Background: CONANI and the Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (HCCH) requires under Article 6 that a contracting state "shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities". CONANI (Consejo Nacional Para la Niñez y la Adolescencia or in english the National Council for Childhood and Adolescence) is the designated central authority for the Dominican Republic.
Responsibilites of a Central Authority
Article 7 of the HCCH defines the responsibilities of a Central Authority (I have emphasized key text by bolding that text):
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. In particular, either directly or through any intermediary, they shall take all appropriate measures -
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;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
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 organising 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;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Read the full text of the HCCH ....
CONANI's Contact information:
Consejo Nacional Para la Niñez y la Adolescencia (National Council for Childhood and Adolescence) (CONANI)
Avenida Máximo Gómez No. 154, esq. Rep. de Paraguay
Ensanche la Fé
Apartado Postal 2081
Tel.: +1 (809) 567 2233
Fax: +1 (809) 472 8343
CONANI's response to my petition filed in July, 2009
I am writing to send you our observations concerning the case of minor child Kali Soleil Athukorala Zemialkowski, daughter of Ms. Sandra Clarissa Zemialkowski, with a view to helping Ms. Ivvette of the U.S. Central Authority with her translation for a better understanding of our correspondence.
Accordingly, please note the following:
I. Ms. Sandra Clarissa Zemialkowski appeared freely and voluntarily before the National Council for Childhood and Adolescence (CONANI) to inform us that she is currently involved in a suit for custody, child support [pensión], visitation, and international child abduction brought by Mr. Dhamika Athukorala through the Hampshire County Family and Probate Court of the Commonwealth of Massachusetts, United States of America, as reflected in the documentation Ms. Sandra Clarissa Zemialkowski has deposited with us.
II. Included with the above-mentioned documentation is a court order issued by the Hampshire County Family and Probate Court of the Commonwealth of Massachusetts, ordering the international return of minor child Kali Soleil Athukorala Zemialkowski to the United States of America, based on the 1980
- 2 -
Hague Convention on the Civil Aspects of International Child Abduction, and, in addition, the order rules on the custody of the child in question.
III. CONANI believes that the order for the international return of the child Kali Soleil Athukorala Zemialkowski, which also rules on the child’s custody, contains a number of errors, and that these errors make the order impossible to enforce under the above-referenced Convention.
IV. To this end, Article 16 of the Convention states that in reviewing an application for the international return of a minor, judicial authorities cannot rule on the merits of custody of the child in question. However, the Massachusetts family court obviously did so by ruling on both matters at the same time, and also violated Article 19 of the Convention in this regard.
V. Moreover, Article 22 of the Convention was violated in that the court required Ms. Sandra Clarissa Zemialkowski to post a bond, allegedly as part of the proceeding for the international return of her daughter.
VI. Among other aspects, for purposes of applying the Convention, the nationality and domicile of the minor child are not taken into account, but rather the child’s habitual residence, which is defined as the place where the child’s life is based together with the person who takes care of him/her.
VII. In the case at hand, from the time she removed her daughter, the mother assumed responsibility for the care and custody of Kali Soleil Athukorala Zemialkowski. According to substantive law of the Commonwealth of Massachusetts, the father cannot establish custody by simply claiming
- 3 -
fatherhood, as [custody] this must be established by the court, and, therefore, [the child’s] removal was lawful.
National Council for Childhood and Adolescence (CONANI)
Phone: (809) 567-2233, ext. 1140
Fax: (809) 567-2494