October 31, 2015
Source: Today`s Zaman
In cases of child abduction by a family member, it is often the case that either the mother or the father takes the child (or children) to another country on vacation, never to return home.
For this reason, the number of child abduction cases spikes in the summer months; international child abduction is almost a seasonal crime in Turkey. I have written about child abduction and Turkish legislation related to this offense a couple of times before, but it is relevant to revisit the subject at this time of the year.
What is international child abduction?
It is basically the removal of a child from the home (usually by a parent before a divorce). According to the Hague Convention, “The removal or the retention of a child is to be considered wrongful where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention;
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”
It is important that custody rights are enjoyed and exercised jointly at the time of removal or retention. “Habitual residence” is the most important element of a child abduction case, as it defines the place where the child used to live before the abduction.
Is Turkey party to the Hague Convention on the Civil Aspects of International Child Abduction?
Yes, Turkey signed the Hague Convention on the Civil Aspects of International Child Abduction on Jan. 21, 1998. Provisions in treaties and other international agreements are incorporated into Turkey’s domestic law and cannot “operate directly” in the domestic sphere, the must be “transformed” into domestic law by ratification and approval of ratification.
Under Article 90 of the Constitution, the ratification of any international agreement concluded between states or international entities (such as public international organizations and the Republic of Turkey), shall be subject to adoption by the Parliament by a law approving the ratification. The convention entered the Turkish domestic code on Feb. 15, 2000, when it was published in Turkey’s Official Gazette (No. 23965).
Turkey signed the convention, but accepted Article 26 — governing costs — with modifications. This article stipulates that each government shall bear its own costs in applying the convention. Turkey has modified it as follows, “The Turkish Republic shall not pay judicial [including court proceedings] expenses, legal counsel, lawyers’ fees or any kind of expense or fee regarding the return of the child.” According to this amendment, Turkey’s government shall not be responsible for paying for the parties’ lawyers or other counsel’s costs; however, all other aspects of the convention have been incorporated into the Turkish legal code.
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