Cross-Border Removal and Retention of a Child – Croatian Practice and European Expectation

Župan, Mirela; Drventić, Martina; Kruger, Thalia

doi:10.1093/lawfam/ebz019

Cited by 4 publications

(3 citation statements)

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“…There was an attempt in the wording of the Brussels IIbis Recast Proposal providing that the Central Authorities should complete their acting of preparing the file to be transferred to a court in six weeks, save where exceptional circumstances make this impossible. 24 Such provision has not become part of the new Brussels IIter Regulation, which merely states that such authorities should act expeditiously. 25 In some Contracting States the implementing legislation sets time limits for various stages of legal proceedings which can include the acting of the Central Authority.…”

Section: The Operation Of Eu Central Authoritiesmentioning

confidence: 99%

Covid-19 Challenges to the Child Abduction Proceedings

Drventić

2021

EU 2021 – The Future of the EU in and After the Pandemic

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While creating a new notion of everyday life, the COVID-19 pandemic also affects the resolution of cross-border family disputes, including the international child abduction cases. The return of an abducted child to the country of his or her habitual residence is challenged by travel restrictions, international border closures, quarantine measures, but also by closed courts or cancelled hearings. Those new circumstances that befell the whole world underline two issues considering child abduction proceedings. The first one considers access to justice in terms of a mere possibility of the applicant to initiate the return proceeding and, where the procedure is initiated, in terms of the manner of conducting the procedure. The legislation requires a quick initiation and a summary resolution of child abduction proceedings, which is crucial to ensuring the best interests and well-being of a child. This includes the obligation of the court to hear both the child and the applicant. Secondly, it is to be expected that COVID-19 will be used as a reason for child abduction and increasingly as justification for issuing non-return orders seen as a “grave risk” to the child under Article 13(1)(b) of the Child Abduction Convention. By analysing court practice from the beginning of the pandemic in March 2020 to March 2021, the research will investigate how the pandemic has affected child abduction proceedings in Croatia. Available national practice of other contracting states will also be examined. The aim of the research is to evaluate whether there were obstacles in accessing the national competent authorities and courts during the COVID-19 pandemic, and in which manner the courts conducted the proceedings and interpreted the existence of the pandemic in the context of the grave risk of harm exception. The analyses of Croatian and other national practices will be used to gain an overall insight into the effectiveness of the emerging guidance and suggest their possible broadening in COVID-19 circumstances or any other future crises.

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Section: The Operation Of Eu Central Authoritiesmentioning

confidence: 99%

Covid-19 Challenges to the Child Abduction Proceedings

Drventić

2021

EU 2021 – The Future of the EU in and After the Pandemic

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“…19601/16, 2.5.2019. For the analysis of national legislation and court practice on child abduction, see: (Tomljenović and Kunda 2010;Župan and Ledić 2013;Hoško 2015;Župan and Hoško 2015;Župan et al 2019.7 According to Article 1626a of the German Civil Code, the mothers of children born out of wedlock have sole custody and fathers have no right unless both parents agree on joint custody or the court imposes it.…”

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confidence: 99%

Continuity of Parental Responsibility in Child Abduction Cases: Lesson Learned from the Case of Z. v. Croatia

Župan,

Drventić Barišin

2023

Laws

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The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the ex lege right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of Z. v. Croatia raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case.

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“…28 Sud uočava kako je zahtjev za povrat djeteta bio ispitan pred instancijskim sudovima i da nije zakazano niti jedno ročište. 29 U odnosu na to, ESLJP navodi kako zahtjevi učinkovitosti i ekonomičnosti sami po sebi ne mogu opravdati neprovođenje rasprave, osim ako se predmet odnosi na izričito pravna ili iznimno tehnička pitanja ili ako ne postoje pitanja vjerodostojnosti niti sporne činjenice zbog kojih bi trebalo provesti raspravu, pa sudovi mogu pošteno i razumno odlučiti o predmetu na temelju tvrdnji stranaka i drugog pisanog materijala. 30 Zaključuje kako takve izvanredne okolnosti nisu postojale u ovom predmetu 31 te u konačnici odlučuje kako je došlo do povrede čl.…”

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Izvršenje presuda Europskog suda za ljudska prava u građanskopravnim međunarodnim otmicama djece u Republici Hrvatskoj – nova otvorena pitanja

2021

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The European Court of Human Rights (ECtHR) established a violation of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in several cases of international parental child abduction before Croatian courts. The length and the manner in which the proceedings concerning the return of the child were conducted constituted grounds for establishment of a violation of the right to a fair trial and the right to respect for private and family life. The execution of these judgments is still pending before the Committee of Ministers, despite the fact that the measures ordered resulted with a modified Croatian legal regime introduced through the Act on the Application of the Convention on the Civil Aspects of International Child Abduction. The Act includes a number of procedural improvements which align the practice of Croatian courts with international and European standards. However, the judgment of the ECtHR in Adžić v Croatia (no. 2) reveals that there is still no unambiguous answer to the question whether extraordinary appellate proceedings should be permitted in child abduction cases. Hence, the authors critically analyse the possibility of initiating an extraordinary appellate proceedings in these cases from a civil procedure and private international law aspect. The conclusion takes into account the specific circumstances of the case at hand as well as the case law of the ECtHR in relevant cases concerning other contracting states.

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Cross-Border Removal and Retention of a Child – Croatian Practice and European Expectation

Cited by 4 publications

References 4 publications

Covid-19 Challenges to the Child Abduction Proceedings

Covid-19 Challenges to the Child Abduction Proceedings

Continuity of Parental Responsibility in Child Abduction Cases: Lesson Learned from the Case of Z. v. Croatia

Izvršenje presuda Europskog suda za ljudska prava u građanskopravnim međunarodnim otmicama djece u Republici Hrvatskoj – nova otvorena pitanja

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