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Abduction and Retention of Child in Turkey According to the Hague Convention

02 November, 2020

The Hague Convention on the Civil Aspects of International Child Abduction ("Convention") dated 25 October 1980 entered into force on August 1, 2000 in the Republic of Turkey and Law No. 5717 on the Legal Aspects and Scope of International Child Abduction, which sets out the procedures and principles for the implementation of this Convention, entered into force on 4 December 2007. Within the scope of the Convention, in the event of a child’s unlawful abduction to Turkey or retention in Turkey, a person or an institution which has the custody of the child by way of application to the authority centre of the state in which the child has habitual residence, will be able to demand the return of the child. In order for this application to be made, the state of habitual residence must also be a party to the Convention before relocation or detention. The Convention only applies to the return of children under the age of 16. 

Upon this application, the State Party in which the child has habitual residence, forwards the application to the Ministry of Justice, which is the central authority of the Turkish Republic. Following the forwarding of this application, the Ministry of Justice contacts the Office of Chief Public Prosecutor of the place where the child is located.  The Ministry of Justice will fulfil its obligations determined within the scope of the Convention through the local public prosecutor's office [1] and the case for the return of the child will be filed by the office of the chief public prosecutor. It should be noted that, within the scope of Article 29 of the Hague Convention, persons with custody rights have the right to apply directly to the judicial or administrative authorities of the state where the child was abducted or detained. Within this article, it is stated that any other article within the scope of the Convention cannot affect this individual right of application. However, this issue is currently controversial in practice before Turkish courts, and individual applications are rejected by the courts on the grounds that the case can only be opened by the office of the chief public prosecutor. 

After the investigation by the Chief Public Prosecutor, the International Child Abduction Extradition case is filed in front of the authorised Family Court. The conditions for return determined in accordance with the Convention arethe country which the requests for the return of the child being the habitual residence of the child, displacement or detention being unlawful. [2] 

In accordance with Article 3 of the Convention; for the child's displacement or detention to be deemed unlawful (unfair); 

  1. the violation of the right of custody established under the laws of the state in which his habitual residence should happen immediately prior to the displacement or detention; and 

  1. the right of custody should be used de facto or if there was no displacement / detention. 

The right of custody mentioned in the Convention includes the right to care of the child and especially the right to determine the place of residence, and the existence of the right will be determined according to the law of the place where the child's habitual residence is located [3]. 

In accordance with Article 12 of the Convention, in case of an application to the central authority of the state with the child’s habitual residence being made within one year from the date of abduction or retention, the decision of restitution should be granted regardless of whether the child is getting used to the surroundings and life in Turkey. However, if the application for extradition is not made within one year of the abduction / detention, it may be argued that the application for extradition should be rejected, pursuant to paragraph 2 of Article 12. In accordance with paragraph 2 of the aforementioned article, in the application for extradition made after a period of one year, if the judge determines that the child has adapted to her/his new environment, the request for extradition may be rejected. However, this article should not be interpreted as to provide that applications made after 1 year shall be rejected.  

The effective date of the 1-year period starts with the unlawful abduction / detention of the child and thus is very important, because the process of starting a case in Turkey may take a long time due to the fact that applications made on an individual basis are not accepted at the moment. Therefore, if an application is made to the central authority within 1 year from the detention / abduction, this one-year period will be suspended and the fact that the case has not been opened within one year from the detention / abduction will not be taken into account. 

According to Article 15 of the Convention, in order to decide on the return of the child to the state where his / her habitual residence is located, it is not necessary to have a custody decision taken from the state authorities of that state. In case of the existence of such a decision, the decision is not needed for the recognition and enforcement in Turkey [4]. In accordance with the law of the place where the child's habitual residence is located; right of custody can be based on law, court decisions, administrative decisions or an agreement. In determining the right of custody within the scope of the Convention, the legal situation just before the displacement or detention should be taken into account [5]. 

As the central authority, the Ministry of Justice is authorised to carry out all kinds of judicial and administrative procedures for the return of the child or the establishment of a personal relationship between the applicant and the child. In addition, in line with Article 7 / b of the Convention, temporary measures can be taken by the court where the extradition case will be heard, in order to protect the child. [6] 

In order for the application to be rejected, the conditions specified in articles 12, 13 and 20 of the Convention must be present. These conditions are;  

  1. Adaptation: The child's adaptation to his new environment (only if an application has not been made within 1 year of relocation or detention) (Article 12), 

  1. Custody right: The fact that the custody right has not been exercised, (Article 13), 

  1. AcceptancePrior consent or subsequent acceptance of the custody holder (Article 13), 

  1. Serious RiskExistence of a serious risk to the child in the event of a refund (Article 13), 

  1. Child's Request: The child's request not to be decided on extradition, (Article 13) 

  1. Human Rights: Principles for human rights and fundamental freedoms (Article 20). 

The Hague Convention is a Convention for the return of the child to his or her habitual residence. Articles 12, 13 and 20 of the Hague Convention are considered to be narrowly interpreted The Convention gives the judge who sees the case for extradition the right to reject the extradition application only if one of the above-mentioned conditions is present. It should be noted that the main issue under the Hague Convention is to ensure the return of the child to his or her habitual residence and it is accepted that the reasons for avoiding extradition should be interpreted very narrowly by the Court of Cassation. [7]  

Consequently, after the proceedings for the return of the child have been brought, it must be established that the applicant or institution has custody rights and does not consent to the child's relocation, and that the child's habitual residence is in the State Party from which the extradition is requested. In the subsequent examination by the judge, if it is determined that there is no reason for the rejection of the return, a decision of return must be made by the court.  

[1] Ö.U GençcanInternational Family and Procedural Law, Ankara 2020, p. 1051 

[2] Z. Akıncı, C. D. GökyaylaInternational Family Law, İstanbul 2010, p. 209 

[3] Z. Akıncı, C. D. GökyaylaInternational Family Law, İstanbul 2010, p. 227 

[4] Court of Cassation, 2nd Civil Chamber, Merits No. 2014/17373, Decision No. 2014/22817 

[5] Z. Akıncı, C. D. GökyaylaInternational Family Law, İstanbul 2010, p. 227 

[6] Ö.U GençcanInternational Family and Procedural Law, Ankara 2020, p. 1065 

[7] Z. Akıncı, C. D. Gökyayla, , International Family Law, İstanbul 2010, p. 294 

 

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