I. When is child abduction present?
Child abduction is when a child is abducted from the country in which it has its habitual residence and domicile, without any prior agreement between the parents: in the case of joint parental care, BOTH parents decide on the permanent residence of the child, i.e. also on where the joint child has its center of life and should live; a unilateral decision without the corresponding consent of the other parent thus represents a violation of parental care.
If your child has been unlawfully removed or retained by your partner abroad or from abroad to Germany, there are legal options to get the child back. For this purpose, international conventions and treaties have been concluded, which open up international possibilities of action for authorities and courts. They regulate international custody disputes among all contracting states that are parties to the conventions and make it possible to quickly return an abducted child to the state of his or her residence.
1. Hague Convention on Child Abduction (CCH)
More than 100 contracting states belong to this convention, among others Germany, Poland, Russia. The abbreviation “HCÜ” stands for the “Hague Convention on the Civil Aspects of International Child Abduction” of 25.10.1980.
2. Brussels II a Regulation
The Hague Convention has been supplemented by the Brussels II a Regulation since 2005. The Brussels II a Regulation applies directly in all EU states with the exception of Denmark, i.e. currently in 26 states.
3. Hague Child Protection Convention
The 1996 Hague Child Protection Convention has over 50 States Parties.
II. Procedure in case of child abduction
In each State Party, pursuant to Article 6 of the HCCH, there are Central Authorities that work together and promote cooperation between the authorities and courts of their countries to ensure the prompt return of children. They take action at the request of the persons concerned. Their actions concern the whole complex of necessary activities: from locating the whereabouts to the safe return of the child. In Germany, it is the Federal Office of Justice, § 3 para. 1 IntFamRVG.
The parent seeking legal assistance can file an application in Germany under the Hague Convention for the return of the child to the home country so that a decision can be made there on parental custody and/or contact. First, an application must be filed with the Federal Office of Justice for the return of the child. The latter examines the requirements and forwards the application to the competent authority of the respective Contracting State, which determines the child’s place of residence. Voluntary repatriation of the child or judicial repatriation proceedings may be considered.
1. valid agreement
The agreement must be concluded between the state from which the child comes and Germany.
A table with all Member States can be found at:https://www.bundesjustizamt.de/DE/Themen/Buergerdienste/HKUE/Staatenliste/Staatenliste_node.html
2. child has not yet reached the age of 16, 4 p.2 HKÜ
3. unlawful removal or retention of the child, Art.3. HKÜ
It is unlawful to remove the child in the following cases:
- Violation of custody rights vested in a person, agency, or other entity, solely or jointly, under the law of the state in which the child was habitually resident immediately prior to the removal or retention;
- that right was actually exercised, alone or jointly, at the time of the transfer or detention, or would have been exercised if the transfer or detention had not taken place.
4. no exception, 12, 13 HKÜ
The Convention provides for a number of circumstances that may exceptionally entitle the court to refuse to return the child. These are discretionary provisions that must be applied with restraint and a high degree of responsibility by the court in order to meet the HKÜ’s goal of reversing child abductions and depriving them of any effects on custody arrangements. The following exclusions are provided:
- the custodial person consented to the transfer or subsequently authorized it, Art. 13 par. 1 lit.a HKÜ
- the return involves a serious risk of physical or psychological harm to the child or otherwise places the child in an intolerable situation, Art. 13 par. 1 lit.a HKÜ
- the child opposes the return and has reached an age and maturity in view of which it seems appropriate to take into account his opinion , Art. 13 par. 2 HCC
For more on this set of issues, please read our Divorce Journal article titled:
” Return of the child under the HKÜ – always without exception ?”( Contribution Mrs. RAin Anja Czech)
5. time limit and average duration of the procedure
The application must be filed within one year after the child is taken abroad. Otherwise, repatriation may be refused on the grounds that the child has settled into the new environment.
The agreement stipulates that the duration of the procedure may not exceed 6 weeks. This is an expedited proceeding with a summary factual review. However, a mere prima facie case is not sufficient. Only evidence that is not difficult to collect or present shall be admitted. Expert opinions are not regularly obtained.
III. final summary
However, the HKÜ also serves the purpose of preventing abductions. You should react quickly if a planned move of your partner abroad is in the offing without you having the sole decision-making authority. In such a case, it is strongly advisable to consult a lawyer in order to conduct custody proceedings in the country of origin before leaving, with the aim of obtaining sole decision-making authority.
In urgent concrete situations, it is also advisable to apply for a temporary injunction with a corresponding notification to the border authorities. The preconditions as well as the provability should be carefully examined in any case in the context of a consultation at your concrete individual case – if the danger of abduction proves to be confirmed, an immediate action is caused !
Your lawyer Milena Niezgoda