Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Convention”) is a multilateral treaty seeking to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.
The Hague Convention on International Child Abduction and Its ObjectivesConvention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Convention”) is a multilateral treaty seeking to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.
In order for the Convention to be applied, there are two conditions that must be concurrently met. Firstly, the involved states should be parties to the Convention, secondly the child in question should not be older than 16 years old. The return proceeding set by the Convention may be initiated with an application in the state where the child’s habitual residence rests (“Requesting State”) or in the state where the child is being requested (“Requested State”).
Turkey has been a party to the Convention since 2000 whereby the Directorate General for International Law and Foreign Relations carries out its duties as the Central Authority for the implementation of the Convention acting through the Chief Public Prosecutors Offices.
Implementation of the Convention in Turkey and Certain ProblemsCentral Authorities cooperate with each other in order to secure prompt return of children and to achieve other objectives of the Convention as per Article 7. In that respect, where Turkey is the Requested State, upon reviewing the file against the conditions stipulated under the Convention, the first step that Turkish Central Authority takes is to instruct the law enforcement officers and other competent authorities to locate or to confirm the abducted or retained child’s whereabouts. However, sometimes this process may take longer than expected, especially if the abducting parent is actively and purposefully hiding the child from the left-behind parent and the authorities. It is even more difficult if the child has not yet reached the school age since there exist no school record to trace. That said, save for exceptional situations, the abducting parent usually takes the child where she/he has previous or current connections, i.e. his/her hometown, close to his/her relatives, friends or previous workplace. So this kind of information is crucial for locating the child and therefore should be included in the application to help authorities.
Upon locating child’s whereabouts, Central Authority of the State where the child is located ensures that all appropriate measures in order to obtain the voluntary return of the child is taken as per Article 10 of the Convention. In Turkey, the competent Public Prosecutor summons the abducting parent in order to resolve the situation amicably whereby the Convention, its purpose and the procedure are explained to the latter. In this meeting, the Public Prosecutor invites the abducting parent to return the child voluntarily to his/her habitual residence. According to the statistics published by the Ministry of Justice[1], out of 38 cases that were finalized in 2017 where Turkey was the Requested state, 18 cases were resolved voluntarily, which is a considerable figure that marks the importance of this step.
Should the Public Prosecutor conclude that the abducting parent is not willing to return the child voluntarily, then the former initiates a lawsuit before the competent family court on behalf of the Claimant, the Turkish Central Authority for the return of the child (“Hague Return Case”).
The left-behind parent may also join the proceeding as the Intervening Party and choose to be represented by an attorney. This is highly advised for the left- behind given that, in practice, it is sometimes seen that the public prosecutor and/or the trial judge may not be very well-informed of the Convention as it may be their first encounter with a Hague return case. Add to this, it is not uncommon for the Public Prosecutor involved in the case to be re-assigned to another position in the middle of the proceedings resulting in the appointment of a new public prosecutor to the case, prolonging and interrupting the process. Moreover, if the child is old and mature enough for his/her views to be taken into account as per Article 13/2, an expert would be appointed by the court who may be unaware of the parental alienation syndrome that is often experienced in abduction cases, which should be factored in when taking child’s view. Therefore, it is important for the left-behind parent to be represented by a legal expert who could follow up the process continuously and dedicatedly.
Another issue is that the trial courts have tendency to treat Hague return cases similar to a common custody case whereby court’s examination sometimes exceeds the boundaries set by the Convention. Particularly, when it comes to Article 13/b of the Convention stipulating the circumstances where a child’s return may be refused, Turkish courts have repeatedly interpreted the said article in its broader sense, in contradiction to Convention’s objectives. That said, such rulings are frequently seen to be overturned by the Appeal Court which has the advantage of being experienced and informed of the Convention as all appealed Hague return cases are seen by the same circuit of Appeal Courts, i.e. 2nd Circuit Court of Appeals.
Last but not least, as also experienced in many other contracting states, the Hague return cases are finalized not as rapidly as they are expected. When international statistics of 2015 are reviewed[2], of the applications that were decided in court[3], the average time taken to reach a decision was 179 days, despite the fact that a decision is considered “delayed” if it is not rendered within six weeks from the date of commencement of the proceedings as per Article 11 of the Convention[4]. This situation is no different in Turkey and the decisions are rarely given within less than a year by the trial courts.
Conclusion The Hague Convention is a very important legal instrument that is widely embraced by the international community[5]. In 2020, the Convention will mark its 40th Anniversary since its signature. Over these 40 years, numerous case law and significant amount of doctrine have accumulated concerning the Convention. Using this accumulation, all persons involved in these cases may work for the improvement of the Convention’s application in the best interest of the children involved.
[1] Directorate for Strategy Development of Republic of Turkey Ministry of Justice, February 2008, Annual Report of the Ministry, p. 122. Last accessed on 16 October 2019 at: “https://www.adalet.gov.tr/Bakanlik/FaaliyetRaporu/pdf/rapor2017.pdf
[2] Lowe, N., & Stephens, V. (2017, October). A statistical analysis of applications made in 2015 under The Hague Convention, p.21.
[3]
“In 2015, a total of 965 applications were sent to court, amounting to 48% of all those in which outcomes were known. 108 of these applications did not reach a final court decision – either because the case was still pending or because the parties reached another decision, for example, a withdrawal or voluntary return. The remaining 857 had reached a final court decision before the cut-off date of 30 June 2017. This equates to 43% of all applications in which the outcomes were known...”
“…Of the applications decided in court in 2015, 65% ended in a return, 28% in a refusal and 6% in orders for access or other voluntary agreements…”
Ibid., 13. [4] In connection with the delayed results, the age limit stipulated under Article 4 of the Convention which states that: “The Convention shall cease to apply when the child attains the age of 16 years.” is sometimes seen to be expired which results in the termination of the proceedings that have been ongoing for a long period of time.
[5] Number of Contracting Parties to this Convention is 100. Status table. (2019, February 19). Retrieved June 19, 2019, from https://www.hcch.net/en/instruments/conventions/status-table/?cid=24