International Child Abduction

INTERNATIONAL CHILD ABDUCTION DURING THE INTEGRATIONAL PROCESSES OF MOLDOVA AND ITS WESTERN NEIGHBOURHOOD: JURISPRUDENCE AND DISCREPANCY

Overview

The migration phenomenon increased over the past years, especially during the European integration processes the Republic of Moldova is a part of. Since 15th of June 2010, the EU-RM dialogue on visa-free regime became the main premise of Moldovan strategic documents.

The advantages brought by the implementation of integrational plans contributed to a progressive development of the society, as so a range of reforms were implemented and multiple judicial mechanisms on migration were adopted and harmonized in accordance with European standards.

Definition

What does it mean “international child abduction” in the context of integrational processes? In our opinion, it might be analyzed by several aspects – the purpose and the circumstances.

First, based on the research realized by the Department for combating trafficking in human beings of the Ministry of Internal Affairs, besides the divorce aspects, child abduction is realized with the purpose of sexual exploitation, labour exploitation or trafficking of organs. This topic is very sensible for Moldova especially if we take into account the statistic data monitored over the past ten years. In 2007, Moldova was dealing with 42 cases of children trafficking. The judicial practice shows that for the Community of Independent States child abduction is realized with the purpose of begging, while for the European Union and Balkan states, child abduction is realized with the purpose of organs’ traffic.

Secondly, the circumstances leading to the development of child abduction stems from the positive, at the first sight, outcome of visa-free regime which contributed to the intensification of child mobility by crossing the state border. Often, the divorce is the driving force to empower child abduction by their own family members, because parents do not know all legal aspects referred to child mobility and the return of child in time at his or her habitual place of residence.

Also, NGOs noted an increase in the commercial sexual exploitation of Moldovan children by foreign tourists combined with the alarming trend of Internet, used as a tool for recruitment and exploitation. Most often, the alleged child sex tourists are from Norway, Italy, Germany, Sweden, Denmark, Thailand, Australia, Israel, and the United States. Forced begging was on the rise in 2012. While sources indicate similar human trafficking problems in the separatist “Transnistria region”, the scale of forced labor and sex trafficking is difficult to gauge as the territory remains outside the central government’s control. [1; web source]

The Hague Convention on Civil Aspects of International Child Abduction

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, ratified by Moldova through Governamental Decision no. 1468 from 1st of July 1998, stipulates that “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; and 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. [2; web source]

The Convention provides an effective international mechanism for the swift return to their home of children wrongfully removed from their habitual place of residence to another Contracting State in violation of custodial rights. It aims to establish a consistent approach in handling the growing number of international civil child abduction cases.

Responsible authorities

The Moldovan central authority in charge to assure the efficient implementation of the Convention is the Ministry of Labour, Social Protection, and Family, in accordance with the art. 6, 1st par. Of the Convention.

Compared to Romania, by the Law no. 100/1992 the Ministry of Justice was appointed reponsible for implementing the provisions of the Convention, and as a central Romanian authority, the it cooperates worlwide with central authorities from the member states of the Convention and other stakeholders, networking with the institutions and authorities with similar responsibilities in the field of Convention.

Legislation

Referring to Romania, the Law no. 272/2004 on child protection prohibites the wrongful removal of children without the agreement of one of the family members, regardless their judicial status – singles, married, divorces. There are various situations when one of the parents obtain the approval of other parent for taking the child out of the country, for a limited time, but at the expiration of the staying period, the child is not returned to itshabitual place of residence.

Since 1992, Romania adhered to the Hague Convention and adopted the Law no. 369 of 15th of september 2004 in order to efficiently implement the provisions of Convention and to join the effort in combating child abduction.

EU legislation on civil relations between parents is reglmented by the Council 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, repealing Regulation (EC) No 1347/2000, a judicial tool aimed at reglementing the civil matters related to (a) divorce, legal separation or marriage annulment, and (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. [3;web source]

This Regulation aims to establish rules in order to determine the competent instance on matrimonial matters and in matters of parental responsibility during litigations which imply more than one country representatives; rules that facilitates the recognition and enforcement, in one EU country, of judgements pronounced in other EU country; and, moreover, represents a procedure to solutionate the cases when a child is abducted by one family member and wrongfully removed from an EU country to another country.

Legislative discrepancies

Both the Republic of Moldova and Romania are facing some legislative gaps with regard to child protection.

In this line, Moldovan legislation allows the children to travel abroad being accompanied by its legal representative: mother of father, or a tertiary person empowered by a notarized declaration. The agreement of the other parent is mandatory when the child is removed from the country with the purpose of establishing his or her permanent residence abroad. It results that for other travel purposes is not mandatory the agreement of the second family member. Thus, in accordance with the art. of the Law on exit and entry into the Republic of Moldova no. 269-XIII of 09.11.94, [4; Law disposals] minors have the right to leave and enter the Republic of Moldova only if accompanied by a legal representative (mother or father) or a person appointed by a notarized declaration of the legal representative. The declaration must specify the purpose of the trip, its duration, and the country of destination. For children between the ages of ten and eighteen traveling abroad to establish permanent residence, the Law requires the written consent by both parents expressed in a declaration containing the child’s notarized signature. If one of the parents of a child under eighteen years of age does not consent the child’s departure, the parent’s denial may be appealed to a local court of general jurisdiction.

The custom authorities will allow the removal of a child from country, accompanied by a persone if: the minor is placed in the passport of one parent and is travelling abroad being accompanied, at least, by one parent; the minor is the holder of an individul passport and is travelling being accompanied, at least, by one parent; or the minor is the holder of an individual passport and is travelling accompanied by other authorized representative.

In this case, the accompaning person shall present a consent of one of the parents or of the legal representative expressing the agreement to accompaning the child to the country or countries of destination, presenting the period of staying and identification data of the person that accompanies the child. [5; web source] It results that, one parent or the legal representative of the child in order to cross the state border is not obliged to present a document where is expressed the agreement of the other parent, exceipt the case when child aims to establish his or her residence in other country.

Fom the legally point of view, Romania is facing the same major legislative gap. The Law no. 272/2004 on child protection stipulates, expreselly, the interdiction to remove the child from the country without the agreement of both parents, regardless of their legal status (married, singles, or divorced), and by a legislative error, the Law on free movement of goods and people has an article stipulating the possibility of one family member to remove the child without the agreement of the other family member, in case the parent has an irrevocable and definitive judgement on child custody, namely the art. 30, lit. (c) stipulates that “the minor, which is placed in the parents’ passport and is travelling together with or, by case, is the holder of an individual passport or, by case, of an identity card and is travelling with one of the parents, is allowed to exit the country in the same conditions and together with the parent”, being not necesarily the agreement of the other parent, only if the accompaning parent can prove by a judgement proving the custody of child. [6; web source]

Bearing in mind that in spite of the fact that child abduction has a traumatizing effect and is one of the most devastating crises that a parent could ever encounter, the experience shows that the number of cases involving child abduction considerably increased over the past years.

Either because of the lack of information on legislation dealing with matrimonial relations, or having the permanent residence in two different states, or due to the emotional state of family members at the moment of a divorce various cases of child abduction occur, when one of the parents wrongfully remove the child and refuse to return to the habitual residence established by the judicial instance.

Recommendations

The practice shows that parents which divorced do not understand the phrase “parental responsability” or ” the enforcement of parental rights”, undersanding this fact as an empowerment or an extended right on child, in comparison with the other parent which do not have the custody.

In this light, we consider that legislative discrepancies shall be removed through legislative initiatives will not be in contradictory with other normative documents, in order to avoid duplication and misinterpretation of legislation reffered to international child abduction.

Moreover, it is necessary to stregnthen the cooperation with civil society in order to increase the efforts of government to punish the offenders and to create a functional mechanism of identification, protection, and assistance of potential victims of international abduction.

References:

1. https://www.state.gov/j/tip/rls/tiprpt/countries/2013/215520.htm // 2013 Trafficking in Persons Report

2. https://assets.hcch.net/upload/text28_ro.pdf // The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

3. http://eur-lex.europa.eu/eli/reg/2003/2201/oj // The Council 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

4. The Law on exit and entry into the Republic of Moldova no. 269-XIII of 09.11.94

5. http://www.mfa.gov.md/calatorii-copii-minori/ // Travelling with minors, article

6. Law no. 248/2005 on the status of the free movement of Romanian citizens abroad