Iceland is a party to two international conventions intended to ensure the interests of children who have been wrongfully removed from one member state to another. These are the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children which was concluded in Luxembourg on 20 May 1980 (the European Convention), and the Hague Convention on the Civil Aspects of International Child Abduction, concluded on 25 October 1980 (the Hague Convention).
Objectives of the conventions
These conventions are aimed at resolving difficulties which arise when children are wrongfully removed from one country to another, or retained against the wishes of the parent who has custody of the child. The scope of the conventions, however, is not limited to parents who have custody of a child in the usual meaning of this concept. They can also apply to others, whether this is an individual, institution or public agency, cf. subparagraph c of Art. 1 of the European Convention and subparagraph a of the first paragraph of Art. 3 and subparagraph a of Art. 5 of the Hague Convention. Both conventions apply to children who have not reached 16 years of age.
Contracting states are also obliged to promote rights of access, cf. Art. 11 of the European Convention and Art. 21 of the Hague Convention.
The Icelandic Act No. 160/1995, on Recognition and Enforcement of Foreign Decisions concerning Custody of Children, Return of Abducted Children etc. lays down the procedure in cases where a child is abducted or retained in Iceland.
The European Convention
The European Convention is a Convention on recognition and enforcement. The basic principle under the Convention, cf. Art. 7, is that a decision on custody taken in one contracting state must be recognised and enforced in another contracting state regardless of whether the abduction or retention of the child comprised an illegal act. A decision on custody taken in a contracting state has the same legal effect in Iceland as a decision on custody taken in Iceland and vice versa.
The Hague Convention
The Hague Convention obliges contracting states to see to it that children, wrongfully removed to a contracting state or retained there, are returned without regard for whether an enforceable decision is available. It is a condition under the Hague Convention that the abduction or retention of the child 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, cf. Art. 3 of the Convention. A decision under the Hague Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue, cf. Art. 19 of the Convention. The assumption is that this should be resolved in the country where the child is habitually resident. In acceding to the Convention, states oblige themselves to return an abducted child if an application is made for its return.
Role of the Ministry
With reference to Art. 5 of the Act on Recognition and Enforcement of Foreign Decisions concerning Custody of Children, Return of Abducted Children etc., No. 160/1995, the Ministry of Justice is the Central Authority under the Hague Convention and the European Convention. The Ministry of Justice receives applications based on the conventions and forwards them to the relevant authorities and co-operates with other Central Authorities. The role of the Ministry as a Central Authority is primarily to act as an intermediary and assist; it is not intended to take a decision on the substance of cases. It is obliged to forward applications to the proper authorities, unless it is manifest that there is no basis for proceeding with a case under the conventions, cf. the fourth paragraph of Art. 4 of the European Convention and Art. 27 of the Hague Convention. Applications under the conventions may be directed to a Central Authority in any contracting state, cf. the first paragraph of Art. 4 of the European Convention and the first paragraph of Art. 8 of the Hague Convention. The Ministry shall, as promptly as possible, forward an application to the Central Authority in another contracting state if it expects the child to be staying there, cf. the second paragraph of Art. 5 of the European Convention and Art. 9 of the Hague Convention. An applicant can also apply directly to the authority which is competent to deal with the case without the intermediation of the Central Authority.
The Ministry of Justice is to see to it that an application from abroad for assistance based on the conventions is sent to the proper authorities for handling. In Iceland this is the respective District Court, cf. the first paragraph of Art. 13 of Act No. 160/1995. The Ministry is responsible for obtaining an attorney for the applicant to represent the applicant in the case before the court. The Ministry shall also forward Icelandic applications to the Central Authority in the respective foreign contracting state.
An application to a Central Authority for assistance, based on the conventions, must include details of the name of the child and its parents, and of the applicant. It must also contain information on the child's probable whereabouts and the reasons underlying the application. The necessary documentation must accompany an application, and information must be provided as to whether other actions concerning the child are being processed by authorities. Special application forms have been prepared for both conventions for use in this connection.
When moving from abroad to Iceland with a child
It is important for a parent residing in another country who intends to move to Iceland with his/her child to ensure that this is done legally. This applies not least in cases where parents will no longer be cohabiting, e.g. in the case of divorce, or for other reasons where the legal status of the child is to be permanently arranged. It is the laws and rules of the country where the child was habitually resident and not Icelandic laws and rules, which determine whether the child may be taken to Iceland. It is therefore advisable to gather information from the authorities of the relevant state or from an attorney who knows the legislation of the state in question before moving to Iceland with the child.
Assistance available to parents
Parents who are involved in a child abduction case can obtain information on Icelandic laws and procedure from the Ministry of Justice.
Further information can be obtained from the Ministry of Justice by telephone +354 545 9000, or by e-mail: [email protected].