Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada

1. Legislation

According to a Thomson Reuters Practical Law Canada guide on Family Law in Chile written by Daniela Horvitz Lennon, a lawyer in Chile who practices family law, the Civil Code regulates "most" family matters, including custody and guardianship, with supplemental provisions from the Child Support Law (14,908), the Law for Minors (16,618), the Civil Marriage Law (19,947), and the Family Courts Law (19,968), among others (Thomson Reuters 2020-11-01). Similarly, in correspondence with the Research Directorate, a managing partner of Wolfenson Abogados, a law firm in Santiago that practices family law, stated that the "main" law relating to child custody rights is law 19,968, the Family Courts Law (Ley [que] Crea los Tribunales de Familia) (Managing Partner 2023-03-28). Sources note that these laws are applied across the country (Thomson Reuters 2020-11-01; Managing Partner 2023-03-28). The Thomson Reuters guide further notes that under the Civil Code, "Chilean nationals remain subject to Chilean laws which govern their obligations and civil rights, even if they are residing or domiciled in a foreign country" (2020-11-01). According to a report published by the Observatory on Civil Conflict and Access to Justice (OCCA), a "mechanism for monitoring the civil disputes that individuals experience and the barriers that they face in regard to resolving them," created by the Justice Studies Center of the Americas (JSCA), an "independent technical agency of the Organization of American States (OAS)" (JSCA 2019-12-30), Law 19,968 addresses disputes relating to

[translation]

personal care of children and adolescents and their respective direct and regular relationship with their parents; the right to support; protection measures; filiation proceedings; cases in which adolescents are accused of committing any misdemeanor; cases relating to the abuse of children and adolescents; adoption procedures; separation, annulment and divorce proceedings regulated in the Civil Marriage Law; acts of domestic violence, etc. (OCCA 2019-09, 115)

1.1 Custody

According to the Managing Partner, Chilean jurisprudence defines custody as "the right and duty of the parent to live with and care for the child on a daily basis, looking out for the child's best interests" (2023-03-28). In an interview with the Research Directorate, Daniela Horvitz Lennon, the lawyer who authored the Thomson Reuters Practical Law guide previously cited, stated that there is always a custody agreement except for exceptional situations such as neglect (Horvitz Lennon 2023-04-21). The Managing Partner indicated that in mutual consent divorces, a custody agreement is mandatory, and it is not mandatory but recommended in a unilateral divorce or a separation (2023-03-28). According to Spencer Global, a law firm based in Chile that practices family law, custody laws recognize a right for the parent that does not have custody to maintain a relationship with the child (n.d.). The Thomson Reuters guide further notes that grandparents have visitation rights under the law and can claim these rights, even if the parents have decided against visitation (2020-11-01).

The information in the following paragraph was provided in the Thomson Reuters guide:

Article 229 of the Civil Code states that the parent who does not have custody cannot be deprived of "direct and regular" contact with the child. The Civil Code "encourages co-parenting" and that there is a "right/duty" for the parent not living with the child to have a "direct and regular relationship" with the child, with family courts "consistently" ruling that both parents must agree for there to be shared custody. Under the Civil Code, the criteria for custody which the judge must consider are as follows:

• Emotional bonding with the parent and persons in the family environment.
• Parents' fitness to protect the child's rights.
• Contribution to the support of the child, while [they were] under the charge of the other parent.
• Co-operation with the other parent, in terms of guaranteeing the communication regime.
• Dedication to the child before the break up, and further dedication.
• Opinion of child-expert reports.
• Agreements by the parents before and during the trial.
• Parents' domicile.
• Other relevant background matters.

The guide also states that "every child has the right to be listened to by the court" and that if family court judgements were made without the child being heard, the judgements are being declared null and void (Thomson Reuters 2020-11-01).

1.2 Domestic Violence and Parental Rights

The Managing Partner indicated that a parent can be denied a relationship with their child if the parent has "perpetrated or is alleged to have perpetrated an act that is considered to be physical or psychological violence, or contrary to the welfare and development of the child" (2023-03-28). In follow-up correspondence, the Managing Partner further stated that the evidence required to show the violation of the child's rights can be "diverse" and includes "psychological, psychiatric or medical reports in general, [as well as] photographs, videos, testimonies, etc." (2023-03-30).

Horvitz Lennon stated that in situations of domestic violence, there is still a custody agreement but if the domestic violence is documented, through either a court filing or police report, there is no mediation which would typically occur and instead the case goes directly to the court (2023-04-21). The same source also noted that if someone who has committed domestic violence has custody rights, the survivor's lawyer can argue that there should be no contact with the aggressor, with the court "prefer[ring]" to protect the survivor rather than protecting the parental rights of the aggressor (Horvitz Lennon 2023-04-21). According to the Fighting Domestic Violence tool [1], a comparative law tool developed by Baker McKenzie, an international law firm that provides business law services (Baker McKenzie n.d.), the judge can issue "precautionary measures" during the domestic violence proceedings and will determine "the personal care and a system to ensure the direct and regular relationship [with] the children, if any" (Baker McKenzie [2021], 7). The OCCA states that article 68 of law 19,968 provides [translation] "measures for the protection of the rights of children and adolescents" when those rights are "threatened or violated," and enforces measures including the separation of children or adolescents from one or both parents who have had the child legally under their care (2019-09, 115). The same source also notes that the Family Courts hear cases of domestic violence if they do not constitute crimes (OCCA 2019-09, 115). Baker McKenzie notes that during the procedures for domestic violence cases, the judge will decide on the regime of visits or deny the offender access to the minor, as they "deem appropriate" (Baker McKenzie [2021], 18). The same source also states that in situations of domestic violence, a judge can issue civil protection orders where "precautionary measures may be taken," including the following:

1. prohibiting the offender from approaching the victim and forbidding or restricting the presence of the offender in the common household, place of study or work of the victim, as well as any other place where the victim remains, attends or visits habitually; if both the victim and the offender work or study in the same place, the employer or director of the establishment will be expected to adopt the necessary protective measures
2. ensuring the material delivery of the victim's personal effects when [they choose] not to return to the common home
3. granting provisional alimony and child support
4. establishing a provisional regime for the personal care of children and teenagers and the way to maintain a direct and regular relationship between parents and their children
5. decreeing the prohibition of celebrating acts and contracts
6. forbidding carrying and possessing firearms, ammunition and cartridges, arranging their retention and forbidding their acquisition or storage
7. decreeing the confidentiality of a third complainant's identity
8. establishing protective measures for older or disabled persons. (Baker McKenzie [2021], 8)

For further information on domestic violence in Chile, including treatment of survivors by society and authorities and state protection, see Response to Information Request CHL201159 of May 2023.

2. Procedure for Relocating a Child Outside of Chile

The Thomson Reuters guide notes that under article 49 of the Law for Minors, "a minor's departure from Chile to leave the country must be expressly authorised by both parents in a private deed granted before a notary public" (2020-11-01). Spencer Global states that for one parent traveling with their child, having full custody "may not be sufficient," as the other parent "may" still deny permission to travel outside the country and that when authorization from the other parent is required, it "should be current, drafted by an attorney that specializes in international [c]hild custody matters and Chile, and must be notarized at a Chilean notary or consulate" (n.d.). Horvitz Lennon stated that for a child to leave the country, written permission from the other parent must be provided, although in situations of domestic violence a judge may grant permission instead (2023-04-21). The Thomson Reuters guide indicates that a judge may also decide on whether a child can leave the country if permission from the other parent could not be granted or was denied "without justification" (2020-11-01). The Managing Partner similarly stated that a parent can only take their child to another country without permission from the other parent if there is judicial authorization to do so for the best interests of the child (2023-03-28). The same source added that the Family Courts would be deciding on the matter (Managing Partner 2023-03-30). Similarly, Horvitz Lennon noted that to move a child abroad, the court makes the decision considering the best interest of the child and that in "recent years," there have been "many" positive rulings allowing for this (2023-04-21).

The information in the following paragraph was provided in the Thomson Reuters guide:

The laws in place regarding authorization for children to travel are enacted for short trips and not for relocation, with the law lacking criteria for relocation, which results in requirements being imposed by the judge who hears the case. The "international abduction" of Chilean children "may typically" take place when authorization to leave the country has been received but the child is not returned to the country in the "agreed manner." If the parent who keeps the child abroad does not have custody, it "may" be a criminal offence, but if the parent has custody, it is not treated as criminal abduction but as a "serious breach of the contact regime and it is considered that the child has been wrongfully retained" and the judge can suspend child support payments if the child is not returned to Chile within the agreed time frame. There is a "special procedure" for abduction cases where the case has one hearing and is restricted to one appeal (Thomson Reuters 2020-11-01).

3. Locating a Child
3.1 Locating a Child Within Chile

Spencer Global states that Chile's "custody laws are drafted to prevent one parent from taking a child to another jurisdiction where the parent has no legal recourse to challenge custody or exercise the right of the child to have a relationship with the [noncustodial] parent" (n.d.). The Managing Partner indicated that there are procedures for locating a child within Chile, including "reporting a violation of rights due to parental alienation which means hiding a child from a parent" (2023-03-30). However, Horvitz Lennon stated that there are no "specific procedures" for locating a child within Chile and that the parent with custody can relocate internally without permission of the other parent (2023-04-21).

3.2 Locating a Child Outside Chile

The Thomson Reuters guide notes that Chile has ratified the 1980 Hague Conference on Private International Law (HCCH) Convention on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention) (2020-11-01). Article 4 of the Convention states that the Convention shall apply to any child who habitually lived in one of the signatory countries before any breach of custody and is under the age of 16 (HCCH 1980). Chile's Decree 386 (Decreto 386) of 1994 enacts the Hague Child Abduction Convention into national law (Chile 1994). The decree includes the following statement: "Chile understands Article 3 of the Convention on the Civil Aspects of International Child Abduction [2] in the sense that it is not inconsistent with the national legislation which provides that the right to guardianship and custody is exercised until the age of 18" (HCCH n.d.).

Article 8 of the Hague Child Abduction Convention provides the following on the process for requesting the return of a child:

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

The application shall contain –

1. information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
2. where available, the date of birth of the child;
3. the grounds on which the applicant's claim for return of the child is based;
4. all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
   

   The application may be accompanied or supplemented by –

5. an authenticated copy of any relevant decision or agreement;
6. a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
7. any other relevant document. (HCCH 1980)

Article 13 of the same Convention provides the following on the exceptions to the return of a child:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

1. the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
2. there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. (HCCH 1980)

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The Fighting Domestic Violence law tool was developed with the financial support of Global Rights for Women and Every Women Treaty and provides rapid analysis of various countries' national legislation on domestic violence (Baker McKenzie 2021-12-01).

[2] Article 3 of the Hague Child Abduction Convention explains that the removal or the retention of a child is considered "wrongful" when it is "in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident," and when "at the time of removal or retention those rights were actually exercised, either jointly or alone" (HCCH 1980).

References

Baker McKenzie. 2021-12-01. "Baker McKenzie Launches Fighting Domestic Violence Comparative Law Tool." [Accessed 2023-04-28]

Baker McKenzie. [2021]. "Chile." Fighting Domestic Violence: Pro Bono Initiative. Latin America and the Caribbean. [Accessed 2023-03-21]

Baker McKenzie. N.d. "About Us." [Accessed 2023-04-24]

Chile. 1994. Decreto 386: Promulga la Convención sobre los Aspectos Civiles del Secuestro Internacional de Niños. [Accessed 2023-05-02]

Hague Conference on Private International Law (HCCH). 1980. Convention on the Civil Aspects of International Child Abduction. [Accessed 2023-03-22]

Hague Conference on Private International Law (HCCH). N.d. "Declaration/Reservation/Notification." [Accessed 2023-05-02]

Horvitz Lennon, Daniela. 2023-04-21. Interview with the Research Directorate.

Justice Studies Center of the Americas (JSCA). 2019-12-30. "Ad Honorem Internship Opportunity: Observatory of Civil Conflict and Access to Justice." [Accessed 2023-04-28]

Managing Partner, Wolfenson Abogados, Santiago. 2023-03-30. Correspondence with the Research Directorate.

Managing Partner, Wolfenson Abogados, Santiago. 2023-03-28. Correspondence with the Research Directorate.

Observatory of Civil Conflict and Access to Justice (OCCA). 2019-09. Conflictividad civil y barreras de acceso a la justicia en América Latina: Informe de relaciones de pareja y familias. [Accessed 2023-03-29]

Spencer Global. N.d. "Chile Child Custody Laws." [Accessed 2023-03-21]

Thomson Reuters. 2020-11-01. Practical Law Canada. "Family Law in Chile." By Daniela Horvitz Lennon. [Accessed 2023-03-16]

Additional Sources Consulted

Oral sources: Asociación de Abogados de Familia; Chile – Corporación de Asistencia Judicial Metropolitana; Defensoría de la Niñez; law firms in Chile that practise family law (4); Chilean lawyer who specializes in child abduction cases; Chilean lawyers practising family law (5); Red Chilena contra la Violencia hacia las Mujeres; UN – UNICEF Chile.

Internet sites, including: Australia – Department of Foreign Affairs and Trade; Austrian Red Cross – ecoi.net; BBC; Belgium – Commissariat général aux réfugiés et aux apatrides; Brookman; Chile – Biblioteca del Congreso Nacional, Ministerio de Justicia y Derechos Humanos; Chile Today; Colegio de Abogados de Chile; Constitute; Defensoría de la Niñez; Denmark – Danish Immigration Service; EU – EU Agency for Asylum; France – Office français de protection des réfugiés et apatrides; Freedom House; Human Rights Watch; International Rescue Committee – Women's Protection and Empowerment team; Loyola University Chicago – School of Law Library; Neiman Reports; New York University – Hauser Global Law School Program; Norway – Landinfo; Organisation suisse d'aide aux réfugiés; The Organization for World Peace; Red Chilena contra la Violencia hacia las Mujeres; UK – Home Office; UN – Office of the High Commissioner for Human Rights, Refworld, UNICEF, UN Women; US – Department of State; World Constitutions Illustrated.