Category Archives: Family Law

02Feb/13

Portugal: Family Law

PORTUGAL AND INTERNATIONAL CHILD ABDUCTION

The Hague Convention on the Civil Aspects of International Child Abduction was ratified by Portugal on September 29, 1983, effective December 1, 1983.

Domestic Laws and Regulations Implementing the Hague Convention

The Central Authority for the Convention in Portugal is the Instituto de Reinserção Social- Unidade Funcional de Convenções Internacionais (IRS) of the Ministry of Justice. The Organic Law on the IRS5 provides for its competence and powers.

Return Requested from Abroad

The Central Authority has only administrative and informational competence, as established by Organic Law.  Courts decide the cases of parental kidnapping and the return and visitation schedules for abducted children. The application for the return of an abducted minor to Portugal must be directed to the Portuguese Central Authority, which will, upon receipt of the return application, analyze and verify all the information and decide whether it complies with the requirements provided for under the Convention.

In order to apply for a child’s return or parental visitation, the requesting parent must authorize the Central Authority to take action, as it cannot act without prior approval of the requesting parent. Because the activities of the Central Authority are informational and administrative, a lawyer will be necessary for the judicial request, although the Central Authority may continue to provide its administrative assistance during the court proceedings. Those who cannot afford to hire a private lawyer and who qualify to obtain public funded assistance may obtain such legal aid.

At the national level, the Judiciary Police (Polícia Judiciária – PJ) is responsible for locating an abducted minor. When a child’s domicile has not been located, the Central Authority will inform Interpol, the agency internationally charged with locating the abducted minor.

Return Requested from Portugal

The requester must fill out an application for the child’s return or parental visitation, which will contain all the essential information for the location of the taken minor, including the name of the child and the child’s date of birth. The requester must submit the application to the Central Authority, which will analyze and decide whether the case meets all the requirements established under the Convention, so that it may take action.

If the Central Authority finds that an application meets all the requirements under the Convention, it will send the return or visitation petition to the Central Authority of the requested country, which will act under its own procedural norms.

Additional Multinational Efforts

Portugal is also a Member of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, adopted in Luxembourg, on May 20, 1980, and ratified by Portugal13on March 18, 1983, effective September 1, 1983. The European Convention protects custody and access rights in international situations and provides prompt, non-bureaucratic assistance from Central Authorities designed by each Member State in discovering the whereabouts and returning custody of a child improperly removed. Applications for the return of custody of a child may be made directly either to a court or to the Central Authorities of any Member State concerned.

In addition, the Hague Convention concerning the Powers of Authorities and the Law Applicable in Respect to the Protection of Minors, of October 5, 1961, was ratified by Portugal on December 6, 1968, effective February 4, 1969.

Domestic Laws Regarding Child Abduction and Parental Visitation

Article 122 of the Portuguese Civil Code19 defines a minor, as the one who has not yet reached 18 years of age. In article 124, the Code states that paternal power or guardianship concludes the minority incapacity. Additionally, article 85 of the same Code states that the minor’s residence is the same as his parents, guardian, or the institution responsible for him.

Article 1887 of the Portuguese Civil Code establishes that a minor can neither abandon his parents’ residence (or the one that his parents designate), nor can he be taken away from it. If one of these situations occurs, either one of the parents, or the person in charge of the minor, may appeal to the tribunal or to the competent authority for the child’s return.

Article 249 of the Criminal Code of Portugal20 punishes child abduction with imprisonment for up to 2 years, or a fine of up to 240 days, when the child is abducted by violent or coercive means. The same punishment is applied when the abductor refuses to return the minor to the custody of his parents, guardian, or other person with custody of the minor. The criminal procedure in these cases depends upon a complaint.

Article 179 of the Criminal Code establishes that if the parent or guardian of a minor is convicted of the crimes under articles 163 to 176 (which include sexual exploitation and trafficking of children), he may lose parental power or guardianship for a period of 2 to 15 years. The paternal control over children is established under the Civil Code, articles 1885 to 1887.

Portuguese domestic family law understands paternal control as an advantage for children’s protection, not an advantage for the parents. The legislation, doctrine, and jurisprudence aim for both parents to always exercise equal paternal control, and to focus on the welfare of the minor. In fact, in the event of conflict between the parents, the decision of who will exercise the paternal control must be driven by the necessities of the minor, as well as his well being and harmonious development, as emphasized by the collected jurisprudences. Yet, paternal power is irrevocable, as stated in article 1882 of the Civil Code. Decree-Law 314/78 created the Organization of Minors’ Guardianship (Organização Tutelar de Menores – OTM), where a minor’s guardianship rights, parental visitation and other minors’ rights and procedures are established. The local framework also protects children by means of Complementary Law No. 147/9923 (Lei de Protecção de Crianças e Jovens em Perigo), which provides for the protection of children and young people that are at risk; this legislation is regulated by Decree-Law No. 332-B/2000.

 

U.S. – Portugal Child Support Enforcement Agreement (May 30, 2000)

The United States and Portugal signed a reciprocal child support enforcement agreement in Lisbon May 30 which provides a mechanism for recovery of alimony and child support owed by ex-spouses. The signing was in conjunction with President Clinton’s visit to Portugal.

Agreement on Reciprocal Enforcement of Child Support

Secretary of State Madeleine Albright and Foreign Minister Gama today signed an Agreement on Reciprocal Enforcement of Child Support.

This agreement provides a mechanism for Americans to recover alimony and child support owed to them by ex-spouses who are in Portugal. Conversely, Portuguese parents may file for support owed to them by ex-spouses in the United States. To use a colloquial expression, this is the international version of cracking down on “deadbeat dads” (and moms).

Under the agreement, a parent in the United States can file an application to recover delinquent maintenance payments from a former spouse. To facilitate the process, all questions will be handled through a Central Authority for International Child Support in each country. In the United States, applications are filed through the Department of Health and Human Services (HHS). HHS will forward the application to Portugal’s central authority, which will locate the parent and recover support payments. Portugal is the first country to have an official bilateral child support agreement with the United States.

02Feb/13

Poland: Family Law

CHILD ABDUCTION PREVENTION IN POLAND

The following is an extract from Poland’s answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

A1. The Polish Family Law does not provide for any persuasive measures against persons who abducted or retained a child abroad. Yet the Family and Guardianship Code considers abduction or retention of a child by one of the parents against the existing agreement or court judgement an abuse of parental authority. Such a fact shall serve for the parent, who did not accept the abduction or retention, as grounds for claiming the other parent to be deprived of parental authority or to have it limited by virtue of a court judgement. In the case of abduction or retention of a child who stays in the custody of a foster family or of a guardianship centre, it is a prosecutor who shall make the aforementioned claim. In both cases the proceedings in relation with depriving a parent (or parents) of parental authority may be instituted ex officio by the guardianship court as well (Article 111 of the Family and Guardianship Code).

Abduction of a child by a person who is not his/her parent (e.g. by a relative or by a stranger) shall not involve the above-described result, yet such a person shall fall under criminal liability. Moreover, the person may bear the civil liability for damage in case a child suffered a substantial harm, e.g. a detriment to health, as a result of abduction or retention.

The regulations concerning the issuance of a passport to a child are crucial for the prevention of child abductions abroad. This issue is being discussed in detail under point B1.

A2. Article 211 of the Criminal Code has a preventive effect and at the same time acts as deterrent to potential abductors. A person who, contrary to the will of the person appointed to take care of or supervise, abducts from the territory of Poland a minor person under 15 years of age shall be subject to the penalty of deprivation of liberty for up to 3 years. A person who attempts, as well as a person who acts as a complice or who incites the act of abduction shall be subject to the same penalty. Also a Polish national who retains a child abroad shall be subject to penalty, if the act is punishable in the place where it has been committed. Abduction of a child to Poland or a childs retention in Poland shall be punished on the same grounds. It needs to be noticed, however, that according to the Supreme Courts interpretation of Article 211 of the Criminal Code, the factor that conditions the offence committed by a parent to fall under this provision is the suspension or deprivation him/her of parental authority over the child prior to the abduction or retention. Obviously, this condition shall not refer to the abduction or retention effected by a person who is not a parent.

A3. A guardianship court, in view of a threat of abduction or retention of a child abroad, may prohibit, by means of a provisional order (in a custodianship case), the child to leave the territory of Poland. Moreover, a guardianship court may also provisionally apply other preventive measures, which seem to be most effective in a given situation, in order to prevent abduction or retention (e.g. deposit). Such a decision is enforceable from the very moment of its issuance. A decision on prohibiting a child to leave Poland until the guardianship proceedings is concluded shall be transferred by a court to the Border Guards Headquarters, which is a unit responsible for the notification of the border check points.
The provisional prohibition of removal of a child from Poland may be also adjudicated in divorce proceedings. A judgement in this kind of proceedings may be issued:

  • upon a request by a parent who shall prove the existing risk of a child abduction,
  • by a court acting ex officio.

In this case, a judgment shall be also immediately enforceable, despite the possibility of being appealed against.

A4. The Polish law admits the possibility of issuing by a guardianship court an emergency decision prohibiting a child to leave the territory of Poland or otherwise making it impossible to abduct or retain a child. The possibility of issuing by a guardianship court the aforementioned judgement can be also obtained out-of-hours, since there are additional duty hours held by judges in family courts. There is no need to appoint a hearing for this purpose.

A5. We express the opinion that the decision concerning a child’s residence lies within the scope of parental authority. Parents should take this decision together, yet if they fail to come to an agreement the decision should be taken by a guardianship court. A child should have a right to express his/her opinion on this issue guaranteed and this opinion should be taken into account, provided that a child has reached a sufficient level of development.

A6. There is a general feeling that the system of the existing legal regulations in Poland is comprehensive as far as this issue is concerned and it seems to be quite successful in preventing child abductions abroad. These provisions are generally applied in practice. Obviously whether they prove effective or not in a given situation depends on a number of factual conditions.

02Feb/13

Panama and Child Abduction

Panama and Child Abduction:

2012 State Department Report The Office of Children’s Issues of the U.S. State Department’s Bureau of Consular Affairs has recently released the annual report on Hague Convention compliance. The report details various issues of non-compliance with member countries. It places countries under two categories; “Not Compliant” and “Demonstrating Patterns of Noncompliance,” with the former category signaling more serious compliance problems. This year Panama has been classified as “Demonstrating Patterns of Noncompliance.” The text of the 2012 report follows, as well as case summaries from the report. Patterns of Noncompliance with the Convention: Panama Panama demonstrated patterns of non-compliance with the Convention in the area of judicial performance. In four specific cases, the USCA observed significant delays in scheduling hearings during appeals. In addition, the courts requested extensive and costly psychological and socioeconomic evaluations of parents’ homes in the United States. Even when parents submitted positive evaluations to fulfill the courts’ requests, the return of children was denied. As at least one Panamanian judge noted in her dissenting opinion, Panamanian courts appear to treat Convention proceedings as custody hearings rather than determinations of habitual residence. Communication between the USCA and Panamanian Central Authority (PCA) on Convention cases was good. In January 2011, the Government of Panama participated in a judicial training seminar for Panamanian judges and prosecutors. The PCA expressed interest in holding annual seminars for Panamanian judges to discuss best practices of the Convention, but did not respond to follow-up communication in January and October. Case Summaries: 1. In November 2010, the LBP attended the Convention hearing and traveled to Panama again in December 2010, to participate in psychological evaluations. The LBP informed the USCA that the judge made child support demands and ordered a complete home study. In April 2011, the USCA forwarded the PCA a requested home study report. In June 2011, the PCA stated that the judge awaits a psychological evaluation of the TP and will then reach a decision. The USCA and the U.S. Embassy Panama City have regularly requested updates from the PCA on the court proceedings. 2. In September 2010, the LBP attended the first Convention hearing. The judge ordered a psychological evaluation of the LBP. On September 23, 2010, the judge requested a socioeconomic report of the LBP’s home and personal circumstances. In January 2011, the USCA forwarded the PCA an extensive home study report. In March 2011, the judge denied the return of the children. The LBP appealed the decision on March 28, 2011. The USCA and the U.S. Embassy Panama City have regularly requested updates from the PCA on the court proceedings. ————————————————————————————————————————– Here are the provisions of Panama law concerning taking children out of Panama. As with other Latin American countries Panama has strong and efficient exit controls and in general it bars one parent or anyone else from taking children out of Panama without the express authorization of the other parent or a court order. REMOVAL OF CHILDREN FROM PANAMA PANAMA IMMIGRATION LAW (2008) (unofficial translation) TITLE VI IMMIGRATION CONTROL CHAPTER 1 ENTRY AND EXIT Article 38. The immigration control will be exercised by the National Immigration Service, according to the present Law Decree and its regulations, in compliance with the immigration policy as established by the Executive Branch. Article 39. The nationals in order to exit the country shall present an updated passport or a letter of safe-conduct and comply with the other requirements that the present Law Decree establishes. The National Immigration Service will carry a registry of immigration control of the underage persons, in which their identities will be included, the country of destination, the identification of the responsible person and the document of authorization. Article 40. The departure from the national territory of any foreign or Panamanian underage person that is found under any immigration category, will be allowed in the following cases: *1. If he/she is accompanied by the father or the mother. *2. If he/she is accompanied by one of their parents, and this one has the written authorization from the other, duly authenticated by a notary public. *3. If he/she is accompanied by one of their parents, and this one has the written authorization from the judge duly authorized for this purpose, and in the case that one of the parents is deceased, the death certificate of the absent parent shall be attached. *4. If he/she is accompanied by a third party a written authorization shall be presented from both parents, according to what is established in numerals 2 and 3 by the present Article. *5. If the underage person travels alone a written authorization from both parents shall be presented, according to what is established in numerals 2 and 3 by the present Article. Paragraph: The foreign non-resident underage persons are excluded from this disposition. Article 41. The immigration authorities located at the immigration posts shall prevent the entry or exit of foreigners, and the exit of nationals, when there is an order in place issued by a competent authority. Article 42. The foreigner that has incurred in a infringement or violation of immigration law, may not exit the country without having cancelled the corresponding financial penalties. By not having the financial resources to comply with the imposed penalty, his or her deportation procedures shall proceed. Article 43. Without prejudice to the current international conventions in the Republic of Panama, in order to enter the national territory, foreigners shall comply with the following requisites: *1. To enter by land, air or sea immigration posts officially made available. *2. To present, by petition from the immigration authority, their passport or current travel document and, in case that it is required, the current entry visa. *3. To allow to be interviewed by the competent authorities at the moment of entry or exit, that their data and biometrics registry to be validated in situ and their luggage and personal documents to be inspected and verified. *4. To present the Ingress and Egress Card provided by the international transportation company, duly completed, without prejudice of the right from the National Immigration Service to implement other automated mechanisms of collecting the information, according to the international standards. *5. Not having an impediment to enter. *6. To have proof of financial solvency to cover their expenses while remaining in Panamanian territory. An exception is made from this disposition when the passenger is in transit who remains within the immigration facility. *7. To have a return ticket to their country of origin or residence, when required by the immigration category. *8. To have cancelled all of their obligations with the National Immigration Service. *9. To comply with health standards as established by the Ministry of Health, as well as any other measures ordered by other competent authorities. Article 44. The foreigner will have the obligation, at the moment of registration, to present his/her passport or travel document, as well as to provide to the owners or hotel managers or lodging places, the information about their stay and departure. At the same time, the owners or hotel managers or lodging places will have the obligation to send this information to National Immigration Service that will implement automated mechanisms for its collection. Article 45. Every foreigner that is found within the national territory must carry his/her immigration document of identification and show it to the competent authority, when it is required to do so.

02Feb/13

Mexico: Family Law

MEXICO AND CHILD ABDUCTION SUMMARY

Mexico is a renowned haven for international child abductors.

It does not comply with its international obligations under the Hague Convention. Its procedures for enforcing its Hague Convention treaty obligations are weak, unpredictable and entirely ineffective.

The Centre for International Family Law Studies in Cardiff, Wales compared seven jurisdictions, including Mexico. The conclusion was that Mexico was by far the worst offender in its failure to return abducted children.

The following is the U.S. State Department’s 2010 Report on Mexico’s continued noncompliance with the Hague Convention.  The full report can be found here:

http://travel.state.gov/pdf/2010ComplianceReport.pdf

The Department finds Mexico not compliant with the Convention in FY 2009. The USCA observed noncompliance in the areas of law enforcement and judicial performance, and experienced serious difficulties communicating with the Mexican Central Authority (MCA) that resulted in costly inconvenience for LBPs and significant delays in processing return applications.

The USCA submitted 114 Hague applications to the MCA in FY 2009, predictably more than to any other country to which children were abducted from the United States given the cross-border activity between Mexico and the United States. The USCA identified 53 unresolved cases that had been pending for 18 months or more subsequent to the filing of the application (see “Unresolved Return Applications” section of this report). In 38 of these unresolved cases, the USCA requested the MCA’s assistance to locate the children with the help of Mexican law enforcement authorities, including Interpol and Mexico’s federal investigations agency, the Agencia Federal de Investigación (AFI). In many of the cases, the LBP was able to provide the MCA with last known street addresses for the TP and child along with telephone numbers and the names of the schools the child might be attending, but the Mexican authorities failed to locate them. Two main factors, we believe, contributed to this problem: first, too few law enforcement agents have been assigned to cover large territories and populations; and second, an apparent lower priority has been given to international child abduction cases compared to other, increasingly violent criminal activity.

Mexico took some encouraging steps to comply with the Convention during FY 2009. With respect to the USCA’s pending Hague applications, in 30 cases children were returned from Mexico. The MCA assisted U.S. LBPs in at least six cases by contacting Mexican consulates in the United States to request that they expedite processing of powers of attorney needed for a third party to represent the LBP in court hearings in Mexico, and to authorize the third party to take temporary custody of the child to bring him or her back to the United States because the LBP could not travel. The MCA and the state Supreme Courts of Nuevo León and Guanajuato collaborated with the U.S. Embassy to carry out two judicial seminars in late September, involving USCA and academic experts from Guadalajara and Mexico City.

In FY 2009, Mexican courts continued to demonstrate patterns of delay in processing applications under the Convention, as illustrated by several of the cases listed under Mexico in the “Unresolved Return Applications” section of this report. In at least two instances, six months elapsed between the time the case was assigned to a court and the date of the first hearing; in another, seven months elapsed. In five other cases, it took between 16 and 55 months before the court held the first hearing on the application for return. These delays disadvantaged LBPs and led to rulings that the children should not be returned because they had become “settled” in their new environment, an exception to return listed in Article 12 of the Convention.

The USCA observed the following three causal factors for judicial delays: (1) lack of implementing legislation or procedures for Convention applications and many Mexican judges following inapposite procedures found in state civil codes in resolving such cases; (2) lack of understanding of the Convention by many Mexican judges, as evidenced by extensive requests for information, including letters under Article 15 of the Convention from the USCA to confirm that a particular case involved an international child abduction as defined by the Convention; and (3) TPs absconding with the children when summoned to a hearing because they were notified of the hearing but neither they nor the children were secured in any way. The USCA has observed that a tool for securing children in the Mexican system is for the judge to place the child temporarily in a children’s protection service (Desarrollo Integral de la Familia, or DIF) shelter while the case is being processed, but judges are reluctant to place children in these shelters unless the TP is determined to be a clear danger to the child.

Application of the “amparo” (constitutionally-based appeal) process in ways that are inconsistent with commitments under the Convention is an ongoing problem. TPs sometimes allege that the procedure under the Convention violates their right to due process under the Mexican Constitution. In response to the filing of an amparo, judges issue a provisional order that immediately freezes proceedings under the Convention pending adjudication of the underlying constitutional issue. Precedent exists in Mexican law to promptly adjudicate and reject an amparo in a Convention case alleging violation of due process. For example, both the Mexican Supreme Court and the highest court in the Federal District have determined that procedures under the Convention comport with the Constitution’s due process requirements, and these decisions have been relied upon by lower courts. Despite these positive developments, adjudication of Convention-related amparos is still subject to frequent delay.

During the reporting period, the MCA, the Hague Permanent Bureau, and the U.S. Government collaborated in three seminars designed to enhance judicial awareness of the Convention, with special emphasis on the compatibility of the Convention with the due process guarantees of the Mexican Constitution. The USCA and the U.S. Embassy repeatedly asked by email, telephone, fax, and letters for status updates on the longstanding cases detailed in the “Unresolved Return Applications” section of this report, but received no replies by the end of the reporting period in at least 19 of these cases.

The MCA has inadequate staffing. The Hague Permanent Bureau’s Guide to Good Practice indicates that central authority staff should be “sufficient in numbers to cope with the workload” (Guide to Good Practice on Central Authority Performance, § 2.4.1). In the USCA’s view, the MCA needs more staff in order to comply with Convention requirements, and Mexico needs to allocate more resources to enhance judicial training programs to improve judges’ understanding of the Convention, to establish procedures to process applications in the absence of implementing legislation, and to improve Mexican law enforcement’s ability to locate missing children.