Convention on the Civil Aspects of International Child Abduction: General Provisions
Unfortunately, there are times when one of the parents, or another person, takes the child out of the country of his permanent residence or illegally keeps him in another state. This often happens in international marriages, when the parents are citizens of different states. In such cases, we are talking about international child abduction.
On October 25, 1980, the Hague adopted the Convention on the Civil Aspects of International Child Abduction. Since April 1, 1998, the provisions of this Convention have become binding on the Republic of Belarus as well.
The countries-parties to the Convention are Brazil, Argentina, Armenia, Great Britain, France, Switzerland, Sweden, Estonia, Japan and a number of other states.
The Convention proceeds from the priority of the interests of the child in case of illegal transportation to a country other than the country of his usual residence, as well as illegal retention in a foreign state. The objectives of the Convention are to assist in the return of the child to his country of permanent residence. For this, in accordance with the provisions of the Convention, Central Authorities for the Return of Children have been established in the participating countries.
In the Republic of Belarus, the functions of the Central Authority are entrusted to the Ministry of Justice, in particular, to the Department for the Execution of International Treaties of the Department of International Cooperation.
Conditions for the application of the Convention on the Civil Aspects of International Child Abduction
The Child Abduction Convention applies subject to three conditions:
– at the time of the abduction, the child had not reached the age of 16;
– the child resided in a country party to the Convention and was illegally transferred to a country party to the Convention;
– the rights of custody of the child were fully exercised or would have been exercised if the child had not been abducted.
Guardianship rights are understood as taking care of the child’s personality, including the right to determine his place of residence.
Illegal export and illegal retention of a child
Relocation and retention of a child will be considered illegal if these actions violate the rights of custodians of the child to live with the child.
The right to live with a child can be established by a court decision. If it is violated to the detriment of the interests of the child and the second parent (adoptive parent, guardian, guardian), then the provisions of the Convention on the Civil Aspects of International Child Abduction of October 25, 1980 will apply.
Functions of the Central Authority for the Return of Children
The central authority, after accepting the application, appeals to the relevant authorities of the foreign state where the child was taken out, through which the child is searched for and returned to his homeland. In addition, the Central Authority is obliged to take measures to prevent violations of the rights and interests of the child, to prevent harm to his physical and mental development.
The functions of the Central Authority also include actions to resolve the dispute between the parents, in particular, it is proposed to resort to mediation. The purpose of mediation is to voluntarily resolve differences and make a decision that suits both parties.
The central authorities of the States parties to the Convention should cooperate with each other to exchange any information relevant to the return of the child to his or her home country.
The central authority is also called upon to initiate judicial or administrative procedures for the return of the child to the country of permanent residence. It should be noted that the Central Authorities have the right to involve law enforcement agencies (local police) to search for a child if his whereabouts are unknown.
Documents for the return of the child to the country of permanent residence
In order to initiate the process of returning the child, one of the parents, or another person in custody of the minor, must submit an application for the return of the child to the Central Authority.
The application must be submitted in original with a translation into the language of the requested state. Also attached to the application are documents related to the case:
– birth certificate of the child;
– certificate of divorce of parents;
– a court decision on the child’s place of residence;
– other documents.
Deadlines for the return of the child to the country of permanent residence
The application must be submitted to the Central Authority as soon as possible, that is, from the moment when the person became aware of the illegal removal of the child. As a rule, it is desirable to initiate the process of returning the child within a period not exceeding 1 (one) year of the child’s residence in another state.
If the child has been living in another state for more than one year, then there is reason to believe that he has assimilated in the new country, and the return of the child to the country of permanent residence is inappropriate.
In order to prevent the abduction of a child, a parent can apply to the court of his state to establish a ban on the child’s travel abroad. Such a prohibition is entered into the database, and the border service authorities, upon detecting a prohibition, are not entitled to allow the child to cross the border.
If you have any questions related to the abduction of children, and you need help or advice from a lawyer, please contact our lawyers by e-mail: info@familylawyer.by or by phone: +375293664477.
