Legal warning: This note is limited to the matters set forth herein and in a broad perspective. No opinion may be inferred or implied beyond the matters expressly contained herein. The opinions expressed herein shall not be interpreted as a guarantee that any Mexican or foreign authority or court will concur in part or totally with them. For concrete cases, advice from the firm is necessary. The firm absolutely takes no responsibility for the application of concepts from this note in concrete cases without advice and supervision from the firm.
Being with you and not being with you is the only way I have to measure time.Jorge Luis Borges
A few months ago we advised two parents who’s children were abducted by the other parent into Mexico. Both clients had very similar questions and doubts on how Mexico attends the Hague Restitution of Minors Treaty, possible expected times, parts of the local procedure, number of trials to be opened, etc. We’ve compiled this set of legal notes hoping they can be of help to any parent suffering this circumstances and bring light to any procedure they may face.
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The Hague Procedure in Mexico
The last set of statistics published by the Mexican Government on restitution through The Hague Restitution of Minors Treaty is from 2017. The average of yearly cases (requests done to Mexico) is about 70. Interesting information found on this statistics: i) only about 16% of the cases were effective in local courts, ii) 16% were voluntary restitution and iii) 19% were settled in court. About time, Leticia Bonifaz (investigator from the National University) published that during 2015 the average time for getting a final determination from a restitution case was 252 days.
The Hague Treaty establishes in its article 2 that the “most expeditious procedures available” must be used by the local country to enforce the treaty. Mexico has yet no “expeditious procedure” specific for this Restitution of Minors convention, so the fastest procedure of the civil legislation must always be used. In most states of the country this means a “summary judgement process”, which is almost the same as an ordinary civil procedure, but with smaller times. Another example of a Mexican summary judgement process is the eviction procedure. All constitutional warranties common to judicial procedures in Mexico are granted; hence, there is a proof period, allegations period, etc.
So once the Hague Restitution Procedure is sent by the Mexican Central Authorities into a local court in Mexico, it will be processed by a local family court (of the same type of the one used for any divorce case) as a “summary judgement process”, where parties can render proofs and allegations, as well as appeal the final decision. That is one reason why this procedures take 252 days in average for a final decision, the “summary process” takes months. The other reason is the Mexican Amparo Trial.
The Mexican Amparo Trial
The statistics of the Federal Council of Judges (CJF) show that most Hague Procedures of Restitution of Minors end up being decided by an Amparo Trial. Amparo in Mexico is a type of federal constitutional appeal available to all people being affected by an act of a Mexican authority. It is a constitutional procedure, which means that constitutional articles are applied to verify if an act is or is not constitutional. The Mexican Constitution is of an open texture nature, that is, our articles are drafted in general terms and made to be interpreted by judges to adapt to each situation. All of this makes the Mexican Amparo Trial very ductile for creative lawyers. This days when our constitution has been made more effective by an enormous amount of jurisprudence from superior tribunals and the Supreme Court, almost all cases (civil, family law, criminal, administrative, etc.) end up becoming an Amparo Trial.
From the many ways such situation can arise, two stand out: i) the abducting parent throws an Amparo against all Mexican authorities involved in the Hague Procedure before the local court reaches a sentence or ii) the abducting parent throws an Amparo against the sentence of the local court. An Amparo Sentence can then finish the controversy or can throw it back to the local court for it to start over again (consuming more time). Strategies to deal with incoming Amparos can be the definitive turning point on a successful return of a minor to it’s country of origin.
All the applicable jurisprudence for Restitution of Minors in Mexico is contained on the Supreme Court Journal of Jurisprudence on Restitution of Minors. The most important decision that our Supreme Court (SCJN) has established in jurisprudence is that the higher interest of the minor (protected by our constitution) is embedded in The Hague Treaty about Restitution of Minors. Why is this so important? Because it means that The Hague convention is not in violation of the Mexican Constitution and can be followed to the letter by local courts. This also means that for the SCJN, the first thing to be proved by Mexican local courts is the usual residence of the child, which allows the local courts to fulfill the conventional obligation.
Jurisprudence also states that once the usual residence of the child is proved, there are only limited exceptions that can be studied by the Mexican courts. The four that are most important are the ones covered in the treaty: i) integration to the new environment (only applicable if the local procedure in Mexico starts one year after the subtraction of the minor), ii) acceptance of the subtraction (in case there was consent by the plaintiff), iii) high risk (dangers involved with returning the child to the original country, mostly claims that the other parent in the country of origin is violent or that there is insecurity for the minors in their country of origin) and iv) opposition by the child (when the minor doesn’t want to return).
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