Child Abductions - Hague Convention perspective

A/ Introduction

International abductions of minors represent a complex set of related issues, return proceedings, issues of recognition and enforcement of foreign decisions, issues of adjustment of entries in national registries such us birth certificates and others. The system established by the Hague Convention and supplemented by the Brussels IIa Regulation is a functioning system that helps signatory countries to deal more quickly and better with the issue of international child abduction and involves several institutions and bodies in several Member States. There is no doubt that the international abductions of minors must involve the authorities and institutions of several countries, and they must cooperate and cooperate with each other.

The departure of one parent with a minor from the child's country of habitual residence without the consent of the other parent or the court of the country of habitual residence is and has always been a major interference in the life of such a child. It is for this reason that the 1980 Hague Convention on the Civil Aspects of International Child Abduction, together with the Brussels IIa Regulation, currently provide the basic legal framework for ensuring the return of a minor to his or her country of habitual residence. The current revision of the Brussels IIa Regulation - new Chapter III - also clarifies the regulation of parental abductions.

Due to Brexit in cases between UK and other member states the basic regime of Hague Convention only applies without possibility to apply Brusel IIbis regulation.

The Hague Convention was signed by the signatories in 1980. 42 years has passed since then. The society-wide situation has also changed during the period of the Hague Convention. There is also greater mobility of people because of social change and the overall impact of globalization on human development. For this reason, the number of international parental abductions is increasing and increasing. There are various cases where one of the parents returns to their family after breaking up with their husband, there is mobility for work, for new partners and in third countries. There are cases where the parents of a minor live in a country where neither they nor the child are nationals, but that country is the habitual residence of their minor. There are even cases where it is difficult to determine the country of usual residence due to the frequent relocation of parents during the life of minor children and due to their lifestyle.

B/ Habitual residency of minor child

Generally speaking, there are 9 criteria which the court should take into account when determining the habitual residence of minors:

1. duration of stay
2. regularity of stay
3. conditions of stay
4. reasons for stay
5. nationality of minors
6. place and conditions of school attendance
7. language skills
8. family ties
9. social ties

In practice we deal the issues of habitual residency mostly with neighboring countries, where the family lives in one country and all activities are in another country, for example Slovak living near boards of Hungary, Poland, or Austria. In those cases, it is difficult to ascertain the habitual residency of the children and even the courts of different countries have different point of view on this topic.

As a precondition of wrongful removal is that the child had a habitual residency in one country and was removed to another country without the consent of other parent or the court decision of the court of habitual residency. There is a time limitation one year to file the application for return. Slovakia has signed the Hague Convention with reservation in regard to start of return proceedings at Slovakian court by Central authority, which means that by filling return application to Central authority and the receipt by Slovakian central authority is not sufficient for meeting the given time limit of 1 year. A separate court application has to be filled by applicant. Attorney will not be provided by Slovakian for this purpose.

One year period is general after that period return is possible only in case the child did not adjust on the environment. In practice in Slovakia, it is very unlikely that the child will be returned in case one year time period was missed. In case the minor child is smaller as a baby or toddler the time period might be even shorter for filling the court application to return.

In case the parent receives the consent of another parent, the child changes the habitual residency immediately once the child enters Slovakia.

C/ Application art. 13 of the Hague convention

In practice we often deal with defense of the parent who abducted the child using Art. 13 letter b) of the Hague Convention, as it seeks to prove in the proceedings that there is a serious risk that the return would expose the child to physical or mental harm or otherwise put him or her in an intolerable situation. This provision is one of the few options for not ordering the return of the minor to his or her country of habitual residence.

Art. 13 must be interpreted restrictively and narrowly. Whether the conditions for the application of Art. 13 letter b) The Hague Convention must be duly substantiated.

The possibility of evaluating the circumstances referred to in Art. 13 of the Convention presupposes, that judicial authorities take into account information on the child's social environment provided by the central authority or other competent authority of the child's State of habitual residence. At the same time, it cannot be overlooked that the possibility of refusing a child return order is affected by the child's disagreement with the return, if he or she has reached the age and degree of maturity in which his or her views are appropriate.

The ECtHR case of Lipkowsky and McCormack v. Germany, where Court stated that "exceptions to Art. Articles 12 and 13 of the Hague Convention must be interpreted strictly in order to prevent the abductor's parent from benefiting from the recovery of the illegal situation over time which he himself has caused.” The ECtHR stated that the applicants' right to private and family life under Art. 8 of the ECHR, as the courts applied the provision of Art. 8 par. 2 of the ECHR and interpreted this provision in their own discretion as meaning that the decision to return the child was issued on the basis of relevant and sufficient findings, in accordance with Art. 8 par. 2 of the ECHR and governed by the Hague Convention and was therefore proportionate to the legitimate aim pursued.

"The ECtHR is based on the principle that in cases of international parental child abduction it is not possible to interpret Article 8 para. 2 of the Convention on the Protection of Human Rights in isolation, but in the light of the Hague Convention on Child Abduction and the Convention on the Protection of the Rights of the Child the decisive factor being whether a fair balance has been struck between conflicting interests of both parents, the child and the public interest. "

C1/ art. 13 para 2 of the Hague Convention

Based on art. 13 para 2 of the Hague Convention the return might be refused in case 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.

The Hague Convention on the abduction of children does not provide an age limit from which it is appropriate taking into account the child's view, the court first examines whether the child is has reached the age and degree of maturity in which it is appropriate to take into account its views. In relation to the disagreement that the child it has to be expressed, that the application practice has been adopted several conclusions.

Slovakian courts generally stated, that the child must show more than just a preference for staying in one country before staying in another country (example in one of mine cases child presented that she prefers to stay in Slovakia because we have snow and in her country there in none – Equator – the child was returned back by Slovakian courts), they also examine the existence of disagreement with return, where necessary assure that the child understands that it is not a return to the care of the other parent but a return to of the country of usual habitual residence. Also Slovakian courts examine, if the child has proven to be relevant the reasons for their objections and if the child's opinion is influenced by a third person or abductor.

            Generally speaking, the child´s view should not be interpreted as the right of veto for the return (see also the case of ECHR Raw and Others vs. France). The child´s view should not be taken unilaterally and to be the sole ground for not being returned to the country of the habitual residency without any objective reasons. The court should examine the objective reasons behind the child´s view, the influence of the parent – abductor – on the child´s view.

In case we look closer to the article 13 para 2 of the Hague Convention we will see that the article stipulates that: a) the court may to refuse to order the return - this means here is the discretion of the court whether and on which ground the court decides to return or not return the child to the country of habitual residency; b) the child has to directly object the return and disagree with the return, just simple preferences are not enough and even some objective circumstances has to be behind the child´s view; c) the child has to be in the age and degree of maturity at which it is appropriate to take account of its view, generally the child should be able to provide it´s view by its own words, talking freely and reasonably reason its views based on its experience and circumstances.

D/ Best interest of the child in abduction cases

The child’s best interest principle is not directly addressed by the Child Abduction Convention other than a line in the Preamble stating that “the interests of children are of paramount importance.” However, an application of the principle has been read into the Child Abduction Convention to attempt to reconcile it with the child’s best interest principle in a few ways as follows.

Relatively vague interpretation of the principle of the best interest of the child within the Hague Convention on the Abduction of Children in the Interpretative Report to the Convention as well the fact that, in addition to the preamble, the reference to the best child's interest does not occur in the next text of this Convention. It should be repeatedly stressed that the return procedure is not a procedure about parental rights to the child and therefore the way of applying the principle of best interest of the child in the return proceedings should be different from his / her application in the proceedings about parental rights. According to the existing case-law of the ECHR, the principle of best practice exists of the child's interest, and to ensure that the child grows up in a safe environment while maintaining family ties unless they are harmful. With regard to the Hague Convention on Child Abduction, the ECHR noted that it is the best interest in the centre of this instrument the child, as evidenced by the fact that it was adopted in order to protect children from unauthorized relocation or retention and to ensure their immediate return to their usual country of origin stay.

It is obvious that the court has to consider the best interest of the child in the procedure of the return to the country of habitual residence of the child. It is also obvious that the concept of the child´s best interest in the abduction procedures differs from the concept of the child best interest in the custody procedures.

D1/ Prompt return as the child´s best interest

As is clear, time plays an important role in international child abduction cases. In return proceedings, it is necessary not only to make a decision on the return of the child as a matter of urgency, but also to make such a decision urgently, but to achieve a practical return of the minor to the country of habitual residence and to preserve the best interests of the minor as soon as possible. Ensuring the prompt return of a minor child is also one of several conditions for fulfilling the best interests of the child in return proceedings. "One interpretation of the Hague Convention that does not conflict with the principle of the best interests of the child in the UN Convention on the Rights of the Child (UNCRC) is that the Hague Convention assumes that the best interests of the child will provide a prompt return."

According to the existing case law of the ECtHR, the principle of the best interests of the child has a dual purpose: to ensure that the child grows up in a safe environment and that family ties are maintained, unless they are harmful. With regard to the Hague Abduction Convention, the ECtHR noted that the best interests of the child are at the heart of this instrument, as evidenced by the fact that it was adopted to protect children from wrongful removal or detention and ensure their immediate return to their country of habitual residence. It is clear that the court must take into account the best interests of the child when proceeding when returning to the child's country of habitual residence. It is also clear that the notion of the best interests of the child in return cases differs from the notion of the best interests of the child in cases of custody or other of parental rights and obligations.

There are plenty of the ECtHR decision where the breach of Art. 8 of the convention was declared by the court due to the reason of long-lasting return case in the country. For example, case of Hromadka and Hromadkova v. Russia, where the return took more than 10 years since the minor has been in Russia. Also R.S. against Poland where the ECtHR found a violation of Article 8 of the Convention, where the ECtHR again emphasized the importance of speed and prompt action on the grounds that time could cause irreparable consequences for relations between children and a parent who does not live with them. The ECtHR stated that the time needed for the Polish courts to reach a final decision did not match the urgency of the situation.  Also case of K.J. against Poland.

The objectives of the Convention are several-fold. First, the remedy under the Convention “reverses” the abduction by having the child returned, thus mitigating the psychological trauma for the child that is associated with parental abductions. Second, return facilitates an underlying premise of the Convention that the State of habitual residence of the child is the appropriate place to make any decision about custody and visitation. It is the place where the child and the family have lived and where much of the evidence about what will be in the best interests of the child will be located. Third, the Convention should help deter future abductions because parties are made to understand that wrongfully removing a child to another country will not give the abductor a new forum in which to get the custody dispute resolved. Thus, the Convention is both remedial and preventive.