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.
Author: Frank Bold Advokáti