The Legal Framework of International Child Abduction Cases
Cases of international child abduction in Georgia are governed by a separate chapter of the Civil Procedure Code, which implements the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The terminology of that chapter is defined precisely: a child is a person under 16 years of age; the Central Authority is the relevant structural unit of the Ministry of Justice of Georgia; and an applicant is any person or organ that submits a claim on matters connected with the return of a wrongfully removed or wrongfully retained child or with the exercise of the right of access to the child. Such cases are examined by a defined circle of courts — the Tbilisi and Kutaisi city and appellate courts and the Supreme Court of Georgia — which concentrates the specialised practice needed for these disputes.
Wrongful Removal and Wrongful Retention
The law distinguishes two forms. Wrongful removal of a child means the breach of the custody right attributed to a person or an organ under the legislation of the state where the child habitually lived: the child was taken from that state to a state party to the Convention without the permission of the person or organ holding the custody right, and was not returned to his or her country after that person's demand. Wrongful retention is the situation where the child was moved for a defined period with permission, but after the expiry of that period, despite the demand of the person holding the custody right, the child was not returned to the country of his or her habitual residence. In both situations the case concerns rights of custody and contact protected by the civil law, and it is precisely the breach of those rights that activates the return mechanism of the Convention.
Establishing the Fact and the Evidence
The decisive question is whether the child has been wrongfully removed or wrongfully retained. The court receiving the claim may be guided directly by the legislation of the state of the child's habitual residence and by a decision of a court or administrative organ of that state or of a third state — irrespective of whether that decision is recognised by the state of the child's habitual residence — and it does so without applying the special procedures it would otherwise use for the recognition of such a decision in Georgia. The law also shields the applicant from excessive formality: before taking a decision on return, the court may not require from the applicant any document issued by a state organ of the child's habitual residence certifying the wrongfulness of the removal or retention. The Central Authority assists the applicant in obtaining such a document. The procedural design thus removes barriers that could delay the examination, while the expedited timetable keeps the factual picture as close as possible to the situation at the moment of the removal.
Expedited Deadlines and the Conditions of the Decision
These cases are particularly sensitive to time, and the law therefore sets strict deadlines: the court takes a decision on the return of a wrongfully removed or wrongfully retained child or on the exercise of the right of access under an expedited procedure, within six weeks of the acceptance of the case, and a decision on the interim applications provided for by this chapter is taken within 48 hours. The conditions of the return decision are likewise formulated exactly: the court takes a decision on return if the child has been wrongfully removed or wrongfully retained and less than one year has elapsed from that fact to the moment of filing the claim; and if more than one year has elapsed, return still takes place unless it has been clearly demonstrated that the child has become integrated in his or her new environment. At the same time the law preserves flexibility: the court may take a decision on the return of the child at any stage of the examination of the case, without waiting for the completion of all procedural steps.
Frequently Asked Questions
Which children are covered by this mechanism?
For the purposes of this chapter a child is a person under 16 years of age. The mechanism concerns children wrongfully removed or retained between states party to the Convention and matters connected with their return or with the right of access to them.
Where are such cases examined?
A defined circle of courts examines them: the Tbilisi and Kutaisi city and appellate courts and the Supreme Court of Georgia. The applicant is assisted in the case by the Central Authority — the relevant structural unit of the Ministry of Justice of Georgia.
How quickly must the court decide?
The court decides under an expedited procedure — within six weeks of the acceptance of the case — and a decision on the interim applications provided for by this chapter is taken within 48 hours.
What happens if more than one year has passed since the abduction?
Return still takes place unless it has been clearly demonstrated that the child has become integrated in his or her new environment. The passage of a year does not automatically release the retaining party from the obligation.
How We Help on Legal.ge
The wrongful removal of a child abroad or the wrongful retention of a child belongs among the most emotional and time-sensitive cases. The team of Legal.ge will analyse your situation through the prism of the Hague Convention and the relevant chapter of the Civil Procedure Code, help you with communication with the Central Authority and the preparation of the necessary documentation, and ensure the defence of your position in the expedited court proceedings. Contact us — every day counts.