By Nicholas S. Hammond, managing partner Hammond, Minciu & Associates
There have been many articles written concerning the implementation of The Hague Convention on child abduction. All countries have come into some criticism and Romania has not been immune.
The 1980 Hague Convention is applicable in all European Union member states and covers children under 16 years of age who are moved from their regular country of domicile to another country, or remain in this second country. The movement or retention of the child is made in breach of the wishes of the parent who has custody of the child. Under the Convention the right of parental authority includes the right to decide where the child will have its permanent residence.
If parents exercise their parental rights together i.e. they have common rights and obligations regarding the child this means that one of the parents cannot unilaterally decide the residence of the child. The keeping of a child by one of the parents in a country against the wishes of the other parent who has joint custody violates the provisions of the Convention.
If such an event occurs then the procedure to be followed requires the authority where the child has their normal residence to intervene and request the child’s return. The procedure under the Convention is a procedure for the return of the child wrongfully retained in one country to be returned to the country where it has its habitual residence. Therefore, any action is brought by the relevant authority of the Country of the normal residence of the child.
The Convention requires that any action must be brought within one year of the unlawful retention. The time limit of one year is crucial as the return of the child will always be in its interest. After one year the child will have become settled in a new environment, it would be in its interest for there to be an order for its return to the place of its habitual residence.
A failure by the authorities to make adequate and effective efforts to secure the return of a child has been held to be a violation of article 8 (right to respect for private and family life) of the European Convention of Human Rights (Ignaccolo-Zenide v. Romania, Bianchi v. Switzerland, Karrer v. Romania, Blaga v. Romania).
The procedure is for the authority where the child has its normal residence on the request of the parent who wishes for the child to be returned to contact the Romanian Ministry of Justice who are the central authority to start proceedings related to child abduction. The Romanian Ministry of Justice will then refer the issue to Court who will decide on the return of the child.
Once a decision has been given in a child abduction procedure ordering the return of the child to its place of normal residence it is enforceable. This means if the decision is in favour of the parent who requested the proceedings then they can start the enforcement proceedings for the return of the child if the other parent does not accept and comply with the provisions of the Romanian court decision.
Under the previous Romanian Civil Procedure Code, it was possible to remove by force a child during the enforcement proceedings if the parent refused to comply with the provisions of the decision. Taking the child by force was possible even if the child refused to go with the other parent.
Under the New Romanian Procedural Code the forcible removal of a child is no longer possible. The new procedural provisions do not allow the authorities to physically enforce or frighten a child to enforce an order. The only civil sanction is a fine against the parent who refuses to comply with the decision.
In the enforcement procedure in the cases where the decision is not complied with the bailiff who is charged with enforcing the decision will ask the Court to establish daily financial penalties against the person who must comply with the decision.
If the child still refuses to go to the parent who obtained the decision in their favour the child will undergo psychological counselling, for a period no longer than three months. The bailiff can also notify the prosecutor’s office to commence a criminal case for the offence of failure to comply with a court order.
Romanian legal proceedings on the enforcement of child abduction decisions can take a long time compared with other legal systems. The Report prepared by the U.S. State Department entitled “Annual Report on International Parental Child Abduction” talks about a pattern of noncompliance when referring to Romania, without indicating any specific decisions in this regard and comparing the Romanian legal system to the US legal system.
Given the fact that the Romanian authorities are not able to physically force and deliver the child to the parent who obtained the order a court decision can be of little comfort. Such parent will incur significant time and expense to give effect to the provisions of such decision with the likelihood that a successful conclusion will be obtained. The decision will depend on the circumstances of both parties and the assessed likely outcome.
Delay is extremely prejudicial to the claim of the parent who obtained the order and not in in the best interest of the child. Although the Romanian courts may rule upon child abduction cases in a timely manner, the enforcement proceedings can take a long time especially when the child refuse to return to the parent or when the other parent refuses to comply with the court decision.
The fact that the Romanian authorities are not allowed to physically apprehend the child emasculates the powers of a court and the application of The Hague Convention. There is therefore no tangible or significant risk for a parent withholding the children, except the sanctions mentioned above.
Any parent who has a child custody order in a Foreign jurisdiction or a joint custody order with the other parent should consider very careful in allowing a child or children to be brought to Romania, for if at present the parent who brings the child to Romania changes their mind they can be in a strong position regarding the keeping of the child in Romania.
As with all matters concerning children nothing should happen without carefully considering all legal aspects.