New abduction law reinforces children’s rights

In 2008 the Swiss authorities handled some 208 international child abduction cases Ute Grabowsky

Children abducted by a parent who then disappears abroad will be much better protected under a new law in force from July 1, say children's rights advocates.

Each year, Swiss authorities handle up to 200 cases of international child abduction, where children are caught in a tug-of-love wrangle between separated parents, usually of different nationalities.

In 2008, 73 per cent of the time it was the mother who carried out the abduction.

On Wednesday, a new Swiss law concerning the international abduction of children enters into force alongside official implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The international statute requires snatched children to be returned home.

Child protection experts say the new law should simplify and accelerate often lengthy and complicated return procedures. It should also encourage the settlement of cases through mediation and conciliation, which can be enforced by a court.

“I think it’s a very good modern law for Switzerland,” Andrea Hauri, a child protection officer with the Swiss Foundation for the Protection of the Child, told swissinfo.ch.

“This new law will help consider the superior interest of a child in international abductions. It foresees that a mediated solution will be found with both parents and also, a network of recognized experts is on hand to treat a child.”

Michael Marugg, a legal adviser at the Pro Juventute youth foundation, agreed that the new law would make a “substantial difference”.

“Children’s rights will have much more weight than previously,” he said.

A long separation from one parent followed by reunion under tense circumstances can have a destabilising impact on a child. Encouraging children to be returned swiftly to their traditional home environments prevents them from feeling too uprooted, say experts.

To help speed things up, the new law foresees that requests for the return of abducted children should be dealt with by a single legal body, namely the main cantonal court. Appeals can be made at a later stage to the Federal Court.

Weak points

One new aspect of the law is the creation of a Swiss network of child protection experts, mediators, children’s lawyers, specialist social assistants and mental health professionals, which has been built up by the Swiss Foundation of the International Social Service.

The International Social Service, a non-governmental organisation with agents in 140 countries, will also provide legal advice as well as counselling and mediation sessions.

The foundation is generally happy with the new law but says it remains rather vague about how and when the authorities will call upon the services of the network of experts. It is also critical of the fact that the new legislation only concerns abductions from other countries to Switzerland and only where the states have ratified the Hague Convention.

But the foundation says that allowing children to be heard and represented separately from their parents will result in parents focusing more on the child’s interest than on their own parental arguments.

One other small complaint is that the new Swiss law could be stricter over the issue of hearing children in court, said Hauri.

In particular, article nine of the new law foresees that the court can “call a child to a court hearing if appropriate or ask an expert to carry out a hearing unless the age of the child or other motives oppose this”.

“The formulation of the last part ‘other motives’ is too vague and needs to be annulled,” said Hauri. “You have this in divorce law where there is a similar formulation. In divorce settlements children are only called to testify in ten per cent of cases.”

High-profile

Over recent years a number of high-profile international child abductions, like that of five-year-old Ruben Bianchi, have made the news in Switzerland.

In 2002, Italian sports doctor Stefano Bianchi was awarded custody of Ruben by an Italian court following his divorce. This decision was confirmed by the Swiss Federal Court.

But in December 2003 the boy was taken from Italy back to Switzerland by his Swiss mother, former cycling champion Lucille Hunkeler.

Hunkeler, a Swiss-Italian citizen, was arrested in Mozambique in October 2007 while travelling with her eight-year-old son and her two other children. She was tracked down following a joint Swiss-Italian investigation after both countries issued an international arrest warrant.

Ruben finally rejoined his father after years of long and complex procedures.

Such was the uproar that former Justice Minister Christoph Blocher even discussed the case with his Italian counterpart Roberto Castelli.

And during parliamentary discussions over the new abduction legislation, Blocher said things would have gone more quickly and simply in the Bianchi case if the new law had been in place.

Simon Bradley, swissinfo.ch

In brief

In 2007 40,100 marriages took place in Switzerland, 300 more than in 2006. This figure has remained more or less stable for the past decade.

There were 19,700 divorces in 2007 compared with 21,000 in 2006, a decrease of 6%. But 2006 was a divorce high point: 18% more than in 2005.

Under Swiss law a person wanting to file for divorce has to wait two years from the time of separation.

In Switzerland 44% of marriages end in divorce.

Key facts

2008 figures from the Central Authority for Dealing with International Child Abductions.
111 cases – 75 of abduction and 36 of violation of visiting rights.
55 cases of abduction from Switzerland; 20 abductions to Switzerland.
73% of abductions carried out by mothers.
Most cases concerned children under the age of seven.

The Hague Convention

The 1980 Hague Convention is aimed at securing the prompt return of children wrongfully removed to or detained in any contracting state.

It ensures that rights of custody and access under the law of one contracting state are respected in the other contracting states.

It has 80 signatories which include most European and North and South American countries, Australia and a few African countries.