Comments on article 392. Filing an application for the return of a child or for the exercise of access rights in relation to a child on the basis of an international treaty ratified by the Republic of Kazakhstan, the Code of Civil Procedure of the Republic of Kazakhstan
1. An application for the return of a child illegally transferred to the Republic of Kazakhstan or held in the Republic of Kazakhstan, or for the exercise of access rights in respect of such a child on the basis of an international treaty ratified by the Republic of Kazakhstan (hereinafter referred to as the application for the return of a child or for the exercise of access rights), is filed with the court by a parent or other person who believes that the defendant has violated his custody rights or access rights, or is filed with the court by the prosecutor.
2. An application for the return of a child or for the exercise of access rights is submitted to a specialized inter-district juvenile court.
3. If the child's place of residence in the territory of the Republic of Kazakhstan is unknown, an application for the child's return or for the exercise of access rights shall be filed with the court provided for in part two of this article at the child's last known place of residence in the Republic of Kazakhstan or at the defendant's last known place of residence in the Republic of Kazakhstan.
4. In the event of a change in the child's place of residence, the application for the return of the child or for the exercise of access rights is subject to consideration by the court, which accepted the application for its proceedings in compliance with the rules of jurisdiction established by this article.
5. An application for the return of a child or for the exercise of access rights must indicate that the relevant requirement is made on the basis of an international treaty ratified by the Republic of Kazakhstan.
In order to effectively resolve disputes about the upbringing of children between parents who are citizens or reside in different countries, the Hague Conference on Private International Law developed the Convention on the Civil Aspects of International Child Abduction of October 25, 1980 (hereinafter referred to as the Convention).This Convention was ratified by the Republic of Kazakhstan by the Law of November 13, 2012 and entered into force on the territory of the Republic of Kazakhstan on September 1, 2013. As part of the implementation of the Convention, Resolution No. 519 of the Government of the Republic of Kazakhstan dated May 21, 2014 "On measures to ensure the fulfillment by the Republic of Kazakhstan of obligations arising from the Convention on the Civil Aspects of International Child Abduction of October 25, 1980" designated the Ministry of Education and Science as the central authority for the implementation of the provisions of the Convention.
By Order of the Minister of Education and Science of the Republic of Kazakhstan dated June 4, 2014 No. 208, the functions of the operational activities of the central body are assigned to the Committee for the Protection of Children's Rights of the Ministry of Education and Science. The Handbook for Citizens on the application of the provisions of the Convention, developed by the Committee for the Protection of the Rights of the Child, with reference to article 3 of the Convention, indicates which transfer or detention of a child is considered illegal.
Thus, the transfer or retention of a child is considered illegal if:
a) they are carried out in violation of the custody rights granted to any person, institution or other organization, jointly or individually, in accordance with the legislation of the State in which the child permanently resided before his transfer or detention;
b) during the transfer or retention, these rights were effectively exercised, jointly or individually, or would have been exercised if the transfer or retention had not occurred.
The custody rights referred to in paragraph (a) may arise, in particular, in accordance with the law, either on the basis of a judicial or administrative decision, or on the basis of an agreement entailing legal consequences under the legislation of that State. The date of illegal transfer is considered to be the day of the child's transfer from the territory of the State of his permanent residence. The date of illegal detention is considered to be the first day after the expiration of the period for which the duly executed consent to the child's removal was given. For example, one parent gives the other parent consent to take the child out from March 21 to April 21, 2015. The parent who took the child out does not return it after the specified period. The date of illegal detention will be April 22, 2015.
Whether the Convention applies or not depends on the date of the abduction or illegal detention. The Convention applies if the child is under 16 years old, no more than one year has passed since the date of abduction or detention, abduction/detention by one parent violates the right of custody (sole or joint) or the right of access of the second parent, as defined in article 3 of the Convention, as well as if the Convention is in force between the Republic of Kazakhstan and the State, to or from which the child was imported/exported. An updated list of participating States that have recognized the accession of the Republic of Kazakhstan is available on the official website of the Hague Conference on Private International Law.: http://www.hcch.net.
2. The jurisdiction of cases in this category is determined by Article 27 of the CPC.
3. Part three of the commented article regulates the procedure for submitting an application if the child's place of residence in the Republic of Kazakhstan is unknown.
4. Part four of the commented article regulates the procedure for reviewing an application in the event of a change in the child's place of residence.
5. Part five of the commented article provides for the obligation to indicate in the application for the return of the child or the exercise of the rights of access to him to this Convention.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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