The Cuban courts will not take into account the opinion of minors under 18 years of age in the event that one of their parents intends to take them abroad with the opposition of the other. The new Family Codewhich is governed by a general principle of “respect for the capacity and progressive autonomy of the minor”, has come across the instruction of the Supreme Court (TS) that establishes the practical criteria by which the magistrates must decide, in the event of a dispute between the legal guardians, on the application for a passport and departure abroad of a child.
In the text, approved on March 23 and published this Monday In an Extraordinary Official Gazette, it is established that “in all cases, the court guarantees the holders of parental responsibility the right to be heard in relation to the object of the process and assesses, with rationality, the reasons for opposition alleged with respect to the departure from the country of their sons and daughters”.
It does not mention, however, that the opinion of the minor will be taken into account, as many expected after the approval of the Family Code in September 2022
It does not mention, however, that the opinion of the minor will be taken into account, as many expected after the approval of the Family Code in September 2022. Cuban immigration law already established that to remove a minor from the country the agreement of those legally responsible was necessary and, in the event of a dispute, the courts would do so trying to safeguard the best interest of the minor, as a principle. In practice, in most cases the decision was made in favor of the party that was opposed to leaving Cuba.
In October 2022, shortly after the Family Code came into force, rumors circulated about an alleged ban on minors being able to have a passport up to the age of 18, something that was denied by independent legal sources that, in addition, they pointed out the possibility that the new norm facilitated exits precisely if the guiding principle of respect for the opinion of the child based on his maturity was taken into account. This question remained, however, pending the instructions of the TS.
With the text known today, it is known that judges, in addition to listening to adults, must examine “with due care, the objectivity of the alleged impediment” and take into account at least five factors. The future addresses (whether temporary or not) of the minor and who obtains the authorization to take them with them, the destination and the term in which they must return if they plan to do so, and the right of minors to maintain contact and communication with all relatives or people with whom you maintain an emotional bond in Cuba.
The other two criteria, which a judge could rely on relatively easily to reject the departure of a minor if he is going to emigrate, is having “facts that make it possible to sustain the conviction that the minor will have a legal status that guarantees the full enjoyment of their rights, in the cases in which the departure is made with the intention of remaining in another State” and “that the trip is convenient and safe for the interests of the minor person”.
The riskiness of the journeys and the long term to obtain an adequate legal status would be more than enough for the judge to end up preventing the minor from obtaining his passport
The risk of the migratory journeys that are sometimes undertaken and the long term to obtain an adequate legal status would be more than enough for the judge to end up preventing the minor from obtaining his passport and leaving Cuba. Through the Darién jungle, one of the most dangerous border crossings for irregular migration, some 87,390 migrants have passed in the first three months of the year, seven times more than the same period in 2022. Although crossing Central America and Mexico is no less dangerous , where mafias and corrupt officials coexist, before ending up in the Rio Grande, where accidents are frequent resulting in drowning.
In the sentence, the instruction continues, the authorization in favor of the legal representative chosen to manage the obtaining of his passport and temporary or permanent departure from the Island, in addition to his place of destination, must be stated. In the event that it is temporary, it will be necessary to state the period of permanence and a warning that will weigh in case of non-compliance and that would lead whoever violates the term to a crime covered by international conventions on child abduction.
In addition, express mention must be made to guarantee communication with the father or mother who does not maintain custody and with grandparents, relatives or other important relatives of the minor.
The instruction alludes throughout its preamble to Cuba’s intention to guarantee the best interest of the minor, even as a signatory to the Convention on the Rights of the Child. However, it contravenes the international practice of listening to the wishes of minors, even if they ultimately do not agree with the measure taken.
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