Since the issue of international child abduction and return of children, which especially occurs after the dissolution of marriages that include foreign elements, does not fall within the scope of the law of a single state, regulations have been made on this issue through international agreements.
The 1980 Convention on the Legal Aspects of International Child Abduction includes regulations on international child abduction and return of abducted children. The aim of the Convention is to ensure the return of a child who has been unlawfully abducted or retained from the country of habitual residence to the country of habitual residence, provided that the best interests of the child are taken into consideration.
According to the 1980 Convention, the first issue that needs to be clarified is what is meant by the concept of international child abduction. International child abduction is the wrongful removal or retention of a child to a country other than the country of habitual residence by a person who has the right of protection or visitation over the child. It should be noted that in order for the 1980 Convention to be applicable, the country of habitual residence of the child and the country where the child was abducted or detained must also be a party to the Convention. In addition, the Convention only provides administrative regulations regarding the return procedure in international child abduction cases and does not have any provisions regarding judicial processes. In other words, in international child abduction cases, the judicial process is left to the domestic law of the state party to the Convention.
The concept of habitual residence, which is ambiguous according to the Convention, also needs to be clarified. However, there is no definition in the doctrine as to what habitual residence is. Unlike domicile, habitual residence is not the place where a person resides with the intention of staying permanently. A place may be a person’s habitual residence even if there is no intention of staying for a long time. Therefore, habitual residence refers to a de facto situation.
It should be noted that the 1980 Convention is a legal aid agreement. In clearer terms; the convention imposes an obligation on the party states to appoint a central authority to carry out the extradition procedure and foresees that the extradition will be carried out as soon as possible and based on international cooperation. Since the convention is not a recognition and enforcement convention, there is no need for the recognition and enforcement of rights such as guardianship and custody within the scope of the convention. In relation to the issue, the 2nd Civil Chamber of the Court of Cassation has ruled as follows in a decision;
According to the Convention, in order for a child to be returned to the country of his/her habitual residence, there is no need for a previous decision on custody or the right to establish personal relations, obtained from the authorities of the country of his/her habitual residence, and if such a decision exists, there is no obligation for it to be recognised or enforced in the state to which the child was wrongfully removed or retained.[1]
The Convention also regulates the right to protection. The right to protection, which is different from the right to custody of the child but also includes the right to custody, also provides the opportunity to determine the place of residence of the child. According to Article 5 of the Convention; “Right to Protection” includes the right to care for the person of the child and especially the right to determine the place of residence. The European Court of Human Rights evaluates the right to protection within the scope of the positive obligations of states and the disputes referred to the Court are generally resolved within the scope of the Right to Respect for Private and Family Life stipulated in Article 8 of the European Convention on Human Rights. In its decisions, the European Court of Human Rights emphasizes the obligation of the states party to the 1980 Convention to carry out the procedure for the return of children as soon as possible and by taking into account international cooperation. In the Iglesias Gill and A.U.I. v. Spain decision of the European Court of Human Rights, the applicant alleged that the Spanish administrative authorities failed to carry out the procedures that would provide for the return of the judicial decisions regarding the granting of custody of their common children, which their father had taken to the United States, to the applicant. The applicant alleged, in particular, that the authorities had failed to take action in relation to the complaint of abduction. The Court also stated in its decision that the Spanish administrative authorities had failed to take measures for the return of the child and that the right to respect for family life had been violated.
The Court noted in its decision that the authorities had implemented the appropriate measures foreseen in the relevant provisions of the Hague Convention of 25 October 1980 to ensure the return of the child to his mother, but concluded that a rights violation had occurred since no measures had been taken to ensure the implementation of the decisions taken in favour of the applicant and her child. In other words, the situation cited as the justification for the rights violation was the negligence of the Spanish authorities in their duty to enforce judicial decisions.[2]
In our domestic law, Law No. 5717 on the Legal Aspects and Scope of International Child Abduction has been enacted in accordance with the 1980 Convention. According to the said Law, the central authority responsible for carrying out the administrative procedure in international child abduction cases is the Ministry of Justice. When we look at the decisions of the Court on applications made from Turkey to the European Court of Human Rights, it is emphasized that the Turkish authorities did not show the necessary diligence in the return processes. In its decision Övüş v. Turkey, the European Court of Human Rights stated that the right to a fair trial stipulated in Article 6 of the Convention was violated because the applicant living in Germany was not informed of the divorce case filed by her spouse living in Turkey. Again in the same decision, the Court stated that the national authorities should have made sufficient efforts to respect the applicant’s right to visitation, at least in a way that would allow her to establish contact with her children, and concluded that there was a violation of the right to respect for family life guaranteed by Article 8 of the ECHR in the specific case.[3]
In cases where a child is wrongfully removed or detained from his/her country of habitual residence to another country, the rule is to return him/her to his/her country of habitual residence as soon as possible, however, in some cases where the best interests of the child require it, the request for the return of the child may be rejected by the competent central authorities even if the relocation is unjust.
Under the 1980 Convention, the competent authorities are not obliged to order the return of a child if they determine that there is a serious risk that the return would expose the child to physical or psychological danger or otherwise place him in an intolerable situation. In the decisions of the Turkish courts regarding this article of the Convention, the existence of a grave danger that would necessitate refusal of return is sought. When interpreting the existence of an intolerable risk, the existence of such a danger is sought to be based on definite findings documented by experts beyond any doubt.[4]
As a result, in cases of international child abduction through unjustified removal or retention, the Contracting States must carry out the return procedure as soon as possible and in the best interests of the child within the scope of the return procedure. Contracting States that fail to properly implement the return procedure provided for in the 1980 Convention will be acting contrary to the positive obligations imposed on them by the Convention.
REFERENCE
Özdemir, F. B. (2019). Uluslararası çocuk kaçırma ve kaçırılan çocukların iadesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 25(2), 1164-1189.
Convention on the Civil Aspects of International Child Abduction, 1980 AND Related Legislation
[1] Özdemir, F. B. (2019). Uluslararası çocuk kaçırma ve kaçırılan çocukların iadesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 25(2), 1164-1189.
[2] Özdemir, F. B. (2019). Uluslararası çocuk kaçırma ve kaçırılan çocukların iadesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 25(2), 1164-1189.
[3] Özdemir, F. B. (2019). Uluslararası çocuk kaçırma ve kaçırılan çocukların iadesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 25(2), 1164-1189.
[4] Özdemir, F. B. (2019). Uluslararası çocuk kaçırma ve kaçırılan çocukların iadesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 25(2), 1164-1189.