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Child’s Play or Chaos? The International Framework of Matters Related to Children

According to the estimations of the Hungarian Statistical Center, around 250,000 foreign persons are continuously present in Hungary in the year 2024. On the other hand, thousands of Hungarian citizens also leave their home country. Hungarians, therefore, have organized their life abroad and foreigners organized their life in Hungary. Consequently, many relationships become more international, which should be reflected in the law. Diverse situations occurring in international families shall be properly reflected in international family law.

In cases of need for child protection, the Brussels IIb Regulation is applied within the EU, ensuring the highest standards. However, in cases where non-EU countries and its entities are involved, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter “Convention on Parental Responsibility”), as well as the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “Abduction Convention”), apply.

Abduction Convention

The Convention has 101 contracting parties (including EUMS). The prevalent principle of the Convention is that of the best interest of the child, which is implicitly reflected in every provision of the Convention. The Convention does not purport to replace national law or EU law. It creates a bridge between two national jurisdictions and their legislature which are in conflict. It deals with many situations concerning children, mainly when there is a breach of rights of custody due to the removal of a child from his/her habitual residence. The basis that was used when drafting the document and also when amending it was found in social studies carried out in several countries. These studies established that wrongful removal and retention of a child is harmful to him/her. However, usually, it does not mean that these children are not wanted. In fact, it means that these children are wanted so much that they are abducted. According to these studies, the post-traumatic stress related to the abduction is harmful to the child. For this reason, the Convention intends to have these children returned to their habitual residence as soon as possible. The Preamble of the Convention states that the authorities at the habitual residence of the child are the most suitable to decide in the best interest of the child. This is so due to the fact that they have at their disposal information about the child, as well as that the judicial system can be more familiar to the child (especially when older children are involved in these cases).

As already stated, the Convention focuses entirely on the child and its best interest. Therefore, the child should be returned promptly to its home country. In case a child has been wrongfully taken or retained, there is a duty to order the return of the child.  A uniform approach from the courts and their orders is important. However, it cannot affect the determination of the custody of the child.

Finally, it should be mentioned that there are some essential differences between the two above-mentioned internationally applicable conventions. The scope of the Convention on Parental Responsibility encompasses all children under the age of 18, which is mostly the common age limit for becoming an adult in most of the EU countries. However, the Abduction Convention differs in this important question. The mentioned Convention sets forth the scope of its application in Article 4 more strictly when setting the age limit to the age of 16 years.

The Convention itself promotes cooperation between contracting parties. The principle of good faith is the basic principle in order to use the judicial system in the best interest of the child. Therefore, courts and judges have to work with each other and share information necessary for ensuring the protection of the child. In the specific cases of child abduction, there are limited exceptions set in Art. 13, when the child does not have to be returned, which are based on the effective cooperation of the concerned judges, who, as a result, do not order the child’s return when any of the requirements are not fulfilled. In these cases, the non-fulfillment of the specific requirements constitutes a grave risk for the child upon his/her return. Yet these exceptions have to be always very restrictively interpreted.

The Convention stipulates a step-by-step analysis of what the term “grave risk” really is. There are three main elements to this clause: 1. The return of the child exposes the child to physical harm. 2. The return of the child exposes the child to psychological harm. 3. The return of the child will place the child in intolerable situations. If a judge considers that any of the mentioned elements exists, there cannot be ordered the duty to have the child returned to its habitual residence.

In fact, the Convention always focuses on the child, not on the parent. There are cases when there are allegations about possible harm to a parent. The judge in these cases has to always consider the possible effect on the child. As it was stated in the Case of Walsh v Walsh, a child witnessing violence from one parent to another is considered to be subject to psychological harm. This does not expressly mean it meets the threshold of grave harm to the child. This statement practically means that it is up to the judge to decide whether harm to a parent can cause indirect harm to the child. For instance, in some cases, ordered supervision for meetings of the parents could be functioning as a preventive measure.

Each case is different. The judge has to be always aware of the specific details of the case. Based on the Hague conference analysis prepared by Lowe and Stephens, 77% of the abducting parents are mothers. However, most of these cases are connected with allegations regarding the safety of the habitual residence. These allegations mainly rest upon statements concerning home violence. Still, these allegations have to affect the child specifically, and cannot be based on general risk. Obviously, a child should not be returned to a war-zone country but the grave risk cannot be constituted by general international harms, such as pollution (as it was presented in the OLG Rostock Case). Also, some special psychical conditions of the child have to be taken into account (e.g. in the case of SCA v Maynard).

Brussels IIb “deter” Regulation

The Brussels Regulation complements both mentioned international Conventions. Its aim is not to conflict with these documents but rather to supplement them. The basic principles are explicitly laid down in the document. State authorities have to act without undue delay. Specifically, the Regulation in Art. 24 introduces deadlines, two six-week periods timeframe, to prevent unnecessary delays in the proceedings. One six-week period for the court of the first instance and one for the court of the next/last instance. The second timeframe concerns the period after the proceeding has been launched (e.g. application from the central authority).

Obviously, in order to avoid excessive limits, the deadlines do not have to be met when exceptional circumstances come along. However, mediation cannot be considered as such a circumstance. Even if these provisions aim to make the proceeding more effective, we can easily maintain that there will be possibly discrepancies related to the different court systems in the Member States. For instance, in the Czech Republic, there is one first-instance district court that deals with relevant issues regarding matrimonial matters and parental responsibility, and one regional appellate court. In contrast, Germany and Austria have several courts (regional courts, district courts) that can deal with the jurisdiction, there are no separate courts specifically dealing with the issue.

One of the most significant measures affecting the return procedure is the opportunity for the child to be heard by court officials or other central authorities. The right itself was not newly brought into international legislation, but the innovation is in its scope, which has been broadened, as the right applies to parental responsibility cases. In cases as such, the Court has to give the opportunity to the child, who is capable of doing so, to express his own view. The method of hearing the child is covered by national law. It is based also on the fact that the child is not the object of the case but a subject (specifically the most important person in the proceeding) who has to have rights. It does not mean that it is the responsibility of the child to decide regarding the case. But it can help as evidence for the judge.

The provisions of the Regulation stipulate also the existence of contact points, which can be approached during the return procedures. These are meant to be used for the contact or access orders when the jurisdiction is not in the court of the actual current place of the child but in the Member State of the origin of the child. These contact points can be used also for communication with the parent left behind in another country. Through this communication, the relationship between the parent left behind and the child can be assured.

There are also provisions regarding the possibility of ordering protection measures as well as the possibility of remedies against the ordered decision. These provisions state the possibility of enforcement, which has to be ordered and completed as soon as possible, in order to cause as little harm to the child as possible. (Dutta, 2016, p.172). However, the enforcement part is not always necessary when the abductor cooperates. These measures are also connected to the mentioned six-week timeframe, because they are secured by the obligation of the court to report that the return was not ordered, no later than in six weeks. Conversely, according to Art. 28, the refusal of enforcement can be ordered due to situations when crucial circumstances have changed.

The Regulation has an overriding mechanism, which can be used when there is an objection from the child, or when there is a grave risk of harm. In the second case, the Regulation refers expressly to the 1980 Hague Convention. However, the original Court has to inform the applicant regarding the refusal of the return. If custody is already pending, the incoming state’s court has to inform the other court in the state of origin.

The overriding return orders are enforceable without exequatur. Although the Court of Justice of the European Union has already stated it in its case law, the Regulation expressly stipulates that any order of return cannot override the refusal of the return. As stipulated in Recital 59, return orders are recognized and enforced on the basis of the provisions about the circulation of judgments regarding parental responsibility.

Conclusion

When dealing with cross-border cases, firstly the jurisdiction has to be observed. In parental responsibility cases, it generally belongs to the state of the child’s habitual residence, therefore if someone would like to access a child, he/she has to file a case to the state of the child’s habitual residence. Art. 80 sets forth, that the court of habitual residence has the power to demand a report from the central authority, while the internal legislation of the Member State has no possibility to impede.

The mentioned provision is connected to the possibility of asking for records about persons other than the child, which could be useful in many situations. For instance, in situations where a child lives in a country whose he/she is not a national and the parent dies in an accident. Accordingly, the child needs to be placed in a family. Normally, for the child protection authorities, this would be a domestic case, but there is a possibility of the child having relatives living abroad. There is a high chance of family members in the state of nationality of the child, who might be interested in taking the child into foster care. In these cases, the authorities would not necessarily know about these relatives abroad. Eventually, it is considered that the family would somehow become aware of the situation, that is, that their relatives died and they left a child. Hence, these relatives can therefore express their interest in knowing where the child is. In cases as such, the court can ask for the mentioned social reports set under the Art. 80.

Last but not least, the Regulation regulates and facilitates the rules of direct communication between courts and central authorities. There is a network open for judges and central authorities that enables them to get in contact and receive the replies they ask for. However, this does not apply to the Hague Convention cases.

To sum up, one has to agree that overall the applicable regulations represent a solid basis for the protection of children at European and international levels. However, there is still an evident discrepancy between words and actions on the level of international child protection. In order to be more effective, the international community has to use the methods and instruments already existing in a wise manner to ensure the proper and the least harmful protection of children in the context of international proceedings.


JUDr. Rebecca Lilla Hassanová is an Assistant Professor at the Institute of International and European Law, Faculty of Law on the Pan-European University, Bratislava, Slovakia; a Junior Researcher, at the Central European Academy established in Budapest, Hungary; PhD student at the Ferenc Deák Doctoral School on the Faculty of Law of the University of Miskolc, Hungary and the Editor-in-Chief of the Central European Academy Law Review. rebecca.hassanova@gmail.com; ORCID: 0009-0006-4535-199X.