It goes without saying, that for international couples the issues related to their common children are of vital importance. Unfortunately, even very strong marriage ties sometimes tend to break causing a wave of clashes and legal disputes between former spouses.
In practice, it happens quite often that one of the spouses leaves the country with his or her child without any prior consent from another spouse. In such a case the Hague Convention on the Civil Aspects of International Child Abduction comes on the scene and can be applicable (more than 100 countries of the world are parties to this Convention). A spouse is entitled to lodge a claim for the return of the unlawfully removed child before the competent court of the country where his or her child is retained. That fact causes a question: are there any possibilities to get back the child if such a claim has been dismissed.
Child abduction case dismissed by court in Poland – how to have the child returned ?
Apart from an appeal procedure within a country’s domestic legal system there is a certain mechanism at the European Union level which might help to get your child back. Such mechanism exists pursuant to the Brussels II Regulation (EC) No 2201/2003, and obliges the court deciding to refuse the return of the child on the basis of Hague Convention to transmit a copy of the decision to the competent court of the country of the child’s habitual residence before the abduction took place (article 11(6) of the mentioned Regulation). This rule is applied even in case there are parallel proceedings on the child’s custody in both countries and, despite the fact, the non-return decision might be appealed.
The court of a former habitual residence of the child receives the documents and invites the parties to make submissions within 3 months. Then, there are two opportunities: either none of the parties submits the comments and the case is closed, or at least one party submits the comments as to the effects and the court examines the case on the merits.
The court of the place of former habitual residence of the child might decide to return the child to the referring spouse. The decision of the court is accompanied by a special certificate and is recognizable in the whole Union. However, the court’s decision might not entail the return of the child. In that case the courts of the country where the child is retained take the jurisdiction.
Child abduction case dismissed by court in Poland – Enforceability of the judgement on returning the child in another country.
It should be admitted that due to the Brussels II Regulation (particularly article 11 paragraph 8) all the judgments requiring the return of the child and made by the competent court are recognizable and enforceable throughout the EU. This provision is applicable to the cases where, firstly, the return of the child has been refused by the court under article 13 of the Hague Convention.
It means that the non-return decision and even failed appeal of that decision in one state does not deprive the applicant of chances to get back the child.
In practice, the cases connected with the abduction of the child and retaining him or her in another country might be quite complicated and stressful. That is why in such situations it is especially important to consult a lawyer competent in international family law as soon as you can.