Pangalangan, Elizabeth - Philippines Parental Abduction

7/31/2019 Pangalangan, Elizabeth - Philippines Parental Abduction

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Professor ELIZABETH AGUILING PANGALANGAN, LLM

DIRECTOR, INSTITUTE OF HUMAN RIGHTS, COLLEGE OF LAWUNIVERSITY OF THE PHILIPPINES


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The other Asian countries have neitheracceded, signed or ratified namely, Japan,

South Korea, Philippines and India.

Of the 72 Hague Conference Members the

Philippines is one of only nine countries

who has not signed or ratified the 1980Child Abduction Convention.

Of the 72 Hague Conference Signatories

the only Asian country that has acceded to

the Child Abduction convention is SriLanka. Only Macao and Hong Kong

ratified the child abduction.

1980 Child

AbductionConvention


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Philippine law on custody

ARTICLE 211 FC. The father and the mothershall jointly exercise parental authority over

the persons of their common children. In case

of disagreement, the father's decision shallprevail, unless there is a judicial order to the

contrary.

Article 176. Illegitimate children shall use thesurname and shall be under the parental

authority of their mother.


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:Philippine law on custody

Art. 213, Family Code. In case of separation of theparents, parental authority shall be exercised by the

parent designated by the Court. The Court shall take

into account all relevant considerations, especially the

choice of the child over seven years of age, unless the

parent chosen is unfit.

Art. 363, FC. In all questions on the care, custody,

education and property of children the latter's welfareshall be paramount. No mother shall be separated from

her child under seven years of age, unless the court

finds compelling reasons for such measure.


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LEGALRECOURSE

OF THELEFT

BEHIND

PARENT

Hold Departure Order

-

Section 6.Hold Departure Order. - Pending

resolution of the petition, no child of the partiesshall be brought out of the country without prior

order from the court.

The court, motu proprio or upon

application under oath, may issue ex-parte ahold departure order, addressed to the Bureau

of Immigration and Deportation, directing it not

to allow the departure of the child from the

Philippines without court permission.

The Family Court issuing the hold

departure order shall furnish the DFA and the

BID of the Department of Justice a copy of the

hold departure order issued within 24 hours

from the time of its issuance.(AM 2-11-12-SC)


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:Habeas Corpus

Rule 102,1 of the Rules of Court provides that "thewrit of habeas corpus shall extend to all cases of illegal

confinement of his liberty, or by which the rightful

custody of any person is withheld from the person

entitled thereto.

makes no distinction between the case of a mother

who is separated from her husband and is entitled to

the custody of her child and that of a mother of an

illegitimate child who, by law, is vested with sole

parental authority, but is deprived of her rightful

custody of her child.


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LEGALRECOURSE

OF THELEFT

BEHIND

PARENT

Criminal Charge (RPC 271)- Inducing a minor to abandon his

home

- Penalty of arresto mayor

Travel Clearance from DSWD- Clearance is NOT needed when

child is accompanied by a

parent.

- Only needed when child travels

alone or with person not his/her

parent


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Informal diplomatic channels and

assistance from department of policeand immigration control

Submission of abductor parent to

jurisdiction of court in either country

Re-abduction through personalresources

EXTRA-

LEGALRECOURSE

OF THE LEFT

BEHIND

PARENT


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CHANGES IN THE LAW SHOULD

THE PHILIPPINES SIGN

In certain situations, Art. 363 of the CivilCode will not apply as the question of

custody shall be determined by the legal

order of the childs habitual residence.

Issues arise from the definition ofhabitual

residence as many Filipinos have multiple

habitual residences or when parents are

working abroad with children spending

equal time in the Philippines and abroad.

Need for creation of a committee to be in

charge of child abduction cases. No

department is specifically responsible for

parental abduction cases at present.


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DISADVANTAGES OF SIGNING

Effects are limited to signatory states. It cannot be

applied to the 75% of states not party to theconvention.

Implication on Filipino parents whobrought children in the Philippines

to flee from domestic violence of

foreign spouses.

The appeals system can cause more delay.

Administrative cost of compliance.


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Advantages of signing

1. Compliance with theConvention on the Rights of

the Child

Art 11. 1.States Parties

shall take measures to

combat illicit transfer and

non-return of children

abroad. 2. Promote conclusion of

agreements or accession

to existing agreements.

Art 35- States Parties

shall take all

appropriate national,bilateral and

multilateral measures

to prevent the

abduction of, the sale ofor traffic in children for

any purpose or in any

form.


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Advantages should the

Philippines sign:

2. Left

behind parents willhave a civil recourse less

expensive and time consuming

than in regular courts.


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ESPIRITU v. BIELZA (2007) O.J. NO.1587

Filipino parents were married in the Philippines.Wife went to Texas and gave birth to thechild there.

Despite repeated offers of the wife for thehusband to follow and set up residence with them, herefused.

He did not have any relationship with the child,despite wifes initiative to facilitate contact.

Wife commits suicide in 2006.Maternal aunt named legal guardian BUT left a

note that paternal aunt living also in Texas shouldhave full custody.Child lives with maternal aunt. Both maternal andpaternal aunts apply for custody.


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Rights of custody

No wrongful removal

To be wrongful it mist be in breach of the

rights of custody.

Issue must be

who has right to custody?

In this case the issue was whether the

aunts custody order was void.

Therefore, Texas did not have rights ofcustody within the meaning of the

Convention.


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Issues relating to return

The Convention intended to ensure

prompt return of children to their

habitual residence.

The father sought the return of the child

to Texas, but he was using Texas merely as

a conduit to accomplish his ultimate goal

of relocating the child to the Philippines,thus was NOT ENTITLED to rely on the

Convention.


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Place of return

In G v. B , 25 April 2007 (Israel), the court

considered that the applicant father had no

intention of actually remaining with the child

in the childs habitual residence , but wasseeking to bring about a relocation to a non-

Convention State.

The court did not make a return order.


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Advantages

3. The Philippines will not be a safe haven

for parents abducting children.

4. Sufficient safeguards in the conventionwill ensure that the childs interest is

protected .


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Should the Philippines sign-

There will be need to enact

legislation; and

Reconceptualizing abduction

as going beyond the question

of custody.

Documents

Pangalangan, Elizabeth - Philippines Parental Abduction