Friday, January 13, 2017

Notes on International Child Abduction and the Philippines


Jeremy D. Morley
1.      Although the Philippines has acceded to the Hague Abduction Convention, the Convention is not in force between the United States and the Philippines because the United States has not accepted the Philippines’ accession. Articles 38 and 39 of the Convention provide that the treaty will not enter into force between an existing Contracting State and a newly acceding State unless and until the existing state expressly accepts the accession of the new state.

2.      When a country accedes to the Convention, the U.S. State Department reviews the new signatory’s domestic legal and administrative systems to determine whether the necessary legal and institutional mechanisms are in place for it to implement the Convention and to provide effective legal relief under it. If it determines that a country has the capability and capacity to be an effective treaty partner, the State Department declares its acceptance of the accession by depositing a written instrument with the Hague Permanent Bureau. Only then does the Convention enter into force between the United States and the acceding country. The State Department posts these details on its website and the Permanent Bureau maintains a current status list on its website.

3.      Currently, the United States has not accepted the Philippines as a treaty partner. As a result, the Convention cannot be invoked in the case of abductions of children from the United States to the Philippines, or from the Philippines to the United States.

4.      There are no bilateral arrangements between the United States and the Philippines concerning the return of abducted children.

5.      In July 2016 the State Department issued its Annual Report on International Parental Child Abduction for the year 2015. The State Department reported that, “During 2015, the Philippines did not adhere to protocols with respect to international parental child abduction.” It also reported that, “During 2015, the Department had 23 reported abductions to the Philippines relating to children whose habitual residence is the United States. Of those, seven were newly reported during the calendar year. By December 31, 2015, no cases had been resolved, as defined by the Act, and five reported abductions had been closed. By December 31, 2015, 18 reported abductions remained open.”

6.      There can be no extradition from the Philippines for international child abduction from the United States, since there is no extradition treaty between the U.S. and the Philippines.

7.      Courts in the Philippines are not required to enforce foreign custody orders. There is no system in the Philippines of registration of foreign custody orders or enforcement of foreign custody orders. The Philippine courts will also take into consideration child custody decrees issued by foreign courts but there is no obligation that requires them to do anything more than “consider” such decrees.

8.      The courts in the Philippines have jurisdiction under the law of the Philippines to deal with all matters concerning the custody of children who are in the territory of the Philippines, regardless of the continuing jurisdiction of a foreign court.

9.      Article 213 of the Family Code of the Philippines provides that, “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. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

Art. 363. In all questions on the care, custody, education and property of children, the latters 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.

While the rule mandating sole custody of a child to a mother (except in exceptional cases) ends when the child is seven, the strong bias in favor of the mother continues after that age.

10.  The courts in the Philippines are extremely backlogged and are subject to extreme delays.

11.  Once a custody case is commenced in the Philippines, a travel hold concerning the Child will normally be in place in that country. The Philippines Government advises that, “A minor who is the subject of ongoing custody battle between parents will not be issued a travel clearance unless a Court Order is issued to allow the child to travel abroad with either one of his/her parents or authorized guardian. The family shall be responsible to notify the Bureau of Immigration to include the name of the child/ren in the watchlist of minors travelling abroad. It is therefore the Bureau of Immigration’s responsibility to ensure that no child under the watchlist order leaves the country.”