International child abduction

International child abduction

The procedure for the international abduction of children refers to the civil judicial procedure provided by the Hague Convention concluded on 1980.

The main objective set by the provisions of the  Convention on the civil aspects of International Child  Abduction  is to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

This procedure implies a combined and harmonious application of international instruments, given that the main purpose is to protect the rights of minors but also the rights of parents, and to reduce the negative impact that the violation of these rights can have on the development of the child.

The main hypothesis of the Convention  for which the provisions regarding the international abduction of minors are applicable, are:

– moving the child to another state without the consent of the other parent;

– moving the child to another state, with the consent of the other parent, but for a fixed period of time, in which case if the child is not returned  to the country where he / she resides permanently, the action of moving  becomes illegal.

This last situation is most common, for example one of the parents agrees that the minor will travel with the other parent to another country, for a fixed period of time, but this term is exceeded and the minor is not returned to the country where usually resides.

Under the Convention on the civil aspects of International Child  Abduction  , the contracting  states have assumed the obligation to establish an authority to discharge the duties which are imposed by the Convention.

In these circumstances, any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

The competent court in Romania, according to art. 2 of Law no. 369/2004, is the Juvenile and Family Court of Bucharest.

The application shall contain :

• information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
• where available, the date of birth of the child;
• the grounds on which the applicant’s claim for return of the child is based;
• all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
• an authenticated copy of any relevant decision or agreement;
• a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State;
• any other relevant document.

It is important that custody rights were obtained prior to the alleged abduction, because the condition of the right of entrustment will not be fulfilled.

The notion of habitual residence of the minor is not defined by the norms of the Convention, so the judge will consider several aspects to establish the meaning of the notion: the place where minor lived, the place he/she attended school, the place he/she received medical insurance, the place where his parents live, relatives etc.

Moreover, a relevant aspect in this procedure is given by the child’s opinion on the situation, the minor’s refusal to return to the place where he had his habitual residence may lead to the rejection of the request.

The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

An important aspect is that Each Central Authority will bear its own costs in applying the Convention on the civil aspects of International Child  Abduction.

Central Authorities and other public services of Contracting States will not impose any charges in relation to applications submitted under the Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.