International Child Abduction
This booklet is intended to provide basic information to parents and as a guide to Finnish authorities in cases of international child abduction.
The booklet deals with the provisions on child abduction, the Hague Child Abduction Convention, and the work of the most relevant authorities in child abduction cases.
The booklet has been prepared in co-operation between the Ministry for Foreign Affairs, the Ministry of Justice, the Ministry of Social Affairs and Health, and the Association for Abducted Children in December 2000.
Updated on March 5, 2013
Un résumé en français
Sokrashtshennoje izlozhenie po-russki
The past decades have shown a marked increase in international intercourse between people, and the trend is expected to continue. The number of marriages and cohabitation relationships between people from different countries is also clearly rising. As a result, there will be a corresponding increase in the number of divorces and the dissolution of relationships.
The dissolution of family communities is particularly distressing when children are involved. In some cases unfortunately, one of the parents, the Finnish or the foreign partner, sees it best to solve the deadlocked or broken family situation by removing the child from its familiar surroundings, in extreme cases even by taking the child abroad.
Efforts have been made to prevent and settle international child abductions by means of international conventions, primarily the Hague and the Council of Europe Conventions on Child Abduction. International conventions do, however, not always work quickly enough nor in the desired way. Moreover, international conventions can be invoked only if the country concerned has acceded to them.
A child can be abducted to a country that has not acceded to the above international conventions. In such cases no predetermined procedure can be applied. What measures can be taken depends under those circumstances on the legislation of the country in question.
It is important to bear in mind that the cultural, religious and legal systems in other countries differ from the Finnish system and that the attitude to children, parents and questions related to guardianship and access can be very different from what we are used to.
In some countries the mother has the custody of her children as long as they are small, but as they grow older, the custody is automatically transferred to their father. The age limit can vary depending on the sex of the children. Sometimes a certain religious conviction is required for a parent to be entrusted with the custody of his or her children. The grandparents and the parents of the children may have equal rights. The evaluation of what lies in the best interest of the children differs from Finnish criteria. The court dealing with questions of custody of children can be religious or civil.
Requests for information on child abduction both from the point of view of the parents and the officials dealing with it have come from different quarters. This booklet has been compiled for that purpose. The beginning of the booklet contains basic instructions for parents on practical measures to be taken. The end part sets out acts and conventions related to child abduction as well as the possibilities for Finnish authorities to intervene.
Basic instructions for parents
What is abduction?
It is normally a question of international abduction when the following requirements are met:
- A child is taken to or retained in a foreign country without the consent of the person who has custody of the child.
- The child was habitually resident in Finland (nationality is of no consequence).
- The child is under 16 years of age.
If a child has been abducted to a foreign country
Child abduction matters are dealt with by different authorities depending on the country where the child has been taken.
If your child has been abducted to a State that has acceded to the so-called Hague Convention, first contact the Ministry of Justice. Most European countries, including Russia and the United States of America and Canada are parties to the Hague Convention.
The Ministry of Justice will instruct you how to apply for the return of your child.
Ministry of Justice
P.O.Box 25, 00023 GOVERNMENT
telephone 02951 6001
facsimile (09) 1606 7524
If the child has been removed to a non-contracting State,
first contact the Ministry for Foreign Affairs. The Ministry for Foreign Affairs will help you clear up the abduction.
Ministry for Foreign Affairs
P.O.Box 176, 00161 Helsinki
telephone (09) 160 05
facsimile (09) 1605 5755
If the whereabouts of the child is unknown
Sometimes the country to which the child has been removed or the exact whereabouts of the child is not clear. In such cases you should contact your local police. The police can make inquiries as to the whereabouts through the National Bureau of Investigation.
If you know that your child has been abducted to a Contracting State but you do not know his or her exact whereabouts, contact the Ministry of Justice, too.
If you know that your child has been abducted to a non-contracting State but you do not know his or her exact whereabouts, contact the Foreign Ministry, too.
Legal advice is necessary
The process of returning a child is judicially complicated. The parents need not only the assistance of the authorities but also legal advice both in Finland and abroad.
Consult a lawyer. He or she will help you for instance with questions regarding custody and the formulation of the application for the return of your child. He will also represent you in court.
Find out the possibilities for cost-free legal proceedings through the Government Legal Aid Office.
If you fear that your child may be abducted
Experiences of parents
A child abduction often comes as a surprise. Parents who have experienced abduction, however, say that you should be alert to for instance the following signs:
- changes in the other parent's behaviour, such as increasing arguments over the upbringing of the child
- a difficult divorce and disagreement on the custody of the child and the right of access
- plans to move to the other parent's home country together with the child
- explicit threats of abduction.
Threats of abduction do not necessarily mean that an abduction will actually take place. But they are a definite signal for you to find out about child abduction and how to prevent it. The problem here is, however, that no two abductions are exactly alike.
If you suspect that the other parent intends to remove your child from the country without your consent
- Contact the bailiff or the police. These authorities can immediately take charge of the child, for example at the airport, in order to prevent the child from being removed from the country.
- Contact your local social authorities. In certain cases a child can urgently be taken into custody in order to prevent abduction.
Where can you get moral support?
An abduction process is always mentally trying. You can get support from different authorities and many civic organisations, such as
Your local social and health authorities
The Finnish Association for Abducted Children(Kaapatut Lapset ry)
Telephone (09) 587 4401
The Association for Mental Health (Suomen Mielenterveysseura ry)
Maistraatinportti 4 A, 00240 Helsinki
telephone (09) 615 516
Maistraatinportti 4 A, 00240 Helsinki
sos crisis telephone 010 19 5202, sos center: (09) 413 50 501, sos-center 09 413 50510,
facsimile (09) 413 50 570
Custody of Children
Custody of children in finnish legislation
The provisions on custody of children are to be found in the Child Custody and Right of Access Act 361/1983). Custody can be decided on the basis of marriage, a court decision or an agreement between the parents. Custody of a child can be exercised either jointly by the parents of the child or by only one of the parents.
If the parents of the child are married to one another at the time of the birth of the child, they shall both have custody of the child. If the mother of the child is not married, she is the sole custodian. Also after the establishment of paternity, the mother will remain the sole custodian, unless the parents agree otherwise or a court order is issued in the matter.
Custody by virtue of birth can be changed either through a court order or an agreement between the parents, confirmed by the social authorities.
The parents can make a mutual agreement on either joint custody or on sole custody to one of them. An agreement on joint custody will in general be considered when the parents do not live together, for instance after a divorce. In general it is then also agreed with whom the child is to live and how the other parent is to maintain contact and visit the child. The agreement between the parents shall be confirmed by the social authorities.
If the parents cannot reach an agreement on the question of custody, the matter will be settled in court.
When the parents have joint custody they are together responsible for the duties inherent in custody, and they make joint decisions relating to the child, unless something else has been provided or ordered. Consequently, the consent of both custodians is, as a rule, necessary when significant matters relating to the person of the child are decided. Such are for instance decisions on the education of the child, changes in the place of residence of the child and obtaining of a (Finnish) passport for the child. If the parents have joint custody, neither parent has the right to change the child’s residence abroad without the consent of the other parent, not even if the child is staying with the parent that has removed him or her.
The situation is different if a parent is a sole custodian. In that case this parent alone makes decisions on matters relating to the person of the child. The consent of the other parent is not needed. In these cases the parent who is not a custodian is not entitled to decide for example where the child is to live and reside without the consent of the parent who has sole custody. If one of the parents has sole custody of the child, the other parent has no right to take the child abroad without the consent of the custodian.
The custody award is partly decisive in determining whether or not a child abduction has taken place.
Recognition and enforcement of decisions on custody
Finnish decisions abroad
The advantage of the Hague Convention on Child Abduction is that it aims exclusively at returning the abducted child. No specific recognition or enforcement of decisions is needed where the Hague Convention is concerned. If the Convention is not applicable, the objective is to have a Finnish decision on custody recognised and enforced in the State concerned. The aim of the enforcement is to return the child by coercive means to its lawful custodian.
However, Finnish decisions on custody and right of access cannot without special measures be enforced in a foreign state. The enforcement of a decision in a foreign state normally requires the existence of an international convention on the subject.
In matters regarding recognition and enforcement of Finnish custody decisions in another European Union Member State the so-called Brussels II a Regulation (EC No 2201/2003) shall be applied. Another important international convention is the so-called Luxembourg Convention, that is the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of children, where the Contracting States undertake under certain conditions to recognise and enforce decisions given in other Contracting States. Due to special arrangements between the Nordic countries Finnish decisions on child custody and right of access are, as a rule, enforced in Sweden, Norway and Denmark in accordance with the Convention on Recognition and Enforcement of Nordic Decisions in the field of Civil Law (Treaty Series 56/1977).
In certain cases it may be possible for a Finnish decision to be declared enforceable in some state solely on the grounds of the national legislation of the state in question.
If a decision cannot be enforced in a foreign state, a new trial on the custody and right of access to the child may have to be initiated.
If a decision on custody or right of access has been issued in another Nordic country it can be enforced without assertion of its enforceability in Finland. The application for enforcement shall be addressed to the District Court in whose territory the child or the adversary of the applicant is resident.
If a decision has been issued somewhere else than in the Nordic countries, the district court or Helsinki Court of Appeal must, on request, assert its enforceability in Finland.
The leading principle in the Finnish provisions regulating the recognition and enforcement of foreign decisions on custody and right of access is to adopt an accepting attitude to foreign decisions. They are, as a rule, recognized and enforced in Finland. However, if a decision is evidently contrary to the best interest of the child or if the proceedings have been obviously inappropriate, the decision can be set aside on the grounds for denial of recognition and enforcement provided by the Convention.
The Child has been abducted to a Contracting State
The law and conventions
Finland is a party to two international conventions which aim at restoring abducted children to other Contracting States:
- the Convention on the Civil Aspects of International Child Abduction, i.e. the Hague Child Abduction Convention (Treaty Series 57/1994)
- the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, i.e. the Council of Europe or Luxembourg Convention (Treaty Series 56/1994).
Since in practice only the Hague Convention on Child Abduction is applied, this booklet deals exclusively with that.
The Finnish provisions on child abduction are to be found in the Child Custody and Right of Access Act (361/1983, amended 186/1994).
The above acts and conventions can also be found on the Internet, at the address http://www.finlex.fi. The site is maintained by the Ministry of Justice and can be accessed free of charge.
The Hague Convention on Child Abduction has been in force in Finland since 1994. The other Contracting States are (3/2013):
Albania, Argentina, Armenia, Australia,
Bosnia and Herzegovina
Columbia, Costa Rica,
Ecuador, El Salvador, Estonia
Great Britain, Greece, Guatemala
Honduras, Hong Kong,
Macedonia, Malta, Mauritius, Mexico
Moldavia, Monaco, Montenegro, Morocco
Netherlands, New Zealand,
Panama, Paraguay, Peru, Poland,
South Africa, Spain, Sweden,
Saint Kitts and Nevis, San Marino, Serbia, Seychelles
Slovakia, Slovenia, Sri Lanka, Switzerland
Trinidad and Tobago, Turkey
United States, Uruguay
When is the child abduction convention applicable
The purpose of the Hague Convention on Child Abduction is to combat international child abduction. The key aim of the Convention is to return children that have been wrongfully removed from the State of their habitual residence. Wrongful removal is equated with wrongful retention of children for example at the end of a period of exercise of the right of access to a child. Habitual residence in this context means the state where a child de facto lives and where his or her principal living environment is.
For a removal of a child (from Finland to another Contracting State) to be considered wrongful the following requirements must be met:
- the child is under 16 years of age
- the child was habitually resident in a State Party to the Hague Convention (for instance Finland) immediately before the removal
- the child has been removed to another State Party to the Hague Convention
- the applicant had either exclusive or joint right to decide on the child's place of residence. In practice this means that the applicant had sole custody of the child or joint custody together with another custodian
- the applicant has actually exercised his or her custody rights
- the applicant has not given his or her consent to the removal or retention of the child.
A decision on the return of a child does not, however, involve a decision concerning the custody of the child. This means that it is in no way a conclusion on which parent would be the best custodian. After the child has been returned, proceedings relating to the custody of the child will take place in the State of habitual residence. The courts of this State are considered to be best qualified to ascertain the best interests of the child.
There are situations where the State required to return the child can refuse to do so.
The grounds for refusal are the following
- the application is submitted more than one year after the removal took place and the child has adapted himself or herself to the new surroundings
- the return of the child would place him or her in an intolerable situation or expose him or her to physical or psychological harm or
- the child who has attained an adequate degree of maturity objects to being returned.
Duties of the ministry of justice
The Ministry of Justice is the Central Authority whose duty is to discharge the tasks imposed by the Child Abduction Convention.
The Central Authority shall take measures
- to locate the abducted child
- to bring about an amicable resolution and to secure the voluntary return of the child
- to provide advice in the application of the Convention and the drafting of the application
- to transmit the application to the Central Authority of another Contracting State
- to keep in contact with Central Authorities in other States
- to request information relating to the legislation and practice of another State.
Pursuant to Section 35 of the Child Custody and Right of Access Act the State and municipal welfare authorities shall, upon request, provide the Ministry of Justice with executive assistance for ascertaining the whereabouts and the circumstances of a child, for securing return of a child and for preventing the wrongful removal of a child.
Application for the return of a child
When a parent suspects that his or her child has been wrongfully removed to another Contracting State, he or she shall contact the Central Authority, i.e. the Ministry of Justice, either directly or through a lawyer. The International Affairs Unit of the Ministry provides advice relating to the interpretation of the Child Abduction Convention and to the drafting of the application.
An application for the return of the child has to be made. The application shall contain:
- a demand that the child be returned
- personal data of the child
- personal data of the applicant
- personal data of the parent who has removed the child
- the legal grounds, that is a statement on the custody of the child and the breach of it
- a detailed description of how the abduction took place
- information on the possible whereabouts of the child
- as an attachment, for instance the custody decision.
The application shall be sent to the Ministry of Justice, where it will be translated and sent to the proper foreign Central Authority.
The Child has been Abducted to a Non-Contracting State
Measures of the ministry for foreign affairs and the missions
Sections 31 and 32 of the Consular Services Act (498/1999) regulate the measures of the Ministry for Foreign Affairs and the Finnish Missions abroad in cases of child abduction. For a Mission to be able to assist in such cases the following conditions must be fulfilled:
- the child is under 16 years of age
- the child was habitually resident in Finland immediately before the abduction
- the parent requesting assistance was alone or jointly with the other parent entitled to decide on the place of residence of the child
- the parent has actually exercised his or her custody rights
- the parent has not consented to the removal or the retention of the child
- the matter concerning the return of the child does not according to a law, a decree or an international convention binding on Finland fall under the competence of another authority.
Crucial for the intervention of the Foreign Ministry and the Missions is thus that the removal and retention of a child is unlawful according to the Child Custody and Right of Access Act and that the matter does not fall under the competence of some other authority. For instance, if a child has been removed to a State Party of the Hague Convention on Child Abduction, the matter is dealt with by the Ministry of Justice.
In some cases a child is abducted from one non-contracting State to another non-contracting State. According to section 31 paragraph 2 of the Consular Services Act the Ministry for Foreign Affairs will provide assistance also in such cases, provided
- the child is under 16 years of age
- the child is a habitual resident of the country from which it was abducted
- the child or the custodian requesting its return is a Finnish citizen
- the removal or retention of the child is considered unauthorised under the legal system of the State from which the child has been removed or to which it has not been returned
- the measures concerning the return of the child do not fall under the competence of another authority.
Pursuant to section 32 of the Consular Services Act the Missions can assist
- in the achievement of an amicable agreement for example by contacting and keeping in contact with the abducting parent and the child
- in discovering the whereabouts and the circumstances of the child
- in finding a counsel or other legal assistance based on the local law, i.a. by supplying a list of local lawyers
- in seeking general information on the relevant legislation of the State in question
- in transmitting information and documents concerning the matter to the authorities and the counsel
- in the practical arrangements in connection with the return of the child.
The Consular Services Act expressly states that the Mission shall contribute to the voluntary return of the child and to the achievement of an amicable agreement for the return of the child. Other measures by the Missions are primarily taken through the local authorities by submitting a request for executive assistance normally to the local Ministry for Foreign Affairs e.g. with the aim of discovering the circumstances of the child.
The Missions cannot:
- assist in reabducting the child
- act as a lawyer
- influence the trial and the final decision of the court
- violate the laws and regulations of the country in question.
The Ministry for Foreign Affairs and the Missions always aim at securing all possible executive assistance in the matter, but their measures cannot replace the proceedings for the return of the child required by the legal system of the country concerned. The foreign authorities are not always willing to intervene in cases of child abduction. The reason for this can often be found in different concepts of family, culture and religion.
If the child is also or exclusively a citizen of the country to which it has been abducted, the chances of executive assistance in obtaining the return of the child can be severely limited. This can also be the case if either or both of the parents are citizens of that country.
If the child has been wrongfully removed to a State that is not a party to the Child Abduction Convention, the parent shall contact the Ministry for Foreign Affairs either directly or through a lawyer thereby enabling the Mission to take the above measures.
If the parents are unable to reach an agreement, the only possible solution may be to initiate legal proceedings in the country to which the child has been abducted.
The foremost aim of the Finnish authorities is to have a decision issued in Finland recognized and enforced in the foreign State. When the Finnish decision is considered valid, steps can be taken in that country to return the child.
If this is not possible, separate legal proceedings will be initiated and the question of custody of the child will be settled on the basis of the legislation of the country in question. Courts in foreign States decide cases on the basis of their own domestic laws and regulations. In some countries the laws derive directly from religious rules.
A local lawyer is needed for the proceedings. Legal aid can be granted for the costs of the proceedings by the country concerned or by Finland pursuant to the Act on Public Legal Aid (104/1998). In Finland applications for legal aid are made to and, on certain conditions, granted by the Ministry of Justice.
The proceedings can be drawn out and patience-taxing. They also include the process, specific to each country, through which a Finnish decision validated in the relevant country or a decision on custody of the child can be enforced. The enforcement may be decided by another authority than the court.
International conventions on the position of children
If a child has been removed to a State that is not a party to the child abduction conventions the return procedure prescribed in the conventions is not applicable. It is, however, possible that the State to which the child has been abducted has acceded to another international convention. If so, you may be able to invoke that convention in your case. Just invoking a convention is, however, seldom enough; the necessary proceedings required by the legal system of the country concerned for the return of the child must also be initiated.
Some Possibly Applicable Conventions in Cases of Child Abduction
Convention on the Rights of the Child (Treaty Series 60/1991). According to Article 11 of the Convention States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
International Convention against the Taking of Hostages (Treaty Series 38/1983).
Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. the European Human Rights Convention (Treaty Series 18-19/1990) and Additional Protocols.
UN International Covenant on Civil and Political Rights (Treaty Series 7-8/1976).
The Treaty Register of the Ministry for Foreign Affairs shows which international conventions are in force in the countries between which the abduction has taken place.
Information on international conventions can also be found on the Internet at address http://www.finlex.fi.
Child Abduction as an Offence
In addition to taking civil action the parent may report the abduction to the police. Note, however, that criminal proceedings may make it considerably harder to accomplish a voluntary return of the child. In other countries child abduction is not always an offence, even though it is regarded as such in Finland.
The child abductor may be guilty of an offence against personal liberty subject to punishment according to the Penal Code. The offences against personal liberty are laid down in Chapter 25 of the Code. Section 5a "Abduction of a Child" is primarily relevant in this context. According to this provision, whoever takes a child arbitrarily into custody and removes the child from its country of residence to a foreign country or fails to return the child to its state of residence renders himself guilty of child abduction. The punishment for the offence is a fine or imprisonment for at most two years.
In addition, the abductor may be guilty of a more serious offence against personal liberty, for instance of deprivation of liberty, aggravated deprivation of liberty or hostage taking.
Preventing Child Abduction
A parent suspecting that the other parent intends to remove the child from the country without permission may apply for interim precautionary measures. Depending on the situation, such measures ensuring enforcement are based on different provisions and may take different forms. For instance, when rights of access are enforced, the court may oblige the applicant to deposit the valid passports of the applicant and the child with a bailiff for the time of a visit.
Extremely Urgent Cases
If the child is in the sole custody of one of the parents or in joint custody and either of the parents has good grounds to suspect that the other parent intends to wrongfully remove the child from the country, he or she may in extremely urgent cases contact a bailiff or the police directly, and these may immediately take the child into custody in order to prevent abduction.
Joint custody may be based on marriage, a court decision or a confirmed agreement.
Section 48a of the Child Custody and Right of Access Act
- Applicable in urgent cases
a) when the parents have joint custody based on law, i.e. no custody decision or agreement exists, or
b) a decision on joint custody has been rendered and the parent with whom the child has been ordered not to live wants to prevent abduction
- request is directly submitted to a bailiff or the Police.
Section 25 subsection 2 of the Act on the Enforcement of a Decision on Child Custody and Right of Access
- Applicable in urgent cases when
a) a custody ruling has been given and enforcement proceedings based thereon have been initiated, or
b) a custody ruling has been given but enforcement proceedings have not yet been initiated.
- The applicant may either be a sole custodian or the joint custodian with whom the child lives.
- request is submitted to a bailiff or the Police.
If enforcement proceedings concerning child custody are pending, a request for precautionary measures may in less urgent cases be submitted to the court considering the matter, a bailiff or the Police. The court may for instance order that the social welfare authorities temporarily place the child in appropriate care till the situation has been cleared up.
Section 25 subsection 1 of the Act on the Enforcement of a Decision on Child Custody and Right of Access
- Applicable when a custody ruling has been given or an agreement confirmed, and enforcement proceedings are pending on it.
- A request is submitted to the court considering the enforcement case.
- The applicant may either be a sole custodian or the joint custodian with whom the child lives.
Child welfare measures
When the threat of child abduction is imminent an extreme preventive measure may be an emergency placement of a child in accordance with the Child Welfare Act (No. 417/2007).
Chapter 8 of this Act regulates the emergency placement of a child and Chapter 9 the taking into care. Section 40 lays down the prerequisites for taking into care. It provides that children must be taken into care and substitute care must be provided for them by the municipal body responsible for social services if their health or development is seriously endangered by lack of care or other circumstances in which they are being brought up or they seriously endanger their health or development by abuse of intoxicants, by committing an illegal act other than a minor offence or by any other comparable behaviour. Taking a child into care and the provision of substitute care may, however, only be resorted to if the measures in the open care would not be suitable or possible for providing care in the interests of the child concerned or if the measures have proved to be insufficient. In addition, it is required that substitute care is estimated to be in the child's interests.
If the custodian or a child of 12 years of age or more does not oppose the taking into care, the municipal officeholder directing social services or an officeholder designated by him or her and satisfying the qualification requirements for a social worker decides on taking the child into care. If the custodian or a child of 12 years of age or more opposes the taking into care the administrative court decides the case.
Section 38 of the Child Welfare Act concerns emergency placement. By virtue of the section, a child who is in immediate danger for a reason referred to in section 40 or otherwise in need of urgent placement or substitute care can be placed with urgency.
The child welfare authorities may take action on the basis of a child welfare report submitted by a parent, or, for instance, a report by the Border Guard or the Police.
Decisions concerning taking a child into care and emergency placement may be implemented immediately regardless of appeals if the implementation cannot be postponed without endangering the child's health or development and the authorities or the court has ordered the decision to be implemented promptly.
An emergency placement of a child may be executed by the social welfare authorities of the child's municipality of residence or of the municipality where the child is staying. Especially in situations where there is a threat of abduction and a child has been taken outside its domicile and is on its way to a port, airport or border crossing, or has already arrived there, it may be necessary for the social welfare authorities of the municipality where the child is at that moment to take immediate action. If abduction already has occurred, the social welfare authorities of the child's last municipality of residence in Finland are competent and obliged to act in child welfare situations.
In addition, an emergency placement of a child may be justified in situations where it is known that abduction has occurred, and there are reasonable grounds to suspect that the conditions of the child seriously endanger the health or development of him or her. An example is a situation in which either the parent abducting the child or the child or young person abducted is mentally ill or seriously abuses intoxicants. On the basis of earlier information it may also be justified to suspect on other grounds that the parent abducting the child is incapable of properly taking care of, bringing up or seeing to the welfare of the child. Further, it may be possible to assess that the child is caught in a situation in which the health or development of the child is seriously endangered. In the case of a small child, for instance, the fact that the child suddenly finds itself in a foreign linguistic and cultural environment or in a situation where he or she is separated from the parent who has cared for him or her can seriously jeopardize the health or development of the child.
On the basis of the emergency placement or care order the social welfare authorities have the right to executive assistance in Finland for instance from the Police and the border control authorities.
When a child has been placed in emergency placement or taken into care, the social welfare authorities have the right to decide on the whereabouts and the care, upbringing, supervision and other welfare of the child as well as the teaching and health care necessary for the implementation of them. Section 49 of the Child Welfare Act provides that the substitute care of a child that has been placed urgently or taken into care can be arranged in the form of family care, institutional care or in some other way required by the child's needs. According to the provision a child that has been taken into care may be placed temporarily for a maximum period of six months under the care and upbringing of a parent or other custodian when it is justified in terms of the child's interests.
Decisions based on the Child Welfare Act regarding the care, whereabouts and contacts of a child that has been urgently placed or taken into care generally have priority in relation to general court rulings or confirmed agreements concerning child custody, residence and rights of access. Only a decision on the return of a child based on the Hague Convention by a court of appeal or the Supreme Court may be enforced irrespective of the child having been taken into care.
The purpose of a restraining order is to ensure in advance the safety of a person in danger of becoming a victim of a crime against life, health or freedom. Such an order may be issued if there are reasonable grounds to suspect that the person to be restrained could threaten the life, health or freedom of the person to be protected or in some other way seriously molest that person. There are two types of restraining orders. A person under a normal restraining order may not meet or in any other way contact the protected person. An extended order includes the prohibition to enter a certain area, for instance the vicinity of the protected person's apartment.
A person feeling threatened or molested may apply for a restraining order, which is given by a district court. Restraining orders are noted in the police personal data register, and it is the police that see to it that the orders are obeyed. The punishment for violating an order is a fine or imprisonment.
Restraining orders may be applicable when there is a threat of child abduction. A child can also be protected by a restraining order. In practice one of the parents is then under a restraining order as regards the child. So far there is little experience of the use of restraining orders in the prevention of child abduction.
Costs for Child Abduction
The services of the Central Authority are always free of charge.
The main principle of the Hague Child Abduction Convention is that an applicant is not charged for legal advice or for the use of a counsellor in another Contracting State. Several countries have, however, made reservations concerning free legal proceedings. Thus the situation has to be separately checked for each country.
In non-contracting States the parent is responsible for the legal expenses, unless the country in question provides free legal proceedings and counsel, or the Ministry of Justice grants legal aid for the trial costs. The measures taken by the Ministry for Foreign Affairs for the return of the child are usually free of charge.
Public legal aid granted according to Finnish legislation only covers general legal counselling in cases considered abroad. This includes for instance the drafting of a return application. Other measures taken abroad - such as trial counsel - are not part of it.
On the basis of Section 23 of the Act on Legal Aid the Ministry of Justice may for very important reasons grant more extensive legal aid to a case considered abroad. This presupposes that the applicant does not have the possibility of receiving free legal aid in the target country on the basis of a child abduction convention, or, in a non-contracting State, on the basis of the legislation of that State.
Applications for free legal aid in cases considered abroad are submitted to the Ministry of Justice. An account of the case, a plan for the measures to be taken, a budget and an income statement have to be enclosed. It is primarily the necessary costs for legal measures in the target country that are compensated. In addition, the communication costs of a Finnish law office may be paid.
It is possible for an applicant to be granted free legal proceedings on the basis of the legislation of the target country for example in connection with a custody trial.
In some countries the applicant may have to pay the costs for the (coercive) enforcement of the decision to return a child.
Travel costs caused by the return of a child are not regarded as legal costs and therefore not compensated. Neither are the travel costs of the applicant normally compensated. In general, the party bringing back the child has to arrange the return trip and pay the travel costs.
In proceedings concerning the return of a child the applicant may demand that the child abductor pay the travel and other expenses for the return of the child.
Help of the Social Welfare and Health Authorities
Child welfare measures
The child welfare chapter above indicates steps that the social welfare authorities may take pursuant to the Child Welfare Act either in order to prevent child abduction or after it has already occurred.
Moral support to parents
Child abduction or the serious threat of it puts the parent concerned under extreme mental strain. In order to cope with the situation the parent may seek practical support or a discussion partner in the municipality of residence from
- the child welfare authorities,
- a family counselling centre,
- a mental health centre, and
- a possible crisis group (more information is available at health and mental health centres).
Custody trial and enforcement process
The Child Custody and Right of Access Act and the Act on the Enforcement of a Decision on Child Custody and Right of Access include several provisions on the duties of the social welfare authorities. Such duties are:
- To assist the parents in drawing up an agreement on child custody, rights of access and residence.
- At the request of a court to submit an appraisal assessing factors influencing the best interests of the child. This appraisal should include the child¡¦s own views and desires, if they can be ascertained in view of the age and stage of development of the child. The primary goal of the appraisal is to reach an amicable solution in the best interests of the child.
- To help the parents in voluntarily reaching an amicable solution, if there are differences in opinion as regards the enforcement of a confirmed agreement or court decision on child custody, rights of access and residence.
- At the request of the court to act as an enforcement mediator, if an enforcement dispute is pending in court. The primary goal of the mediation is to find an amicable solution. If several mediators are appointed, one of them may ascertain the views of the child as well as support the child during the enforcement process and if need be when the decision is actually enforced.
Advice to parents by The Association for Abducted Children
An association for abducted children (Kaapatut Lapset ry) has been formed in order to support and advise parents of abducted children. According to the experiences of the association parents should pay particular attention to the following:
- Find out about the culture and religion as well as about family law and the concept of the family in the country of your spouse.
- For instance the right of the father to decide on matters concerning the children may be regarded as natural in some countries. In other countries, a child is thought to belong to its mother, and she is thought to be the natural custodian of the child.
- The memorandum on the management of international child abduction prepared by the Ministry for Foreign Affairs and the Ministry of Justice on 31 August 1998 may be of use.
Try to identify risk situations
The talk and behaviour of your spouse may indicate that everything is not in order. Such indications may come up in quarrels, discussions about upbringing and in disputes about child custody and rights of access. The other parent may voice a wish to return with the child to his or her native country or threaten with abduction. Perhaps this parent no longer works. A close relative to your spouse has moved in with you or to the home of the child, and supports a move to the native country. Friends of your spouse may assist in organizing the abduction. Your spouse sells personal property in your common appartment or in his or her own apartment. These signs have to be taken seriously.
The risk of abduction may increase in connection with custody disputes. A divorce between you and your spouse or a new relationship formed by you may also heighten the risk. Your former spouse may feel hurt and fear replacement by your new partner.
Both the mother and the father may abduct the child, and the abductor may be Finnish just as well as a foreigner.
Find out about the services of the association for abducted children
The association for abducted children may provide you with contact information about parents whose children have been abducted to the same country as your child or to a neighbouring country.
Find out what the authorities can do
Passports and Visas
Inform the diplomatic Mission of your spouse¡¦s native country that you have not agreed to apply for a visa or passport for your child. More information about dual citizenship and about issuing a passport is available at the diplomatic Mission of your spouse¡¦s native country.
The police may be contacted as regards issuing and revoking the child¡¦s Finnish passport.
Find out about the possibilities of precautionary measures, for instance an emergency care order.
Advice and instructions are available at the child welfare authorities of the municipality of residence and at shelters.
Informing the Day-care Centre and School
Inform the day-care centre and school that the child may not be given to the other parent or to some other person without your permission.
Informing the Police and Child Welfare Authorities
Inform the police and child welfare authorities of the threat of abduction.
Try to Reach an Amicable Solution
Your child has the right to both its parents. Therefore it makes sense to try to settle your differences and reach an amicable solution about child custody and rights of access. A settlement is probably the best preventive measure. Willingness to co-operate and amicability are also in the best interests of the child. In addition, they establish you as a responsible and good custodian of the child in possible future trials.
Retain a good lawyer
If an amicable solution is impossible, consult a lawyer. You will need a counsellor in your legal proceedings and if you apply for e.g. precautionary measures, supervised meetings or a restraining order.
Authorities and organisations
Ministry for Foreign Affairs
P.O.Box 176, FIN-00023 GOVERNMENT
Tel. 0295 350 000, Fax 09-1605 5755
Finnish Bar Association
Simonkatu 12 B 16, 00100 Helsinki, Finland
Tel. +358 (0)9 6866 120, Fax +358 (0)9 6866 1299
Ministry of Social Affairs and Health
Lawyer responsible for child welfare issues
Meritullinkatu 8, 00170 Helsinki, Finland
Tel. 02951 6001
Association for Abducted Children
(Kaapatut Lapset ry)
Malmin Kauppatie 26, 4.krs, 00700 Helsinki
Tel. 09-587 4401; +358 44 2626 662
Finnish Association for Mental Health
Maistraatinportti 4 A, 00240 Helsinki, Finland
Tel. 09-615 516
Maistraatinportti 4 A, 00240 Helsinki, Finland
Tel. sos crisis telephone 010 19 5202 , sos-center /for appointments call 09 413 50 501, sos-center tel. 09 413 50510,
Fax 09 413 50 570