The following is an extract from Argentina's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:
1. Please give details of any civil legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.
Article 264 quater of the Argentine Civil Code establishes that in some cases, express consent of both parents will be required in order for the minor to carry out certain actions. This provision refers to parents legally married and living together with the child, as well as parents that have separated or are divorced, where in most cases one of the parents has physical custody of the minor, and the other has legal access with the minor.
Among the actions for which express consent is required of both parents, is included the authorization to leave the country (4â). This means that either the father or the mother may grant or deny this authorization, or grant it for a limited period of time, and therefore express his or her agreement or disagreement regarding a possible change of residence of the minor. In other words, from article 264 quater derives the need to comply with the consent of both parents in order for the child to be able to change his residence to a foreign country.
2. Please give details of any criminal legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.
Act 24.270 of the Argentine Penal Code establishes that the parent or third person who, wrongfully, prevents or hinders the contact between children and their non custodial parent, shall be punished with one month to one year imprisonment. Article 2â of the same act, indicates the same punishment for the parent or third person who in order to prevent contact between the child and its non custodial parent, removes it from its home without judicial authorization. In case the child is taken abroad for the same purpose, without judicial authorization, the punishment is elevated.
Article 146 of the Argentine Penal Code makes punishable the behavior of a person who withdraws a minor under the age of 10 from the custody of his parents, tutor, or the person in charge of his care, as well as the conduct of anybody who retains or hides the minor. On this matter, jurisprudence is divided between those judges who understand that this punishment applies to a parent, and those who limit its application to acts performed by a person other than the parents of the minor.
3. Please give details of any court orders which can be obtained during, for example, divorce or custody proceedings which prohibit, restrict or criminalize removal or retention of a child.
A civil court, within a divorce or custody proceeding, may order the prohibition of the minor to leave the jurisdiction of the court or the country, but cannot criminalize the removal or retention of the child. Once the removal has occurred, a criminal judge may intervene.
Moreover, if any suspicion or risk arouses that a parent may abduct a child, the civil court may withhold the passport of the minor. If the passport is already being issued, the civil court may order the police authorities not to deliver the document to his parent.
4. Please give details of any court orders which can be obtained in emergency situations. Can these orders be obtained out-of-hours and ex parte?
Prohibitions to leave the country may be granted ex parte, but can only be ordered during judicial hours.
The withdrawal of the child from his parent's custody can also be required of a civil judge as a precautionary measure, but the emergency and danger of the delay will have to be demonstrated if it is to be extended ex parte, and may be ordered only during judicial hours.
5. Do you have any comments relating to relocation orders?
When a parent wishes to relocate with the child in a foreign country, he or she will need to acquire the court's authorization when a legal custody arrangement has been settled, and this is also the case when a parent has only physical custody of the minor, since according to art. 264 of the Argentine code, consent of both parents is required in order to leave the country.
The inconvenient is that when a parent is denied the relocation order, there is a risk that he or she may abduct the child.
6. Do you have any other comments relating to legislative provisions, or court orders, or administrative measures including any comments on the effectiveness of these provisions and orders, and how often they are used in practice?
Provisions and measures of the kind described, may become ineffective