International Child Abduction (2/2)

International Child Abduction – in part I

In the first article entitled „International child abduction” we touched on issues such as:

1. International child abduction in the light of Brussels II ter
2. Brussels II ter vs. Hague Convention
3. Brussels II ter Regulation – definition
4. International child abduction – court proceedings
5. Execution within 6 weeks

You can find a link here.

Expressing views by children in abduction cases

The new Regulation also provides a real and effective opportunity for children to express their views in cases of child return pending under the Hague Convention as well as in cases of parental responsibility. The procedure for hearing the child is governed by national law and procedure in force in the respective member state.
Such a right is also expressed in Article 12 of the Convention on the Rights of the Child and provides a child who is capable of forming his own views with the right to express them freely in all matters concerning the child, receiving them with due weight, appropriately to the age and maturity of the child. Also, the Polish law, in its civil procedure, provides for an obligation to hear the child in matters relating to the child’s person or property (if the child’s state of mental development, state of health and degree of maturity allows it, taking into account, as far as possible, the child’s reasonable wishes).
Hearing the child in Hague cases is the right approach, and in my opinion, the hearing of the child should begin as soon as possible from the date of the application for the child’s return then there is a chance that the child will not yet be manipulated by the other parent. Hearing the child after a year of isolation from the other parent, when the child has already assimilated to the new environment, goes to a new school and is manipulated by the parent for a year distorts the meaning of this provision. Such a child, during the hearing, speaks the words of the parent with whom he or she has been with for a year.

Ensuring contact between the child and the parent

A novelty in the Brussels II ter Regulation is the possibility of ensuring, for the duration of the proceedings, contact between the child and the parent who demands his or her return. Po by giving the Courts a wide range of possibilities to apply provisional and protective measures. This has not been so obvious to courts that have so far heard cases for the return of a child. Some courts have dismissed such requests for security for the duration of the proceedings, fearing that the jurisdiction of the state, which has the right to rule on the merits of the case, i.e. on custody or contact with the child, would be violated. In such a case, the state where the case is pending under the Hague Convention may apply provisional measures, including protective measures, which are available in the member state concerned. Securing such contact is crucial to prevent the severance of contact between the child and parent, and to counteract psychological and physical harm.
The Brussels II ter regulation limits the courts’ use of the most frequently invoked rationale for refusing to order a child’s return (i.e., the existence of a serious risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation).
Also new is the regulation according to which, even if a court in one of the member states refuses to issue a ruling ordering the return of a child, the last word on ordering the return is vested in the court of the state where the child had his or her habitual residence before the wrongful abduction or retention.

International child abduction – exequatur procedure

In addition, with regard to the recognition and enforcement of judgments in matrimonial and parental responsibility matters (including cases pending under the Hague Convention), the regulation completely abolishes, with regard to these judgments, the exequatur procedure. This means that the recognition of court judgments will take place without the need for a special procedure, and the enforcement of court judgments in other EU member states will take place without the need to obtain a declaration of enforceability. The introduction of a single regulation was intended to facilitate the circulation of judgments, official documents and agreements.
The new Ordinance grants the courts the authority to declare a non-final judgment ordering the return of a child provisionally enforceable, regardless of the appeals filed, if the child’s welfare requires his return before the final conclusion of the proceedings.

More information

Our law firm handles cases under the Hague Convention, so in case of any inquiries regarding the topic of child abduction please contact us directly or call us at: +48 882 120 775 to schedule an appointment or online advice. Our team of lawyers will be happy to answer all your questions.

Author: Justyna Cudna-Wilk

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