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This guide is about the actions you should take if your child is kidnapped by its other parent.
The abduction of a child is every parent's worst nightmare. Not only is it extremely distressing but you know it is also going to be difficult to fix the problem, particularly when you may be living many thousands of miles away from the place to which the child has been taken.
With the increased mobility we find in the modern world and the increasing number of relationships formed between people of different nationalities and different cultures, it is not surprising that problems arise.
During an ‘ordinary’ divorce, where both parents continue to live in the same town, the question of who should have primary responsibility for looking after the children and the arrangements for giving the other parent the right to see them often cause endless trouble, heated arguments and much expense.
It is, of course, much worse when one of the parents will be living on the other side of the world and the opportunities for the parent who does not have day-to-day control of the children to see those children will be few and far between. If you add the problem that there may be cultural and religious differences between the parties - and a strong tradition in some places that the father has an inalienable right to bring up his children - then we can understand how these huge problems are amplified still further.
So it is not surprising that some parents, dissatisfied by the arrangements dictated by a court (or fearful of what they could be) decide to take matters into their own hands. This is wrong and dangerous but, sadly, it happens all too often: possibly about 250,000 per year around the world.
Fortunately, international law has kept pace - to a certain degree - with these developments and there are well-established remedies available where a child has been abducted.
In the case of international child abduction there are at least two and often three legal systems involved.
Sometimes a child is taken away to a foreign country even when both parents are of the same nationality and were resident in the same place. This is done in the somewhat desperate and usually ill-founded hope that distance will make it more difficult for the other parent to get the child back.
In this case, there will only be two legal systems involved: the law of the parents' country and the law of the country where the child has been taken.
In other cases, a child might be taken where the parents (and the child) are of different nationalities. In this case, the legal systems governing each of the parents and the child will be relevant and if (which is relatively rare) the child has been taken to a country which is not any of these countries, the legal system of that country too will come into play.
You can imagine that these different legal systems could well take a very different view of what is in the best interests of the child and which parent should have the right to have the child live with them.
This is where international law steps in.
In 1980 - after years of debate and thousands of heart-breaking cases of abduction - an international convention was adopted to regulate how these cases should be dealt with around the world.
This is the ‘Hague Convention on the Civil Aspects of International Child Abduction’. It has been adopted by 93 states - so only roughly half of the countries in the world, including Turkey.
It's important to understand that the convention does not change any of the legal rights of the parents or of the child. It only decides which country should decide the outcome of the dispute and provides for the return of the child to that country.
The convention requires the courts in all the countries that have signed up to it - including, of course, Turkey - to return the child to the country which is allocated jurisdiction under the terms of the convention.
Where a child was ‘habitually resident’ in a country that is a signatory to the convention immediately before a ‘wrongful action’, the courts must order the child to be returned to that country. It also requires them to do so quickly, with a decision being made within six weeks.
Needless to say, that does not always happen in practice and the situation in Turkey is less than satisfactory.
Habitually resident has its common sense meaning. It means that the child was normally resident in that country. If a child spends 40 or 50 weeks per year in a country and only goes away on holiday they will be considered to be habitually resident in that country. The test will be applied by looking at a period of several years but if, for example, the child spent the first ten years of their life in Spain and then the family moved to, say, Germany then - after a relatively short period - the child would be considered to be habitually resident in Germany. Evidence of the permanent move to Germany would include having a long-term home there, being registered in school etc.
A ‘wrongful action’ is defined by the convention. Being a legal definition it is lengthy but, basically, the removal or retention of a child is ‘wrongful’ when it is in breach of the rights of custody that a person has under the law of the State in which the child was habitually resident immediately before the abduction.
Note that the law covers both removal and retention. In other words, if one parent allows the child of which they have custody to travel to another country in order to see the other parent and that parent refuses to return the child (retains it), the rules in the convention will still apply.
The rest of this chapter assumes that the child was resident in one of the countries that has signed up to The Hague Convention immediately before the abduction.
It is important to understand that, with very few exceptions, if a child is taken unlawfully then they must be returned.
Many parents fear that the other parent will do something rash and abduct their child or - which is more often the case - refuse to return the child at the end of an agreed period of visitation. Fortunately, these fears are often ill-founded and derived from a combination of the natural desire to protect the child and excessive caution.
However, if you fear that the other parent might take the child there are some precautionary steps that you can take. These include:
Having high-quality, up-to-date photographs of the child
Taking copies of the child's passport. Better still, take a certified copy. How you obtain a certified copy will depend upon where you live but in most countries it involves having the copy marked as a true copy by a Notary or lawyer.
A copy of any court documents or agreements relating to your separation
A copy of any custody order or any documents relating to visitation (access)and rights
Keep the lines of communication open. Discuss your fears with the other parent
If you think there is an imminent danger of abduction, notify the police or public prosecutor
Other steps that can be taken some time in advance are to make sure that, in any court order relating to the custody of the child, you expressly acknowledge that the Hague Convention should apply and agree the arrangements for visits.
You might also consider an order that places the child's travel documents in safe custody.
If you have a court order of any kind, you will need to have several copies of it, preferably certified.
You also need to have as much information as you can about the child. This might include:
Full name (with alternative spellings) and any nicknames
Date and place of birth
Height (specifying the date upon which the measurement was taken)
Weight (again specifying the date)
Colour of eyes
Colour of hair - keep a few strands for DNA analysis if the need arises
Identifying features (scars, glasses, braces etc)
Any relevant medical information (for example, if the child is diabetic)
You also need to have information about the other parent. This might include:
Full name (with alternative spellings) and any nicknames
Date and place of birth
Nationality and place of residence
Full details of the passport or other travel documents. If the parent has more than one passport make sure you have details of all of them. The details will include passport number, date and place of issue and expiry date. Ideally, you should have a copy of each of the passports.
Current address and contact details
Names, addresses and contact details of relatives, especially those whom they would be likely to visit
Details of your marriage or relationship including the date of marriage or the commencement of the relationship
Date and place of separation or divorce and copies of the court documents involved
Current marital status
Height, weight and colour of eyes
Colour of hair - again, a few strands for DNA testing would not be a bad idea
Recent photograph, with the date on which it was taken
If you are worried about abduction, it is probably a good idea to download a copy of the relevant law in your own country and the Hague Convention - and, of course, to read it.
Of all of these things, the most important as a way of preventing abduction is to keep the lines of communication open. If you discuss your worries you may be reassured or you may have cause to worry further - in which case, further action can be taken.
It is not uncommon for the other parent to threaten to abduct the child. It is wise to take such threats seriously. If threats are made you should contact a specialist lawyer in your own country or the child protection services in your country. They can then advise you as to the steps open to you. These might involve going to court and would almost certainly involve warning your child's school and other relevant people that there might be a risk.
The first thing to say is that you should not panic. You will, of course, do so. However, fortunately, most children who are abducted are recovered quite quickly.
The first thing to do is to seek help. How you should do that will depend upon where you live.
In most countries, there are associations or self-help groups for people whose children have been taken away without their consent. Contact them but do not depend exclusively upon them. Self-help groups are a useful source of information but you will probably need to go to other people in order to recover your child.
If you are not sure whether the child has yet been removed from your country your first contact should be with the police. This is whether a Hague Convention country is involved or not. In most countries, there is a specialist department that deals with these cases and appreciates the urgency and significance of them. For example, in the United States the FBI has a specialist division.
The reason for contacting the police is that they may be able to issue an immediate arrest warrant and so prevent the removal of the child from the country.
If you have already been engaged in court proceedings, you might want to go back before the civil court for an order prohibiting the removal of the child from the country – even if it might be too late.
You may want to contact the police or civil courts via a lawyer, who will probably be able to get to the heart of the problem more quickly than you would on your own.
The next people to contact - either yourself or via your lawyer - are the people who have been designated in your country as the ‘designated central authority’ (DCA). Under The Hague Convention, each signatory country has to designate a central point of contact for use in international abduction cases. A full list of these can be found here. For example, in the United States it is the US Department of State Bureau of Consular Affairs Office of Children's Issues. In the UK, it is (for England and Wales) the Foreign Process Section of the High Court in London. In France, it is the Ministry of Justice in Paris. The point of mentioning this is that the nature of the designated authority varies quite a lot from country to country. However, the main point is that the authority you should contact is the authority in the country where you are living, even if you know or suspect that the child has been taken abroad.
If the child has been taken from Turkey, the DCA is the Ministry of Justice. The people who will deal with it are the Child Abduction Unit.
The designated authorities are used to dealing with these applications and will usually have guidance leaflets and other materials available to assist you.
Taking action in these cases needs to be done quickly and it needs to be done correctly the first-time round. For these reasons it is usually a good idea to involve a specialist advisor - usually a specialist lawyer - to assist with your application and guide you generally at a very stressful time.
The law here is complicated and you will be dealing with multiple jurisdictions, often where there are language issues.
As I've already said, Turkey is a signatory to The Hague Convention but, unfortunately, the courts here seem to be less than cooperative when it comes to observing the requirements of the Convention and, in particular, when it comes to doing so quickly.
The European Court of Human Rights (ECHR) has found that Turkey has several times violated the rights of parents by not returning children who have been abducted and taken to Turkey by the other parent. The actions taken as a result of these findings have, sadly, been rather toothless.
Five years of litigation led to an unsatisfactory conclusion: Turkey was forced to pay damages to the left-behind father in the US, but the abducted child stayed in Turkey.
Whether through lack of training, lack of experience or for other reasons the judges often adopt the wrong approach to such cases. They insist on carrying out an often lengthy ‘best interests’ evaluation. This means that they consider whether it is in the best interests of the child to remain in Turkey or to be returned to the country in which they were resident.
This is completely against the provisions of The Hague Convention, which makes it quite clear that it is the responsibility of the courts to order the return of the child to the country in which they were habitually resident. It is for the courts in that country to decide the child's long-term future.
Because of this tendency, it is very important that you engage the services of a lawyer who is experienced in dealing with cases of this type so that this point can be made very forcibly and very early in the proceedings. This can be done in writing or, if that fails, ideally at the first hearing of the case. That will normally occur within four weeks of the complaint being made. Once the court has made a bad decision it is hard to get it changed.
Sometimes it might require an emergency application to our Administrative Court to order the court to apply the law properly.
If you go down the route of a ‘best interests’ evaluation then it can take a year or more for a decision to be made. With every day that passes, it is easier for the other parent to argue that the child has a strong connection with Turkey.
Under the provisions of The Hague Convention you should start your quest for the return of your child in your country via the central authority. However, this does not stop you also engaging a lawyer in Turkey and the central authority will usually respect your wish to use the services of that lawyer, particularly if they're known to be experienced in the field.
I have mentioned several times the need to take action quickly and, usually, a parent who has lost their child is more than keen to do this. However, you do need to be aware that delay can seriously damage your case. If you wait more than one year after the date of the abduction of your child, your rights under The Hague Convention will be seriously limited.
As we have seen, there have been cases where Turkey’s enforcement of parents’ rights has been unsatisfactory but – if an order is made and the other party does not comply with it – the parent who has obtained the order can apply for enforcement of the order via the Enforcement Court.
The target timescale set out in The Hague Convention is six weeks but this will very seldom be achieved in Turkey.
If all goes well and the judge accepts the fact that he or she should not be undertaking a ‘best interests’ evaluation you should think in terms of about two to three months.
If the other parent wishes to be difficult (and, especially, if they can persuade the court to do a ‘best interests’ evaluation), the time spent by the courts of Turkey is likely to be well over a year and, if the case then needs to be appealed, it can take as long again. During this time the child will almost certainly be kept in Turkey.
It is impossible to predict the cost of taking legal action.
The designated central authority will not make any charge for its work but it only administers the process and cannot give you legal advice.
Some lawyers feel so strongly about the issue of child abduction that they will do this type of work either pro bono (free) or at a greatly reduced cost but, in the worst scenario, cases of this kind can be hugely time consuming and therefore expensive.
Therefore, the bills can amount to many thousands of euros, pounds or dollars.
There is no form of subsidised legal assistance (legal aid) available for this type of work in Turkey.
There is no doubt that child abduction is a horrible experience for both the parent and the child. It happens thousands of times each year.
However, by taking prompt action and using the right people there is usually a good outcome in that the child is recovered.
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I hope you have found this guide useful. If you need any further help, please contact me.Başak Yıldız Orkun 25 July 2017
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