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.

Contracting states

The Hague Convention on Child Abduction has been in force in Finland since 1994. The other Contracting States are (11/2011):

Albania, Argentina, Armenia, Australia,
Austria
Bahamas, Belarus
Belgium, Belize
Bosnia and Herzegovina
Brazil
Bulgaria
Burkina Faso
Canada, Chile,
Columbia, Costa Rica,
Croatia, Cyprus,
Czech Republic
Denmark,Dominican Republic
Ecuador, El Salvador, Estonia
Fiji, France
Georgia, Germany
Great Britain, Greece, Guatemala
Honduras, Hong Kong,
Hungary
Ireland, Iceland,
Israel, Italy
Latvia, Lithuania
Luxembourg, Macau
Macedonia, Malta, Mauritius, Mexico
Moldavia, Monaco, Montenegro, Morocco
Netherlands, New Zealand,
Nicaragua, Norway
Panama, Paraguay, Peru, Poland,
Portugal
Romania
South Africa, Spain, Sweden,
Saint Kitts and Nevis, San Marino, Serbia, Seychelles
Slovakia, Slovenia, Sri Lanka, Switzerland
Trinidad and Tobago, Turkey
Turkmenistan, Ukrain,
United States, Uruguay
Venezuela
Zimbabwe

For an updated list of Contracting States, see http://www.finlex.fi (Valtiosopimukset - viitetiedot) or http://www.hcch.net (Homepage of the Hague Conference on Private International Law)

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.