About the unlawful removal or retention of a child

© Claudius Law Office

The lawyers of Claudius Law Office Keiu Roosimägi and Andrei Antosijev successfully represented a client in a case wherein a child born out of a marriage of the American father and Estonian mother lived alternately in the United States and Estonia with the parents. The parents divorced and the child returned to the States in the middle of 2016 in order to go to school there and live with the father. The child came to Estonia in June 2017 to visit the mother for the summer holiday, but in August 2017, the mother informed the father by e-mail that despite the parents’ agreement that the child will return to the United States after a holiday with the mother, the child will remain in Estonia and start school in Estonia. The mother also initiated proceedings in Estonia for partial termination of joint custody and its delivery to the mother. In no letter preceding the summer holiday did the mother indicate that the child should stay living in Estonia after the holiday. Therefore, the father had no reason to believe that the child would not return to the United States when sending the child to Estonia. The child wrote to the court in their own hand that they consider themselves to be an American.

According to the new version of the Estonian translation of the Convention on the Civil Aspects on International Child Abduction, article 1, the objects of the Convention are:

1. to secure the prompt return of children wrongfully removed to or retained in any contracting state; and
2. to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other Contracting States.

According to Article 3 of the Convention, THE REMOVAL OR THE RETENTION OF A CHILD IS TO BE CONSIDERED WRONGFUL where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention (a); and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention (b).

Tallinn District Court ruled that the child is to be returned to the United States of America and established the performance procedure for the return.

The Supreme Court explained that:

1) According to the Council Regulation (EC) No 2201/2003, Art 61, the regulation applies ONLY where the child concerned has their habitual residence on the territory of an EU member state. Otherwise, COURT JURISDICTION is to be verified based on INTERNATIONAL AGREEMENTS BINDING for the Republic of Estonia. According to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Hague Convention of 1996), Article 5 (1), the DISPUTE OVER CUSTODY is in the jurisdiction of the Estonian court ONLY if the habitual residence of the child is in the Republic of Estonia at the time of submitting the application.

2) A child CANNOT HAVE SEVERAL HABITUAL RESIDENCES, and the district court COULD NOT determine the court jurisdiction based on THE PLACE OF RESIDENCE OF THE CHILD. The definition of the habitual residence of a child has been thoroughly addressed by the college in a resolution made in civil matter no 3-2-1-109-12 of 10 October 2012.

3) As the father filed an application to the County Court for returning the child to the United States of America, THE COUNTY COURT WAS NOT ALLOWED to decide on the partial termination of joint custody until it was decided that the child is not returned (Hague Convention of 1980, Art 16). As the court ruling of the District Court, which entered into force, resolved to return the child to the United States of America, the courts had determined that the habitual residence of the child was in the United States. Due to the above, the matter of the custody also cannot be in the jurisdiction of the Estonian court according to Art 5 (1) of the Hague Convention of 1996. Therefore, the District Court had correctly agreed to the conclusion of the County Court that the application of the mother for partial termination of custody is to be rejected according to § 432 (1) 13) of the Code of Civil Procedure (abbreviated TsMS).

Claudius Law Office would also like to highlight the following:

1) According to Art 16 of the Hague Convention of 1980, after receiving notice of a wrongful removal or retention of a child, the judicial or administrative authorities of the contracting state to which the child has been removed shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned or unless an application is not lodged within a reasonable time following receipt of the notice. This provision prohibits, until the resolution of the matter of unlawful removal of the child or the passing of reasonable time for submitting an application, for the court of the state to which the child was removed to resolve the issue of the custody over the child, BUT DOES NOT PROHIBIT TO DECIDE ON CUSTODY in the country from which THE CHILD WAS WRONGFULLY REMOVED at the same time.

2) The objective of the convention is to protect the child internationally from the harmful consequences of their wrongful retention, PREVENT SITUATIONS where moving the child to another state would give the parent who is with the child ADVANTAGES IN SHARING CUSTODY, considering the specificities of parental rights and obligations of countries, and DECREASE SITUATIONS where THE CHILD IS USED TO WOUND THE OTHER PARENT. The best interests of the child are considered to be their PROMPT RETURN to the habitual residence, as the court of the habitual residence of the child is the most competent in deciding over the future of the child.

3) Due to the objective of the Convention, the child wrongfully removed or retained to another contracting state is generally to be promptly returned. According to Art 13 (1) b of the Convention, the wrongfully removed or retained CHILD MAY NOT BE RETURNED ONLY UNDER EXCEPTIONAL CIRCUMSTANCES, incl. if returning the child would severely damage the child’s wellbeing. In doing so, this must be GRAVE RISK to the child’s wellbeing, which is SUFFICIENTLY SPECIFIC and LIKELY. The broad interpretation of the basis for refusing to return the child based on Art 13 (1) b of the Convention, inter alia, would damage the objective of the Convention. (RKL 3-2-1-123-06)

4) The CHILD’S OPINION is to be weighed appropriately in assessing their best interests, judging their views according to their age and maturity. Considering the child’s developing capabilities is unavoidable in respecting the child’s rights. The older and more mature the child, the more their opinion must be considered. The child’s opinion must be asked and considered also upon balancing separate interests.

5) Advisors to the Chancellor of Justice Andres Aru and Kristi Paron have highlighted in their article “The child’s best interests” (JURIDICA VI/2015) that “when a decision concerning a specific child needs to be made, then the decision procedure must contain an ASSESSMENT on the POSSIBLE IMPACT OF THE DECISION (positive or negative) on the child concerned. Assessing and determining the best interests of the child requires procedural guarantees. Moreover, the reasons for the decision must highlight that the CHILD’S RIGHTS are directly CONSIDERED. Considering the above, contracting states must explain how this law has been taken into account in the decision, i.e. what has been treated as being in the child’s best interests, on what criteria is the decision based and how the child’s interests are weighed against other circumstances. /---/ The Convention aims to direct decisionmakers to pay closer attention to how a decision impacts children before it is made. Before the making of a decision, not only its potential impact on children are to be analysed, but the decisionmaker also needs to be able to show that it is done. /---/ If the decision differs from the child’s opinion then the reason must be clearly expressed. If, as an exception, it occurs that the selected resolution is not in the child’s best interests then it must be convincingly indicated why the child’s best interests did not turn out to carry more weight than the other circumstances. IT IS NOT SUFFICIENT to mention in general terms that other circumstances were preferred over the child’s best interests.”

6) In addition, we point out: in doing so, the CHILD IS NOT TO BE RETURNED to the other parent under this Convention, but the child is generally to be returned to the country of their habitual residence, i.e. RETURNED TO THE STATE.

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

The photo is illustrative