Child Abduction

Overview

Brussels II bis deals with jurisdiction in matters of parental responsibility. Parental responsibility is defined as rights and duties relating to the person or property of a child that are given to a natural or legal person by judgment, by operation of law, or by agreement having a legal effect. They include matters of custody and access.

Subject to the following, the courts of a Member State shall have jurisdiction in relation to matters of parental responsibility over a child who is habitually resident in that State at the time the court is seised, i.e. when proceedings are initiated. The following exceptions are set out.

Where a child lawfully moves from one state to another and acquires a new habitual residence, the courts of the Member state of the child’s former habitual residence shall, by way of exception, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment/order on access rights issued in that state before the child was moved, where the holder of access rights pursuant to the judgment on access rights continues to have his habitual residence in the state of the child’s former habitual residence.

This does not apply if the person having the right of access has accepted the jurisdiction of the courts of the child’s new habitual residence by participating in proceedings before that court without contesting jurisdiction.

Child Abduction

In the cases of child abduction, it is provided:

In case of wrongful removal or retention of the child, the courts of the Member State where the child has habitual residence immediately before the wrongful removal or retention shall retain that jurisdiction

• until the child has acquired a habitual residence in another State.
• each institution or body having rights of custody has acquiesced in the removal or retention or
• the child has resided in that other state for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in that new environment and at least one of the following conditions are met:
• within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts, no request for return has been lodged with the competent authorities of the State where the child has been removed or is being retained;
• a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been made within the above time;
• a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed;
• the judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

Notwithstanding a judgment of non-return under the Hague Convention, any subsequent judgment which requires the return of the child issued by the court having jurisdiction under the Regulation shall be enforceable.

Hague Convention

Where a child has been wrongfully removed or retained, and a request has been made by a person, institution, or body having a right of custody, the Hague Convention on Civil Aspects of International Child Abduction applies. When applying the Hague Convention, the child is to be given the opportunity to be heard before the proceedings unless this appears inappropriate, having regard to his or her age or degree of maturity.

A court to which the application for the return of the child is made above shall act expeditiously in proceedings on the application, using the most expeditious proceedings available in national law. Without limiting the above, the court shall, except where exceptional circumstances make it impossible, issue its judgment within six weeks of the application.

The court may not refuse the return of the child on the basis of Articles 13 (b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. A court cannot refuse to return the child unless the person who requested the return of the child has been given the opportunity to be heard.

Transmission of Information

If a court has issued an order under  Article 13 of Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order of the non-return to the court of jurisdiction or central authority of the State where the child was habitually resident immediately before the wrongful removal or detention, as determined by national law. The court is to receive the documents within one month of the date of the non-return order.

Unless the courts of the State where the child was habitually resident immediately before the wrongful removal or retention have already been seised of the matter by one of the parties, the court or central authority that receives the information mentioned in the last paragraph must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction in the Regulation, the court shall close the case if no submissions are made within the time limit.

Exceptions

The courts of a Member State exercising jurisdiction under a divorce, legal separation, or annulment shall have jurisdiction in a matter relating to parental responsibility connected with that application where at least one of the spouses has parental responsibility in relation to the child and the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.

The courts of a State may also claim jurisdiction in relation to parental responsibility where the child has a substantial connection with that State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in the State and the child is a national of that State; and the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all of the parties in the proceedings at the time the court is seised and it is in the best interests of the child.

Staying Proceedings

Where proceedings relating to parental responsibility, relating to the same child and involving the same action are brought before courts of different States, the court second seised shall of its own motion stay proceedings until such time as the jurisdiction of the court first seised is established.

When the jurisdiction of the first court seised is established, the second and later court must defer to the first court in terms of jurisdiction. However, this may not apply in cases concerning parental responsibility (only) and the case may be remitted to a more appropriate forum in the following context.

The courts of the state having jurisdiction as to the substance of the matter may if they consider that the court of another State to which the child has a particular connection with, would be better placed to hear the case or a specific part of it and where it is in the best interests of the child:

• stay the case or the part thereof, and
• invite the parties to make a request before the court of that other State or request the court of another State to assume jurisdiction.

Particular Connection

This applies upon application of a party or by the court of its own motion or upon application from a court of another State with which the child has a particular connection.

The child shall be considered to have a particular connection to a state if

• that State has become the habitual residence of the child after the court was seised of the matter;
• it is the former habitual residence of the child;
• it is the place of the child’s nationality;
• it is the habitual residence of a holder of parental responsibility; or (five alternatives)
• it is the place where the property of the child is located, and the case concerns measures for the protection of the child relating to the administration, conservation and disposal of that property.

The courts of the State having jurisdiction as to the substance of the matter shall set a time limit in which the courts of the other State may become seised of the matter. If courts are not seised by that date, the court which has been first seised shall continue to exercise jurisdiction, and the exception shall not apply.

The courts of the other State may, where, due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their being seised of jurisdiction above. In this case, the court first seised shall decline jurisdiction. Otherwise, it shall continue to exercise jurisdiction.

In the interest of the child, the Regulation permits, by way of exception and under certain conditions, that the court having jurisdiction may transfer the case to the court of another State if that court is better placed to hear the case. However, the second court should not be allowed to transfer the case to a third court.