First Stage Court Proceedings
When a child is abducted by one parent and taken to another European country, the parent who is left behind can apply for the courts of the country to which they have been taken (the country of refuge) to order that the child should be returned.
In the following circumstances the country of refuge may refuse to do so:
(1) The child objects to return and is sufficient mature to make such a decision.
(2) There is a grave risk that the child will be harmed (Article 13b Hague Convention on the 1980 Civil Aspects of International Child Abduction).
(3) The left-behind parent consented to or acquiesced to the child’s removal
(4) The left-behind parent had no rights of custody for the child, or had such rights but was not exercising them at the time of the removal.
Second Stage Court Proceedings under Article 11(8) EC Regulation 2201/2003.
If the country of refuge makes an order that the child should not be returned, a European regulation provides the left-behind parent with an opportunity to apply to the courts of their own country (the country of origin) to insist that the child is returned. The court of origin must fully review the child’s welfare and look at what is in the child’s best interests – who should they live with, how frequently and in what form should they be in contact with their other parent. If the court of origin makes such an order and attaches the required Article 42 certificate, the order is automatically enforceable in the other Member State.
Recent Study the Centre of Private International Law, University of Aberdeen.
The study highlights a number of problems with the European law in question, and goes so far as to suggest that it should be removed from the legislation. The study can be found here (https://www.abdn.ac.uk/law/documents/CPIL_Working_Paper_No_2016_1.pdf).
The Order For Return Is Seldom Enforced.
Despite insisting on a return to the country of origin, and the fact that European courts are supposed to respect each other’s orders, the return does not often happen. In the cases of abduction looked at by the study (between 2013 and 2015) less than 30% of the return orders made by countries of origin were enforced.
The order is not enforceable without the child being given the opportunity to be heard, unless it is deemed inappropriate in light of the child’s young age or understanding. Unfortunately, it appears that in the majority of these cases, the child position is not represented, whether by themselves or through a Court appointed Guardian.
The study also found that all too often the abducting parent did not give evidence and suggested that this may be due to a lack of understanding of the proceedings and not just an unwillingness to participate in them.
The current Article 42 certificate of enforceability contains a declaration that the children and the parties were given an opportunity to be heard but there is no provision for the Judge to further expand upon this. The study suggests that the lack of ‘mutual trust’ between the different European courts arises because too often the courts in the country of origin simply re-evaluate the original decision made not to return, rather than make a decision based on new evidence and a thorough examination of what is in the child’s best interests.
It appears that this second chance for left behind parents, to apply to have their child returned after the initial court case has failed, all too often gives those parents a false sense of hope.
How can the impact of child abduction court proceedings be reduced and the ensuing court proceedings be more effective?
The authors of the study suggest that due to all the problems they found with the existing system, the ability for the country of origin to make an order for return in these circumstances should be abolished. As this is not likely to happen, they recommended the following: –
(1) The provisions in article 11(8) should only be available where the country of refuge has refused to return based on Article 13(b) (child will be at grave risk of harm if returned).
(2) The courts in the country of origin should only make such orders which supersede the non return order of the country of refuge, where they have carried out a full welfare based enquiry.
(3) The current Article 42 certificate should be amended and Judges who deal with these cases should state clearly:
(a) what opportunities to be heard were given to the parents and the child.
(b) In cases where the judge decided not to allow the child to give evidence, the reasons for this.
(c) How they took into account the original non-return order and the evidence given in those previous proceedings.
(4) The decision of the state of origin should not be automatically enforceable and courts in the country of refuge should be able to review the order to return on human rights grounds. If the Judgement of the country or origin is fully reasoned as per the suggested requirements above, the order should stand up to such a review.
(5) A minimum of 30 minutes free legal advice should be provided to the parents in these cases to make them aware of the procedure and to encourage them to participate in the process.
(6) Procedures should be in place to ensure the child has contact with the left behind parent during the proceedings.
(7) Most importantly EU member states should ensure that their enforcement laws are effective and that legal aid is provided for the left behind parents who are unable to pay the enforcement fees.
It is unlikely, in the short term, that these proposals for change will be implemented. As the law stands, parental child abduction even when the abduction is to a neighbouring European country, is a complex area and the outcomes and the process itself can be damaging to a family. There are many issues for a parent to consider no matter what stage of proceedings they are at. I specialise in international child abduction cases and would be very happy to discuss with you any concerns you may have. Please contact me on +441625728010 or email me at [email protected]