1. CHILD PROTECTION AND \CHILD ABDUCTION; SHARING OF EXPERIENCE FROM INDONESIA Prof. Dr ZULFA DJOKO BASUKI, SH., MH Professor of Law at Faculty of Law Universitas Indonesia INDONESIA Asia-Pasific Symposium on Child Protection & Child Abduction Macau – China June 25, 2015

2. Regulations on Children Protection in Indonesia 1. Indonesia Civil Code (ICC) as inherited from Dutch Civil Code during the Colonialism; 2. Law No. 1 of 1974 on Marriage; 3. Government Regulation No. 9 of 1975 on The Implementation of Law No.1 of 1974 on Marriage; 4. Law No. 4 of 1979 on Child Welfare; 5. Presidential Decree No. 36 of 1990 on Ratification of Convention on the Rights of the Child; 2© ZDB

3. Regulations on Children Protection in Indonesia (2) 6. Law No. 7 of 1989 jo. Law No. 3 of 2006 jo. Law No. 50 of 2009 on Religious Court. 7. Presidential Instruction No 1 of 1991 on Compilation of Islamic Law; 8. Law No. 39 of 1999 on Human Rights; 9. Law No. 23 of 2002 jo. Law No. 35 of 2014 on Child Protection; 7. Law No. 12 of 2006 on Nationality 8. Law No 23 of 2006 jo. Law No. 24 of 2013 on Civil Administration. 3© ZDB

4. Rights and Responsibilities between Parents and Children Art. 45 Law on Marriage stipulates: a.“Both parents shall be responsible for the maintenance and education of their children to the best of their ability. b.The responsibility of the parents referred to in paragraph (1) of this article shall be inforce until the children married or are able to support themselves and shall continue to be inforce notwithstanding the marriage between both parents having been dissolved.” 4© ZDB

5. Rights and Responsibilities between Parents and Children (2) Art. 46 Law on Marriage stipulates: a.“The children shall honour their parents and obey their good will towards the children. b.When the children have attained maturity, they shall have the responsibility of maintaining their parents to the best of their ability, if the parents in need of such assistance.” © ZDB5

6. Rights and Responsibilities between Parents and Children Further Art. 47 Law on Marriage stipulates: a.“A child who has not attained the age of 18 years old or who has never been married shall be in the custody of the parents as long as she/he has not been removed from their custody; b.the parents shall represent the child in all legal actions before or outside of a Court.” 6© ZDB

7. Rights and Responsibilities between Parents and Children (3) Art. 14 (1) Law on Child Protection stipulates: "Every child has the right to be raised by their own parents, unless there is a reason and/or regulation which suggests that the separation of parents and children are in the best interest of children and is the final judgement.“ © ZDB7

8. Rights and Responsibilities between Parents and Children (4) Art. 26 (1) Law on Child Protection stipulates: “The parents have the duty and the responsibility to: a.take care of, nurture, educate and protect the child; b.raise the child based on his/her ability, talent and interest; and c.prevent an early marriage of the child; d.give character education to the child. © ZDB8

9. Dissolution of Marriage and Its Consequence in Indonesia Art. 41 Law on Marriage stipulates: The consequences of the dissolution of marriage on account of a divorce are:  “the mother as well as the father shall continue to have the responsibility of maintaining and educating their children, solely by virtue of the interest of the children; in the case of a dispute concerning the custody of the children, a Court of law shall render its judgement.” Note: It reflects joint-custody principle 9© ZDB

10. Dissolution of Marriage and Its Consequence in Indonesia Art. 29 (2) Law on Child Protection stipulates: “In case of divorce of mix-marriage, the child is entitled to choose or as determined by the court decision, the custody of the child shall be given to one of the parents.” Note: It reflects sole-custody principle © ZDB10

11. Custody of the Child Unfortunately, there is no provision in the Child Protection regulations in regard to Access Rights for the parent who does not obtain the custody rights. © ZDB11

12. Custody of the Child Based on jurisprudence principle, the judges in Indonesia in examining the child custody case should consider the best interest of the child. This is reflected in Supreme Court Decision No. 906 K/Sip/1973 on 25 June 1974, between Indonesian man and Malaysian woman in regard to custody of their child: “The interest of the child must be used as the benchmark to determine who is entrusted with the custody of the child.” 12© ZDB

13. Child Abduction in Indonesia Not many cases concerning Child Abduction are exposed or brought before Indonesian Court. Most cases are concerning custody rights because of the dispute between ex-wife and ex-husband. 13© ZDB

14. Cases on Child Abduction in Indonesia a. Djoko Soesanto (Indonesian national) v. Bettina Renatser (German national), Decision of District Court of South Jakarta No. 210/Pdt/G/1992; b. Castello Jose (French national) v. Junita (Indonesian national), Decision of High Court of Bandung No. 481/PDT/1999/PT.BDG; c. Denis Anthony Michael Keet (Australian national) v. Yeane Sailan (Indonesian national), Order of Supreme Court of Republic of Indonesia No.3/Pen/Pdt/2013. 14© ZDB

15. Djoko Soesanto (Indonesian national) v. Bettina Renatser (German national), Decision of District Court of South Jakarta No. 210/Pdt/G/1992 1. Djoko Soesanto (DS – an Indonesian national) got married with Bettina Renatser (BR – a Germany national) in Indonesia on 23 February 1983. 2. They moved to German where their two sons were born (in 1986 and 1988) and had German Nationality (Indonesia used ius sanguinis principle and single nationality at that time – Law No. 62 of 1958). 3. In 1992 when their marriage got worse, the DS brought the children back to Indonesia without the permission of BR. 15© ZDB

16. Djoko Soesanto (Indonesian national) v. Bettina Renatser (German national), Decision of District Court of South Jakarta No. 210/Pdt/G/1992 4. Then he asked for a divorce in Indonesian court, but the wife already filed a divorce case in German court and received a Provisional Decision. 5. The German court decision gave the right of custody for both of the children to the mother (BR). 6. In 1993, the Indonesian court gave different decision that divided the right of custody of the youngest to the mother (BR) and the eldest to the father (DS). © ZDB16

17. Castello Jose (French national) v. Junita (Indonesian national), High Court of Bandung No. 481/PDT/1999/PT.BDG; 1. In 1994 Castello Jose (CJ - a France national) got married with Junita (J – an Indonesian national) in Indonesia. 2. In 1995, their son, Mathieu Castello (MC) was born in Indonesia. 3. In 1999, when the marriage got worse, MC was brought by his father to France, without consent of and notification to his mother. 4. During in France, MC was nurtured by his grandmother, not by his father. © ZDB17

18. Castello Jose (French national) v. Junita (Indonesian national), High Court of Bandung No. 481/PDT/1999/PT.BDG; 5.During his stay in France, MC did not want to speak to other persons and always looked confused with his surroundings (mustimus condition). This condition did not happen during his stay in Indonesia. 6.CJ filed for a divorce and child custody before the Indonesian court. The judges granted the divorce and gave the custody of MC to CJ (the father). 7.The judges stated that the custody was given based on the interest of the child:  MC needs medical treatment and the father can give the finance for medical treatment. © ZDB18

19. Denis Anthony Michael Keet (Australian national) v. Yeane Sailan (Indonesian national), Order of Supreme Court of Republic of Indonesia No.3/Pen/Pdt/2013 1. Dennis Keet (DK – an Australian national) and Yeane Sailan (YS – an Indonesian national) got married twice in Australia in 2002 and in Indonesia in 2003. 2. Since early 2003, they have lived in Jakarta, Indonesia; 3. Their only child, Luke Keet (LK), was born on 28 July 2003 in Indonesia. Luke Keet hold dual nationalities, Australia and Indonesia (based on Law No. 12 of 2006 on Nationality); 4. When the marriage got worse, LK was brought by his father (DK) outside of Indonesia, without consent of and notification to his mother (YS); 19© ZDB

20. Denis Anthony Michael Keet (Australian national) v. Yeane Sailan (Indonesian national), Order of Supreme Court of Republic of Indonesia No.3/Pen/Pdt/2013 5. YS (the mother) finally met with LK in Australia with the help from Australian Airport Watch List; 6. Family Court Order of Australia granted the custody rights to the mother (YS) and order the mother (YS) and LK to go back to Indonesia, as the ordinary place of residence of the child (Kellett & Kellett [2012] FamCA 537 (13 July 2012)); 7. Immediately after the issuance of Family Court Order of Australia, DK (the father) file a claim before the District Court of South Jakarta and ask for the annulment of custody rights of the mother (YS), as granted by Family Court in Australia; © ZDB20

21. Denis Anthony Michael Keet (Australian national) v. Yeane Sailan (Indonesian national), Order of Supreme Court of Republic of Indonesia No.3/Pen/Pdt/2013 8. This claim was granted by the judge of the District Court of South Jakarta in its Order No. 700/Pdt.P/2012/PN.JKT.Sel on 7 August 2012 by virtue that the mother was not considered as a responsible parent; 9. YS then filed for cassation before the Supreme Court of Indonesia and ask for the annulment of the Order of District Court of South Jakarta. 21© ZDB

22. Denis Anthony Michael Keet (Australian national) v. Yeane Sailan (Indonesian national), Order of Supreme Court of Republic of Indonesia No.3/Pen/Pdt/2013 10. This cassation was granted by the Supreme Court. The Judge of the Supreme Court annuled the Order of District Court of South Jakarta. 11. Therefore, the holder of the custody rights for LK is his mother (YS). 12. The judges of Supreme Court has considered the best interest of the child. 13. Implicitly, the Supreme Court also has implemented the provisions of the Hague Convention 1980 in their decision. © ZDB22

23. Suggestion for Indonesia’s Position to the Child Abduction Convention 1980 Based on the previous explanation, Indonesia needs to consider to accede the Hague Convention 1980 and the Hague Convention 1996. 23© ZDB

24. Problems to be Solved First... 1.To implement the provisions of the Child Abduction Convention, the state party should designate a Central Authority. Indonesia needs to designate its Central Authority if it accedes the Convention; 2.Issuance of the regulation on the Custody Rights (Joint or Sole) and Access Rights is necessary; 3.The coordination of inter-ministries and inter-institutions within the territory of Indonesia; 4.Prevention of criminalization of the Child Abduction cases; and 5.Improvement on the knowledge of the judges, lawyers and relevant stakeholders concerning the issues on International Child Abduction. 24© ZDB

25. Thank You End of Slides