THE 1980 HAGUE CONVENTION AND IMPORTANT CONCEPTS RELATED TO THE CONVENTION

INTRODUCTION

The 1980 Hague Convention is an agreement designed to address international child abduction cases. With the increase in international marriages and the potential for these marriages to end in divorce, one parent may tend to take the child to another country. This situation can be carried out unlawfully for various reasons. For example, disputes between parents, using the child as a tool against the other parent, or believing it to be in the child's best interest can trigger this situation.

The convention is based on cooperation between member states and provides for a rapid procedure among central authorities. Thus, it ensures an effective fight against child abduction cases carried out by parents. The convention obliges the authorities of the country where the child is located to promptly return the child to their habitual residence country, but it allows for a limited number of exceptional cases.

The concept of habitual residence is important for the application of the convention. The child's best interests and protection rights are determined according to the law of habitual residence. Therefore, it is essential to understand the concepts of habitual residence and rights of custody and visitation correctly. These regulations aim to protect the child's current situation and ensure their rights are upheld lawfully.

CONCEPT OF HABITUAL RESIDENCE

The 1980 Hague Convention uses the concept of "habitual residence" to determine the place where the child was actually living before the abduction. This term is preferred over concepts like "domicile" or "residence" in different countries because habitual residence reflects a more factual and real situation than domicile. The concept of habitual residence refers to the place where the child was living, accustomed to, and had their social environment immediately before the abduction.

The Hague Convention does not define the concept of habitual residence, which provides flexibility for courts, and the definition has been shaped by case law. Thus, the aim is to make an objective assessment by determining the child's true habitual residence in each specific case. The Constitutional Court and the Court of Cassation have stated that habitual residence should be evaluated as the place where the child was accustomed to and had their social environment.

There are two main criteria for determining habitual residence: one is based on the will of the custodial parent, and the other is an independent determination focused on the child's social environment. In practice, the second criterion, which considers the child's social environment where they conduct their daily activities, is generally used. The Constitutional Court also supports this approach.

RIGHTS OF PROTECTION AND VISITATION

The 1980 Hague Convention defines the "right of protection" as a sui generis right, which is independent of the right of custody. The right of protection also includes the authority to determine the child's place of residence. Article 5 of the Convention states, "The right of protection includes the right to care for the person of the child and, in particular, the right to determine the place of residence."

Whether the right of protection has been violated is determined according to the law of the country where the child’s habitual residence is located. This right can arise from the law, judicial or administrative decisions, or agreements between parties. When courts are determining the existence of a valid right of protection, they may request documentation or a certified statement from the central authority of the state where the child's habitual residence is located.

Article 5(b) of the Convention defines the right of visitation as including "the right to take the child to a place other than the habitual residence for a limited period." Visitation requests are typically made by parents who do not have the right of protection or close relatives such as grandparents. Since visitation requests do not require the return of the child, there is no need to determine whether there has been a violation of habitual residence or the right of protection. Therefore, the right of visitation has a broader application compared to the right of protection but offers less protection.

The Convention does not specify the legal grounds for granting the right of visitation. However, it is considered that the legal grounds forming the basis of the right of protection may be analogously applied to the right of visitation.

THE BEST INTEREST OF THE CHILD

The 1980 Hague Convention prioritizes the return of the child to their habitual residence, based on the assumption that returning the child to their accustomed environment is beneficial for them. The Convention takes into account the best interest of the child when determining reasons for rejecting the return. Particularly, if the child is at risk of physical or psychological harm, the rejection of the return request demonstrates that the best interest of the child is considered. The primary aim of the Convention is to preserve the child's situation prior to the wrongful relocation, which is achieved through the return to the habitual residence.

The concept of the best interest of the child plays a critical role in the application of the Convention and must be interpreted correctly. Some opinions suggest that the concept has been misinterpreted, leading to a weakening of the Convention's protection. Therefore, the best interest of the child should be determined based on objective criteria rather than subjective values. The best interest of the child encompasses not only the parent-child relationship but also the relationships between the parents and third parties related to the child. Authorities must consider all aspects of the child’s situation when determining their best interest. Courts should take into account factors affecting the child’s past habits and future when making decisions regarding the best interest of the child.

The best interest of the child is a concept that should be interpreted according to the specific circumstances of each case. Therefore, studies on how the concept has been interpreted in the decisions of the Constitutional Court and the European Court of Human Rights are included.

GROUNDS FOR REJECTING A RETURN REQUEST UNDER THE HAGUE CONVENTION

The 1980 Hague Convention aims to ensure the return of a child who has been wrongfully removed or retained to their habitual residence. However, in some cases, returning the child may not be in their best interest. Consequently, exceptions to return have been included in the Convention. These exceptions grant judges discretion to refuse the return under specific conditions, considering that the best interest of the child may vary in each case.

The exceptional grounds for rejecting a return request are outlined in Articles 12, 13(a), 13(b), and 20 of the Convention:

1. Article 12: If the request for return is made more than one year after the child’s abduction or retention, and the child has adapted to their new environment, the return request may be refused.

2. Article 13(a): If the return of the child has not been approved by the person who actually cares for the child and this person is not authorized to make decisions regarding the child’s habitual residence, the return may be refused.

3. Article 13(b): If returning the child would expose them to physical or psychological harm or put them in an adverse situation, the return request may be refused.

4. Article 20: If the return of the child would be contrary to the fundamental human rights and freedoms of the state where the return is to be made, the return may be refused.

These exceptional circumstances are designed to ensure that decisions are made in the best interest of the child in each specific case.

THE IMPORTANCE OF INTERNATIONAL COOPERATION UNDER THE HAGUE CONVENTION IN CASES OF CHANGING A CHILD’S HABITUAL RESIDENCE

International child abduction cases have serious impacts on both children and parents, depriving children of contact with the other parent, love, affection, and protection, and removing them from their familiar home environment. In these situations, the child must adapt to a new culture, a different legal system, a new language, and often a different social structure. These differences make international child abduction cases complex and challenging to resolve.

Within the framework of the 1980 Hague Convention, the return of children to their habitual residence is crucial. However, for this process to be effective, international cooperation is of great importance. Central authorities in each country should play an active role in resolving child abduction cases and ensuring the safe return of children under the Hague Convention. Cooperation among central authorities is critical for the swift and accurate exchange of information, expediting return procedures, and safeguarding the best interests of the child. Additionally, it is of great importance for child abduction lawyers representing the parties in the case to work in coordination with local authorities.

International cooperation also ensures protection against the potential physical or psychological harm that children may face. Decisions by the Constitutional Court and the European Court of Human Rights emphasize that the child’s best interests should be prioritized. However, the administrative and judicial processes need to proceed quickly to ensure the return of the child before they become accustomed to the country where they have been taken. Otherwise, issues such as the weakening of the child’s established social environment and emotional bonds may arise.

CONCLUSION

The key findings of the study highlight that in cases of child abduction by a parent who does not have custody, the most crucial factor to consider in return proceedings is the child's best interests. If the child's best interests necessitate that they should not be returned and remaining in the country where they were taken provides a more suitable outcome, the return request should be denied. The 1980 Hague Convention focuses on the risk of physical or psychological harm to the child, and it stipulates that if such risks are present, the return request should be denied. The Constitutional Court (AYM) and the European Court of Human Rights (ECHR) also discuss these types of situations in their rulings.

Other circumstances that might lead to the denial of a return request include the child's adaptation to the country where they were taken, the establishment of a social environment there, and the weakening or absence of social, psychological, and emotional bonds with their habitual residence. If these conditions are supported by expert reports, the return of the child should be denied.

~Authored by Orbay Çokgör, Attorney at Law, C&B Law Firm