Abduction of a child to a foreign country is a period of mental crisis for all those involved, but it can be resolved and in practice this is done unexpectedly quickly in the Czech Republic.
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We will represent you in out-of-court negotiations or return proceedings before Czech or international courts.
We will help you solve potential complications until the moment when the child returns home.
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The court handles several international child kidnappings a year. How might it decide in a given case?
Basic questions and answers on the issue of international child abduction
What constitutes international abduction?
International child abduction is the unauthorised (unlawful) removal or retention of a child outside of their usual country of residence without consent from the other parent or consent from the court. International abduction also refers to the retention of a child abroad for a longer time than agreed by the other parent. Such cases usually result in a breach of child custody rights.
The child’s usual place of residence may differ from the place of permanent residence and may also be in a country of which the child is not a citizen. The usual place of residence is usually the place where the child lives for an extended period of time, where they have social ties and go to school, or the place last agreed on by the parents that the child would live.
When do Czech courts decide, and when do foreign courts?
In order to determine which courts will decide in the case, we distinguish between two basic situations:
a) The child was abducted to the Czech Republic:
This is a situation when the child’s usual place of residence is abroad and the child is unlawfully removed to the Czech Republic. In this case, Czech courts decide about the returning of the child.
b) The child was abducted from the Czech Republic:
This is a situation where the child’s usual place of residence is in the Czech Republic, and they either do not return from abroad by the agreed date, or the child is abducted to a foreign country without consent from the other parent. In this case, foreign courts will decide in the matter of returning the child, specifically the courts of the country to which the child was abducted.
The key document concerning international child abduction is the Hague Convention on the Civil Aspects of International Child Abduction of 1980 (hereinafter referred to as the Hague Convention), which regulates the options of returning unlawfully removed or retained children to their place of usual residence.
What is the difference between countries which are a part to the Hague Convention and those which are not?
The Hague Convention is binding for all EU member states and a number of other countries, a current list of which is available here. The typical course of return proceedings in countries which are parties to the Convention is described below, and their key advantage is speed and the fact that the court primarily examines whether the child was removed lawfully, but does not question who should have custody of the child.
The second group consists of countries which are not bound by the Convention. This includes e.g. Egypt, Iran and a number of other countries. See map. If the child was abducted to a country which is not bound by the Convention, the party whose custody rights were breached (typically the parent who did not consent to removal of the child) must commence traditional child custody proceedings in the given country. Another option is to have the enforceable decision of a Czech court, which decided about custody, recognised in the given country, but in this case other requirements must be met and in some countries this procedure is not possible. Both are generally far lengthier procedures than traditional return proceedings.
How long do the proceedings take and what is their usual course?
a) Return proceedings in the Czech Republic:
Proceedings on returning the minor in the Czech Republic are always conducted before the Municipal Court in Brno, regardless of the child’s factual place of residence in the Czech Republic. It is first necessary to file a motion to commence proceedings, and the court will order the first hearing within 3 weeks. The court then decides as promptly as possible about returning/not returning the child, usually within 6 weeks from commencing the proceedings. If the motion is sustained, the verdict is provisionally enforceable, which means that the parent that came to the Czech Republic with the child must return with the child to the place of usual residence or deliver the child to the other parent immediately after the verdict is reached (or by the deadline stipulated in the verdict).
a) Return proceedings abroad:
Return proceedings conducted abroad are governed by the procedural rules of the given country of proceedings. In the case of a country bound by the Convention, there is a central authority similar to the Czech Office for International Legal Protection of Children.
What are the costs for return proceedings?
In the case of return proceedings conducted in countries which are parties to the Convention, no fees are applied. Each central authority and court bears its own costs and cannot request them from the petitioner. In the case of abduction to a foreign country, it is generally necessary to cooperate with a local legal representative and thus pay the costs for their services.
Read an article: The court handles several international child kidnappings a year. How might it decide in a given case?
Dealing with international kidnappings of children is always a very complicated situation. This is why the family law experts at Frank Bold Advokáti have assembled this overview of how the situation can be handled and how often it occurs.
The term “international child kidnappings” refers to the wrongful relocation or detainment of a child outside of their usual country of residence, without the agreement of their other parent or without the agreement of the court. When this situation occurs, the injured parent can call for a “return procedure” at a court of the country into which the other parent has wrongfully relocated with the child. In these proceedings, the court decides whether to order the returning of the child to their usual country of residence.
The court handles several international kidnappings a year
In the Czech Republic, the Municipal Court in Brno is the exclusive decision-maker in matters of return proceedings, and at the appeals level, the decision is made by the Regional Court in Brno. The Czech Republic does not see a large number of return proceedings; the Regional Court in Brno decides only a few appeals on this matter per se. For example, from January 1st, 2019 to April 1st, 2020, the Regional Court in Brno made eight decisions in this matter. Out of these, in five cases, the lower instance had decided to require the returning of the child to their country of origin, and only in three cases had the proposal for returning the child been rejected. On the basis of these appeals, the Regional Court then changed the previous decision a single time, rejecting the proposal for the returning of the child, while confirming the decision of the Municipal Court in Brno five times, and suspending the appeal procedure twice due to withdrawals of appeals.
When the court decides, in a return procedure, to have a child returned to the country from which they were relocated, it often places upon the requesting parent an obligation to fulfill a so-called guarantee. These guarantees are to be fulfilled by them if the parent who relocated the child out of the country without authorization decides to return with the child. Their aim is to ease the return to the country and ensure safety. These guarantees are most frequently:
- an obligation to provide accommodations for the other parent and child,
- an obligation to pay child support for the child, and/or
- an obligation not to remove the child from the care of the returning parent.
Meanwhile, the court typically does not impose an obligation to return a child to their country of usual residence in cases where the parent that has relocated the child can prove to the court that the relocation out of their country of usual residence took place with the other parent’s agreement. Written agreement is not needed, but proving agreement is more difficult without it.
Exceptional Cases of Rejecting the Returning of a Child
In recent years, Czech courts have also refused to impose the obligation to return a child in cases where they have reached the conclusion that ordering the return would have worse outcomes for the minor child than the kidnapping itself, as the returning and the further destabilization of their environment would endanger their health over time. Their return would simultaneously reduce the ability of the “kidnapping” parent to care for them due to health problems, which would place the child in an unbearable situation. Because the child would be faced with serious danger through their return, the courts have, in these cases, applied one of the exceptions listed in art. 13 of the Hague Convention that allow rejection of the returning of a child. These exceptions tend to be applied only rarely.
Possible reasons for rejection include, among others:
- the child does not wish to be returned (for children roughly 8 years and up),
- the child has been a victim of violence from the parent demanding their return,
- the child does not have suitable living conditions provided for in their country of usual residence,
- the parent requesting the return of the child has not formed any kind of relationship with the child,
- the return of the “kidnapping” parent would destabilize them in their parental role to such an extent that they would not be able to care for the child (due to mental illness, post-traumatic syndrome, etc.)
- the child has become accustomed to their new environment, and it has been shown that child is unadaptable,
- the “kidnapping” parent has asylum in the country where they have taken shelter.
However, a combination of several of these factors is typically needed in order to reject the returning of a child.