[European Union] Understanding Parental Child Abduction

This content was suggested by: 
07 Nov 2019
Source: 
Dr. Fanni Murányi

Sarah’s father is Spanish and her mother is Hungarian. They live in Spain, where Sarah was born. Sarah has always felt special because, from a very young age, she could speak two languages fluently. Unfortunately, Sarah’s parents divorced last year, so Sarah could only see her father on the weekends. One afternoon, when Sarah’s mother picked her up from school, they went to the airport. They boarded a plane to Hungary. Sarah’s mother had a lot of luggage, she packed her toys and books. She told Sarah that they were moving to her Hungarian grandparents. Sarah was very happy to see her grandparents, but she also had a lot of questions: ‘When will I meet daddy?’, ‘How will I go to school?’, ‘What about my dance lessons?’, ‘I haven’t said goodbye to anyone!’.

With increasing international mobility, family law disputes are also becoming international, because what happens in cases when one parent—in this case, Sarah’s mother—leaves the country with a child without the other parent’s consent? Why is this a problem? Well, this is an unlawful act. In the case of abduction, one of the parents removes or retains the child abroad while violating the other parent’s parental rights. Retaining, in this case, means that the parent travels with the child lawfully, for a temporary period, but later changes his or her mind and permanently stays abroad.  In 2015, at least 2,997 children were affected in abduction, their average age at the return application was 6.8 years. [1]

Article 11 of the UN Convention on the Rights of the Child, says that States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

Unlike in cases of kidnapping, child abduction implies child removal for personal reasons, and there is no business interest behind it. In the case of abduction, several of the children’s rights listed in the Convention are also violated, like children’s right to be heard (article 12), and children’s right to non-separation from parents (Article 9).

Legislation on parental child abduction is interpreted on three levels: international, European and national.

The Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) [2], was drafted in 1980 with the purpose of protecting custody rights internationally, and currently, is one of the most successful documents of the Hague Conference on Private International Law as it has 101 Contracting Parties. [3]

Article 3 of the Hague Abduction Convention defines the very complex concept of child abduction. [4] The abduction can be committed by a parent, other relatives, foster parent or institution (like a child-care home). The Convention’s preamble refers to the need to ensure the prompt return of the child in cases of abduction.

But it can occur in situations when the return of the child is refused, these situations are summarized in Articles 12.,13., and 20. There may be reasons why the return of the child is refused: 1. The procedure was started after the expiration of the one-year period; 2. the parent didn’t actually exercise custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; 3. If returning the child would harm her/him physically or emotionally, or would place the child in an intolerable situation; 4. The child objects to being returned and has attained a degree of maturity at which his or her opinions can be taken into account; 5. The return is contrary to the fundamental principles concerning the protection of human rights and fundamental freedoms of the requested State. The Hague Abduction Convention’s Member States appointed a Central Authority to carry out the tasks defined by the Convention (in Hungary this is the Department of Private International Law of the Ministry of Justice).

For EU Member States (except Denmark), the Brussels II Regulation lays down further provisions. [5] The first step is to decide if the child abduction happened in an EU Member State, if so then the case calls for the combined application of the Convention and the Brussels II Regulation.

Among the rules of Brussels II Regulation, it should be highlighted that according to Article 11 (2), it shall be ensured that the child is given the opportunity to be heard during the procedure, unless this appears inappropriate having regard to his/her age or degree of maturity.

The Central Authorities of the Member States of the Hague Abduction Convention received 2,270 requests for return in 2015. [6]  There is a growing tendency, as in 2008 there were 1,961, in 2003 1,259, and in 1999 there were 954 requests. [7] More than half of the requests (1,161), were received by a Member State of the Brussels II Regulation, while 830 requests affected only European countries. [8]

As previously mentioned, the violation of parental custody rights is a condition for determining child abduction. In most countries, the birth of a child creates joint custody, but with the end of the marriage or cohabitation, the balance is upset. The national law, namely each country’s own internal law, defines which rules are applicable in case of child abduction. Similarly, each country’s criminal law decides if child abduction is a punishable act in that country.

If the parent committing child abduction—despite the request of authorities—doesn’t return the child voluntarily to the country of his or her habitual residence, the court orders the child’s return or non-return in an accelerated procedure. It is important to emphasize that these proceedings are not the same as procedures concerning parental responsibilities! During the procedure, the court doesn’t consider which placement is more favourable to the child’s physical, intellectual and moral development. The court first examines whether the abduction was deemed to be wrongful under the Hague Abduction Convention, and also ascertains that the child is under 16 years of age. After this, the court determines the child’s habitual residence and only then clarifies the lawfulness or wrongfulness of removal and the actual exercise of custody rights. At this point the legal systems of the involved Member States meet: the court of the Member State to which the child was abducted makes a decision regarding return, but the decision is based on the law of the Member State from which the child was abducted.

In cases of child abduction, cross-border mediation can also be effective, not only prior to the abduction, but also after abduction and during the implementation of the order to return the child. The biggest difference between court procedure and mediation is that while the court decides to order the return or non-return of the child, mediation can help parents agree on the child’s place of residence and reach an agreement on contact and other matters.  A cross-border mediator is more than a family law mediator. In its interdisciplinary work, he/she must be familiar with the relevant international, European and national legislation, meet the arising challenges of cultural and linguistic differences, and have the necessary socio-psychological knowledge. The parents' divorce itself is stressful for the child, but in cases of child abduction, the child is suddenly taken out of his/her usual environment (family, friends). The long-term effects of the abduction include identity crisis, (couple) relationship distrust, and attachment disorder. [9] In Europe, there are many models for mediation in child abduction cases, and whether a child’s personal involvement is in their best interest is still being debated. [10]

Special training for family law mediators who want to deal with cross-border issues are also available in Germany (Mediation bei internationalen Kindschaftskonflikten), in the Netherlands (Centrum Internationale Kinderontvoering), and in the United Kingdom (Reunite International Child Abduction Centre).

Sarah’s father also requested his child’s return at the Central Authority. Sarah’s parents took part in mediation, where they tried to make the best decision for Sarah. ‘What would be the best interest for Sarah in this situation?’ –they asked over and over. In the end, Sarah’s mother returned to Spain and their case didn’t reach the courts. Although they moved a little further from the city centre, Sarah spends her weekends with her father. Sarah’s parents successfully put their conflicts aside, in order to make a compromise in Sarah’s best interest.

 


[1]  Lowe, Nigel and Stephens, Victoria: A Statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — Global report Part I. [Online]. 2018. [2019. augusztus 31.]

https://assets.hcch.net/docs/d0b285f1-5f59-41a6-ad83-8b5cf7a784ce.pdf

[2] Full text of the Convention can be read here: https://www.hcch.net/en/instruments/conventions/full-text/?cid=24

[3] More here:  https://www.hcch.net/en/instruments/conventions/status-table/?cid=24

[4] ‘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 rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.’

[5] 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

[6] According to the answers given by 76 Member States’ Central Authorities

[7]  Lowe, Nigel and Stephens, Victoria: A Statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — Global report Part I. [Online]. 2018. [2019. augusztus 31.]

https://assets.hcch.net/docs/d0b285f1-5f59-41a6-ad83-8b5cf7a784ce.pdf

[8] Lowe, Nigel and Stephens, Victoria: A Statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — Regional report Part II. [Online]. 2018. [2019. August 31.]

https://assets.hcch.net/docs/8b567efb-31ff-46d4-8ef6-44c0ed65716f.pdf

[9] Freeman, Marilyn: Parental Child Abduction: The Long-Term Effects. [Online]. London: International Centre for Family Law, Policy and Practice, 2014. http://www.famlawandpractice.com/researchers/longtermeffects.pdf [2019. September 1.]

[10] Pali, Brunilda and Voet, Sandra: Family Mediation in International Family Conflicts: The European Context. [Online]. Leuven: Leuven Institute of Criminology, 2012. http://www.crossbordermediator.eu/sites/default/files/research_report_21... [2019. September 1.]

 

Series this is part of: 

This project is funded by: