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Guide to the International Child Abduction Procedure Central Authority for International Child Abduction

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Guide to the International Child Abduction Procedure Central Authority for International Child Abduction Guide to the International Child Abduction Procedure Central Authority for International Child Abduction This document provides a guide to the operation of the Dutch Hague Convention on the Civil Aspects of International Child procedure for incoming international child abduction cases Abduction. This Guide applies to cases in which a child has been within the framework of the 1980 Hague Convention on the Civil removed to the Netherlands or is retained here (so-called Aspects of International Child Abduction. This Guide is specifically ‘incoming cases’), irrespective of whether the country of origin is a intended for lawyers and describes the procedure to be followed contracting state or a non-contracting state.1 In such a case, the by the cooperating organizations engaged in handling an foreign central authority – in the case of contracting states – or the international case of child abduction to the Netherlands. left-behind parent 2– in the case of a non-contracting state – may For additional information about the operation of the procedure, request the Ca to take appropriate measures to secure the please contact the Ministry of Security and Justice, the Central implementation of the objects of the Hague Convention on the Authority International Children’s Issues (telephone +31 (0)70 370 Civil Aspects of International Child Abduction and the compliance 6252/fax +31 (0)70 370 7507; to be reached on working days from with International Child Abduction (Implementation) Act. 10.00 a.m. until 12.30 p.m.), and the International Child The basic principle of the Hague Convention on the Civil Aspects Abduction Centre (telephone +31 (0)88 - 800 9000 to be reached of International Child Abduction is to return the child to the State on working days from 9.30 a.m. until 4.30 p.m., and outside of his3 habitual residence, unless a ground for refusal exists. In business hours in case of emergency). order to prevent the effects of this Convention from eroding, this basic principle is enforced strictly in case law, whereby the This Guide has been drafted by the Dutch Central Authority grounds for refusal are interpreted restrictively. International Children’s Issues (Ca) in consultation with the Dutch Office of the Liaison Judge International Child Protection The basic principle is that the order to return the child - i.e. (The Hague District Court), Dutch Association of International a decision in which the Dutch court orders the return of a child Child Abduction Lawyers, an independent lawyer, and the to the State of his habitual residence - is a ‘disciplinary measure’; International Child Abduction Centre. the legal proceedings with regard to the custody of the child (the long-term situation) are conducted in the country of origin 1. International Child Abduction (the child’s habitual residence). A situation of international child abduction exists if the child has been wrongfully removed from or does not return to the State in 1 See Section 13 of the Implementation Act. which the child was habitually resident. The removal is considered 2 The foreign parent whose child has been abducted to the Netherlands. wrongful if it is in breach of the rights of custody of the State in 3 Where reference is made to the male gender, such reference also includes the which the child was habitually resident (Article 3 of the 1980 female gender. 1 Experience shows that mediation may solve problems and that it • To provide general information about the operation of the may improve the relationship between the litigating parents. Hague Convention on the Civil Aspects of International Child Much value is therefore attached to mediation, also in view of Abduction; the interests of the child. • To maintain contact with the foreign central authorities; • To control the procedure. 2. The organizations engaged in the procedure A more detailed discussion of these duties is provided below. Central Authority International Children’s Issues (Ca) • Legal profession 5. The Ca as a gatekeeper to provide several services • International Child Abduction Centre / Mediation Bureau Within the context of the procedure, the Ca may provide the • Legal Aid Board following services to the left-behind parent and the abducting • Judiciary parent: • Child Care and Protection Board • To provide state-funded mediation when this is taking place • Youth Care Agency prior to the pre-trial review or immediately after the pre-trial • Public Prosecution Service review; • To conduct a search of the Municipal Personal Records 3. Legal framework of international child Database in order to find the residence of the abducting abduction parent and the child; • International Convention on the Rights of the Child • To engage the Public Prosecution Service in order to locate the • 1980 Hague Convention on the Civil Aspects of International child; Child Abduction • To pay the costs for the translation of the documents received • European Convention on Child Abduction (Luxembourg during the intake phase from the foreign central authority or Convention) from the left-behind parent or this parent’s lawyer; • International Child Abduction (Implementation) Act • To establish and maintain contact with the foreign central • Brussels II bis Regulation authority in order to obtain information, for instance for the • 1996 Hague Convention on Jurisdiction, Applicable Law, purpose of obtaining a decision or determination in Recognition, Enforcement and Co-operation in Respect of accordance with Section 15 of the HCCH (see Section 8, under Parental Responsibility and Measures for the Protection of (g)) from the foreign central authority or, if possible, in order Children to obtain information about possible criminal prosecution • International Child Protection (Implementation) Act abroad or about matters under immigration law. • Dutch Code of Civil Procedure • Rules of Professional Conduct for the legal profession In order to gain access to the services mentioned above, the left-behind parent must submit an application for intervention 4. Role and duties of the Ca to the Ca (through the foreign central authority or the Dutch The CA is not involved with the content of individual cases, lawyer of the left-behind parent). If this condition/these except with regard to the intake (see below). conditions have not been satisfied, the Ca does not have the With reference to Article 7 of the Hague Convention on the Civil authority to act. The Ca bases its assessment on a limited review. Aspects of International Child Abduction, and in the light of the role and duties of the Ca mentioned above (overall This implies that the CA: responsibility), the Ca broadly has the following duties: • assesses the application for completeness and correctness; • To conduct a limited review on the conditions of the Hague • checks whether the child is younger than 16 years of age; Convention on the Civil Aspects of International Child • assesses the custodial relationship; Abduction; • ascertains whether consent has been granted; and • To establish whether the abducting parent and the child are in • ascertains whether the abducting parent and the child are in the Netherlands; the Netherlands. - to request an extract from the Municipal Personal Records The same review is used with regard to non-contracting states. Database of the abducting parent at the municipality of his If necessary, the Ca may request additional information/ presumptive place of residence documents from the foreign central authority or – in the case of - to engage the Public Prosecution Service in order to find non-contracting states – from the relevant authorities. out the child’s whereabouts if the child’s actual residence in The Ca explicitly does not deal with the assessment of whether a the Netherlands is not known; possible ground for refusal exists, as referred to in the Articles • To refer to the Mediation Bureau for the purpose of cross- 12, 13, and 20 of the Hague Convention on the Civil Aspects of border mediation (prior to the pre-trial review); International Child Abduction. This assessment is up to the • To refer the requesting parent to the International Child court to make, just as only the court can order the return. Abduction Centre, the Legal Aid Board, or a professional association for finding a specialized lawyer; 2 The left-behind parent is free to initiate legal proceedings of mediation it is desirable that the emphasis is put, in particular, together with his lawyer without the intervention of the CA. on bringing about an amicable solution to the dispute. This will result in the fact that – during the entire duration of the The Ministry of Security and Justice encourages mediation by proceedings – the left-behind parent or this parent’s lawyer will refunding a large portion of the costs. Mediation is provided by not have access to the services described above, with the the Mediation Bureau (linked to the International Child exception of the state funded mediation and the possibility of Abduction Centre). If the parties decide not to enter into the Ca establishing and maintaining contact with the foreign mediation or if the mediation did not result in complete central authority in order to obtain information, including the agreement, the lawyer will submit an application to the Hague request for a decision or determination in accordance with District Court In principle, a pre-trial review will be held by Section 15 of the Hague Convention on the Civil Aspects of a single judge at the District Court within two weeks after International Child Abduction (see Section 8, under (g)). submission of the application. The aim is to deal with the substance of the case, if necessary, during a second oral hearing In summary: An application for return may be submitted to the before a panel of three judges within two weeks. The basic Ca by a foreign central authority, the left-behind parent, or this principle is that the final decision will be issued two weeks after parent’s lawyer.
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