www.international-divorce.com
by Jeremy D. Morley*
The Philippines acceded to the Hague Abduction Convention in 2016, but it did not establish procedures to implement the Convention until 2022. In February 2022, the Department of Justice of the Philippines, as the designated Central Authority, published a Department Circular establishing the procedure to process applications under the Convention.
In October 2022, the Supreme Court of the Philippines adopted a “Rule on International Child Abduction Cases” (the “Rule”), which provides specific rules to govern the conduct of cases brought pursuant to the Convention in the Philippines' courts. These rules are similar to the rules and procedures adopted by many other signatories to the Convention, with two significant and concerning exceptions.
The essence of the Convention is that children who are removed or retained away from their country of habitual residence in violation of a right of custody of a parent or other person under the law of the habitual residence should normally be expeditiously returned so that the courts in that country can determine the best interests of the children. It is fundamental to the operation of the Convention that a case that is brought pursuant to it is not a “best interest of the child” case. A court in a case under the Hague Convention does not exercise child custody jurisdiction and does not act in that capacity.
It is a matter of significant concern that the Philippines Supreme Court's Rule highlights the “best interests of the child,” defines that term at length, and provides in its “Objective” section of focus not only on the fact that wrongfully-retained or -removed children should normally be expeditiously returned to their habitual residence, but that a wrongful removal or retention is normally not in the best interests of a child. These references in the governing Rule invite a court in the Philippines handling a case brought under the Convention to consider whether or not the return of the abducted child will or will not comport with the best interests of the specific child.
Such concerns are underscored by the inclusion of a special provision in the Rule (Section 38) that provides for the appointment of a guardian ad litem for the child in cases brought pursuant to the Convention, “[i]f warranted for the best interests of the child,” and a provision (Section 21) that authorizes a Family Court in the Philippines to require that a social background and home study report shall be prepared by social workers prior to the hearing of a case brought under the Convention.
The great challenge for any court handling a Hague Abduction Convention case – especially when the courts have not yet acquired substantial experience in returning children pursuant to the convention -- is to be true to the fundamental premise of the Convention that the best way to deter international child abduction is to ensure that it is not rewarded and to return abducted children promptly to their habitual residence, whose courts are the most appropriate to determine their best interests. Unfortunately, provisions such as those that I have highlighted in the Rule may encourage courts to disregard that philosophy.
Another troubling issue is that the Rule contains provisions about the authentication of relevant documents that conflict with Article 30 of the Convention. In order to facilitate the prompt submission of cases under the Convention, minimize the expense of such cases and expedite their resolution, Article 30 states that, “documents and any other information appended” to an application submitted under the Convention “shall be admissible in the courts or administrative authorities” of a Contracting State. Moreover, under Article 23, no legalization or similar formalities of documents may be required. However, Section 11 of the Rule requires that a petitioner must attach to any petition brought pursuant to the Convention “duly authenticated or certified true copies of documents pertinent to the identification, relationship, and other personal circumstances of the child and petitioner.” Section 11 further requires “[c]ertification from the Philippine Central Authority or other relevant government agencies of proof of the entry of the respondent and child into the country, if available,” “[d]uly authenticated or certified true copy of any decision relied on by the petitioner,” and authentication “pursuant to the pertinent provisions of the Rules of Court” of any “[p]ublic documents originating from foreign countries.” These measures may significantly hinder any petitioner in submitting any petition under the Convention.
How these administrative and judicial procedures apply in the Philippines remains to be seen. Meanwhile, the State Department of the United States has not accepted the Philippines as a treaty partner under the Convention, and there is no way to seek the return of children who have been abducted to or wrongfully retained from the United States, through the Philippine legal system, except by initiating plenary child custody proceedings in that country, which requires a full review of best interests of the children.
*Author, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association. Mr. Morley has provided expert evidence in many cases concerning the prevention of international child abduction to the Philippines and other countries and the return of internationally-abducted children.
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