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Chile - International
Child Abduction
Chile
and the Hague Child Abduction Convention
The
Hague Convention on the Civil Aspects of International Child
Abduction was ratified by Chile on February 23, 1994. Chile made a
special declaration stating that article 3 of the Convention will be
interpreted in accordance to its domestic legislation regarding
child custody, which applies until a child reaches 18 years of age.
This means that, if an 18 year old with permanent residence in
Chile, is wrongfully taken abroad, the Central Authority or courts
of that country will have to interpret such an action as illegal,
under the Convention, despite the child being older than 16 years of
age.
I. Domestic Laws and Regulations Implementing the Hague Convention
The Central Authority for the Convention in Chile is the
Corporacion de Asistencia Judicial de la Región Metropolitana
of the Ministry of Justice. The
Auto Acordado
of the Supreme Court, which provides for the domestic procedural
rules for the implementation of the Convention, was issued on
November 3, 1998. A Chilean Supreme Court decision stated that
article 11 of the Convention requires that the domestic court apply
an expedited procedure to solve return cases under the Convention,
but not to grant the petition without hearing the side of the
abducting parent or without considering any evidence. This would
constitute a clear violation of the due process of law guaranteed
under the Chilean Constitution, which provides that any court
decision should be based on a prior due process.
A. Return Requested from Abroad
The Central Authority has only administrative and informational
functions, as the judiciary will always decide on the return of the
child. Once an application for return has been received, the
procedure before the Central Authority is governed by the
Convention’s provisions.
If a child’s return is not possible during the preliminary stage,
the petition must be submitted to the competent court. The Central
Authority will provide the competent court with a general background
on the petition and will also offer its assistance to the court
during the proceedings.
Once the judicial stage has been established, the Central Authority
will assist the Court and will be at the parties’ disposal to
provide any information necessary for the implementation or
application of the Convention in order to secure the best interest
of the child.
The implementing provisions issued by the Supreme Court in November
1998 and amended in 2002 provide specific rules for the application
of the Convention in Chile. The procedure begins with a petition
before the Minors’ court of the alleged domicile of the minor. The
Minors’ court will take all the measures necessary to locate the
child. The court should not request any additional formality or
certification of documents, except for an official translation of
the documents submitted with the petition if they are not in Spanish
and all the required documents set forth in article 8, such as
identification documents for the child, the petitioner, and the
person allegedly retaining the child. As soon as the petition is
entered, the court should secure that the minor be located and once
located not be moved.
Action on the petition needs to be taken within 24 hours of its
submission, setting up a hearing for the individual retaining the
child and the petitioner and his attorney within 5 days of the
notice being served by the
Carabineros
(Chilean Police) or a Court officer. The child must also be present
and heard at the hearing. If the service of notice is not
successfully performed through this procedure, the petition must be
assigned to the Public Defender, who will then assume the
representation of the absentee party.
The objective of the hearing is to determine if the child is in the
country and if there are any grounds, based on those listed in the
Convention, for rejecting the release of the child. Evidence should
be produced during the hearing. However, the court may order further
investigation for more evidence, and this must be submitted within
15 days otherwise the petition will be rejected. The evidence so
produced will be interpreted by the court according to
conciencia
(according to common sense based on the capacity to distinguish
right and wrong.)
A final decision must be rendered within 5 days of the hearing or
the completion of the evidence period. This decision may only be
appealed within 5 days of its notice. The Court of Appeals will make
a decision, without hearing arguments, within 5 days. All other
court resolutions may not be appealed.
When the minor’s residence has not been located, the Chilean Central
Authority will inform Interpol, the agency in charge of locating the
minor in question.
B. Return Requested from Chile
The petitioner must submit a completed application of return to the
Central Authority. These forms include all the information necessary
to locate the child, such as identification information concerning
the child and the person who has taken the child, the child's date
of birth, the reasons for claiming the return, and information on
the probable location of the child. A copy of the judicial decision
or agreement on the custody of the child may also be attached.
Seeking legal counsel is recommended in order to complete the form,
although this is not required. In case the petition is addressed to
a non-Spanish speaking country, the forms must be submitted in
English and Spanish.
The Central Authority will evaluate the viability of the petition,
once all the required documents have been submitted. If the case is
admitted, the Central Authority will send the return and visitation
petition to the Central Authority of the requested country. The
proceedings abroad will depend on the domestic regulations of the
other country’s Central Authority, together with the procedural
norms applied by the competent courts. In many cases the petitioner
will have to hire a private attorney in the requested country. If
the petitioner cannot afford to hire a private attorney, he may
qualify under Chilean law to receive free legal advice and also
become eligible for such assistance abroad.)
The petitioner will be kept informed by the Chilean Central
Authority about the status of his case, since both Central
Authorities will contact each other on a continuing basis to follow
up on the case.
II. Domestic Laws Regarding Child Abduction and Parental Visitation
Under the Civil Code, the parent who does not have the custody of
his or her child may not be deprived of the right, nor exempt of the
obligation, of having direct and regular contact with the child.
Parental visitation rights will be exercised according to a schedule
agreed upon by the parent who has custody or according to a court
established visitation schedule convenient to the child. This right
may only be suspended or restricted when a court has established
that it is in the best interest of the child.
Once custody has been judicially assigned, the parent who has taken
the child must surrender his or her custody. If he refuses to do so
within the judicially determined time frame, or if he infringes on
the other parent’s visitation rights, judicially established under
article 229 of the Civil Code, he may be arrested for up to 15 days
or be subject to a proportional fine. The arrest may be extended for
up to 30 days in case of recidivism.
The Law on Minors also provides specific requirements for a minor to
leave the country. If the custody of the child was not judicially
assigned to one of the parents or a third person, then, the minor
may not leave the country without both parents’ authorization, or
the authorization of the parent who recognized the child.
If the custody of the child was judicially assigned to one of the
parents or a third person, the child may not leave the country
without his authorization. If visitation rights were judicially
determined under article 229 of the Civil Code, the parent whose
visitation rights were so determined will also have to authorize the
child’s travel.
The authorization required will have to be instrumented in a public
instrument or a private document duly notarized.
III. Court System and Structure – Courts Handling the Hague
Convention
When the return request originates outside of Chile and there is no
voluntary return of the child, the competent court for return
proceedings under the Convention will be the Minors’ court with
jurisdiction in the presumed child’s residence. Only the final
decision may be appealed to the respective Court of Appeals and, if
admissible, to the Supreme Court.
The Chilean courts have applied the Convention in a number of cases.
But they reached the Supreme Court in only a few cases. One such
case involved two girls born in 1998 and 1999, daughters of Chilean
nationals living in Sweden. While divorce proceedings were underway
in a Swedish court and the children were in both parents’ custody,
according to Swedish law, the mother requested court authorization
to travel with the girls to Chile. The father opposed the
authorization, requesting at the same time exclusive custody of the
children. However, without any authorization and without the court’s
decision on the matter, the mother traveled with the girls to Chile.
Immediately thereafter, the Swedish court granted the exclusive
custody to the father.
The Minors’ court concluded that the purpose of the procedure set
forth in the Convention is not to assign legal custody of children,
but to determine if the children were illegally taken from Sweden by
the mother and if there were any grounds under article 13 of the
Convention that prevented the children from returning to their
permanent residence. The return of the children was ordered, because
it was concluded they had been taken from Sweden to Chile by the
mother without any authorization from the court and with the
opposition of the father and pending a court’s decision on custody.
The mother appealed before the Supreme Court, which reversed the
lower court’s decision and refused to grant the return of the
children. The decision stated that it was in the best interest of
the children to remain in Chile with their mother, because of their
very young age and their psychological and social connection with
their maternal grandparents, as well as the cultural environment. It
concluded that the children’s return to Sweden would “expose them to
psychological and physical risks” under article 13 of the
Convention.
According to some scholars, this decision does not provide a correct
interpretation of the purpose of the Convention, which is, the
immediate return of the child to his permanent residence, whose
courts are competent to decide on the custody of the children when
they have been illegally taken abroad by one of the parents. The
decision rejects the children’s return by granting custody of the
children to the mother, which is clearly not the purpose of the
Convention.
In another decision, the Minors’ court of Santiago, confirmed by the
Court of Appeals of Santiago, ordered the return of a minor who was
taken by his mother to Chile from Argentina, where he was a
permanent resident. His mother violated an Argentine court order
prohibiting his removal from the country. This court order was
issued in a domestic violence proceeding involving both parents.
Both the lower court and the court of Appeals agreed to grant the
return request based on the mother’s clear violation of the
visitation rights and the judicial order prohibiting the removal of
the minor from Argentina.
The same lower court, in another case, refused to order the return
of children to France, where they were residing with the mother
after her divorce. Although the divorce decree decided that the
custody of the children was to be shared by both parents, they
agreed that the children would reside with the mother with a
specific visitation schedule for the father. However, the court also
decided that in the event the mother decided to reside in Chile, she
should request the court’s authorization. She did so, and although
this authorization was rejected, she moved to live permanently in
Chile with her children.
Taking into account the “best interest of the children” and their
refusal to return to France, the lower court decided that, despite
the children being illegally taken from France to Chile, it was in
their best interest to remain in Chile, where they were already
well-adjusted to their family and social environment.
IV. Law Enforcement System
On June 11, 2003, a National Registry of Information about Missing
Minors was created under the National Program for the Prevention of
the Abduction and Trafficking of Minors and Crimes Against Their
Identity, created by Resolution 284/02, within the Ministry of
Justice, Security, and Human Rights.
The Registry will establish a database that will collect all
information related to cases of children that have been abducted or
missing. The database will be available on the Internet and will
include all the information needed to locate them and to check on
the status of the search.48
Both parents are required under the law not only to authorize the
minor’s travel abroad, but also to authorize the issuance of a
passport to a minor. The withdrawal of a passport, as well as the
denial or restriction on the issuance of visas, may only be ordered
by a court. Therefore, in order for a minor who is not traveling
with both parents to leave the country, he will have to present his
valid passport, as well as the absent parent’s authorization to
travel, to the border authorities. Administrative measures and court
orders may become ineffective if the border controls in the country
are not duly carried out. This is true in the case of land
boundaries, because of their length. However, border controls are
highly effective with regard to air carriers and ferries.
When a court issues an order prohibiting travel outside the country,
the order is given to border authorities, including the Federal
Police, Immigration, Interpol, and Aeronautic Police.
Adapted from report of Graciela I. Rodriguez-Ferrand to the Law
Library of Congress
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