1. Towards the Well-Being of the Child Through The Hague Child Abduction and Protection of Children Conventions Asia Pacific Symposium held on 25 & 26 June 2015 in Macau SAR China Presentation By Justice K.T.CHITRASIRI Judge of the Court of Appeal SRI LANKA 1

2. INTRODUCTION It is well known over the world that SRI LANKA had to face a civil war for over 30 years. It was ended only in the year 2009. Before that; we had another situation where civil administration was disrupted by another group of citizens in the year 1971. During the aforesaid two periods many citizens of Sri Lanka have fled the country and have taken up residence abroad. Many of our citizens also have left the country for employment as well. Due to those circumstances many children of Sri Lankan parents may have lost proper care and affection of their parents. Not only the loss of care and protection but in many occasions their day to day life also had been disrupted basically due to the disputes between the parents who have become residents abroad. Those are the circumstances that warranted to have a clear process for the purpose of looking after the wellbeing of children who need food, good health and education and more importantly love, care and affection of the parents. 2

3. REMEDIAL MEASURES Against such a backdrop, Sri Lanka, being a Contracting State to the Hague Convention, among other laws enacted, The Civil Aspects of International Child Abduction Act, No. 10 of 2001, to look after the well-being of children. It was enacted giving effect to the provisions of the 1980 Hague Convention. The said Act came into operation on 01 st March 2002 by virtue of an order made by the Minister of Justice, Law Reform and National Integration under Section 1 thereof and it was published in the Gazette Extraordinary No. 1225/29. Primary object of the Act is to preserve whatever status quo of the custody of a child that existed immediately before an alleged wrongful removal or retention immediately prior to the crossing of international boundaries. The aforesaid Act imposes duties on the Central Authority established under the Act to achieve the objects of the Hague Convention in 1980. Such duties cast upon the Central Authority are stipulated in Section 5 of the Act and those are almost similar to the objects referred to in Article 7 of the 1980 Convention. 3

4. POSITION OF THE LAW PRIOR TO THE ENACTMENT OF THE ACT No.10 of 2001 Before the enactment of the Civil Aspects of International Child Abduction Act, a party who needed an order affecting a child had to make an application to the District Court for a suitable order. District Judge is considered as the upper guardian of the children. Making such an application and to obtain an order thereof was expensive, cumbersome and time consuming. Implementation of those Judgments also became more difficult, since existence of mutual agreements signed by the respective countries was a necessary factor to have those judgments implemented. Therefore, a parent who was in need to look after the welfare of the child had no clear process known to law in SRI LANKA prior to the enactment of the Act No.10 of 2001. 4

5. ENACTMENT OF THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ACT The Government of Sri Lanka being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, assuming the obligation to honour the provisions thereof enacted the Civil Aspects of International Child Abduction Act No.10 of 2001. The aforesaid Act came into operation on 1 st March 2002, by virtue of an order made by the Minister of Justice, Law Reform and National Integration. The object of enacting the Act is to make provision for the return of children wrongfully removed from Sri Lanka or from their country of habitual residence and retained in any specified country or in Sri Lanka. Decisions made on the applications filed under the Act are shown in the annexure to this document. It indicates the name of the child in whose behalf the application had been made; the date of application and the outcome thereof. 5

6. Under Section 4 of the Act, the Secretary, Ministry of Justice is appointed as the Central Authority for the purpose of carrying out the object of the Act. This is in keeping with the requirement referred to in Article 6 of the Convention. Section 5 of the Act No.10 of 2001 sets out the functions, duties and responsibilities of the Central Authority and it reads thus: To discover the whereabouts of a child who has been wrongfully removed to, or retained in Sri Lanka. To prevent further harm to any such child or prejudice to any other interested parties, by taking or causing to be taken, such provisional measures as may seem necessary. To secure the voluntary return of any such child to the specified country in which such child had his or her habitual residence or to bring about an amicable resolution of the differences between the person claiming that such child has been wrongfully removed to, or retained in, Sri Lanka and the person opposing the return of such child to the specified country in which that child has his or her habitual residence. 6

7. . To secure the voluntary return of any such child to the specified country in which such child had his or her habitual residence or to bring about an amicable resolution of the differences between the person claiming that such child has been wrongfully removed to, or retained in, Sri Lanka and the person opposing the return of such child to the specified country in which that child has his or her habitual residence. To exchange, where desirable, information relating to any such child, with the appropriate authorities of a specified country. To provide, on request, information of a general character, as to the law of Sri Lanka in connection with the implementation of the Convention in any specified country. To institute judicial proceedings with a view to obtaining the return of any such child to the specified country in which that child has his or her habitual residence, and in appropriate cases, to make arrangements for organizing or securing or to institute judicial proceedings for securing, the effective exercise of rights of access to a child who is in Sri Lanka. Where circumstances so requires, to facilitate the provision of legal aid or advice. To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of any such child to the specified country in which that child has his or her habitual residence. 7

8. JURISDICTION High Court of the Province is the Court vested with the jurisdiction to hear and determine the applications made in terms of the Act No.10 of 2001. It is the Court that exercises the highest level of original jurisdiction in Sri Lanka in which the offences such as murder, rape are being tried. Therefore, it is clear that the Government of Sri Lanka has recognized the importance of the matters connected with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, having given the jurisdiction to such a higher forum to determine the matters connected with the well-being of children. 8

9. FACTS OF A CASE FILED UNDER THIS ACT Case No. HC SPL 2/2012 An application was filed by the Attorney General appearing on behalf of the Secretary, Ministry of Justice, [Central Authority] for the return of two children, a girl aged 12 years and a boy aged 7. It was alleged that the two children had been wrongfully adducted from Australia, their country of habitual residence, and brought to Sri Lanka by their father. The application was filed pursuant to a request for the return of the children by the government of Australia. The mother and the father were made Respondents to the application. In addition to abducting the children, it was also alleged that the father had also fraudulently withdrawn all the money from a joint account he had with his wife (the mother of the children) leaving the wife absolutely destitute. 9

10. . The said application was filed in the High Court on 20 th June 2012. While the mother did not file objections to the application because it was at her instance the application was made, the father (the 2 nd Respondent) filed his objections only on the 29 th November 2012. This was more than five months after the application was filed. The inquiry was held only on 01 st August 2013 and the judgment was delivered on 20 th December 2013. Thus, the case took one and a half years in the High Court. At this stage it must be noted that no application had been made under Section 12 of the Act by the Central Authority requesting the High Court for the reasons for the failure to dispose of the application within six weeks of the date of the application. The said Section 12 is included into the Act in keeping with Article 11 of the Convention. 10

11. . Order was made by the High Court refusing the application of the Attorney General to return the children to Australia. Said finding was made under Section 11 of the Act that the return of the children would be a “grave risk that the children’s return would expose them to … psychological harm or otherwise place them in an intolerable situation”. The basis on which this finding was arrived at was the allegation by the father of the children that the mother was an LTTE sympathizer. A photograph was produced by the father allegedly showing the mother taking part in a pro LTTE rally in Melbourne with the daughter. 11

12. . An application was made to the Court of Appeal by the mother to have the order of the High Court revised and sought an order for the return of the children to Australia. In that application, it was alleged by the mother that an order under Section 11 can only be made in exceptional circumstances and in that she has averred that mere allegation that she was taking part in activities that were politically resisted in Sri Lanka does not mean that the children would be exposed to psychological harm or would otherwise be placed in an intolerable situation. Several preliminary objections were raised in the Court of Appeal before the matter was taken up for inquiry by that Court. However, the Court overruled the preliminary objections and has fixed the matter for argument for the 3 rd of July. In the meantime the father of the children have appealed to the Supreme Court against the ruling of the Court of Appeal on the preliminary objection. The mother alleges that such conduct of the father is to delay the proceedings. 12

13. BENEFITS AND DEFICIENCIES OF THE ACT 13  Enactment of the Civil Aspects of International Child Abduction Act No.10 of 2001 has introduced a clear and specific procedure for the return of children wrongfully removed from Sri Lanka or their country of habitual residence and retained in any specified country or Sri Lanka and thereby ensuring legal sanction for such return of children. It is the beginning for such an attempt.  It has cleared the ambiguities/doubts as to the procedure that should be followed when a child is removed from his place of habitual residence.  However, a question arises as to whether the real object of enacting the said Act No.10 of 2001 has been achieved.  Our experience as to the cases filed in the High Court show that it has taken long period of time to make an order as to the return of the child in an application filed by the Central Authority.

14. ..Appellate procedure stipulated in our law may lead to negate the object of the enactment of the Act. A person aggrieved by an order of the High Court has the right to file an appeal to the Court of Appeal and then from there to the Supreme Court. Outcome of such an appellate procedure will take many years to see the final outcome of the application. By the time the finality is reached in courts, child in whose behalf the application is filed may have become the age of 16 years. Moreover, during the period of litigation, the child may have adjusted to the place where he was brought. It may go against the well-being of the child. 14

15. STEPS TO STREAMLINE THE PROCEDURE Laws could be enacted restricting it to one appeal but at the same time ensuring proper adjudication of the matter. Such an appeal also could be restricted only to the questions of law which is to be determined either by the Original Court or by the Appellate Court by way of a special application for leave. Officials in the Central Authority and the judges require necessary training. Awareness programs for the public also are welcomed. Judges are to be directed to take up cases of this nature giving preference over the other matters. Steps should be taken to compel the Government of Sri Lanka to ratify the Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility measures for the protection of the children which was concluded on 19 th October 1996. 15

16. CONCLUSION The object of the 1980 Convention is now being implemented successfully even though there exists a few matters which could be resolved if proper steps are taken. Pressurizing the Government of Sri Lanka even by International Forum in order to take necessary steps to ensure implementation of the Conventions particularly the 1996 Convention. Lobbying groups such as the Asia Pacific Regional office of the Hague Conference on Private International Law too, could play a vital role in this regard. Thank You 16