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The International child abduction. Notes on Italy and the Czech Republic

On an International level is always more growing the commitment to make efficient the integration among citizens from different States.

The reference is to the legal uncertainties concerning the attribution, exercise, delegation, restriction or termination of the so called parental responsibility (first of all, right of custody and right of access) as well as to the much more tricky matters concerning the international abduction of the children by that parent who is not the holder of parental responsibility. The latter hypothesis will be the main topic of this article. In fact, in such cases the problem is to identify which is the competent State to intervene and to solve the matter.

The referential discipline

Specifically speaking about the international abduction of children, the main referential discipline is that one provided for by the Hague Convention concluded in the 1980, which the Italy ratified by the Act 64/1994 and the Czech Republic by the Decree of the Foreign Ministry n. 34/1998. On a Community level there is even the Regulation (EC) 2201/2003. Notwithstanding the latter introduced rules on the jurisdiction, recognition and enforcement of judgments in matrimonial matters and on parental responsibility’s matters in general, it introduced some supplemental and innovative rules to the Hague Convention too.

The abduction of children

According to both the Convention and the Regulation there is “abduction” when there is violation of the rights of custody in consequence of the wrongful removal or retention of a child. The latter is a hypothesis that appears when the child, notwithstanding has been legitimately removed abroad, has not been brought back to the State in which he was habitually resident. The Community Regulation utilizes (by its art. 2) a definition that is practically identical to that one utilized by the Convention (by its art. 3). Thus, there is a wrongful removal or retention of the child, where such facts break the rights of custody acquired by an individual by operation of law or by a judgment of the State where the child was habitually resident immediately before the removal or retention, or by an agreement having legal effect in that State. Besides, according to both the Acts, in order to consider the removal or the retention as wrongful, it is necessary that the right of custody and of access were actually exercised by the entitled parent – or would have been so exercised but for the removal or retention. Moreover, for the sake of clarity, the Regulation specifies that “Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility”. Neither the regulation, nor the Convention distinguishes between children who had been born during the marriage, outside the marriage or during a previous marriage.

The Hague Convention’s system

The exclusive scope of the Hague Convention is obtaining, as quickly as possible, the return of the child to the State of his habitual residence, so to assure the respect of the rights of custody. The Hague Convention shall apply to any under-sixteen children who were habitually resident in a contracting State before that whether the right of custody or the right of access had been broken (art. 4). The art. 8 provides that “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 claim might even concern “arrangements for organising or securing the effective exercise of rights of access” (art. 21). Thus, according to the Hague Convention any Contracting State must designate a Central Authority, which is subject to specifics obligations and having the duties to cooperate with those authorities designated by other Contracting States. The said Authorities mainly act to discover the whereabouts of the child; to take provisional measures in order to prevent dangers for him; to secure the voluntary return of the child; to bring about an amicable resolution between both the parents; to initiate a judicial proceeding with a view to obtaining the return. Besides, the Community Regulation 2201/2003 provides further duties too. Should the activated Central Authority believe that the child is in another Contracting State, would be its duty to inform as soon as possible the Central Authority of this State as well as to cooperate with it. In fact, it is the Central Authority of the State where the child is the one that shall take or cause to be taken all the appropriate measures in order to obtain the voluntary return of the child (art. 10). Therefore, this special organization shall be certainty helpful where the claimant does not know where the child has been brought, since in such cases the Central Authority can quickly cooperate with the other Contracting States as well as it can ask the intervention of the police force. Anyway, should the holder of the right of custody know where the child has been brought, he would have the possibility to directly resort the competent judicial authority, without the intervention of the Central Authority (art. 29). The Central Authority designated by Italy is the “Dipartimento per la Giustizia Minorile” (Department for the juvenile justice), with the Ministry of Justice, seated in Rome. The Central Authority designated by the Czech Republic is the “Úřad pro mezinárodněpravní ochranu dětí” (Office for the international protection of the children), seated in Brno. The Italian judicial authority entitled to order the return of the child is the juvenile court of the place where the child is; instead, in the Czech Republic the entitled judicial authority is, in any case, the county court in Brno. It is important to underline even that the Czech Central Authority, as provided for by the local laws, has not been authorized to file directly the motion to the Czech Court in order to ask the return of the child; while, the Italian Central Authority has been authorized to file such a motion and, in this regards, it delivers all the related documentation to the Public Prosecutor with the competent Italian juvenile court. Considering the delicacy of the situation, the judicial proceeding shall be conducted (in both the Czech Republic and Italy) according to the rules of a special and urgent proceeding. In Italy the measure should be issued within only 30 days even if, unfortunately, this time-limit is generally not respected in the practice. The matter which shall be examined during the judicial proceeding is only the breach of the right of custody or of access which, has above indicated, arise: by reason of a judicial decision or by operation of law of the State of habitual residence of the child; or by reason of an agreement having legal effect under the law of that State. On a typical legal point of view, the court of the Contracting State in which the child has been removed or retained, when it is resorted within one year by this events, shall order the return of the child forthwith; while when resorted after the year, it shall also order the return of the child, but unless it is demonstrated that the child is now settled in its new environment (art. 12). Therefore, the evidence of the integration of the child in his new environment can be a reason to prevent the return order. That shows again how the Hague Convention’s main scope is about protecting the psychological, moral and social conditions of the child as well as his interests. On a process point of view, the “abductor” parent could prevent the court to order the return in the case he gives evidence that, for example: the other parent was not actually exercising the right of custody; the removal was agreed; there is a grave risk that the return would expose the child to physical or psychological harm or, otherwise, would place the child in an intolerable situation. Moreover, even the objection of the child to being returned can prevent the issuing of a return order, but that only when the child “has attained an age and degree of maturity at which it is appropriate to take account of its views” (art. 13). Speaking about the grave risk to physical or psychological harm for the child, it is opportune to clarify that in order to prevent easy avoidance of the Hague Convention’s rules and easy exploitations, the Italian case law considers that the sufferings as well as the emotional upheavals, normally consequent upon the parents’ separation, can not prove by themselves the child’s psychophysical harm in the case of his return. Thus, it shall be necessary to give a strong evidence of the said harm. Concluding, and from a practical point of view, the return order is effective immediately, even if, unfortunately, without the cooperation of the “abductor” parent the real return of the child shall not be immediate at all.

The Community Regulation’s system

The Regulation (EC) 2201/2003 has a different and a wider content than the Convention. In our connection, it introduces both rules in order to identify which Member State has the jurisdiction to decide the substance of questions concerning parental responsibility (such as the attribution, exercise, delegation, restriction or termination of the right of custody and of access) and supplemental and innovative rules to the Hague Convention itself. For the sake of completeness, it is opportune to underline that the Regulation covers even the civil matter relating to matrimonial matters – such as divorce, legal separation or marriage annulment. The general Community rule is that the courts of a Member State in which the child is permanently resident shall have the jurisdiction in matters concerning the substance of parental responsibility. This criterion shall apply even in the case of allowable removal (art. 9) and of abduction of children (art. 10). Moreover, in this last case, the permanent residence’s criterion is valid until the child has acquired the residence of another Member State. Besides, should the child have acquired the residence of another Member State, the Member State of the (previous) habitual residence would still have jurisdiction but: except that the holder of the right of custody has acquiesced the removal; or except that the child has resided in that other Member State of a period of at least one year, the child is settled in his new environment and at least one of the other special conditions of the art. 10 of the Regulation is met. The Regulation provides even for other residual jurisdiction criterions (for example, jurisdiction based on the child's presence or based on a better court to hear the case). The art. 11 is the one fundamental about the question of the abduction. In fact, notwithstanding that the article makes expressly reference to the validity of the Hague Convention, it provides supplemental and innovative rules to the latter which are mandatory for the Member States. On a supplemental point of view the art. 11, par. 4 is an example. It provides for that “A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention [that is the physical or psychological harm or the intolerable situation for the child in case of his return] if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”. Instead, on an integrative point of view the art. 11, par. 6 is an example. It provides for that the court which “has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention…must immediately transmit a copy of the court order on non-return and of the relevant documents…to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention”. And that, within one month of the date of non-return order. Another important rule is that one provided for by the paragraph 8 according to which any subsequent judgment issued by a court of the Member State having jurisdiction under the Regulation shall be enforceable and shall prevail upon a previous decision pronounced on the Hague Convention’s basis and against the return of the child. The scope of the Community legislator which here clearly comes out is recognizing and promoting the cooperation and the mutual trust between the Member States, as well as limiting in the EU area the value of the non-return decision pronounced on the basis of the Hague Convention.

The relationship between the Hague Convention and the Regulation

As above indicated, the Hague Convention copes with the problem to bring back the “status quo ante” which actually existed before the abduction, providing in this regards the child return’s order (or the securing of the right of access). In fact, the Hague Convention wants the rights of custody to be respected as they have been set forth by the parties, by the law or by a decision of the State in which the child is habitually resident. The Hague Convention does not intervene on the substance of the rights related to the parental responsibility. In fact, according to the sec. 19 “A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue”. On the contrary, the Community rules are those rules which intervene in the matters concerning parental responsibility (including the right of custody and of access) – at least, for what concerns jurisdiction, recognition and enforcement of the decisions in parental matters in the EU area. Then, the proceeding rules to be followed shall be the ones provided for by the single Member State in which the proceeding is pending. Besides, for the Member States the discipline of the Regulation prevails on those of the Hague Convention – where they concern identical matters (art. 59, 60 and 62 of the Regulation) – and, consequently, in the cases of abduction of children within the EU area, the Convention must be applied as supplemented and innovated by the Community discipline. Then, the Regulation wants to guarantee to the judicial authorities of the Member State in which the child is habitually resident the power “to have the final word” concerning the return. This judicial authority is therefore considered as the natural court to decide the matter, since is the one which is closest to the parental and social environment where the child has lived before the wrongful removal. The goal is to be searched surely in the will to further discourage the abduction’s episodes, preventing that the State where the child has been wrongfully removed or retained could acquire jurisdiction so simply and issue a decision in order to modify for the “abductor” parent the (already existing) judicial regime of the rights of custody. Moreover, neither the Hague Convention admits a praxis like this. In this regards, the sec. 16 of the Hague Convention clarifies that “After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody”. Therefore, by this point of view both the acts don’t want the parent who is not the holder of the right of custody to have the possibility to potentially premeditate the wrongfully removal of the child towards a more convenient State (the so called “forum shopping” phenomenon), and to try to obtain in this case a positive decision issued by the courts of this State. Under this point of view, even the 17th whereas of the regulation 2201/2003 seems to be quite severing where it provides for that the Hague Convention would continue to apply, but as complemented by the Community discipline and that “The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained”. By that derives the consequence that, in the practice, should the court of the place where the child is – because he has been wrongfully removed – had decided for a non-return order on the basis of the articles 12 and 13 of the Hague Convention, this decision would be subsequently replaced by the court of the Member State in which the child was habitually resident before the wrongfully removal or retention.

The habitual residence’s notion

Concluding, and for the sake of completeness, it is opportune to clarify the notion of habitual residence. The interpretation grown up in both the Community and international case law is rather similar. According to the European Court of Justice the habitual residence’s notion corresponds to the “place which denotes a certain settling of the child in a social and parental environment”. The Court itself has even specified that in order to identify the setting’s place of the child shall be analyzed elements as, for example, the length, the conditions and the reasons of the child’s stay in the territory of a Member State, the place and the conditions of the school attendance, the linguistic skills, parental and social relationships of the child in a certain Member State. In this regards, in order to evidence the habitual residence of the child, the certificates of school attendance, the certificates of sport enrolment and attendance are surely documents which have a high evidential value, very difficulty rebuttable. Besides, and properly in order to eliminate possible doubts of interpretation, the European Court of Justice confirmed more than once that “the only element of the physical presence of the child in a Member State is not enough to determine the habitual residence of the child”.

Concluding, the Italian case law on the Hague Convention defines as habitual residence “the place where normally the child, in a lasting and stable way, lives and grows up between the person who actually takes care of him” and where “finds and recognizes the barycentre of his emotional relationships which have been originated by the development of his daily relationship’s life”.

22.04.2011

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