19 Ekim 1996 Tarihli Velâyet Sorumluluğu ve Çocukların Korunmasına Yönelık Tedbirler Yönünden Yetki, Uygulanacak Hukuk, Tanıma ve Tenfız ve İşbirliği Hakkında Lahey Sözleşmesi Sonrası Çocuğun Vesayetine Uygulanacak Hukuk

Abstract

With the ratification by the Turkish Republic of the Hague Convention dated October 19, 1996, there have been major consequences on the rules of conflict of laws on parental responsibility in relation to the custody of children. Regarding to the article 1/2 of Turkish Private International Law (MOHUK), the provisions of Hague Convention will be applied with priority, not just only to the provisional measures on custody which is regulated in article 14/4 of MOHUK or to the conflict of laws rules on paternity which will be determined according to article 17 but also applied to the conflicts on child’s guardianship having foreign element. In this paper, we first define the concept of guardianship and then we examine the differences between other institutions. Multilateral conventions dealing with guardianship responsibility as well as related provisions on the conflict of rules on the guardianship of children are also briefly explained. This paper focuses on the direct effect of the Hague Convention dated 1996 to the Article 10 of MOHUK for guardianship issues. The applicable law related to guardianship responsibility over a child has four pillars. The first pillar is the applicable law relating to provisional measures of guardianship, whereas the second pillar is the applicable law to the establishment of guardianship relations between the child and the guardian. The third pillar is the applicable law to attribution and exercise of guardianship and the last pillar is the applicable law to the termination of guardianship responsibility.