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Inter-country Child Abduction—Sri Lankan Legal Response

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Private International Law

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Abstract

Despite being a signatory to some key Hague Conventions on private international law related aspects, Sri Lanka is skeptical as far as the private international law is concerned. A first glance at the situation gives the definite imprint of legal uncertainty, caused by diverse reasons ranging from religious to political. Judicial determinations oscillate between tradition and novelty based on positivism and modernism affecting various aspects of human life. Amidst this background, the chapter attempts to analyze the legal statement affecting the lives and rights of citizens who choose to make bonds beyond horizons, and the approaches adopted to resolving the legal issues arising from and related to such bonds, specifically in respect of inter-country child abduction. In the context of the broad objectives of the Civil Aspects of International Child Abduction Act of 2001, which Sri Lanka enacted in honoring its international obligations and to give effect to the Hague Convention on the Civil Aspects of International Child Abduction of 1980, the chapter analyses the Sri Lankan pre-legislation and post-legislation legal position in respect of parental obligations, duties and responsibilities of the Central Authority, and procedural aspects including jurisdiction. A selection of Sri Lankan judgments are analyzed to examine judicial conceptualization of inter-country child abductions in the context of its international obligations and local law, and the relevance and applicability of foreign judgments in local courts. The impact of the 2001 legislation is assessed on its own provisions as well as compared to the Reciprocal Enforcement of Judgments Ordinance of 1921 and of 1935.

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Notes

  1. 1.

    Constitution of Sri Lanka (1978), Art 27 (12)—Directive Principles of State Policy and Fundamental Duties. It states that the State shall recognize and protect the family as the basic unit of society.

  2. 2.

    Savitri Goonesekere, The Sri Lanka Law on Parent and Child, (Gunasena, Colombo 1987) 1–2.

  3. 3.

    Constitution of Sri Lanka 1978, Art. 12(4)—Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons.

  4. 4.

    International Covenant on Civil and Political Rights (ICCPR) Act No. 56 of 2007, Republic of Sri Lanka.

  5. 5.

    Ibid., s 5(1).

  6. 6.

    Id, s 5(2).

  7. 7.

    Id, s 2.

  8. 8.

    Age of Majority Ordinance No. 7 of 1865, s 3, provides for earlier age for attainment of majority by operation of law; Marikkar v. Marikkar [1915] 18 NLR 481; Abdul Cader v. Razik [1977] PC 54 NLR 201 where the court held that a Muslim in Ceylon attains majority on reaching the age of puberty.

  9. 9.

    Charter on the Rights of the Child, Art 1. For the purposes of this Charter a child means every human being below the age of 18 years, http://www.hrcsl.lk/PFF/The%20Charter%20on%20the%20Rights%20of%20the%20Child.pdf, accessed on 3 June 2016.

  10. 10.

    See Preamble of the Convention on Jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children (1996). https://www.hcch.net/en/instruments/conventions/full-text; Convention on the Protection of Children and Co-operation in respect of Inter-country adoption (1993). https://www.hcch.net/en/instruments/conventions/full-text, accessed 20 March 2016.

  11. 11.

    https://assets.hcch.net/docs/e86d9f72-dc8d-46f3-b3bf-e102911c8532.pdf, accessed 20 March 2016.

  12. 12.

    James D. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, Federal Judicial Centre (USA 2012) (hereinafter, The Judges Guide) 62, 244, 245.

  13. 13.

    Civil Aspects of International Child Abduction Act (No. 10 of 2001).

    Section 25 states that In this Act unless the context otherwise requires—“child” means a person who has not attained sixteen years of age; “rights of access” in relation to a child includes the right to lake a child for a limited period to a place other than the child’s habitual residence; “rights of custody” in relation to a child include the rights relating to the care of the person of the child and in particular the right to determine the child’s place of residence.

  14. 14.

    UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3. http://www.refworld.org/docid/3ae6b38f0.html, accessed 3 August 2016. Adopted by the General Assembly of the United Nations on 20 November 1989.

  15. 15.

    Elisa Pérez-Vera, Explanatory Report on the Convention, (commonly known as “Pérez-Vera Report”) Translation of the Permanent Bureau (herein after Pérez-Vera Report), (1982).

  16. 16.

    The Judges Guide (n 12) 61.

  17. 17.

    UNCRC (n14) Art 12. It states that States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

    2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

  18. 18.

    Judicature Act No. 2 of 1978 section 24(1).

  19. 19.

    Judicature (Amendment) Act No. 71 of 1981 section 2.

  20. 20.

    Constitution of the Democratic Socialist Republic of Sri Lanka 1978, Art 141 Power to issue writs of habeas corpus The Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court—(a) the body of any person to be dealt with according to law; or (b) the body of any person illegally or improperly detained in public or private custody, and to discharge or remand any person so brought up or otherwise deal with such person according to law.

  21. 21.

    Thirteenth amendment to the Constitution of Sri Lanka 1978, Art 154 (4)(a). It states 154A.

    1. (1)

      Subject to the provisions of the Constitution, a Provincial Council shall be established for every Province specified in the Eighth Schedule with effect from such date or dates as the President may appoint by Order published in the Gazette. Different dates may be appointed in respect of different Provinces.

    2. (2)

      Every Provincial Council established under paragraph (1) shall be constituted upon the election of the members of such Council in accordance with the law relating to Provincial Council elections.

    3. (3)

      Notwithstanding anything in the preceding provisions of this Article, Parliament may by, or under, any law provide for two or three adjoining Provinces to form one administrative unit with one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers and for the manner of determining whether such Provinces should continue to be administered as one administrative unit or whether each such Province should constitute a separate administrative unit with its own Provincial Council, and a separate Governor, Chief Minister and Board of Ministers.

  22. 22.

    Marikkar v. Marikkar (1915) 18 NLR 481; Narayanan v. Saree Umma (1920) 21 N.L.R. 439; Abdul Cader v. Razik (1952) 54 NLR 201.

  23. 23.

    Statute law permits a father to give her daughter in marriage when she is as young as 12 years of age. See Muslim Marriage and Divorce Act No. 31 of 1951, s 23.

  24. 24.

    Saleem Marsoof, Muslim Law Relating To the Custody of Children. www.academia.edu/…/Muslim_Law_Relating_to_Custody_of_Children, accessed 20.03.2016.

  25. 25.

    Rose Wijeyesekera, Protection Rights of Children, in Guidebook on the Rights of the Child in Sri Lanka (International Development Law Organization, Colombo, 2007), 31.

  26. 26.

    (1977) 79 NLR 209.

  27. 27.

    JC Hall, Conflict of Laws—Recognition of Foreign divorce (1958) 16 (01) The Camb. L J 15.

  28. 28.

    (1895) A.C. 517.

  29. 29.

    Sri Lankan Civil Procedure Code No. 2 of 1889, s 597.

  30. 30.

    (n 28) 540 (Watson LJ).

  31. 31.

    Morris v Morris (1938) 40 NLR 246.

  32. 32.

    Ibid., 248 (Koch J).

  33. 33.

    Morris (n 31) 247.

  34. 34.

    India also was under British rule at that time.

  35. 35.

    (1945) 46 NLR 464.

  36. 36.

    (1957) 3 WLR 842.

  37. 37.

    [2005] (2) Sri LR 382, CA 1201/2004 (REV).

  38. 38.

    Case No. 500/12/2514/91/001 (Montreal, Quebec).

  39. 39.

    (n 37) 385, Wimalachandra J. citing Shirani Ponnambalam, The Law and the Marriage Relationship in Sri Lanka, 2nd ed. p. 370, (1987).

  40. 40.

    Atp.386 citing Annakedde v. Myappen (1932) 33 NLR 198.

  41. 41.

    HCMCA 13/2012.

  42. 42.

    Reciprocal Enforcement of Judgments Ordinance No 4 of 1937. This Ordinance provided for the enforcement in Ceylon of judgments given in countries which accord reciprocal treatment to judgments given in Ceylon, for facilitating the enforcement in other countries of judgments given in Ceylon and for other purposes in connection of related matters.

  43. 43.

    Ibid., section 12(1).

  44. 44.

    (n 37).

  45. 45.

    Statistical Data Sheet-2015, Department of Census and Statistics. www.statistics.gov.lk, accessed 03 March 2016.

  46. 46.

    www.refworld.org/docid/55b73b9c11.html. In most cases Sri Lankans migrate to the Middle East, Southeast Asia, and Afghanistan to work in the construction, garment, and domestic service sectors.

  47. 47.

    Sri Lanka Penal Code No. 2 of 1883, sections 350–354.

  48. 48.

    Pérez-Vera Report, (n 15) para 11–15.

  49. 49.

    The Judges Guide, (n 12) pp x–xii.

  50. 50.

    Hague Convention on the Civil Aspects of International Child Abduction is the first concerted attempt by the international community to prevent inter-country child abduction, Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89 (entered into force 1 December 1983). The Hague Convention on the Civil Aspects of International Child Abduction, Article 19.

  51. 51.

    The Judges Guide, (n 12) 18.

  52. 52.

    Hague Convention on the Civil Aspects of International Child Abduction (n 50).

  53. 53.

    Ibid., Art 4.

  54. 54.

    The age however, is not an absolute prohibition on courts; Article 29 of the Convention provides for judicial discretion under any other law to grant custody and access rights even where the child is above 16 years of age.

  55. 55.

    The Hague Convention on the Civil Aspects of International Child Abduction, (n 50) Art 13.

  56. 56.

    Ibid., Art 5.

  57. 57.

    Pérez-Vera Report, (n 15) para 26.

  58. 58.

    The Hague Convention on the Civil Aspects of International Child Abduction (n 50) Art 12.

  59. 59.

    (n 28).

  60. 60.

    Reciprocal Enforcement of Judgments Ordinance No. 4 of 1937(n 42) S.12.

  61. 61.

    The Judicature (Amendment) Act No. 2 of 1981, (n19) S 24 (1).

  62. 62.

    Ibid.

  63. 63.

    [1994] (1) Sri LR 413.

  64. 64.

    Civil procedure Code (n 29) section 597 of the Civil Procedure Code, No. 12 of 1895, states: “Any husband or wife may present a plaint to District Court within the local limits of the jurisdiction of which he or she, as the case may be resides, praying that his or her marriage be dissolved on any ground for which marriage may, by the law applicable in Sri Lanka to his or her case, be dissolved”.

  65. 65.

    (1999) 1 Sri LR 113.

  66. 66.

    Enforced on 1st March 2002.

  67. 67.

    Civil Aspects of International Child Abduction Act no. 10 of 2001 (n 13).

  68. 68.

    Ibid., s 3 (1)(a).

  69. 69.

    Id, s 25.

  70. 70.

    Id, s 3 (2).

  71. 71.

    Id, s 4.

  72. 72.

    (n 13 s 7) such an application can be refused by the ‘central authority’ only where there are no grounds for accepting the particular application, and the reasons for such refusal have to be informed to such an applicant.

  73. 73.

    Ibid., s 6(1).

  74. 74.

    Id, s 8.

  75. 75.

    Id, s 9(1).

  76. 76.

    Id s 10.

  77. 77.

    (n 4) s 5(2).

  78. 78.

    High Court of Negombo application No. 249/2002 (Court of Appeal). http://archives.dailynews.lk/2003/07/04/new06.html, accessed 21 July 2016.

  79. 79.

    (n 15) 3.

  80. 80.

    Nalin Jayawardena (petitioner) and Kalhari Jayawardena (Respondent) (n 78).

  81. 81.

    No. (PHC) APN 3/2010 [Court of Appeal Revision 01.06.2011]. courtofappeal.lk/index.php?…suhada…vskristina-ivasauskaite-rosario…, accessed 21st July 2016.

  82. 82.

    (n 13).

  83. 83.

    (n 81) 5–7.

  84. 84.

    (n 81) 4–5.

  85. 85.

    Ibid., 8.

  86. 86.

    Shaheeza Lalani, Establishing the Content of Foreign law: A Comparative Study, (2013) 20 MJ I78. www.maastrichtjournal.eu/pdf_file/its/mj_20_01_0075.pdf, accessed 2 April 2016.

  87. 87.

    (n 81).

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Authors and Affiliations

  1. Department of Private and Comparative Law, Faculty of Law, University of Colombo, Colombo, Sri Lanka

    Rose Wijeyeskera

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  1. Faculty Of Legal Studies, South Asian University, New Delhi, India

    Sai Ramani Garimella

  2. Faculty Of Legal Studies, South Asian University, New Delhi, India

    Stellina Jolly

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Wijeyeskera, R. (2017). Inter-country Child Abduction—Sri Lankan Legal Response. In: Garimella, S., Jolly, S. (eds) Private International Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-3458-9_12

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