Translation:International Civil Cooperation on Breach of Rights of Custody Act, BE 2555 (2012)/2013.01.09

by the Government of Thailand

Seal of the Royal Command of Thailand

International Civil Cooperation on Breach of Rights of Custody

Act,

BE 2555 (2012)

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Bhumibol Adulyadej, R.

Given under Our Hand this 28th Day of December, BE 2555 (2012);

Being the 67th Year of Our Reign.

Phra Bat Somdet Phra Paraminthra Maha Bhumibol Adulyadej is graciously pleased to proclaim that:

Whereas it is desirable to bring into existence a law on international civil cooperation on breach of rights of custody;

And whereas it is aware that this Act contains certain provisions giving rise to the restriction of personal rights and freedoms which section 29 incorporating sections 32, 33, 34, 35 and 41 of the Constitution of the Kingdom of Thailand permit to be done by virtue of the legal provisions;

Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the National Assembly, as follows:

§ 1

This Act shall be cited as the "International Civil Cooperation on Breach of Rights of Custody Act, BE 2555 (2012)".

§ 2

This Act shall come into force upon elapse of ninety days from the date of its publication in the Government Gazette.^[1]

§ 3

In this Act:

"Child" means a person under the age of sixteen;

"Rights of custody" means the rights concerning the care of the person of the child and includes the right to determine the residence of the child, whether these right are established by operation of law, by virtue of the orders of the courts or state authorities, or by the lawfully applicable agreements;

"Rights of access" includes the right to take a child for a limited period of time to a place other than its habitual residence;

"Central Authority" means the Attorney General or a person authorised by the Attorney General to cooperate on the provision of assistance pursuant to this Act;

"Court" means the Central Juvenile and Family Court.

§ 4

The Prime Minister and the Minister of Social Development and Human Security shall be in charge of this Act and shall be empowered to issue ministerial regulations or rules for the execution of this Act on the basis of their respective authority.

Those ministerial regulations or rules shall take effect upon their publication in the Government Gazette.

Chapter 1

Central Authority

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§ 5

The Central Authority shall be invested with the authority:

(1) to receive applications for assistance from applicants;

(2) to consider applications for assistance and decide whether or not they ought to be granted;

(3) to cooperate with central or competent authorities of foreign states, as well as to follow up and expedite the return of children and the implementation of other objectives of this Act;

(4) to investigate the whereabouts of the children removed or retained pursuant to this Act;

(5) to take certain measures for preventing further harm to children or prejudice to interested parties;

(6) to take certain measures for securing the voluntary return of children or bringing about an amicable and fair resolution of the issues;

(7) to exchange information concerning children;

(8) to provide information concerning Thai legislation with respect to the activities under this Act;

(9) to take certain measures for securing the return of children or allowing the effective exercise of the rights of access;

(10) to make the public prosecutors, attorneys or legal counsels available for securement of the return of children or the effective exercise of the rights of access;

(11) to carry out other activities for the purpose of successfully providing or seeking assistance under this Act.

The Central Authority must perform his activities expeditiously, having regard to the interests of children and the possibility that the Court may grant or deny the applications pursuant to section 13.

Chapter 2

Provision of Assistance to Foreign State

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Part 1

Application for Assistance

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§ 6

A person whose rights of custody have allegedly been breached may apply for the return of the child removed to or retained in Thailand to its last habitual residence in a foreign state before the removal or retention. The application shall be made to a central authority of the state where the said residence of the child is or to the Central Authority, subject to the rules laid down by the Central Authority.

An application for assistance must contain:

(1) the information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;

(2) the date of birth of the child, if available;

(3) the grounds for the application;

(4) the information concerning the whereabouts of the child and the identity of the persons with whom the child is presumed to be;

(5) other documents and evidence as may be required by the rules of the Central Authority.

§ 7

Upon receiving an application for assistance and finding that such application contains the information and is accompanied by the documents as required by section 6 and its fulfillment is possible, the Central Authority shall provide assistance under this Act or forward the application to the Court for further proceedings.

If the application does not meet the criteria for provision of assistance or the provision of assistance is encumbered with certain necessary conditions or is obstructed, the Central Authority shall inform the applicant of the denial of the application and the grounds for the denial, or inform the applicant of the necessary conditions or obstruction.

If it is reasonably believed that the child is in a foreign state which is a party to the Convention on the Civil Aspects of International Child Abduction, the Central Authority shall forthwith forward the application to a central authority of such state and inform the applicant.

The Central Authority may deny an application for assistance if it would affect the sovereignty, security or other considerable public interest of Thailand.

§ 8

Within seven days from being informed of the denial, the applicant may request the Court to review the decision of denial rendered by the Central Authority according to section 7.

The decision of the Court shall be final.

§ 9

The Central Authority's denial of an application for assistance under section 7 shall not debar the person whose rights of custody have allegedly been breached from directly exercising his rights before the Court, subject to the provisions of this Act.

§ 10

In providing assistance under this Act,

(1) the Commissioner General of the National Police and the Permanent Secretary for Interior shall investigate the whereabouts of the child as informed by the Central Authority and shall communicate the investigation outcome to the Central Authority;

(2) a public prosecutor shall be competent to apply to the Court for an order directing the return of the child;

(3) the public prosecutors shall provide assistance pursuant to the application forwarded to them by the Central Authority and, after being aware of the whereabouts of the child and before carrying out any other proceeding, may apply to the Court for an order prohibiting the removal of the child from where it is until a different order is given by the Court;

(4) if it is reasonably believed that the judicial order under (3) would not be observed, the child would be exposed to any harm or the execution of this Act would otherwise be obstructed, a public prosecutor may apply to the Court for an order directing him to take certain necessary and appropriate measures in order to place the child in the care of the Ministry of Social Development and Human Security, whilst the police officers shall, upon request of the public prosecutor, assist him in executing such order.

Part 2

Child Protection Pending Proceedings for Return

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§ 11

The Ministry of Social Development and Human Security shall bear the duty to receive the children delivered to it pursuant to section 10 (4) and provide protection to them until the proceedings for their return are concluded or a different order is given by the Court.

The protection under paragraph 1 shall be subject to the rules laid down by the Minister of Social Development and Human Security and shall include:

(1) the provision of physical and mental health examination and medical treatments to the children;

(2) the provision of appropriate and sanitarian residences, lodgings and clothes to the children, and the provision of sanitarian and sufficient food to them.

Part 3

Court and its Proceedings

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§ 12

The Court shall be competent to address cases and requests or applications brought to it in accordance with this Act.

The judgments or orders of the Court shall be final.

§ 13

In ruling on the return of a child, the following shall be complied with:

(1) in cases the period of time from the removal or retention of the child to the submission of the application to the Court is not yet over one year, the Court shall without delay decide whether or not the child should be returned;

(2) in cases the period of time from the removal or retention of the child to the submission of the application to the Court exceeds one year, the Court may order the return of the child, save where it is demonstrated that the child is now settled in its new environment;

(3) in cases the child has left Thailand, the Court shall stay the proceedings or may deny the application;

(4) in any of the following cases, the Court may deny the application for the return of the child:

(a) the person having the care of the person of the child failed to take care of the child at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;

(b) the child would be exposed to physical or mental harm or otherwise placed in an intolerable situation;

(c) the child objects to its return and the Court finds that the child has attained an age and degree of maturity at which it is appropriate to take account of its views;

(d) the return of the Child would be repugnant to the basic principles of Thailand with respect to the protection of human rights and fundamental rights and liberties;

(e) the child has attained the age of sixteen.

In adopting any order, the Court shall also consider the information relating to the child as provided by the central authority or other authority of the child's habitual residence.

§ 14

In the event that the Court does not rule on an application for the return of a child within six weeks after its receipt thereof, the Central Authority or a public prosecutor, upon a request of the applicant or a central authority of the applying state, may apply to the Court for a statement of facts and communicate it to the applicant or central authority.

§ 15

If an application for the return of a child and a dispute over the rights of custody of such child are presented to the Court, the Court may deny the application and address the dispute.

§ 16

In considering an application for the return of a child, the Court may require the applicant to obtain from a court or other competent organ in the state where the child's habitual residence is, a decision that the removal or retention of the child is in breach of the rights of custody.

§ 17

The making of an application for assistance and the exercise of the rights of access shall be subject to the criteria, procedure and conditions determined by the Central Authority.

The right to apply for assistance pursuant to paragraph 1 shall belong to the forebears, guardians, persons having the care of the child, legal representatives or persons related to the child in a similar manner.

The provisions of this Chapter which govern the applications for return of children shall apply mutatis mutandis to the proceedings for the exercise of the rights of access.

Chapter 3

Seeking of Assistance from Foreign State

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§ 18

An applicant for the exercise of the rights of custody and the rights of access under this Act, who is in Thailand and wishes to seek assistance from a foreign state, shall refer the matters to the Central Authority pursuant to the rules laid down by him. And the provisions of Chapter 2, Part 1, shall apply mutatis mutandis.

Chapter 4

Miscellaneous Provisions

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§ 19

The Court shall hear the applications and evidence brought to it in pursuance of this Act.

§ 20

An application or other document to be submitted to the Central Authority must be made in the language of the state to which the applicant belongs and must be accompanied by a Thai translation or by an English translation if a Thai translation is not feasible.

§ 21

This Act shall not debar the persons having the care of the child and the persons having the rights of access from directly making applications to the Court in agreement with the provisions of this Act or other laws.

§ 22

No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the proceedings of the Central Authority or Court under this Act.

§ 23

The Office of the Attorney General shall bear all costs incurred by the Central Authority in the execution of this Act, save those arising from the return of children.

§ 24

All costs concerning the provision of assistance under this Act shall be subject to the criteria, procedure and conditions set forth in the ministerial regulations.

§ 25

An application for a judicial order directing the person removing or retaining the child or the person preventing the exercise of the rights of access to bear all necessary costs incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child, may be made together with an application for a judicial order directing a child to be returned or permitting the rights of access to be exercised pursuant to this Act, or may subsequently be made at any time in so far as the case concerning the application is being tried before the Court.

The Court shall grant the application under paragraph 1 to the extent it finds appropriate.

Countersigned.

Yingluck Shinawatra,

Prime Minister.

Statement of Grounds

The grounds for promulgation of this Act are as follows: Thailand has no any law concerning international cooperation on breach of rights of custody, which is aimed at protecting children from the harmful effects of their wrongful removal or retention, establishing certain procedures to ensure their prompt return to their habitual residences, as well as securing protection for rights of access. Moreover, Thailand has now become a party to the Convention on the Civil Aspects of International Child Abduction, 1980, and is obliged to implement it in many ways, such as, the designation of the central authority, state authorities and competent authorities in charge of the investigation of the whereabouts of children and the proceedings concerning the return of children and the exercise of the rights of access, the state authorities in charge of provisionally protecting children pending the proceedings for their return, as well as the judicial authority and proceedings. It is therefore necessary to enact this Act.

Footnotes

1. Published in the Government Gazette: volume 130/part 2 A/page 1/9 January 2013.

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