Transcript Child Abduction: Developments in the Philippines

CHILD ABDUCTION: DEVELOPMENTS IN THE
PHILIPPINES
Professor ELIZABETH AGUILING – PANGALANGAN, LLM
DIRECTOR, INSTITUTE OF HUMAN RIGHTS, COLLEGE OF LAW
UNIVERSITY OF THE PHILIPPINES
1980 Child
Abduction
Convention
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.
Philippine law on custody
• 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.
:
Philippine law on custody
• 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.
•
LEGAL
RECOURSE
OF THE
LEFT
BEHIND
PARENT
Hold Departure Order
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)
Habeas Corpus
:
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.
LEGAL
RECOURSE
OF THE
LEFT
BEHIND
PARENT
Criminal Charge (RPC 271)
- 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
EXTRALEGAL
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.
Advantages of signing
1. Compliance with the
Convention on the Rights of
• Art 35- States Parties
the Child
shall take all
• Art 11. 1.States Parties
appropriate national,
shall take measures to
bilateral and
combat illicit transfer and multilateral measures
non-return of children
to prevent the
abroad.
abduction of, the sale of
• 2. Promote conclusion of
or traffic in children for
agreements or accession
any purpose or in any
to existing agreements.
form.
Advantages
should
Philippines sign:
2. Left – behind parents will
have a civil recourse less
expensive and time consuming
than in regular courts.
the
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.
Rights of custody
• 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.
Issues relating to return
• 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.
Place of return
• 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 nonConvention State.
• The court did not make a return order.
Advantages
3. The Philippines will not be a safe haven
for parents abducting children.
4. Sufficient safeguards in the convention
will ensure that the child ’ s interest is
protected .
Should the Philippines signThere will be need to enact
legislation; and
Reconceptualizing “abduction”
as going beyond the question
of custody.