DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 38

Parental responsibility and protection of minors

1. Parental responsibility or any other similar institution shall be governed by the law of the child's habitual residence.

2. The measures for the protection of the person or property of a minor shall be governed by Caribbean law. However, the competent authority may apply the law of the minor's habitual residence if this is more favourable to the best interests of the child.

3. Caribbean law shall apply for provisionally adopting urgent measures for the protection of the person or the property of the minor without legal capacity.

4. For the application of the laws mentioned in the preceding paragraphs, the best interests of the child must absolutely be taken into account.

286. The provision included in the present Law brings together the solutions of law applicable to parental responsibility and other similar institutions as well as the law applicable to the other measures for the protection of the child, whether these measures present some degree of permanence or have already been adopted as a consequence of a temporary or urgent situation381. The article has as its axiological background the best interests of the child, which specifically allows the possibility of deviating from Caribbean law, which is the law primarily applicable to the adoption of protective measures (paragraph 2) and, generally, the application of any of the laws that might be applicable (paragraph 4).

The passage of the protection of the child from the perspective of the family to the perspective of the protection of the child in the public sphere has meant that classical institutions such as parental authority382, anchored in an essentially familial if not paternal view of the relationships between parents and children, having left this familial sphere, are located in the more specific sphere of the protection of minors. This leads to treat the determination of the applicable law differently. The most efficient approach from the point of view of the protection of the interests of the minor is to apply the law of the authority seized of the case. This adjusts to the recognition of a relationship that is established ex lege, such as that of parental authority and other similar institutions, which will be determined by the law of the child's habitual residence. Even though it can raise certain questions regarding the delimitation of the respective scope of application, the collaboration of these two rules reflects the collaboration of the two dimensions, private and public, in the protection of minors, and is a proven solution in the international codification of private international law, which is present, both in the Hague Convention, of 5 October 1961, concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants383, as well as in the more moderate Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (done on 19 October 1996), between the States of the OHADAC zone and including the Dominican Republic384.

287. Article 38.1 of the Law refers to the existence of parental authority or of any equivalent institution (parental responsibility...), to the relationships between them, as well as to the allocation, content and extinction of the same, without the intervention of any authority. The law of the minor's habitual residence will determine, in this manner, if the parental authority is attributed to one of the parents or to both, what rights and obligations are derived from that parental authority and under what circumstances are they extinguished without a decision by a competent authority (v.gr., due to the child reaching majority age, through their getting married, through being emancipated, etc.). It should be noted that although the article remains silent in this regard, the change of habitual residence should not by itself challenge the parental authority attributed in accordance with the law of the habitual residence prior to the change. Thus, whoever is attributed parental authority in accordance with the law of the child's habitual residence will continue to have this in accordance with the law of the new habitual residence, even if it would not have been granted to them. This derives from the principle of stability and maintenance of civil status, which is especially important in the relationships between parents and underage children. In this way, if the law of the child's habitual residence provides that the father and mother are the holders of parental authority regardless of whether or not they are married, while the law of the new habitual residence only attributes this to the mother if the parents are not married, the father will continue to have parental authority that was attributed to him in accordance with the prior law.

On the other hand, the new law will be able to attribute parental authority to anyone to whom it was not attributed by the law of the previous habitual residence, provided that this is compatible with the already recognised parental authority. In this way, inverting the previous example, if the law of the (previous) habitual residence considers the parental authority to be attributed solely to the mother, and the law of the new residence attributes the parental authority jointly to the father and the mother, this attribution will be equally valid. This rule of maintenance of the holding of the parental authority acquired together with a possible new attribution for the benefit of another person presents limits related to the exercise of parental authority itself in the cases of multiple attribution: for example, the parental authority is attributed jointly to the unmarried father and mother by the law of the habitual residence and is attributed to the mother's husband (different, obviously, from the father) by a new law of the child's habitual residence. This case, where three persons are considered to retain the parental authority at the same time, can be problematic and require some type of measures for adaptation or adjustment between the two laws to be adopted. In any case, if the conflict of interests actually gets very intense, we will very probably face the situation anticipated by section 2 of this article, in which a competent Caribbean authority will apply its own law for deciding the law more favourable to the best interests of the child.

Obviously, these examples do not take into account the exception of public policy if, for example, it is considered that the attribution of parental authority to only one of the parents would be contrary to the principle of their equality before the law, taking into account the best interests of the child or if it is considered that the holding of the parental authority by several (three or more) persons is likewise contrary to public policy.

288. While the attribution of parental authority is determined by the law of the child's “current” habitual residence and persists despite the change of habitual residence, its content, the exercise of the rights and prerogatives as well as submission to the obligations related to it will in any case be governed by the law of the new habitual residence to which they will have to adapt their behaviour as holders of parental authority of the child. In this way, even though the parental authority is recognised in application of the law of the previous habitual residence, the holders of the parental authority will not have to not seek legal authorisation for a particular act in relation to the child, unless if this is provided by the law of the new (current) habitual residence.

In all of the cases of adoption of measures for protection by a public authority, the law of the child's habitual residence gives way to the law of the forum, that is to say the law of the authority that is seized of the case. The provision of a specific law in a specific forum is inherent to the activity of the authorities regarding the protection of minors, where, besides the legal rules, the very idea of the best interests of the child plays a key role. However, the present Law does not consider that this rule has to be applied rigidly. The very consideration of the interests of the child/minor can mean that, after considering the specific circumstances of the case, the authority will decide to apply the law of this child/minor's habitual residence, although this does not coincide with the lex fori. This escape clause based on substantive criteria can be applied to all cases of attribution of custody, the definition of visiting rights or even including the withdrawal of the parental authority of one or both holders.

In the case of the adoption of temporary protective and urgent measures regarding the person of the minor without legal capacity or their property, the lex fori in forum propio rule does not allow any exceptions: the law of the forum will be applicable in any case.

289. Article 38 ends with an essentially didactic provision regarding the need to bear in mind in any case the best interests of the minor, which is enshrined in article 3 of the Convention, of 20 November 1989, on the Rights of the Child.

It is important to recall that the law designated as applicable by the present article must specifically take into account the provisions of other laws that can frequently be presented regarding the adoption of measures related to children, such as, in particular, the law governing marital crises, whatever they may be385. The measures regarding the protection of the person and property of the child who is a minor will be adopted in conformity with Caribbean law, unless there is a particular reason for the application of the law of the habitual residence. On the other hand, the other rules provided by the present Law will be considered as special rules: this will be the case of the law governing the law applicable to maintenance obligations (article 40) or the law applicable to the name of the minor (article 25).

290. It should also be pointed out that this provision absolutely does not render inoperative the scope of application of important cooperation instruments in this field, such as, for example, the Hague Convention on the Civil Aspects of International Child Abduction, of 25 October of 1980, which applies to a dozen countries of the OHADAC zone386. This Convention, which is critical in the fight against cross-border illegal transfers, has an essentially cooperative content, which does not prejudice either international jurisdiction or, what we are interested in now, nor the applicable law, both of which are aspects that must continue to be governed by private international law. Moreover, it should be pointed out that the solutions provided by the Law are specifically in conformity with the provisions of the Convention. For example, the Convention leaves it to the law of the habitual residence, immediately prior to the move, to determine the existence of a custodial right regarding the minor attributed solely or jointly to both parents or to any competent entity.


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