AKMV 
Parental child abduction is a situation where one parent unlawfully relocates a child abroad without the consent or permission of the other parent, or without court approval for such relocation. Such situations occur in various cases, for example, when a mother flees with a child to escape violence, or when one parent attempts to obtain custody of the child without following proper legal procedures.
According to Article 3 of the Convention on the Civil Aspects of International Child Abduction (Notice No. 119/2001 Coll.), adopted at The Hague on 25 October 1980, in force for the Slovak Republic since 1 February 2001, the removal or the retention of a child is to be considered wrongful in the following cases:
„The removal or the retention of a child is to be considered wrongful where—
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or individually, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were operating, either jointly or individually, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Legal regulations
In matters regarding the relocation of a minor child abroad, as well as other essential matters concerning the child, Section 35 of the Act on the Family applies, providing that: „If the parents do not agree on essential matters related to the exercise of parental rights and responsibilities, in particular on the relocation of a minor child abroad, the administration of the minor child’s property, the minor child’s citizenship, the granting of consent to the provision of healthcare, and the preparation for a future profession, the court shall decide upon the application of either parent.”
Essential issues concerning the child’s matters must always be approved by both parents. Even if either parent—provided they have full legal capacity and have not been deprived of the exercise of parental rights and responsibilities—is the legal representative of their child, this does not mean that representation by one parent alone without asking for the other parent’s opinion would suffice in all cases. If an essential matter is at stake, it is necessary to ascertain the opinion of the other parent as to whether they agree with the representing parent’s declaration. Should a parent express disagreement, the conditions for proceeding pursuant to Section 35 of the Act on the Family would be met. Thus, in the event of a disagreement between the parents regarding what is in the best interest of the child, the court shall decide upon the application of either parent. It is necessary to emphasize here that an “essential matter” should be understood not only as something that is objectively essential in legal life (e.g., legal representation), but what is essential both for the parent and, above all, for the child. Judicial practice over the last almost 60 years has established that essential matters always include the relocation of a minor abroad, the administration of their property, the citizenship of a minor child, the granting of consent to the provision of healthcare, preparation for a future profession, or a change of the minor’s first name or surname. However, this does not preclude the court from assessing another question related to the minor as an important issue. The enumeration in this provision is non-exhaustive; the court may also deem another issue not listed in this section to be an essential matter. However, the court must always address whether it is indeed an essential issue, as this requirement is a substantive legal condition for the court to decide on the matter at all. (Source: Pavelková, B.: Zákon o rodine. Komentár. 3rd edition. Bratislava: C. H. Beck, 2019, pp. 209–210)
At the international level in the field of child protection, the following legal acts also address this issue:
- Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility
- Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention (hereinafter referred to as the “Convention”)
- Regulation (EC) No 1347/2000
- Brussels II Regulation
What legal remedies are available to a parent whose child has been abducted?
Under the Convention on the Civil Aspects of International Child Abduction, a parent has the right to submit an application for assistance in securing the return of the child to a central state administration authority, which in the Slovak Republic, pursuant to the aforementioned Convention, is the Centre for International Legal Protection of Children and Youth in Bratislava.
„Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.”
The role of the Centre is to determine the child’s whereabouts and assess their social situation. Furthermore, its task is to secure the voluntary return of the child or to mitigate the situation in a manner that minimizes the child’s distress. If it is not possible to resolve the situation in this way, it is advisable to proceed to the next step, which is initiating proceedings for the return of the minor child.
„Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures—
a) to discover the whereabouts of a child who has been wrongfully removed or retained,
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures,
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues,
d) to exchange information relating to the social background of the child, if it is considered desirable to do so,
e) to provide information of a general character as to the law of their State in connection with the application of the Convention,
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access,
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers,
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child,
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
Proceedings for the return of a minor child
In these proceedings, the court considers whether or not to order the return of the child, and does not decide on child support, access rights, or similar matters. In the proceedings, the court examines whether the relocation of the child was indeed wrongful and in which state the child has their habitual residence. An application for such proceedings must include the following particulars:
„The application shall contain—
a) information concerning the identity of the applicant, the child and the person alleged to have removed or retained the child,
b) where available, the date of birth of the child,
c) the grounds on which the applicant’s claim for the return of the child is based,
d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be, the application may be accompanied or supplemented by,
e) an authenticated copy of any relevant decision or agreement,
f) a certificate or an affidavit emanating from a Central Authority or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State,
g) any other relevant document.”
At the same time, it should be noted that the Convention establishes an age threshold of 16 years for the child.
„The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
Should you require legal consultation regarding this issue, feel free to contact us.
