HAGUE CONVENTION ON ASPECTS OF INTERNATIONAL CHILD ABANDONMENT, DATED 1980
The article covers the place and significance of the Hague Convention on Aspects of Child Abduction (the "Convention") of October 25, 1980, in Turkish and German criminal law, the process for returning a child abducted abroad to their habitual residence, and the Convention's relationship with other international agreements.
Legal disputes regarding international child abduction and the return of abducted children to their habitual residence constitute the subject of this Convention.
Today, the coming together of people of different nationalities to form families is increasingly common. Unfortunately, some of these marriages end in divorce. In cases of divorce, parents not only usurp the other spouse's custody rights by abducting their children to their home country but also prevent them from seeing the child.
According to the Convention, the crime committed by parents who take their children to their home country cannot be considered equivalent to the crime of child abduction in criminal law. Indeed, the mother or father is not acting against the child's will. The Convention does not address criminal penalties in cases of child abduction. Penal sanctions are left to the countries' own criminal laws. This issue will be examined comparatively in Turkish and German criminal laws later.
General Content of the Convention
The Hague Convention was signed on October 25, 1980, at the 14th Hague Conference. 79 countries participating in the conference signed and became parties to the convention. Subsequently, 24 countries signed and became parties to the convention. A total of 104 countries are currently parties to the convention.
First, Article 1 of the Convention defines the scope of the convention. Accordingly, the subject of the Convention is the resolution of problems arising from international child abduction.
According to Article 1 of the Convention, an abducted child must be returned without delay to his or her habitual residence and to the place where he or she was accustomed to living (gewöhnliche Aufenthaltsort). The most important factor in determining a child's habitual residence is where the child previously and continuously lived.
The most important purpose of returning a child to their accustomed and previously resided place is that (i) the courts of the country where the child previously resided should be the ones who will decide on custody of the child. Only these courts can impartially, fairly, and expeditiously decide whether the child will remain in custody of either parent. (ii) The courts should ensure that the child overcomes the divorce process of their parents with the least amount of harm.
The most important factor to consider here is the timeframe. The child's return must be requested before they have adapted to the social and cultural life of the country from which they were abducted. Otherwise, the process of returning the child becomes even more challenging.
Articles one through five of the Convention define the scope of the Convention.
Article three emphasizes the circumstances in which the removal and detention of a child to another country is unlawful.
The country of habitual residence is the country that will handle the child's return proceedings. According to Article four of the Convention, the country of habitual residence shall apply to the administrative and judicial authorities of the country from which the child was abducted for return proceedings. It also states that the Convention cannot be applied to children over the age of 16 (sixteen).
Penal Sanctions for Child Abduction in the German and Turkish Penal Codes
The crime of child abduction is regulated by different penal sanctions in Turkish and German criminal law. Comparing the two different penal codes and identifying the differences will help us understand the importance of child abduction, which the Convention aims to prevent.
First, when we examine the meaning of the concept of abduction, it refers to the taking of a minor to another location against the will of their parent, guardian, or the person under their care, and placing them under the influence and control of the abductor. Abduction is the act of forcing a person to move from one place to another, under the physical or psychological influence of another person, against their will. The important point here is that a person is taken to another place by force and against their will.
The crime of abduction and detention of children in the German Penal Code ("ACK") is regulated in Article 235/I StGB of the ACK. Accordingly, offenders who abduct individuals under the age of 18 (eighteen) from their families or guardians by force and violence are subject to imprisonment of up to five years or a fine.
According to Article 235/II StGB, if a child is abducted from their parents, guardian, or caregiver and taken abroad, or if the act is carried out with the intention of detaining them after being taken abroad through legal means, they are subject to imprisonment of up to five years or a fine, as stated in the first paragraph.
Furthermore, Article 235/4 of the ACK stipulates that the penalty will be aggravated if the abduction results in the death or serious injury of the child.
The abduction of a child abroad, which is the subject of the Convention, or the attempted unlawful detention of a child in another country after being taken there by legal means (for holidays, etc.), is punishable by criminal sanctions under the Turkish Penal Code (ACK).
In contrast, Article 234 of the Turkish Penal Code (TCK) states that if a child under the age of 16 (sixteen) is abducted or detained by a parent or guardian, by a parent whose parental authority has been revoked, or by a blood relative up to the third degree, these persons shall be sentenced to imprisonment of three months to one year.
However, if the acts constituting the crime are committed by force or duress, or if the child is under the age of 12 (twelve), the penalty shall be doubled.
The TCK has codified the crime of abducting children abroad by family members, which is the primary purpose of the Convention, thus facilitating its implementation in our country. Under the Convention and the Turkish Penal Code, the mother or father cannot abduct or detain a child abroad before custody proceedings are finalized.
The first striking difference when comparing the Turkish Penal Code (TCC) and the Turkish Penal Code (TCC) is that the minor must be under 18 (eighteen) years of age in the TCC. However, this age limit is set at 16 (sixteen) in the TCC. Another difference is that the TCC does not specify a minimum age for offenders. In contrast, the TCC stipulates a minimum sentence of three months. Finally, the TCC considers causing the death or injury of a child during the abduction as an aggravating factor. However, Article 234 of the TCC does not address the killing or injury of a child.
Custody of an Abducted Child
Article 8 of the Convention regulates the process of returning an abducted child to the country of his or her habitual residence. The purpose of returning a child is to return him or her to the country where he or she maintains social life. Thus, the competent court of the place where the child's habitual residence is located will consider and evaluate the custody rights of the parents. There are no regulations under the Convention regarding who will be granted custody. The Convention only aims to ensure the return of internationally abducted children to their country of habitual residence.
The decision regarding the custody of the individual is left entirely to the competent courts and the laws of the country to which these courts are subject.
The decision regarding the return of the child under the Convention does not affect the custody decision of the competent court of the place where the child's habitual residence is located.
The determination of the competent and competent court is made in accordance with Article 1 of the International Family Law Regulation ("Regulation"). Article 11, Paragraph 1, Subparagraph 4 of the Regulation states that the competent court is the family court of the place where the child's habitual residence is located.
Requirements for the Urgent Return of a Child Abducted
1. Return Application Pursuant to Article 8 of the Convention
First, a return application is submitted pursuant to Article 8 of the Convention. The application must include the child's identity and the child's likely address in the country of abduction. The competent authorities of the child's habitual residence or the highest-level competent authority of another member state may also submit an application. The Ministry of Justice ("Ministry") is the highest authority responsible for implementing the Convention in our country. The Ministry fulfills this duty through local Chief Public Prosecutor's Offices. Return procedures for children illegally abducted across the borders of the Republic of Turkey are carried out by Chief Public Prosecutor's Offices. After completing the necessary documents for the application, the Chief Public Prosecutor's Offices forward them to the Ministry for transmission to the country from which the child was abducted.
The authority receiving the application immediately forwards the application to the highest competent authority in the country where the child is located.
According to Article 15 of the Convention, the institutions of the country where the minor is located may request documentation confirming that the child's presence in that country is unlawful.
2. The Necessity of a Prompt Application
The necessity of applying for return without delay to the country from which the child was abducted is explained by the following reasons:
To return the child to the new country without causing them to feel alienated.
To prevent the child from forgetting their estranged parent.
To avoid the need for custody cases to be heard in the new country. Generally, the country from which the child was abducted is the home country of the abductor. It is important to consider that it will be very difficult for a person requesting the return of the child to defend their rights in a foreign country and will have difficulty adapting to the foreign legal system. Indeed, these challenges include not only legal difficulties but also linguistic and cultural ones. Considering all these factors, filing a custody case in the country from which the child was abducted would be contrary to the principle of a fair and impartial trial.
Article 11 of the Convention stipulates that the competent authorities of all Contracting States must act urgently to ensure the return of an abducted child to their country of habitual residence.
The judicial or administrative authority to which the application is made must issue a decision within six weeks. If this timeframe is not met, the authorities of the applicant country may inquire with the authorities of the other country to explain the reason for the delay and request documentation for this purpose.
3. Time Limit
According to Article 12/2 of the Convention, even if one year has passed since the child was abducted, competent authorities may request the return of the child from the country from which they were abducted. However, this request may be rejected if the child is able to meet their basic needs in their new place of residence. This refers to situations such as the child having made friends or starting school. The primary objective here is to prevent the child from being removed from their place of residence. This article of the Convention aims to protect the child's future and psychological well-being.
4. Reasons for Refusal of Return Requests
As previously explained, the authority to which the application is submitted may reject the application pursuant to Article 12 of the Convention.
An authority rejecting the application pursuant to Articles 13 and 20 of the Convention must explain the reasons for this action. Judicial and administrative authorities may renew their requests for the return of the child despite their application being rejected, in accordance with Article 18.
Refusal of the application should be explained by the following reasons:
The failure of the person or institution with custody of the child to fulfill their obligations, or the fact that they consented to the child's departure to another country, either before or after leaving the country, constitutes grounds for rejection.
The rejection of the application must be explained by the following reasons:
The failure of the person or institution with custody of the child to fulfill their obligations, or the fact that they consented to the child's transfer to another country, either before or after leaving the country of residence, constitutes grounds for rejection.
If the situation resulting from the return of the child endangers the child's physical or psychological health, the relevant judicial or administrative authority may reject the request for the child's return. Allegations of physical or psychological threats to the child must be determined by the competent court.
According to Article 20 of the Convention, an application for return may also be rejected due to inadequate human rights and freedoms in the country to which the child is to be returned, or the failure to protect these rights.
The Relationship of the Convention with Other International Agreements
While the Convention does not rely on other international agreements as a basis, it recognizes all national and international agreements that will ensure its use.
Therefore, examining the relationship between the Convention and other international agreements will be helpful in understanding the importance and application of the Convention.
European Convention on Human Rights
Article 8 of the European Convention on Human Rights ("ECHR") is the regulation that facilitates the application of the Convention. The return of an abducted child is also a matter covered by Article 8 of the ECHR.
International child abductions are also regulated by the norms of the United Nations Convention on the Rights of the Child ("UNCRC"). The most important point here is that states make the most appropriate decision regarding the abducted child and the parents when applying for the return of a child. When making decisions by judicial and administrative authorities, the child's well-being and safety must be the primary consideration. Furthermore, the constitutional rights and freedoms of the country to which the child is to be returned must be carefully considered. It should not be forgotten that otherwise, irreparable harm will result for the child.
Therefore, the ECHR and the Convention are complementary and can be used in conjunction with each other.
United Nations Convention on the Rights of the Child
The UNCRC was drafted by the UN General Assembly to protect children's rights and was adopted by the General Assembly after a vote. This Convention entered into force on September 2, 1990.
The UNCRC defines the child as an "independent and precious" being. This Convention addresses the protection of the child and the necessary measures to achieve this. Member states are obligated to take the necessary measures and measures regarding children's rights within the framework of the UNCRC. This Convention is internationally binding.
In this context, the UNCRC facilitates the use of and supports the Hague Convention on International Child Abduction.
However, the preamble to the UNCRC, which states that the child's wishes always take precedence, may complicate the use of the Convention. Indeed, even if a child does not wish to be returned, they can be returned to the country of their habitual residence. This contradicts the UNCRC, as the UNCRC prioritizes the child's wishes and desires and stipulates that they must be acted upon.
The necessity of returning a child to the country of their habitual residence is not to protect the rights of the mother or father, but rather to prevent the child from being removed from their place of residence.
The UNCRC has an age limit of 18 (eighteen). However, the UNCRC is not applicable to individuals who have acquired legal capacity. Because legal capacity is acquired earlier in some countries' civil laws, the UNCRC cannot be used to address human rights violations. In contrast, the Hague Convention on International Child Abduction can be used until the child reaches the age of 16 (sixteen). The earlier acquisition of legal capacity by a child does not affect the validity of the Convention.
In Germany, the UNCRC has a rather limited impact. It only contains binding international agreements, but it is not used.
European Union Regulation No. 2201/2003
European Union Regulation No. 2201/2003 ("Regulation") regulates the recognition and enforcement of family law cases, the determination of competent judicial bodies, and the responsibilities of family members in litigation.
The Regulation not only ensures the protection of children within the European Union but also aims to ensure regular and personal contact with their parents. The child's right to express their personal opinions during the proceedings is also protected by this Regulation.
The Regulation is used to prevent child abductions within the European Union. Furthermore, the Regulation addresses the gaps in the Hague Convention. In the event of disagreements between the Hague Convention and the Regulation, the Regulation takes precedence.
Hague Convention for the Protection of Minors
The Convention for the Protection of Minors ("CCP") was drafted on October 5, 1961.
The CCP regulates the protection of the personal rights and property of minors. During this protection, the child's legal relationship with their family is regulated by observing public and private law.
The return of an abducted child falls within the scope of the CCP. However, the CCP is only used in child abduction cases occurring within member states.
The Convention addresses the shortcomings of the CCP. Furthermore, it has priority for use in matters falling within the scope of application between the parties to the Convention.
European Custody Agreement
The European Custody Agreement ("Custody") entered into force on May 20, 1980. However, implementation of this agreement in our country took some time. The Agreement regulates the recognition and enforcement of custody decisions issued by judicial and administrative authorities.
In any international child abduction case, the Convention should be used before the Treaty. The Hague Child Abduction Convention takes precedence.
However, the Convention does not address the recognition and enforcement of custody rights granted by judicial and administrative authorities.
When examining the Treaty and the Convention, it can be easily determined that both aim for the same goal and that both can be used together in disputes.
Conclusion
Some marriages formed by citizens of different countries end in divorce. As a result, disputes arise between the parents over child custody. As a solution to these disputes, the child is abducted from the other parent and taken to the mother or father's home country. However, the other parent's rights, such as the right to see the child and custody, are violated. This is precisely where the Convention comes into play, emphasizing that the child must be returned to his or her habitual residence. The issue of child custody is outside the scope of the Convention. Disputes over custody are referred to the competent family court of the place of habitual residence.
The most crucial point in return proceedings is the requirement that an application for return be filed with the country from which the child was abducted without delay after the child's abduction.
Another important point is that international agreements and conventions support each other and address each other's shortcomings. Furthermore, they ensure that national laws are regulated accordingly.
Av. Dr. Anıl Coşkun, LL.M
The copyright for all articles and content on our website belongs to Attorney Anıl Coşkun. All articles are electronically signed and time-stamped to verify copyright ownership. Unauthorized copying or summarization of articles from our website and publication on other websites will result in legal and criminal action.