Tuesday, July 08, 2014
The Hague Abduction Convention in the Dominican Republic
The following are excerpts, without footnotes, of an articles published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Dominican Republic
By Antonia Josefina GRULLÓN BLANDINO,Court of Children and Adolescents, NationalDistrict, Civil Chamber, Santo Domingo,Dominican Republic
The National Congress of the Dominican Republic ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) in May 2004. Until then, Dominican Law 136-03 (Code for the Protection and Fundamental Rights of Children and Adolescents) lacked a procedure that allowed for the prompt hearing of and ruling on cases involving international child abduction.
On 6 March 2008 our Supreme Court issued Resolution 480-08 where it clearly established a procedure for hearing such cases in courts for children and adolescents in the Dominican Republic. The Dominican Republic has had two important phases over the course of this history, pertaining to hearings, duration of the legal process and judgments of the courts in relation to applications for the return of minors.
Before Resolution 480-08
Only Article 110 of our Law 136-03 (Code for the Protection and Fundamental Rights of Children and Adolescents) referred to cases of a wrongly removed and / or retained child from his or her habitual residence. Article 110 determined that the Public Prosecutor is the authority designated to return the child to its guardian or person who has the rights of custody. The judicial approach developed in the following manner:
1. Lack of judge’s knowledge of the tools necessary for the hearing of these cases: In the event of a child’s abduction or illegal retention, the judges, in their rulings, limited the ruling by only deciding to send the case to the Public Prosecutor as the institutional body in charge of the case. Also, they had the authority to decide on matters beyond the return of the child to its habitual residence, such as custody issues, guardianship and visitation rights.
2. Duration of the procedure in the courts: The hearing process was dealt with on par with any other case, without any limitation in terms of timeframe or promptness, making it possible for a case to be heard at each instance of the Dominican judicial system including the Supreme Court, where it might take a year or more in order to have a ruling.
3. Absence of the Central Authority’s participation in most cases: The Consejo Nacional para la Niñez (CONANI) [National Council for Children] was designated in 2004, and in 2005 the recommended form for return applications, developed at the Hague Conference, began to be used. The majority of the applicants used to go directly to the courts and there was therefore an absence of the Central Authority’s participation or even knowledge of the case.
After Resolution 480-08 came into effect
1. Concentration of jurisdiction for the hearing of these cases: Jurisdiction is clearly established by designating the courts for children and adolescents in the territory where the child subject to the retention or abduction is located.
2. Participation of the Central Authority in the investigation process and hearings: The resolution establishes that the Public Prosecutor and the Central Authority (CONANI) should be present at the hearings.
3. The duration of the process in the courts: Statistics have shown that in 2011 and 2012, the average timeframe for the hearing and decisions for these types of cases was two to four months.
4. Ongoing training and courses for judges of child and adolescent courts in the Escuela de la Judicatura [School of the Judiciary], therefore guaranteeing that these cases are being heard and decided by professionals duly trained and given the necessary tools and knowledge to make decisions according to the principles of the 1980 Child Abduction Convention.
5. The resolution clearly establishes that rulings only relate to whether the child is returned or not, excluding decisions pertaining to any other issues.
6. Appeal of the decision rendered at the first instance is the only recourse to appeal which is allowed. In general terms, the benefits of the concentration of jurisdiction that resolution 408-08 establishes are:
a) Jurisdiction, substantive and territorial, is clearly established in order to hear these cases.
b) Trained and prepared judges hear the cases.
c) The timeframe for the resolution of these cases has been reduced.
d) The presence of the Public Prosecutor’s Office and Central Authority in every hearing is guaranteed.
e) There are guarantees that procedures follow the mechanisms foreseen under the 1980 Child Abduction Convention, with utilisation of the Central Authority.
f) The applicant is always represented by either the Central Authority or by other private legal assistance.