to principals at a high level.
Our family attorneys have extensive experience representing our clients in international child abduction cases. Our lawyers are ready to provide you with the following legal assistance in resolving a dispute on the illegal movement and retention of children:
– oral and written consultations on the return of children to the country of their permanent residence;
– representation and protection of interests in courts on issues of illegal kidnapping of children;
– representation and protection of interests in the Ministry of Justice of the Republic of Belarus.
If you have questions related to ensuring the return of the child, and you need help or advice from a lawyer, please contact our lawyers at the email address: info@familylawyer.by or by phone: +375293570355.
