Further details regarding the Hague Convention
According to the Hague Convention and the Act on Recognition and Enforcement of Foreign Decisions concerning Custody of Children, Return of Abducted Children etc., No. 160/1995, the removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rules on child abduction apply not only if a child is abducted illegally but also in cases where a child is retained illegally in a contracting state. This could apply, for instance, if the parents initially agreed to have the child travel to Iceland, e.g. on vacation, to exercise of rights of access with the child, but this parent subsequently refuses to return the child.
Iceland's obligations under the Hague Convention
In Iceland the Central Authority under the Hague Convention is the Ministry of Justice. Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
The principal role of the Central Authority is to receive applications from individuals and foreign states, and to forward applications, including parents' applications for return of abducted children, to the proper authorities, to provide assistance and to communicate information on cases covered by the convention. The primary obligation under the convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State and
to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
The Hague Convention also places obligations on governments. The Ministry of Justice is to co-operate with authorities in other contracting states to ensure children are returned as promptly as possible; to provide general information on Icelandic law in connection with the application of the convention; to initiate or facilitate the initiation of procedures by courts with the aim of returning children; to provide or facilitate the provision of legal assistance and advice etc.
With reference to Art. 27 of the Hague Convention, a Central Authority is not obliged to accept an application when it is manifest that the requirements of the Convention are not fulfilled or that the application is otherwise not well founded. In such instances the central authority shall explain its reasons.
Child abduction to Iceland
Child abduction cases most often begin when a parent (or a person, an institution or any other body), who considers a child to have been abducted or retained in Iceland illegally, contacts the Central Authority in the state in which he/she resides to ask for assistance regarding the return of the child.
The foreign Central Authority forwards the application to the Icelandic Central Authority, i.e. the Ministry of Justice. The application should be accompanied by relevant documentation in the case, such as marriage certificates, certificates of separation or divorce, the child's birth certificate, a certificate concerning custody of the child, confirmation of residence, a photo of the child etc.
The application shall be in Icelandic if possible, otherwise in English. Accompanying documentation must also include translations into Icelandic or English.
When the Ministry of Justice receives an application for the return of a child and it appears to the Ministry that the application falls under the Hague Convention, the person with whom the child is staying is generally contacted and informed of the application received and given instruction and also questioned if voluntary return of the child is an option. A brief time limit is given for a response. If the child's whereabouts are not certain, the Ministry may seek the assistance of the Icelandic police and child protection authorities to locate it. If the person concerned refuses to return the child, or the child is not returned within the brief time limit, the application is forwarded to an Icelandic attorney to act on the applicant's behalf. The applicant can also request that the application be sent directly to an attorney to act on the applicant's behalf in procedures before the courts in Iceland. In both instances the applicant's attorney will apply to the District Court for the return of the child. The attorney will apply for legal aid for the applicant if requested. If legal aid is not requested or is refused, the person requesting the return of the child generally must bear the cost of court action in Iceland. General rules apply to a request for legal aid. The parent or person who abducted the child to Iceland can also apply for legal aid under general rules.
While the case is being processed the Ministry of Justice serves as an intermediary in communications between the court, the applicant's attorney and the Central Authority of the foreign state.
The District Court judge rules whether an abduction or retention of the child is considered wrongful. The District Court judge may, however, refuse the return of the child if:
- more than one year elapsed between the removal or retention of the child and the receipt by a district court of the application for his return, providing that the child has adapted to his new circumstances,
- there is a grave risk that return would cause the child psychological or physical harm, or would otherwise place the child in an intolerable position,
- the child is opposed to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views, or
- return of the child is not compatible with the basic principles pertaining in Iceland to the protection of human rights.
These exceptions are generally construed narrowly.
A District Court ruling in an abduction case can be appealed to the Court of Appeal (Landsréttur). The time limit for appeal is two weeks.
In abduction cases no position is taken as to which parent is more capable of exercising custody of the child or which of them shall have permanent custody of the child. The primary concern is to reinstate the situation which existed before the abduction took place; this implies, among other things, that a decision as to who shall have custody of the child in the future shall be taken in the state where the child was habitually resident prior to the abduction.
While an abduction case is in progress in Iceland, an Icelandic court cannot take a decision on the custody of the child concerned. On the other hand, there is nothing to prevent a court in the state where the child lived previously from taking a decision on the child's custody, even if the abduction case in Iceland has not concluded.
According to the Act on Recognition and Enforcement of Foreign Decisions concerning Custody of Children, Return of Abducted Children etc. cases covered by the Hague Convention are to be handled as expeditiously as possible.