Due to the ease of international travel, the growing fashion in bi-cultural marriages and the boost in the divorce rates the international child abduction cases are increasing rapidly. The Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Convention”) is designed to protect the interests of the child, the most sensitive issue of international family law.
The Convention aims to combat parental child abduction cases by providing a system of co-operation between the party states and offering a swift procedure for the return of the child to the country of the child’s habitual residence.
Signed by Turkey in 1998 and entered into force the following year, the Convention protects right to access and right to travel by secures the immediate return of the abducted children to the State of their habitual residence.
In this respect, the Convention pre-accept that the wrongful removal or retention across international boundaries contradicts the interests of the child. Thus, the return of the child to the State of the habitual residence will advocate his or her interests by defending the right to have contact with both parents of the child.
The procedure of the returning of the child is carried out by cooperation of the Central Authorities of each Contracting State. According to the Convention, each party state has to designate a Central Authority, a specific government office that is carry out specialized obligations and duties that are set out by the Convention.
The Convention states that the Central Authority of the State is obliged to help the locating the child and take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child or an amicable resolution of the issues.
As per to the Article 7 of the Convention, either directly or through any intermediary action, Central Authorities obliged to take all appropriate measures to execute following responsibilities:
a) Discover the whereabouts of a child who has been wrongfully removed or retained;
b) Prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) Secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) Exchange, where desirable, information relating to the social background of the child;
e) Provide information of a general character as to the law of their State in connection with the application of the Convention;
f) Initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) Provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) Keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Central Authority for the Convention in Turkey is Ministry of Justice. As per to the Law No. 5717 which regulates the procedures and principles for the implementation of the Convention, obligations and the responsibilities set out by the Convention are fulfilled through the local Chief Public Prosecutors.
Returning of the Child
The Convention does not cover all children who might be subjected to the international wrongful takings or retentions.
Central Authorities has to inspect the detection of whether the child who has been abducted or retained falls within the scope of the Convention’s provisions. As per to the Convention the fundamental necessities may be summarized as follows;
- The applicant must have the rights of custody of the abducted children,
- The applicant must not have consented to the removal or retention,
- There must not be a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,
- The children must habitually resident in a Party State immediately before any breach of custody or access rights,
- The country that is the children abducted must be a Contracting State,
- The commencement of judicial or administrative proceedings must be made within one year from the time of wrongful removal or retention,
- The abducted child must not attain the age of 16 years,
It must be noted, even where the proceedings have been commenced after the expiration of the period of one year, the judicial or administrative authority also have to order the return of the child, unless it is proven that the child is settled in its new environment.
In case it is determined that the necessary conditions are satisfied after the return application, the Central Authority is bound to find the child and to secure the voluntary return of the child or to bring about an amicable resolution of the issues to facilitate the child’s return.
In this context, the Law no. 5717 specifies that all necessary precautions must be taken by the local Chief Public Prosecutor, including the identification of the place where the child is located, and the appointment of law enforcement agencies and other authorities for the protection of child interests.
If the returning of the child cannot be achieved by the consent of the parties, a court action must be filed. In this case, only the above-mentioned conditions are examined by the court. The Law no. 5717 prohibit the court from making a decision on the custody or guardianship.
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