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Alice Through The Looking Glass: Children Law And The Reality Of Mirror Orders In Colombia

Sarah Cooper, of Thomas More Chambers, and Cesar Sanchez, of Universidad Nacional de Colombia, look at the particular issues of enforcing residence and contact orders in Colombia.

imge of Sarah Lucy Cooper of Thomas More Chambersimage of Cesar Sanchex, family lawyer from Colombia

Sarah Lucy Cooper, Thomas More Chambers and Cesar Augusto Sanchez Avella, Colombian Family Lawyer, Universidad Nacional de Colombia

With over 100,000 Colombians living in the UK, there is a good chance that a practitioner has or will experience cases involving Colombia, in particular in relation to the relocation of children. Understandably UK courts frequently wish to know how a contact or residence order made in the UK can be enforced in Colombia.

Children law in Colombia
The starting point is that Colombia has a civil system, similar to that in France and Spain. Although the accusatorial system has been introduced for criminal cases, family cases are mainly decided upon the basis of written submissions and a judge is free to seek evidence independently of what either side presents.

The “Ley 1098 of 2006” “the Code on Childhood and Adolescence” sets out much of the law in relation to children. Article 22 provides that a child has a right to a family life whilst Articles 23-37 list further rights including health, education, culture and the right not to work until the age of 15.

Furthermore specific duties are placed upon the family, the State, society, the national Television Commission and the media to uphold children’s rights in a variety of rather specific and unusual ways such as the right of the ICBF [see below] to have weekly time on television for campaigning programmes - Article 48!

The treatment of children within criminal proceedings is also contained in the Code [no criminal responsibility below the age of 14] as are rights to maintenance. Importantly the Code applies to all children physically within the Colombian territory as well as to all children having Colombian nationality wherever they are living – Article 4.

Colombian married parents share equal rights of custody in relation to their children. Non-married parents also share equal rights of custody if the father is named on the birth certificate.

In relation to citizenship, a child born to a Colombian parent acquires Colombian citizenship upon its birth being registered with the Embassy or the child becoming domiciled in Colombia. It is important to note that pursuant to Colombian law, a child can obtain a passport with the consent of only ONE of the parents. Any attempt to prevent the issue of a passport has to be made NOT to the Embassy but to the Instituto Colombiano de Bienestar Familiar “ICBF” [as to which see below].

ICBF
The ICBF is an agency of the Ministry of Social Protection. It was also designated as the Central Authority for the purposes of the Hague Convention in 1998. Its role is rather similar to the Official Solicitor/Cafcass in that any domestic dispute in relation to contact and residence, would be initially referred to the ICBF. The case would be assigned to a family protection officer who would see if an agreement is possible.

The ICBF has other more general campaigning functions and is also involved in regulating international adoptions and representing Colombian children generally.

The Hague Convention and Colombia
Colombia has been a member of the Hague Convention since 1994. Whilst Article 112 of the Codigo de Infancia [as above] emphasises the role of the Colombian state in protecting any abducted children, historically there have been huge delays in the processing of applications and a large amount of international criticism of the Colombian courts which have been ill prepared to deal with Hague Convention cases.

In response to this criticism, Colombia has introduced recent legislation namely the “Ley 1008 of 2006” which provides that Hague Convention cases are added to the jurisdiction of the family courts and emphasises that all due expedition should be used. It should be borne in mind that in remoter parts of Colombia there are no family courts and therefore Hague applications would be heard be a general civil judge.

Furthermore Ley 1008 still does not provide any time limits in relation to the consideration of Hague applications.

There is only very limited provision for free legal advice for the purpose of bringing such proceedings. This can come about in two ways. Firstly if the ICBF itself is instituting and essentially conducting the proceedings as the Central Authority. Secondly, universities offer law “clinics” as a part of the training to become a lawyer, however, such services are means tested.

The judiciary in Colombia have had very little specific training in the application of the Hague Convention. In Colombia as in many other countries [!] family law is seen as a Cinderella speciality….

In relation to applications under the Hague Convention, the ICBF performs the administrative role. Once an application has been made to the ICBF, it will assign a “Defensor de Familia” [similar to a Cafcass officer] to the child and will hold a home study to consider the welfare of the child. A conciliation appointment will be scheduled at which both parents are asked to be present. The parties’ lawyers can also be present during this conciliation. The ICBF will attempt to mediate an agreement at this conciliation. The ICBF has a duel role:

(i) Mediating an agreement between the parties;
(ii) Deciding whether the child should be returned.

If the parties do not reach an agreement and the Defensor de Familia considers that the child should not return, the left parent can then essentially judicially review the decision of the ICBF. If, on the other hand, there is no agreement but the Defensor de Familia considers that the child should be returned, it then becomes a part of the Defensor de Familia’s role to initiate proceedings before a court. The Defensor de Familia essentially acts as a Guardian representing the interests of the children in any subsequent proceedings [Article 137 Codigo de Infancia]. Either way, the process then moves from an administrative stage to a judicial stage. Unfortunately there are no time limits in relation to this administrative stage.

In relation to the making of an application to the Court under the Hague Convention, the normal procedural rules applicable to fast track civil cases applies [ie the Codigo de Procedimiento Civil] save that the parties are granted a further automatic right of appeal to the Tribunal Superior by way of re-hearing. The hearings would therefore involve a mixture of oral and written submissions. Whilst the Civil Code does itself set down time limits for completing various stages of the proceedings, the reality is that these are regularly breached due to delays listing cases.

Mirror Orders
Pursuant to Article 21 of the Hague Convention, the Central Authority can also be requested to uphold an arrangement for contact. However, the ICBF will NOT automatically uphold any order for contact made by a foreign court but rather will examine the issue de novo. There is therefore no automatic right to a mirror order even at an administrative stage.

The first, and easiest option is therefore for the parties to come to an agreement via the offices of the ICBF, this would then be upheld in a Colombian court with the ICBF bringing proceedings is necessary to uphold such an agreement.

Secondly, the next fastest method would be to ask a Colombian Court to make a contact order de novo. Rather than directly enforcing the foreign court order, the Colombian court would take into account the full judgment but would be free to make its own order. Such proceedings would inevitably take some months to conclude if not more time …..

Finally, if a parent really does wish to obtain an exact mirror order by way of enforcing the original order, such an order would generally be by way of the process of Exequatur ie requesting direct recognition of a foreign order. However, the delays involved in this process might well exceed those in obtaining an order de novo from the Colombian Courts and in any event the Colombian Courts in cases relating to children generally refuse to enforce a foreign order without themselves considering the welfare of the child.

Anecdotal evidence collated by the US Embassy suggests that certainly in the case of the USA, the Colombian courts rarely recognise or enforce foreign orders relating to children. It is also appears to be very rare for a Colombian court to grant a residence order to a parent residing outside of Colombia if there is a parent residing within Colombia. Sadly this conclusion is supported by albeit old statistics collected by the Hague Conference on Private International Law showing that no child was returned in 1999 [albeit out of a sample of 4 ….!].

Links to Sources of Information

Sarah Lucy Cooper, Barrister at Thomas More Chambers, Vice Chair of the British Spanish Lawyers’ Association and formerly resident in Colombia

Cesar Augusto Sanchez Avella,- Colombian Family Lawyer, Universidad Nacional de Colombia
sanchezavella@hotmail.com