International child abduction

Facts and circumstances of the case

In the year 2001, the undivorced mother together with her minor children (citizens of the Czech Republic and of Argentina), without the consent of her husband, left Buenos Aires, where the family had been living, for the Czech Republic, from where the mother originated. The father petitioned the Czech courts to return the children to their usual place of residence. Despite the existence of an enforceable judgment, the execution of the same took longer than three years to carry out. The medialisation of the case engendered in Czech society a sense that injustice was served against the mother and children when they were forcefully removed and returned to Argentina. Only few people were aware that the mother had in fact abducted her own children.

Legal framework

The legal framework on which the Ombudsman based his findings consisted of the following:

1) The Hague Convention on the Civil Aspects of International Child Abduction – the interests of the child are of paramount importance. The aim of the convention is to promptly return children to the place of their usual residence.

2) Convention on the Rights of the Child – the main consideration of any activity undertaken by the state should be the interests of children. According to article 11 parties are obliged to take measures to combat the illicit abduction of children.

3) European Convention on the Exercise of Children’s Rights – during a proceedings the child should receive all relevant information from the court and other government authorities. Where there are actions carried out by a state body, it is necessary to work expeditiously in order to avoid any unnecessary delays. In urgent situations the court must have the authority to render a decision that might be executed immediately.

4) Convention on Contact Concerning Children

5) Czech laws: The Code of Civil Procedure (no. 99/1963, Coll.), the Act on the Social and Legal Protection of Children (no. 359/1999, Coll.), and the Family Act (94/1963, Coll.).

6) Council Regulation (EU) no. 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.

The Ombudsman has come to the conclusion that the Hague Convention on the Civil Aspects of International Child Abduction constitutes a special legal adjustment to the Convention on the Rights of a Child. The aim of the Hague Convention is to promptly restore the original stable situation existing prior to the abduction, i.e. to return the child as soon as possible to the place of habitual residence in order that any amendment regarding the relationship between both parents and the child be subsequently decided upon fairly and under equal conditions. The return of an abducted child is the responsibility of the State. Government authorities must also provide sufficient information to the child and allow regular contact of the child with the parent from which the child has been separated. In this case regarding the bringing of children from Argentina, the case was settled even before the EU Council Regulation no. 2201/2003 entered force and prior to the accession of the Czech Republic to the European Union.

Conclusions of the Ombudsman

The court proceedings were inadequately lengthy. One reason for this could be the complicated nature of the case (foreign element), the obstructive behavior shown by the attorney representing the mother of the children and by the mother herself, the approach taken by the social worker, the indecisive approach by the court namely in the execution proceedings, and also the insufficient level of organization of work shown by the Supreme Court of the Czech Republic (the file was in the court’s hands for about 13 months).

Throughout the case it was symptomatic that the mother was not instructed in a timely fashion of the meaning of the Hague Convention; she therefore acted of her own accord and interfered with a court judgment. From the behavior of the mother and her entourage (and also the media, public reaction and the behavior of certain government authorities and civic institutions) it was clear to see that she had not understood the situation. As a result of this, the return of the children to Argentina took place after an unreasonable period of time and under conditions that were highly traumatizing, especially for the children.

During the proceedings, the mother used all procedural rights available to her. She observed, naturally, her own interest in keeping the children with her for as long as possible, to delay the final verdict and the execution of the judgment – the removal of the children and their return to Argentina. Neither her legal representative, nor the socio-legal child protection authority explained to her that the judgment was an interim order, and not a decision on the relationship with the child (placing of the child in care, maintenance, etc). This confusion was added to by the social workers who in this case behaved in such a manner that it appeared it had already been decided to place the children in care. Should this have been a judgment on the relationships towards the children at the time of their actual abduction, it would mean that the parent who remained in the place of habitual residence would be placed at a disadvantage and his right to a fair trial would be violated. The impartiality and adherence to the equality of the rights of both parents were not coherently preserved throughout the proceedings.

Proposed remedy

The Ombudsman proposed to all relevant government authorities that they should consider the creation of a model for the court judgment on the return of a child whereby an appeal would not lead to any adjournment. The judgment of a court of first instance would be enforceable immediately. The right to place a constitutional complaint would not be affected by this and the suggested legal arrangement would successfully eliminate elements of arbitrariness, which might preclude the provision of the protection of the interests of the children as per the international obligations and consequently also the Czech law. At the same time instructions as to the procedure to be taken in the execution of a court judgment on the care of minor children should be created for the courts and the authorities.

With the aim of deepening the qualification and level of information of specialist staff, the Ombudsman held a seminar on the questions surrounding the international abduction of children and the application of the Hague Convention. The Ombudsman additionally recommended that the Supreme Court of the Czech Republic carry out a modification to its workload schedule, thereby removing delays in the review petition proceedings.

The proposed measures are being gradually implemented.

International child abduction – the right to a fair trial and the protection of the interests of children

In May 2006, the Public Defender of Rights of the Czech Republic decided on his own initiative to investigate the widely medialised case of children who had been abducted by their mother from Argentina to the Czech Republic. He surveyed the case with regard to the delays in the court proceedings, provision for the interests of the children and adherence to international obligations. It is not the competence of the Czech Ombudsman to review the decision-making activities of courts.

Facts and circumstances of the case

In the year 2001, the undivorced mother together with her minor children (citizens of the Czech Republic and of Argentina), without the consent of her husband, left Buenos Aires, where the family had been living, for the Czech Republic, from where the mother originated. The father petitioned the Czech courts to return the children to their usual place of residence. Despite the existence of an enforceable judgment, the execution of the same took longer than three years to carry out. The medialisation of the case engendered in Czech society a sense that injustice was served against the mother and children when they were forcefully removed and returned to Argentina. Only few people were aware that the mother had in fact abducted her own children.

Legal framework

The legal framework on which the Ombudsman based his findings consisted of the following:

1) The Hague Convention on the Civil Aspects of International Child Abduction – the interests of the child are of paramount importance. The aim of the convention is to promptly return children to the place of their usual residence.

2) Convention on the Rights of the Child – the main consideration of any activity undertaken by the state should be the interests of children. According to article 11 parties are obliged to take measures to combat the illicit abduction of children.

3) European Convention on the Exercise of Children’s Rights – during a proceedings the child should receive all relevant information from the court and other government authorities. Where there are actions carried out by a state body, it is necessary to work expeditiously in order to avoid any unnecessary delays. In urgent situations the court must have the authority to render a decision that might be executed immediately.

4) Convention on Contact Concerning Children

5) Czech laws: The Code of Civil Procedure (no. 99/1963, Coll.), the Act on the Social and Legal Protection of Children (no. 359/1999, Coll.), and the Family Act (94/1963, Coll.).

6) Council Regulation (EU) no. 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility.

The Ombudsman has come to the conclusion that the Hague Convention on the Civil Aspects of International Child Abduction constitutes a special legal adjustment to the Convention on the Rights of a Child. The aim of the Hague Convention is to promptly restore the original stable situation existing prior to the abduction, i.e. to return the child as soon as possible to the place of habitual residence in order that any amendment regarding the relationship between both parents and the child be subsequently decided upon fairly and under equal conditions. The return of an abducted child is the responsibility of the State. Government authorities must also provide sufficient information to the child and allow regular contact of the child with the parent from which the child has been separated. In this case regarding the bringing of children from Argentina, the case was settled even before the EU Council Regulation no. 2201/2003 entered force and prior to the accession of the Czech Republic to the European Union.

Conclusions of the Ombudsman

The court proceedings were inadequately lengthy. One reason for this could be the complicated nature of the case (foreign element), the obstructive behavior shown by the attorney representing the mother of the children and by the mother herself, the approach taken by the social worker, the indecisive approach by the court namely in the execution proceedings, and also the insufficient level of organization of work shown by the Supreme Court of the Czech Republic (the file was in the court’s hands for about 13 months).

Throughout the case it was symptomatic that the mother was not instructed in a timely fashion of the meaning of the Hague Convention; she therefore acted of her own accord and interfered with a court judgment. From the behavior of the mother and her entourage (and also the media, public reaction and the behavior of certain government authorities and civic institutions) it was clear to see that she had not understood the situation. As a result of this, the return of the children to Argentina took place after an unreasonable period of time and under conditions that were highly traumatizing, especially for the children.

During the proceedings, the mother used all procedural rights available to her. She observed, naturally, her own interest in keeping the children with her for as long as possible, to delay the final verdict and the execution of the judgment – the removal of the children and their return to Argentina. Neither her legal representative, nor the socio-legal child protection authority explained to her that the judgment was an interim order, and not a decision on the relationship with the child (placing of the child in care, maintenance, etc). This confusion was added to by the social workers who in this case behaved in such a manner that it appeared it had already been decided to place the children in care. Should this have been a judgment on the relationships towards the children at the time of their actual abduction, it would mean that the parent who remained in the place of habitual residence would be placed at a disadvantage and his right to a fair trial would be violated. The impartiality and adherence to the equality of the rights of both parents were not coherently preserved throughout the proceedings.

Proposed remedy

The Ombudsman proposed to all relevant government authorities that they should consider the creation of a model for the court judgment on the return of a child whereby an appeal would not lead to any adjournment. The judgment of a court of first instance would be enforceable immediately. The right to place a constitutional complaint would not be affected by this and the suggested legal arrangement would successfully eliminate elements of arbitrariness, which might preclude the provision of the protection of the interests of the children as per the international obligations and consequently also the Czech law. At the same time instructions as to the procedure to be taken in the execution of a court judgment on the care of minor children should be created for the courts and the authorities.

With the aim of deepening the qualification and level of information of specialist staff, the Ombudsman held a seminar on the questions surrounding the international abduction of children and the application of the Hague Convention. The Ombudsman additionally recommended that the Supreme Court of the Czech Republic carry out a modification to its workload schedule, thereby removing delays in the review petition proceedings.

The proposed measures are being gradually implemented.