Your child has been kidnapped, what to do?
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Your child has been kidnapped, what to do?

Hague Convention on the Civil Aspects of International Child Abduction and its application in Armenia.

These comments are based on the life situations  set out  below.

› Armenian  couple  moved  to live in  Russia. After  1.5 year  mother    came  back  to   Armenia with the child to visit her  parents, and  later told  her  husband that  she didn’t intend  to  return.

› Armenian citizen  marries an  American. They live together  in Germany. After  divorce by  the   decision of  parties their  daughter  lives  with  her mother  in Armenia, and  spends holidays  in Germany with her  father. After a usual holiday  father  announces  that the  child  should  live  with him.

›  Father has turns  to our advocate  company  for  help as the  mother of  his  son is  going  to  take  the  child from Armenia  to  France for permanent residence without his permission.

REMEMBER: Every child has the right to contact with both parents!

The number of families in which the spouses are of different nationalities, has been steadily increasing, so in case of disputes should be taken into account the legal systems of  both  states involved, which significantly may differ from each other.

That's why it became necessary to develop and apply unified procedures for the solution of international family disputes.

Nowadays Armenia is a party to several international agreements regulating family relations, in particular, the Hague Convention on 25 October 1980 (hereinafter - the Convention) on the Civil Aspects of International Child Abduction, according to which any child who is unlawfully removed from the territory of habitual residence or held outside must be promptly returned home. The functions of the Central Body (hereinafter - CB)  for the implementation of the Convention in Armenia performs the Ministry of Justice of the Republic of Armenia.

The specialists  of  armenian  advocate  company  “Your  Jurisconsult” are  always  ready  to consult  you with  issues  relating to  the  application of Convention in 1980 in Armenia and will  help  You:

•    To get necessary  information support and assistance in drawing up of statements, statements of claim on revocation of the conclusions of government bodies, which are contrary to the Convention, to institute proceedings for the return of the child, who has illegally  been held;

•    To understand the specifics of the legal procedures in Armenia and in other countries.

•    To try to agree on the voluntary return of the child.

What is kidnapping ? My child was kidnapped. What to do?

Although in Armenia  one  of  the  parents  may leave  with a child without asking the permission of the other, in many member countries of the Convention it is a crime.

Under the Convention, we are talking about international child abduction if:

a) The child is under 16 years;

b) the child has been permanently lived in Armenia (or in  the other member country of the Convention; citizenship of the child and the parents is irrelevant and not taken into account when deciding on the return );

c) the child has been moved or held abroad without the consent of his/her legal representative.

It is also necessary to note that the transition is meant by the moment of removal of the child outside the state of his/her residence, and hold - the first day after the agreed period for the return of the child.

Your child has been kidnapped, what to  do?

First  of  all  it’s necessary to  understand where has  just been taken your child,

A) Member countries of the Convention:

 List of  Member  countries, as well as the coordinates of the CB of different countries can be found on the website of the Hague Conference on Private International Law in the Section Child Abduction (http://www.hcch.net/index_en.php?act=text.display&tid = 21).

It’s important to know that the statement is necessary to submit as soon as possible. Time is an important factor. If the  statement will be  filed  later  than  a  year  after  abduction, chances  to return the  child become minimal.

B) Countries  not  taking  part  in Convention 1980.

If the country, where the child is, does not participate in the Convention or participate, but has not yet confirmed the recognition of Armenia as a member of the Convention, you can contact for  help:
• the Police of the country where the child is presumed to be.
• the  Consular Department of the MFA of Armenia.
• CB of the country in which the child is held, to obtain information support.

Is  Convention in1980 applicable in your case?
When considering the case you can refer to the Convention, if the child was abducted from a country participating in the Convention and recognized  the country where your child is presumed to be, as member of the  Convention (list of participating countries can be found at www.hcch.net), while abduction (retention) was held after the recognition of each other's countries, and if the child was under age 16 at the time of the abduction (retention).
What to  do  if I  don’t know  where  your child is.

If the exact address is not known, but determined the country of possible stay of the child, with search may help:

• CB, by directing a request to the Central Body of the country to confirm a possible address.

• Local Police (specify the possibility to track credit cards, cell phone, e-mail through the police, and other trace  child’s location  and / or parent holding: medical and school records, etc.)

Get in touch with our lawyers on the phone +37410 32-02-02 or send an e-mail to info@jurist.am. Our experts can advise you on the possibility of applying the legislation this or that country, as well as will help to write a competent statement and monitor its implementation.

What is  going on after  filing  a statement?

Once the application is accepted, the CB sends a request for assistance to the CB of that  country in order to ensure the exact location of the child and try to achieve  an  agreement between the parents. Sometimes the very fact of the statement is enough to convince the parent who abducted the child to return voluntarily to avoid any further procedures.
If parents fail to reach an agreement by themselves, you can resort to mediation - negotiations with independent third parties to coordinate the process.

Benefits of Mediation:
• It takes less time than litigation.
• Provides an opportunity to discuss a wider range of issues related to the conflict.
• Less interference in the family affairs, it’s not so publicly as in court.
• Significantly cheaper than representation of interests at trial.
• Attitudes towards the agreements reached are more positive, as a result such arrangements are more stable.
• In many cases the best solution for the children.
• Works for the future (achieving mutual agreement, it is easier to maintain civilized relations in the future).

Disadvantages of mediation:
• It may be a delaying tactic, should be clearly limited over the time.
• Generally, the agreements reached as a result of mediation shall be executed voluntarily. However, if one of the parties refuses to fulfill the agreements, it is necessary to turn to the court.
• If one side is significantly suppresses the other, or if one party blames the other for the violence it is better not to use.

Advantages of mediation is much greater than the disadvantages, so this method of dispute resolution is in demand, especially in family conflicts.
If you need a mediator, please contact our advocate company for advice.

In case if parents cannot reach an agreement, the parent and his lawyer can file a claim for the return of the child. The application is submitted to the district court where the child is supposed to  be in the Republic of Armenia.
No matter whether you have to turn to court or will be able to solve the situation before turning to the court, to return a child is a complicated legal process, so we advise to contact a lawyer who  is specialized in legal international private law.
Believe me,  except  the  help of official  authorities, the services of a lawyer is  needed, both in Armenia and abroad. Turn  to the lawyer who will be able to clarify the legal issues related to the resolution of family conflicts, and will also represent your interests in court.
It is also important to know that the Convention does not address issues of determining the place of residence of  the child, the court makes a decision solely on the child's return to the country of habitual residence. The decision on determining the place of residence of the child is  made by the appropriate court of the country of child’s habitual residence.

What  to do if you have fear for abduction?

Child abduction often happens unexpectedly. But parents who have experienced the abduction of their child, say that the abduction may be preceded by some signals:

• the behavior of the other parent is changing, for example, more often occur  disputes on  the issues of education of children;

• divorce was difficult, and there is disagreement regarding to the care and the right to communicate with the child;

• the other parent has plans to move with the child to another country;

• the other parent is directly threatening to kidnap the child.

The threat of kidnapping does not mean that the kidnapping will take place. But this is the last signal for you to get acquainted with the concept of "kidnapping" and the ways of preventing it. However, the situation is complicated by the fact that each case of abduction is unique.

In case of divorce it is always better to conclude an agreement on upbringing of children with the definition of the order of parental rights.

If you suspect that the other parent is going to take away the child from the country without your consent, you may apply to the migration service to ban the leaving of the child.


Exceptions

The Convention requires the immediate  return of the child, however, if the other parent will be able to prove in court the existence of exceptional circumstances, the court may decide not to return the child. These exceptions are when:

• Actually legal custody has not been carried out, i.e. the parent who filed an application in fact hadn’t performed  parentalduties (Article 13);

• There is a serious risk of causing physical or psychological harm to the child as a result of his return (Article 13);

• A child objects to returning and reached an age and degree of maturity when his/her opinion should be taken into account (Article 13);

• since the abduction has passed  more than a year, and  child has adapted to the new environment (Article 12);

• the child's return would entail a violation of human rights and fundamental freedoms (Article 20).

In each case there  are  interpretation of these circumstances, and the final decision is determined solely by the court.

According to Armenian legislation a child is entitled to be heard in any judicial and administrative proceedings; child’s opinion reaching age 10 years is required to  be taken  into  account  except when it’s contrary to his/her  interests.
Should I go for a return kidnapping?

Sometimes parents whose child has been kidnapped, taking such a desperate step as a return kidnapping. However, as practice shows, it only complicates the solution of problems faced by the family.
Besides the fact that kidnapping is illegal in many countries, it may affect the process of return in the future. The attempt of return abduction endangers child and others; creates a preconception in further court proceedings. In addition, there is no guarantee that this will be the last in the kidnapping chain. Abducting the child, you constantly have to hide your location and live under the threat of a new kidnapping. And finally, your actions may cause serious psychological injury to a child. The conflict has already caused him/her a harm, return kidnapping will only aggravate already existing difficult situation in which your child has been.

If you have any questions related to the application of  Convention, please contact us on the phone +3 (749) 32-02-02 or email info@jurist.am

Our experts can advise you on the application  of the Convention for your case and if necessary, provide legal services.

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