CHILD ABDUCTION: THE HAGUE CONVENTION AND CYPRUS LAW
Article by Pamela A. Evangelou
Child abduction, often referred to as child kidnapping or theft is the unauthorized removal of a minor from the custody of the child's parents or legally appointed guardians. The abduction of one’s child is a painful experience for any parent, but that anguish is compounded when the missing child has actually been removed from the country by an abducting parent. The fact that some children that are abducted and transported to other countries and are never returned, only intensifies the trauma suffered by parents who are victimized by such abductions. Such parents face a great amount of anxiety from the moment they become aware of the abduction until the child’s safe return to legal custody.
The Hague Convention on the Civil Aspects of International Child Abduction concluded on 25 October 1980 (the “Convention”) is a multilateral treaty that provides an expeditious method to return a child abducted by a parent from one member country to another (the “Contracting States”). The Convention was ratified by the Republic of Cyprus pursuant to the Convention on the Civil Aspects of International Child Abduction (Ratifying) Law of 1994 (“Law 11/94”). The EU Council also issued Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
ARE THERE CRIMINAL REPERCUSSIONS?
The Cyprus Penal Code Cap. 154, provides that whoever abducts a person from the Republic or from legal custody is guilty of a felony and is subject to seven years' imprisonment and a fine (Article 248). With regard to the illegal detention of a minor outside the borders of the Republic, Article 248.A provides that if a person continues to hold a minor outside the borders of the Republic, without the consent of his/her other legal guardians, such person shall be deemed to have illegally detained a minor outside the borders of the Republic and shall be guilty of an offense and, in the event of his conviction, shall be subject to a term of imprisonment not exceeding seven (7) years.
WHAT IS THE PURPOSE OF THE CONVENTION?
The purpose of the Convention is to ensure the immediate return of children who have been illegally transferred or detained in any of the Contracting States, and ensure that the rights of custody and communication under the laws of a Contracting State are respected, in an effective manner, by the other Contracting States.
WHO IS THE CENTRAL AUTHORITY IN CYPRUS?
The Ministry of Justice and Public Order has been appointed as the central authority in the Republic of Cyprus to exercise all the powers and responsibilities provided for by the Convention ratified by Law 11/1994.
HOW DOES ONE INITIATE AN APPLICATION in Cyprus?
Any proceedings in accordance with the provisions of the Convention, shall begin with the filing of an application supported by an affidavit in accordance with the provisions of the Civil Procedure Code.
WHAT SHOULD THE APPLICATION CONTAIN?
a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
b) where available, the date of birth of the child;
c) the grounds on which the applicant's claim for return of the child is based;
d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by:
e) an authenticated copy of any relevant decision or agreement;
f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
g) any other relevant document.
WHEN IS THE MOVEMENT OR DETENTION OF A CHILD CONSIDERED ILLEGAL?
The movement or the detention of a child is considered illegal if it is in violation of custody rights granted to a natural person, institution or any other organization, either jointly or exclusively, under the laws of the State in which the child had his habitual residence immediately prior to movement or detention, and/or if at the time of the detention or transfer, these rights were, in fact, exercised either jointly or exclusively or would have been exercised in this way if the transfer or detention had not taken place.
TO WHOM DOES THE CONVENTION APPLY?
The Convention applies to any child who has had his or her habitual residence in a Contracting State immediately prior to any breach of custody or communication rights. The Convention ceases to apply when the child reaches the age of 16.
HOW LONG DOES THE PROCEDURE TAKE?
The judicial or administrative authorities of the Contracting States shall carry out brief procedures for the return of the children. If the judicial or administrative authority dealing with the matter has not reached a decision within six weeksfrom the date of commencement of proceedings, the applicant or the Central Authority of the State from which the application is due has the right to request a report of the reasons for the delay. . If the Central Authority of the State from which the application originates receives a response, that authority shall forward the response to the Central Authority of the State from which the application originated or to the applicant, as the case may be. Therefore, the whole process should be completed in 6 weeks.
IS THE JUDICIAL OR ADMINISTRATIVE AUTHORITY BOUND TO RETURN THE CHILD?
The judicial or administrative authority of the State from which the application originates is not bound to order the return of the child if the natural person, institution or other organization opposing his return proves that:
1. The natural person, institution or other organization that had custody of the child did not in fact exercise the rights of custody at the time of the movement or detention or had consented or subsequently agreed to the movement or detention; or
2. There is a serious risk that the child’s return would put the child in physical or mental distress, or would otherwise place the child in an unbearable situation; or
3. If the child is opposed to his/her return and is already at an age and degree of maturity that suggests that his/her views ought to be taken into account.
4. If a person has given his or her consent to move the child to another country or if such parent did not give his/her consent before moving but gave it subsequent to the move.
5. There is a serious risk that the child would suffer from the other parent upon his/her return.
6. The parent who was actually left behind did not exercise custody at the time of the move or detention.
WHAT YOU CAN DO IF THE CHILD HAS BEEN TAKEN TO A COUNTRY THAT IS NOT A CONTRACTING STATE:
You may try to come to an agreement with the other parent or start legal proceedings in the courts overseas to have your court order recognised by a foreign court or to seek a new court order under the laws of that country. You will need to seek legal advice from a lawyer in that country regarding your options. You may also file for criminal charges against the abducting parent, either in Cyprus or in the other country noting however this may stall efforts to get your child back, and there are some countries that do not regard parental child abduction as a criminal act.
For more information you are advised to seek advice from a family lawyer.