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.