It is said that familiarity breeds contempt. This old English proverb seems to be confirmed in China, where there has been an unprecedented increase in the number of divorce petitions following the opening of courts after several weeks of quarantine. While at the moment it is difficult to speak of a similar trend in Europe, the number of divorces is steadily increasing, and family law regulations are hardly keeping up with the needs of parents and children on the move. Some parents go abroad with their children, deliberately trying to bypass laws of a given jurisdiction. Others simply return with a child to their country of origin, unaware of the legal consequences of their actions. This situation, called parental abduction, constitutes a global and growing problem.
The key legal instrument available to left-behind parents is an application for return pursuant to the Convention on the Civil Aspects of International Child Abduction drawn up at The Hague on 25 October 1980.
Proceedings initiated under the convention are intended to counteract the negative effects of international abduction by restoring the factual and legal state existing prior to the wrongful removal or retention of the child. The scope of jurisdiction of the court of the state requested to return the child is quite narrow. A decision rendered under the convention does not affect the essence of custody rights, nor does it determine the parental authority or the child’s residence.
It is incumbent on the parent applying for return to demonstrate two basic premises under the convention.
First, the parent requesting return of a child must demonstrate that the child has been abducted from the country where the child had his or her habitual residence immediately before the abduction or retention. In the absence of a legal definition, “habitual residence” is most often understood as the child’s real centre of vital interests, the environment in which the child performs his or her daily tasks and needs. For a residence to be regarded as habitual, it must, as a rule, be of a certain duration reflecting a sufficient degree of permanence (as the Court of Justice of the European Union has recognised in cases such as C‑497/10 PPU, Mercredi; C-523/07, A.; C-376/14 PPU, C. v M.; C-111/17 PPU, O.L. v P.Q.; and C-512/17 PPU, H.R.).
Second, the applicant must prove that the abduction or retention was wrongful within the meaning of Art. 3 of the convention, meaning that at the time of the abduction or retention of the child, the parent requesting the return was entitled to custody granted in accordance with the law of the country from which the child was removed. What matters is not the legal basis of the right (which may result from operation of law, or from a judicial or administrative decision or an agreement between the parents), but the fact that it was effectively exercised before the child was abducted or retained.
The question of the requesting parent’s custody rights is one of the first conditions to be examined by the taking parent’s legal representative. Polish legal representatives often assume, as does the court considering the case, that adding the parent’s name on the birth certificate automatically means that the parent has custody under the law of the country of habitual residence. But in the legal systems of some countries that are parties to the convention, in the case of a child’s birth in an extramarital relationship, the father’s custody rights do not derive from the mere recognition of paternity, but require a separate act granting these rights, via a joint statement by the parents before the relevant authority or a court decision. Among European countries, such regulations are in force for example in Ireland and the Netherlands. The absence of the requesting parent’s custody rights means that there is no wrongfulness, thus rendering further examination of other defences pointless. This could also lead to an erroneous indication of the grounds for dismissal of the request, which in proceedings between EU member states (other than Denmark) is of utmost importance, as discussed below.
According to the convention, if the parent requesting the return demonstrates the existence of these two premises and the request is made within one year of abduction, the court of the requested state is obliged to order the child’s return to his or her country of habitual residence.
Child’s return not always automatic
Despite a high degree of automatism foreseen by the convention, a parent who abducts or retains a child has five defences (assuming that the parent requesting the return would meet the burden of proof, demonstrating the child’s habitual residence and the wrongfulness of the abduction or retention). The court will not order the child’s return if:
1. The parent requesting the return has consented to child’s removal or has subsequently acquiesced in removal or retention of the child in another country
Evidence of parental consent must be clear, convincing and unambiguous. Consent may be express or implied, inferred from the parent’s words or conduct, and sometimes even from their passivity, if it is clear in the circumstances that he or she intends to give consent. It is assumed that consent may be revoked so long as the child has not left his or her current place of residence. However, consent obtained through fraud or deception is unlikely to be considered valid.
2. There is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation
A detailed discussion of this premise goes beyond the scope of this study and requires reference to the rich case law of the European Court of Human Rights and, in Poland, of the Supreme Court.
It should only be stressed that proceedings initiated under the Hague Convention do not cover custody or child’s residence issues, in which the guardianship court considers which parent, by reason of his or her personal predisposition and life situation, provides a better guarantee of protection of the child’s best interests. Thus, if the abducting parent invokes Art. 13(b) of the convention, there is no need to examine and compare the conditions of the child’s development at the place of abduction and habitual residence. However, the purpose of the proceedings should be to clarify the child’s situation at his or her habitual residence prior to the child’s wrongful removal or retention only as regards the existence of a grave risk of physical or psychological harm or other intolerable situation in the event of a return order.
Our practice shows that in Hague Convention proceedings in Poland, there is an observable trend to shift certain aspects of decisions on applications for return to out-of-court bodies known as advisory panels of court experts (OZSS). Decisions by the courts to admit opinions from OZSS experts “to determine whether ordering the child’s return will involve physical or psychological harm to the child or otherwise place him/her in an intolerable situation” seem to call for the experts’ assessment, but their task should only be to shed light on these circumstances from the point of view of specialist knowledge, for example on the child’s psychological or physical state or estimating the likelihood of physical or sexual abuse that might be committed by the parent requesting the return. It is up to the court, not the experts, to decide whether the child’s return to his or her habitual residence will put the child in a situation that goes “beyond what a child might reasonably be expected to bear” (K.J. v Poland, ECtHR, application no. 30813/14).
The case law has repeatedly pointed out that the interpretation of the convention must not compromise its purpose, and the exceptions provided for in Art. 13(b) must be interpreted strictly by indicating the specific circumstances indicating a grave risk of physical or psychological harm to the child or of placing him or her in an intolerable situation. While the ECtHR warns against automatic application of the convention (X. v Latvia, application no. 27853/09), examination of the grounds under Art. 13(b) cannot be used to turn a case under the convention into a custody proceeding.
Application of Art. 13(b) of the convention is not justified by the claim of adverse consequences for the child of his/her separation from the abducting parent following a return order, as is frequently alleged by abductors. The obligation to ensure a child’s return to his or her habitual residence does not preclude the abducting parent from returning with the child. If the joint return of the perpetrator and the child is not objectively hindered and the perpetrator does not wish to return with the child, it can be assumed that the abductor is placing his or her own interests above those of the child, which the abductor threatened in the first place by carrying out the abduction (Supreme Court of Poland orders of 1 December 1999, case no. I CKN 992/99, and 26 September 2000, case no. I CKN 776/00).
3. A child whose age and degree of maturity require consideration of his or her opinion opposes return
The convention does not set a minimum age limit for the child, above which the court has an absolute obligation to hear the child to obtain his or her opinion on the issue of return, but it is accepted in the case law and legal literature that the closer the child is to the age limit of 16 years, the more the child’s opinion should be taken into account. But while the child’s objection should be taken into account, it is not a determining factor for dismissing the application (Raw v France, ECtHR, application no. 10131/11).
4. Application for return was made more than one year after the abduction or retention of a child who has already settled in the new environment
The issue of the child’s adaptation to the new environment should only be examined if the application is made more than a year after the abduction. If the application is received before that deadline, any allegation by the abducting parent that the child has become settled in the new environment should not be considered, as the second sentence of Art. 12 of the convention does not apply at all.
5. Child’s return is not acceptable in light of basic principles of protection of human rights and fundamental freedoms of the requested state
This line of defence is applied extremely rarely, as it is difficult in practice to imagine a violation of the principles of protection of human rights and fundamental freedoms of the requested state which would not at the same time expose the child to physical or psychological harm or place him or her in an intolerable situation.
Close cooperation between EU member states
The 1980 Hague Convention is the basic legal instrument governing civil aspects of parental abduction. However, under EU law, the Brussels II bis Regulation (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) should also be taken under consideration.
The Brussels II bis Regulation applies to all EU member states except Denmark, reinforcing and supplementing the convention in four main aspects.
First, the regulation introduces a requirement to hear the child if his or her age and degree of maturity allow.
Second, it strengthens the position of the parent requesting the return by making it obligatory to give the applicant the opportunity to be heard before the application for return is potentially dismissed.
Third, it limits the possibility to dismiss an application under Art. 13(b) of the convention if it is established that appropriate arrangements have been made to safeguard the child’s protection after his or her return.
Fourth—and this is the most significant change from the convention—if the court hearing the Hague Convention application dismissed the application for the child’s return to his/her habitual residence on the basis of Art. 13 of the convention, and subsequently, as required under Art. 11(6) of the Brussels II bis Regulation, forwarded a copy of the order to the court with jurisdiction over the child’s habitual residence, that court acquires jurisdiction to decide on custody and may entrust it to the parent whose application for return was previously dismissed.
If the court of the place of habitual residence issues a decision that does not entail the child’s return, the case will be closed. In such a situation, jurisdiction on the merits should lie with the courts of the member state to which the child has been abducted. If, on the other hand, the court delivers a ruling that entails the child’s return, the order is directly recognised and enforceable in another member state, provided that it is accompanied by the certificate provided for in Art. 42 of the Brussels II bis Regulation.
Legal representatives of both the abducting and requesting parent should bear in mind this provision, which de facto opens up the possibility of a kind of “playoff” before the court of the country of the child’s habitual residence.
How to increase one’s chances?
If a child is unlawfully abducted or retained, the party should:
1. Carefully select a legal representative
Handling of cross-border child abduction cases requires knowledge not only of national family law, but also of international law and the case law of the CJEU and the ECtHR. A legal representative with no experience in Hague Convention cases may treat a child return case like any other family law case, relying on evidence contrary not only to the purpose of the convention but also to his or her client’s interests.
2. Act fast
Prompt action in cases of child abduction can be crucial. A request for return should be made within one year following the abduction. After this period, the parent abducting or retaining the child may argue in court that the child has become settled in the new environment. The one-year time limit seems relatively long, but it should be taken into account that even though the law provides for proceedings to be decided within six weeks at each instance, proceedings on such applications rarely end within a year or so following the abduction. The lapse of time may have irreversible consequences for the relationship between the child and the parent whose custody rights have been violated, and also involves a risk of emotional manipulation of the child by the abducting parent.
3. Collect key documents and evidence
Documents such as birth certificates, decisions on parental authority, school certificates, confirmation of extracurricular activities, and even the child’s vaccination booklet may become key evidence in Hague Convention proceedings. Messages (SMS, WhatsApp, Messenger) or emails can be an invaluable source of information on parents’ arrangements regarding their child’s habitual residence and also whether the parent requesting the return has actually exercised custody rights or consented to the child’s departure abroad, or whether the consent covered permanent or temporary residence.
Anna Olejniczak-Michalska, attorney-at-law, Private Client practice and Reprivatisation practice, Wardyński & Partners