CHILD ABDUCTION: DEVELOPMENTS IN THE PHILIPPINES
Professor ELIZABETH AGUILING – PANGALANGAN, LLM
DIRECTOR, INSTITUTE OF HUMAN RIGHTS, COLLEGE OF LAW UNIVERSITY OF THE PHILIPPINES
Of the 72 Hague Conference Members the Philippines is one of only nine countries who has not signed or ratified the 1980 Child Abduction Convention.
Of the 72 Hague Conference Signatories the only Asian country that has acceded to the Child Abduction convention is Sri Lanka. Only Macao and Hong Kong ratified the child abduction . The other Asian countries have neither acceded, signed or ratified namely, Japan, South Korea, Philippines and India.
• • ARTICLE 211 FC. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother.
: • • • Art. 213, Family Code. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.
Art. 363, FC. In all questions on the care, custody, education and property of children the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.
RECOURSE OF THE LEFT BEHIND PARENT Section 6. Hold Departure Order. Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court.
The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without court permission. The Family Court issuing the hold departure order shall furnish the DFA and the BID of the Department of Justice a copy of the hold departure order issued within 24 hours from the time of its issuance.(AM 2-11-12-SC)
: Rule 102, § 1 of the Rules of Court provides that "the writ of habeas corpus shall extend to all cases of illegal confinement of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.
• makes no distinction between the case of a mother who is separated from her husband and is entitled to the custody of her child and that of a mother of an illegitimate child who, by law, is vested with sole parental authority, but is deprived of her rightful custody of her child.
RECOURSE OF THE LEFT BEHIND PARENT
- Inducing a minor to abandon his home - Penalty of arresto mayor Travel Clearance from DSWD Clearance is NOT needed when child is accompanied by a parent. Only needed when child travels alone or with person not his/her parent
RECOURSE OF THE LEFT BEHIND PARENT Re-abduction through personal resources Submission of abductor – parent to jurisdiction of court in either country Informal diplomatic channels and assistance from department of police and immigration control
CHANGES IN THE LAW SHOULD THE PHILIPPINES SIGN • • • In certain situations, Art. 363 of the Civil Code will not apply as the question of custody shall be determined by the legal order of the child ’ s habitual residence.
Issues arise from the definition of “ habitual residence ” as many Filipinos have multiple habitual residences or when parents are working abroad with children spending equal time in the Philippines and abroad.
Need for creation of a committee to be in charge of child abduction cases.
No department is specifically responsible for parental abduction cases at present.
DISADVANTAGES OF SIGNING Effects are limited to signatory states. It cannot be applied to the 75% of states not party to the convention.
The appeals system can cause more delay.
Implication on Filipino parents who brought children in the Philippines to flee from domestic violence of foreign spouses.
Administrative cost of compliance.
• • 1. Compliance with the Convention on the Rights of the Child • Art 11. 1.States Parties shall take measures to combat illicit transfer and non-return of children abroad.
2. Promote conclusion of agreements or accession to existing agreements.
Art 35 - States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.
ESPIRITU v. BIELZA (2007) O.J. NO.1587
•Filipino parents were married in the Philippines.
•Wife went to Texas and gave birth to the child there.
•Despite repeated offers of the wife for the husband to follow and set up residence with them, he refused.
•He did not have any relationship with the child, despite wife ’s initiative to facilitate contact.
•Wife commits suicide in 2006.
•Maternal aunt named legal guardian BUT left a note that paternal aunt living also in Texas should have “full custody”.
•Child lives with maternal aunt. Both maternal and paternal aunts apply for custody.
• • • • • • Maternal aunt abandoned her claim for custody.
Full custody given to the paternal aunt. The father was not served this order.
Father applied to have the maternal aunt’s custody voided.
Maternal aunt returned to Ontario with the child.
Father obtained a visa to visit the US. Texas court voided order granting aunt sole custody.
Father petitioned return of child to Texas.
• No wrongful removal – To be wrongful it mist be in breach of the “rights of custody”.
– Issue must be “who has right to custody?” – In this case the issue was whether the aunt’s custody order was void.
– Therefore, Texas did not have rights of custody within the meaning of the Convention.
• • The Convention intended to ensure prompt return of children to their habitual residence.
The father sought the return of the child to Texas, but he was using Texas merely as a conduit to accomplish his ultimate goal of relocating the child to the Philippines, thus was NOT ENTITLED to rely on the Convention.
• • In G v. B , 25 April 2007 (Israel), the court considered that the applicant father had no intention of actually remaining with the child in the child’s habitual residence , but was seeking to bring about a relocation to a non Convention State.
The court did not make a return order.