Due to the widespread freedom of movement - within countries belonging to the European Union - and the progressive process of globalisation, so-called mixed marriages or couples are becoming increasingly common. This situation occurs when the two people who make up the union are of different nationalities and citizenships. When there is a conflict between partners with children, one parent often travels with the child to another country, usually without the consent of the other parent. Is this state of affairs legal? When does cross-border parental abduction occur? How to defend against one parent taking a child to another country?
We answer these questions in the article below. We look forward to reading!
EU law and the Hague Convention
The legal acts that mainly regulate child abduction are:
- 1980 Convention on the Civil Aspects of International Child Abduction (the so-called Hague Convention); and
- EU Regulation 2019/1111 of 2019, regulating, among other things, international child abduction.
The Hague Convention seeks to ensure that a child wrongfully abducted or retained in another country that has acceded to the Convention is promptly returned to a legitimate person. On the other hand, it takes into account the respect of the right to care and visitation guaranteed by the Contracting States to the Convention. In addition to Poland, many countries from all over the world have acceded to the Convention, among them:
- Czech Republic,
- Denmark,
- Spain,
- Ireland,
- Germany,
- Norway,
- USA,
- Switzerland,
- Sweden,
- Turkey,
- Ukraine or
- UK.
The purpose of the EU Regulation is similar. It is intended to regulate the abduction of children within the territory of the European Union. In addition, it is intended to contribute to the harmonious implementation of the provisions just contained in the Hague Convention.
What is cross-border parental abduction?
Under the Hague Convention, the abduction or retention of a child is unlawful, when it occurs in conjunction with a violation of the right to carewhich is guaranteed to a particular person through the authorities of the country in which the child had his or her habitual residence before the abduction. The EU Regulation similarly defines wrongful removal or retention of a child, indicating that it occurs where the retention is in breach of custody obtained by judgment, by operation of law or by agreement valid under the law of the Member State where the child is habitually resident - provided that, at the time of the removal custody of the child was actually exercised.
What situations arise in practice?
Child abduction can occur in a variety of ways. A variety of situations are involved, the most notable of which is the case of abduction or wrongful retention of a child by one parent. The following are those situations we most often encounter.
(1) After the dissolution of the family, the child continues to live with one parent. The other parent, however, continues to have contact with the child through the exercise of visitation rights. While staying with the parent who does not have 'prevailing' custody, the child is taken abroad or detained there.
Attention!
A certain form of child 'abduction' is also a change of residence of the parent who has primary custody of the child.
2. The parent living with the child moves their residence abroad. The reasons for moving can vary. They are often related, for example, to: the parent's new partnership, professional aspects or a better social network (i.e. family members of the parent who - due to their situation - can support the custodial parent in balancing work and family life for the benefit of the child).
3. A frequent reason for the unlawful removal of a child abroad is the domestic violence. When one parent threatens the child's physical or mental health - or even his or her life - the other illegally flees abroad with the child.
4. Finally, the abduction or wrongful retention of a child may also be carried out child's relative. A child is abducted by a member of his or her family who has neither custody nor parental rights over the child. This could be, for example, the child's grandparents, uncle or aunt.
Cross-border parental abduction - application for return of the child
In situations where unlawful removal or retention of a child has already occurred, it is possible to lodge a request for return of the child. It is filed under the Hague Convention. It may be filed by a person:
- being a parent of a child who has the right to at least jointly decide on the child's whereabouts, or
- the person acting as the legal guardian of the abducted child.
What conditions must be met to request the return of a child?
- The application can only relate to a child under the age of 16.
- Prior to the abduction, the child was habitually resident in a State party to the Convention.
- The abduction took place to a country (other than the place of permanent residence) which also acceded to it.
The application must be submitted by the Polish Ministry of Justice or to the relevant state authoritywhere the child is staying as a result of abduction or retention.
What to include in a cross-border abduction application?
The proposal may include:
- an order to return the child or
- request for the exercise of the right of contact.
It is submitted to special formsavailable in several languages. Persons who do not have precise knowledge of a child's current whereabouts can also make an application. In that case, you only need to have reasonable presumptions as to where the child is.
The Convention is guided by the principle of ensuring the immediate return of the child to the country of permanent residence of the child. It is for this reason that the competent authority of the country where the child is present on the grounds of abduction or retention shall order the immediate return of the child if the application was made within one year of the abduction child. The return of the child after one year will also be ordered, provided it is established that the child has not yet become accustomed to the new place of residence.
The position of the European Commission on the Polish proceedings
In the light of the issues presented above and the introduction of the so-called 'Anti-Hague Law' by the Polish legislator, a difference of opinion arose between the European Commission and the Polish government regarding the proper implementation by Poland of the provisions of the Hague Convention. The European Commission has indicated that the Polish authorities are seeking to unduly prolong proceedings relating to the processing of applications for the return of childrenwhich contradicts the provisions stemming from the Hague Convention, to which Poland is a party.
This refers to the situation of unlawful abduction of children on the territory of Poland or their unlawful detention on the territory of our country. In connection with irregularities in the processing of applications for the return of children, The European Commission decided in January this year to initiate proceedings against Poland. It is intended to clarify possible shortcomings related to the pace of the authorities' work responsible for participating in cross-border child abduction proceedings. The proceedings are also intended to dispel any doubts about practical application of the rules related to parental abductions. Its conclusions will probably have to wait a few more months.
Parent, Guardian! Do you need support in a case of international child abduction or child detention in another country and do not know what steps to take? Contact us!
Read also: Alimony from abroad - how to enforce it effectively?
