In cases where spouses have a child and subsequently divorce or separate, disputes may arise regarding parental authority or the child’s residence. Where the parties cannot agree on who should exercise parental rights or where the child should reside, situations may occur in which one parent takes the child to another country without the consent of the other parent, or even where an agreement exists, one parent may fail to return the child within the agreed timeframe. Such conduct is referred to as “Child abduction.” Our dispute resolution team of lawyers in Thailand at Herrera and Partners H&P have represented several parents in cases of international child abduction in Thailand. Based on the experience of our Bangkok litigation lawyers, we have prepared a summary of the key aspects of the procedure of child abduction in Thailand.
When a parent becomes aware of such circumstances and the child has been brought into Thailand, the parent, as the applicant, may file a request with either the Central Authority or the court pursuant to the International Cooperation in Civil Matters Relating to the Violation of Rights of Custody Act, B.E. 2556 (2013), as follows:
1- Filing a request with the Central Authority
The Central Authority is the Attorney General or a person designated by the Attorney General to act as the coordinating authority.
If the Central Authority determines that the application complies with the prescribed requirements and that assistance can be provided, it will proceed accordingly.
However, if the application does not meet the criteria, or if assistance can only be provided subject to certain conditions or impediments, the Central Authority may refuse assistance. Such refusal does not preclude the applicant from filing a petition directly with the court.
2-Filing a petition with the court
Where the applicant wishes to proceed directly, or where the Central Authority refuses assistance, the applicant may file a petition with the Central Juvenile and Family Court seeking the return of the child under the relevant Act.
Court Proceedings
In child abduction proceedings, the court will typically schedule mediation between both parties at the outset, as family cases are sensitive in nature and involve the interests of a child. If the mediation is not successful, the court will proceed to schedule a hearing for the examination of witnesses.
Moreover, given that child abduction cases involve minors, proceedings are subject to the Juvenile and Family Court and Juvenile and Family Case Procedure Act, B.E. 2553 (2010).
The court will notify the Director of the Observation and Protection Center, who will prepare a report concerning the family background, welfare, wishes, and best interests of the child, and submit an opinion to the court. The court will consider such opinion in its adjudication, although the parties have the right to challenge and present counter-evidence.
Importantly, according to Section 13 of the International Cooperation in Civil Matters Relating to the Violation of Rights of Custody Act, B.E. 2556 (2013), the court will consider the return of the child as follows:
(1) If less than one year has elapsed from the date the child was wrongfully removed or retained to the date of filing the petition, the court shall consider ordering the prompt return of the child.
(2) If one year or more has elapsed, the court may order the return of the child, unless it is established that the child has become settled in the new environment.
In addition, the court may dismiss the petition in certain circumstances, such as where the person having custody rights was not actually exercising those rights at the time of the removal or retention, or had consented to or subsequently acquiesced in such removal or retention.
The court may also refuse to order the return if doing so would expose the child to a grave risk of physical or psychological harm, or if the return would be contrary to the fundamental principles of Thailand relating to human rights and fundamental freedoms.
If it appears that the child has already left Thailand, the court may suspend the proceedings or dismiss the petition.
In considering the case, the court will take into account information relating to the child as provided by the Central Authority or relevant local officials in the child’s habitual residence. The court will also consider the best interests of the child as a primary factor.
A judgment or order of the Central Juvenile and Family Court regarding the return of a child who has been brought into or retained in Thailand shall be final.
If you want to consult a law firm in Thailand regarding child abduction, please contact our Bangkok lawyers specialized in family law at info@herrera-partners.com
