MINISTRY OF EDUCATION AND SCIENCE
OF THE REPUBLIC OF KAZAKHSTAN
COMMITTEE FOR THE PROTECTION OF
CHILDREN’s Rights
TABLE OF CONTENTS
INTRODUCTION…………………………………………………………………………………………………...... 2
The central authority for implementation of the Convention on the Civil Aspects of International Child Abduction dated 25 October 1980 in THE REPUBLIC OF KAZAKHSTAN……………………………………………………………………………………………………..….. 4
WHAT is abduction and wrongfulretention?...... 5
Conditions under which the Convention applies (6 CONDITIONS) ….…………………...... 6
CONTRACTING STATES OF THE HAGUE CONVENTION ON Civil Aspects of International Child Abduction of 25 October 1980 ……………………………………………….………………..7
IF A WRONGFULREMOVAL (ABDUCTION) OF A CHILD FROM KAZAKHSTAN TO A FOREIGN CONTRACTING STATE OF THE CONVENTION HAPPENED OR A CHILD WAS WRONGFULLY RETAINED IN A FOREIGN CONTRACTING STATE OF THE CONVENTION, WHILE THE STATE OF HABITUAL RESIDENCE OF THE CHILD IS KAZAKHSTAN…………...... 11
PROCEDURE FOR AN OUTGOING APPLICATION……………………………………………………… 13
A child has been abducted - WHAT CAN BE DONE? ...... 16
ANNEX 1. APPLICATION FOR THE RETURN OF THE CHILD………………………………………… 17
ANNEX 2. APPLICATION FOR THE EXERCISE OF THE RIGHT OF ACCESS ……………………… 21
ANNEX 3. LIST OF CENTRAL AUTHORITIES OF MEMBER STATES OF THE HAGUE CONVENTION ON Civil Aspects of International Child Abduction of 25 October 1980…………………………………………………...... 25
IF A WRONGFULREMOVAL (ABDUCTION) OF A CHILD TO THE TERRITORY OF THE REPUBLIC OF KAZAKHSTAN FROM THE FOREIGN CONTRACTING STATES OF THE CONVENTION HAPPENED OR A CHILD WAS WRONGFULLY RETAINED IN THE REPUBLIC OF KAZAKHSTAN, WHILE THE CHILD'S HABITUAL RESIDENCE IS A CONTRACTING STATE OF THE CONVENTION...... 48
COSTS...... 49
INTRODUCTION
By now, international marriages have become widespread, as well as parents’ disputes about their children and about the approaches of their education and place of residence. In this connection, there is a recent increase in cases of child abduction by a parent living in another country, and taking the child abroad.
To effectively resolve disputes about parenting between parents who are citizens or residents of different countries, the Hague Conference on Private International Law (HCCH) developed a Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the Convention). Kazakhstan became a party to this Convention.
The Convention entered into force in the Republic of Kazakhstan on The 1st of September, 2013. As of 1 November 2013 accession of Kazakhstan was recognized by three Contracting States of the Convention.
The central authority on implementation of the Convention provisions is the Ministry of Education and Science of the Republic of Kazakhstan in accordance with the Republic of Kazakhstan Government’s Decree No. 519 dated 21 May 2014 "On measures to ensure the implementation of the Republic of Kazakhstan obligations arising from the Convention on the Civil Aspects of International Child Abduction of25 October 1980."
Order No. 208 dated 4 June 2014 issued by the Minister of Education and Science of the Republic of Kazakhstan "On measures to enforce the regulations derived from the Law of the Republic of Kazakhstan"On Ratification of the Convention on the Civil Aspects of International Child Abduction", the functions on the operating activities of the Central Authority were entrusted to the Committee on the Protection of Children's Rights.
In its efforts to implement its powers as the central authority on the Convention, the Ministry of Education and Science of the Republic of Kazakhstan is governed by the following statutory regulations:
The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
Law No. 48-V dated 13 November 2012 of the Republic of Kazakhstan "On Ratification of the Convention on the Civil Aspects of International Child Abduction"
The Republic of Kazakhstan Government’s Decree No. 519 dated 21 May 2014 "On measures to ensure the implementation of the Republic of Kazakhstan obligations arising from the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction."
Texts of those regulations and additional information thereto can be found in the legal reference systems, as well as at the HCCH’s website (
THE CENTRAL AUTHORITY FOR IMPLEMENTATION OF THE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION DATED 25 OCTOBER 1980 IN THE REPUBLIC OF KAZAKHSTAN
Ministry of Education and Science of the Republic of Kazakhstan
Child Rights Protection Committee
Orunbor street, 8, Astana, Republic of Kazakhstan, 010000
Tel: +7 (7172) 74-23-55
Fax: +7 (7172) 74-23-55
E-mail:
Contact persons:
- Mrs Manshuk Sametovna Abdykarim, OIC Chairperson
Tel.: + 7 (7172) 74-23-34
(languages of communication: Kazakh, Russian) - Mrs Lyazzat Dzhumataevna Daulbayeva, Head of the Children’s Protection Division
Tel.: +7 (7172) 74-25-17
(languages of communication: Kazakh, Russian) - Mr Yskak Kashkynbayuly Kulatay, Chief Expert of the Child Protection Division
Tel: +7 (7172) 74-23-55
Email:
(languages of communication: Kazakh, Russian)
Schedule of work: Monday-Friday from 9:00 to 18:30
WHAT IS ABDUCTION AND WRONGFULRETENTION
In accordance with Article 3 of the Convention, the removal or the retention of a child is to be considered wrongful, where:
a) 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
b) 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 rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
The date of wrongful removal is the day of removal of a child from the State of his/her place of habitual residence.
The date of wrongful retention shall be the first day after the expiration of the term for which a duly executed consent to the removal of the child was given.
Example: Parent A gives his/her consent to Parent B for removal of a child for the period from 21 March to 21 April 2013. Parent B does not return the child after the deadline. The date of wrongful retention is22 April 2013.
IMPORTANT! It depends on the date of the abduction or wrongful retention whether the Convention shall apply or not.
CONDITIONS UNDER WHICH THE CONVENTION APPLIES
(6 conditions):
- The child is under 16 years old.
- Abduction / retention of the child by a parent is in breach of the right of custody (sole or joint) or the right to access of the second parent, as defined in Article 3 of the Convention
- From the date of the abduction / retention no more than one year has passed.
- Convention is in force between the Republic of Kazakhstan and the State to which or from which the child was removed.
According to Article 38 of the Convention,itshall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.
1
Contracting States of the Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction
No. / Countries / Ratification / Entry into forceAlbania / 04-05-2007 (А) / 01-08-2007
Andorra / 06-04-2011 (А) / 01-07-2011
Argentina / 19-03-1991 (R) / 01-06-1991
Armenia / 01-03-2007 (А) / 01-06-2007
Australia / 29-10-1986 (R) / 01-01-1987
Austria / 14-07-1988 (R) / 01-10-1988
Bahamas / 01-10-1993 (А) / 01-01-1994
Belarus / 12-01-1998 (А) / 01-04-1998
Belgium / 09-02-1999 (R) / 01-05-1999
Belize / 22-06-1989 (А) / 01-09-1989
Bosnia and Herzegovina / 23-08-1993 (Su) / 06-03-1992
Brazil / 19-10-1999 (А) / 01-01-2000
Bulgaria / 20-05-2003 (А) / 01-08-2003
Burkina Faso / 25-05-1992 (А) / 01-08-1992
Canada / 02-06-1983 (R) / 01-12-1983
Chile / 23-02-1994 (А) / 01-05-1994
China
Colombia / 13-12-1995 (А) / 01-03-1996
Costa Rica / 09-11-1998 (А) / 01-02-1999
Croatia / 23-04-1993 (Su) / 01-12-1991
Cyprus / 04-11-1994 (А) / 01-02-1995
Czech Republic / 15-12-1997 (R) / 01-03-1998
Czechoslovakia (<01-01-1993)
Denmark / 17-04-1991 (R) / 01-07-1991
Dominican Republic / 11-08-2004 (А) / 01-11-2004
Ecuador / 22-01-1992 (А) / 01-04-1992
Salvador / 05-02-2001 (А) / 01-05-2001
Estonia / 18-04-2001 (А) / 01-07-2001
Fiji / 16-03-1999 (А) / 01-06-1999
Finland / 25-05-1994 (R) / 01-08-1994
France / 16-09-1982 (R) / 01-12-1983
Gabon / 06-12-2010 (А) / 01-03-2011
Georgia / 24-07-1997 (А) / 01-10-1997
Germany / 27-09-1990 (R) / 01-12-1990
Greece / 19-03-1993 (R) / 01-06-1993
Guatemala / 06-02-2002 (А) / 01-05-2002
Guinea / 07-11-2011 (А) / 01-02-2012
Honduras / 20-12-1993 (А) / 01-03-1994
Hungary / 07-04-1986 (А) / 01-07-1986
Iceland / 14-08-1996 (А) / 01-11-1996
Iraq / 21-03-2014 (А) / 01-06-2014
Ireland / 16-07-1991 (R) / 01-10-1991
Israel / 04-09-1991 (R) / 01-12-1991
Italy / 22-02-1995 (R) / 01-05-1995
Japan / 24-01-2014 (R) / 01-04-2014
Kazakhstan / 03-06-2013 (А) / 01-09-2013
Latvia / 15-11-2001 (А) / 01-02-2002
Lesotho / 18-06-2012 (А) / 01-09-2012
Lithuania / 05-06-2002 (А) / 01-09-2002
Luxembourg / 08-10-1986 (R) / 01-01-1987
Macedonia, the former Yugoslav Republic / 20-09-1993 (Su) / 01-12-1991
Malta / 26-10-1999 (А) / 01-01-2000
Mauritius / 23-03-1993 (А) / 01-06-1993
Mexico / 20-06-1991 (А) / 01-09-1991
Moldova / 10-04-1998 (А) / 01-07-1998
Monaco / 12-11-1992 (А) / 01-02-1993
Montenegro / 01-03-2007 (Su) / 03-06-2006
Morocco / 09-03-2010 (А) / 01-06-2010
Netherlands, the Kingdom / 12-06-1990 (R) / 01-09-1990
new Zealand / 31-05-1991 (А) / 01-08-1991
Nicaragua / 14-12-2000 (А) / 01-03-2001
Norway / 09-01-1989 (R) / 01-04-1989
Panama / 02-02-1994 (А) / 01-05-1994
Paraguay / 13-05-1998 (А) / 01-08-1998
Peru / 28-05-2001 (А) / 01-08-2001
Poland / 10-08-1992 (А) / 01-11-1992
Portugal / 29-09-1983 (R) / 01-12-1983
Republic of Korea, / 13-12-2012 (А) / 01-03-2013
Romania / 20-11-1992 (А) / 01-02-1993
Russian Federation / 28-07-2011 (А) / 01-10-2011
Saint Kitts and Nevis / 31-05-1994 (А) / 01-08-1994
San - Marino / 14-12-2006 (А) / 01-03-2007
Serbia / 19-04-2001 (Su) / 27-04-1992
Seychelles / 27.05.2008 () / 01-08-2008
Singapore / 28-12-2010 (А) / 01-03-2011
Slovakia / 07-11-2000 (R) / 01-02-2001
Slovenia / 22-03-1994 (А) / 01-06-1994
Republic of South Africa / 08-07-1997 (А) / 01-10-1997
Spain / 16-06-1987 (R) / 01-09-1987
Sri Lanka / 28-09-2001 (А) / 01-12-2001
Sweden / 22-03-1989 (R) / 01-06-1989
Switzerland / 11-10-1983 (R) / 01-01-1984
Thailand / 14-08-2002 (А) / 01-11-2002
Trinidad and Tobago / 07-06-2000 (А) / 01-09-2000
Turkey / 31-05-2000 (R) / 01-08-2000
Turkmenistan / 29-12-1997 (А) / 01-03-1998
Ukraine / 02-06-2006 (А) / 01-09-2006
the United Kingdom / 20-05-1986 (R) / 01-08-1986
the USA / 29-04-1988 (R) / 01-07-1988
Uruguay / 16-11-1999 (А) / 01-02-2000
Uzbekistan / 31-05-1999 (А) / 01-08-1999
Venezuela / 16-10-1996 (R) / 01-01-1997
Yugoslavia (<25/06/1991) / 27-09-1991 (R) / 01-12-1991
Zimbabwe / 04-04-1995 (А) / 01-07-1995
As of 1 November 2013, the Convention is in force between the Republic of Kazakhstan and the following states:
No. / Countries / Date of acceptance / Date of recognitionBelarus / 19-02-2014 / 01-05-2014
China / 05-11-2013 / 01-02-2014
Japan / 24-01-2014 / 01-04-2014
The updated List of Contracting States that have accepted the accession of the Republic of Kazakhstan is on the official website of HCCH:
The date of acceptance can be found on the website of the Netherlands Ministry of Foreign Affairs:
5.Abduction / retention shall have place after the entry into force of the Convention between the Republic of Kazakhstan and the Contracting State to which or from which the child was removed.
In accordance with Article 35 of the Convention, it shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.
6.Immediately prior to a wrongful removal or retention, the state of habitual residence of the child was the Republic of Kazakhstan or other State, in relation to which the Convention is in force.
You can send an application to the Ministry of Education and Science of the Republic of Kazakhstan in accordance with the Republic of Kazakhstan Law No. 221 dated 12 January 2007 "On the procedure of consideration of physical and legal entities’ applications" on the subject of whether it is possible to use the Convention in your case. Please specify all the necessary information.
IF A WRONGFULREMOVAL (ABDUCTION) OF A CHILD FROM KAZAKHSTAN TO A FOREIGN CONTRACTING STATE OF THE CONVENTION WAS MADE OR A CHILD WAS WRONGFULLY RETAINED IN A FOREIGN CONTRACTING STATE OF THE CONVENTION, WHILE THE STATE OF HABITUAL RESIDENCE OF THE CHILD IS KAZAKHSTAN
A parent whose child is abducted or retained in a foreign country, may submit an appropriate application (outgoing application) under the Convention, to the Central Authority of the Republic of Kazakhstan (Ministry of Education and Science of Kazakhstan), or directly to the central authority of the requested state or the competent court of the requested state, i.e. to the body or court of the state to which the child was wrongfully removed or retained.
The FORM of a relevant APPLICATION for the return of the child or application for the exercise of the right of access can be found in Annex No. 1 and No. 2 or on the official website of the Committee for the Protection of Children's Rights of the Ministry of Education and Science of the Republic of Kazakhstan (bala-kkk.kz) under the heading "Protection of children from international abduction." Please note that the Committee for the Protection of Children's Rights of the Ministry of Education and Science of the Republic of Kazakhstan should be indicated an as the requesting Central Authority.
Necessary TRANSLATIONS:In accordance with Article 24 of the Convention dated 1980, any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English. .
However, a Contracting State may object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority.
Information on reservations about the translation, as well as other information on the Convention 1980 can be found at the HCCH’s website ().
To the application you can ATTACH ALL THE DOCUMENTS that you think are relevant to your case. It is also desirable to make PHOTOS of the child and the parent that effected his/her wrongful removal or retention. Please note that in accordance with Article 23 of the Convention 1980, legalization of the accompanying documents is not required.
PROCEDURE FOR AN OUTGOING APPLICATION
If an application is sent to the Ministry of Education and Science of Kazakhstan, it is considered and in case of its compliance with the requirements of the Convention,it is sent to the relevant central authority of the State to whose territory a child was wrongfully removed or in whose territory a child is wrongfully retained (the requested State).
The Central Authority of the requested State in accordance with the laws of the requested State may take the following measures under the Convention 1980:
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
Then the competent court of the requested State decides to return or refuse to return a child wrongfully removed to or retained illegally in the territory of the requested State. Only the court has the right to take the decision on the return or refusal of such. As a rule, this judicial procedure shall be initiated by the Parent him/herself from whom the child was abducted or retained, i.e. apply to the competent court of the requested state in person or through a lawyer. Central Authorities usually do not have the power to apply to court on behalf of the parent, and cannot influence the court's decision.
If the appropriate court of the requested State has not made a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State on its own initiative or at the request of the Central Authority of the requesting State (i.e. the Ministry of Education and Science of the Republic of Kazakhstan) has the right to demand explanations about reasons for the delay. If a reply is received by the Central Authority of the requested State, the authority shall send the response to the Ministry of Education and Science of the Republic of Kazakhstan or to the applicant, depending on the circumstances.
IMPORTANT!
Under the Convention, only one question is decided – it is return of the child to the country of his/her habitual residence. Questions of establishing custody, residence and other rights in respect of a child under the Convention shall not be permitted.
What measures can be taken by the Central Authority of the requested State depends on the laws of the requested State. Sometimes the procedure for consideration of the application and decision taking can be time consuming and involve the payment of certain expenses.
The Ministry of Education and Science of the Republic of Kazakhstan as the Central Authority of the requesting State may:
1. send a request to the Central Authority of the requested State to provide information about the progress of the previously sent application, or an appeal containing applicant's other requests under the Convention;
2. send a request for the legislation of the requested State in respect of the application of the Convention;
3. send a request to the Central Authority of the requested State with an indication of inadequate fulfillment on its part or failure to fulfill its obligations imposed by the Convention.
As for other measures, the Ministry of Education and Science of the Republic of Kazakhstan shall not be entitled to take them, since the procedure of implementation of the Convention 1980 is set by each Contracting State of the Convention 1980 in accordance with its domestic laws, and shall be implemented by it on its own territory independently.
A child has been ABDUCTEd - what CAN BE doNE?First of all, you need to understand where exactly the child was taken.
A) Contracting States of the Convention
The List of Contracting States, as well as coordinates of Central Authorities of the various countries can be found in Annex No. 3, as well as on the HCCH’s website in Child Abduction Section (). On this website you can check the status of acceptance of your country by the rest Contracting States of the Convention. If there is such anacceptance, then you can apply for the child's return to the Central Authority in your country or directly to the Central Authority of the country where you think your child is retained.
IMPORTANT: You should apply as soon as possible. Time is a significant factor. If the application is filed later than one year after the abduction, the chance to return the child is minimal.
B) Countries that do not participate in the Convention
If the country in which your child is retained, does not participate in the Convention or participate, but has not yet confirmed the acceptance of Kazakhstan as a party to the Convention, then you can seek help from:
police in the country where your child is presumed to be
the Department of Consular Service of the Ministry of Foreign Affairs of the Republic of Kazakhstan
the Central Authority of the country in which the child is retained, to obtain information support
ANNEX 1. APPLICATION FOR THE RETURN OF THE CHILD
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
REQUESTING CENTRAL AUTHORITY/ APPLICANT*MINISTRY OF EDUCATION AND SCIENCE OF THE REPUBLIC OF KAZAKHSTAN
Committee for the Protection of Children's Rights
8 Orynbor Str., Astana, 010000, the Republic of Kazakhstan
Tel.: +7 (7172) 74-23-55
Fax: +7 (7172) 74-23-55
E-mail: / REQUESTED CENTRAL AUTHORITY
With regard to the child ______
(Child’s full name)
Who reaches the age of 16 years in ______
(specify the year)
Note: The following information must be filled out as completely as possible.
I. Personal data of the child and his/her parents
1. The Child
NAME:Date and place of birth:
Citizenship:
Permanent/ habitual place of residence before the removal or retention:
Passport No. or other identity document No., if available:
Description of the appearance and photo, if available (see Annex):
2. Parents
2.1. Mother