The Parental Abduction
1. What is the Parental Abduction?
The parental abduction is a child abduction (kidnapping) by a parent. The parental abduction occurs when one parent moves or retains a child without the consent of the other parent or the consent of the court in the country other than the child usually lives. This especially happens when the parents come from different countries, cultures or have different nationalities. The parental abduction is also where one parent who has a court entrusted to the care of the child moves without the consent of the other parent abroad and thus violates his right to contact the child. The parental abduction often occurs when the parents separate or begin divorce proceedings.
We can talk about the abduction when the removal or the retention of a child is wrongful. The removal or the retention of a child is wrongful when the parent does not have the consent of the other parent or the court approval of the state where the child had habitual residence before the removal.
Both parents of a child (who are written in the child´s birth certificate as parents) have a parental responsibility (parental rights and duties). It is generally accepted that each parent can individually decide on the current affairs of the child, but in case of substantial affairs of the child must be decided by parents jointly or it requires the consent of both parents. In accordance with the Slovak Family Act one of the substantial affairs in the life of a child is a relocation of a child to another country. If a parent wants to move a child to another state, he needs the consent of the other parent as a condition of the legality. If the parent does not want to grant a consent to the other parent, there is a possibility to ask the court in the state where the child has a habitual residence for the court approval with this relocation, and thus to replace the consent of the other parent. If a parent moves the child to another state without the consent of the other parent or without court approval, the removal is wrongful.
2. The Child´s Habitual Residence
One of the most important factor in assessing whether a parental abduction or not, is the child's habitual residence. For habitual residence it is not essential where the child was born, where it is registered for permanent residence (or other type of residence) or the citizenship of the child. The habitual residence is the place which the child has the closest and most closely connected. The child's habitual residence is the country in which the child lives in the long term, has a family and social background, has a family and friends, attends nursery school or school, educational facilities or some hobby groups. In this country the child has also a health insurance, pediatrician or other doctors, and so on.
The habitual residence is the place where the child becomes familiar with the environment. In the event of such an environment is removed or detained abroad by the other parent, it is a parental abduction.
3. The return of the child
A parent who does not agree with the removal of the child to another country, is entitled to demand the return of the child to the country in which the child had habitual residence before the removal.
Legislation enabling the return of the child:
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction („Hague Convention on the Civil Aspects of International Child Abduction”)
COUNCIL REGULATION (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000
The Hague Convention on the Civil Aspects of International Child Abduction is an international human rights treaty and legal mechanism to return children abducted to another country. The object of the Convention is to secure the prompt return of children wrongfully removed to or retained in any Contracting State.
In accordance with the Convention the removal or the retention of a child is to be considered wrongful where
a) 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 immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The borderline age of the child, which may proceed under the Convention, is the age of 16 years.
The steps of the process of the return of the child:
1. In Contracting States of the Convention exist Central Authorities to assist parents who are victims of cross-border child abduction. A necessary first step in a case of return of the child is a request of a parent for assistance in securing the return of the child. A parent 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. In Slovakia it is The Centre for International Legal Protection of Children and Youth (also known as „CIPC”). It is very important that an applicant (the parent) for assistance in securing the return of a child from abroad turn to the Central Authority as soon as possible after the removal of the child abroad.
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. Central Authorities shall take all appropriate measures e.g. to discover the whereabouts of a child who has been wrongfully removed or retained; to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; to secure the voluntary return of the child or to bring about an amicable resolution of the issues and so on.
The application shall contain information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; where available, the date of birth of the child; the grounds on which the applicant's claim for return of the child is based and 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 also contain other relevant documents.
In Slovakia, The Centre for International Legal Protection of Children and Youth requires the document - request for the return of the minor child (especially the proposed method of recovery of the child); birth certificate of the minor child; a document proving parental rights to the child: certificate of marriage of the child´s parents and judicial decision regarding the care of a minor child, if it was issued; documents proving habitual residence of the minor child in Slovakia (e.g. a certificate from a pediatrician, confirmation of attendance of pre-school or school facility, etc.) and photos of the minor and the person who wrongfully removed or detained.
If the Central Authority which receives an application has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be. As mentioned above there is a cooperation between the Central Authorities. The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child. After receiving a request for the return the Central Authority of the State in most cases contact a parent who illegally removed the child or retains the child and asked him to voluntarily return the child to its country of habitual residence. The Central Authority also ask the parent to initiate proceedings to regulate the parental rights and duties to the minor child.
If a parent refuses the return, there is a possibility to attempt an amicable resolution as a mediation which is offered to both parties. When both parties agree to mediation, the mediation will be held within the competent authorities and the law of the state where the child is.
2. After the submission of the request the parent may initiate the institution of judicial proceedings with a view to obtaining the return of the child. The parent files a petition with a court of the state, where the child was removed.
The courts shall act expeditiously in proceedings for the return of children. The court needs to rule on the matter within six weeks.
In this proceedings the court only decides whether order or not order the return of the child to the state of the child´s habitual residence. The court also examines that the state is the state of the habitual residence of the child and whether the removal of the child was wrongful. In this proceedings the court does not decide on parental rights and duties to the minor child (e.g. child custody, alimony, contact with a child etc.), these facts are the subject of separate legal proceedings.
An important fact that in proceedings for the return the court also examines is that when the removal occurred. Under the Convention it is appropriate to apply for the child's return to the court within one year from the removal of the child. It is presumed that after this period (1 year), the child has settled in its new environment.
Where a child has been wrongfully removed or retained, at the date of the commencement of the proceedings before the court of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the court shall order the return of the child forthwith.
The court is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) 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
b) 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 court 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.