Općinskisud u Rijeci (Municipal Court of Rijeka)
27 July 2016
Overturned on appeal
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Issues Relating to Return | Procedural Matters
Family Act (Official Gazette, No. 103/15, Art 91, 92, 240(1)2), 445(4)
Civil Procedure Act (Official Gazette, 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11, 148/11, 25/13, 89/14), Art 335(4)
1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents– Father national of Croatia and Germany – Mother national of Croatia – Joint parental responsibility according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return refused – Main issues: Art. 13(1)(b) grave risk exception to return, Objections of the Child to a Return, Procedural matters – The Court refused the request for return of the child under Art. 13(1)(b) of the 1980 Hague Child Abduction Convention.
The procedure for the return of the retained child was initiated by the father. The mother came to Croatia in December 2015 to assist with the care of her sick mother. With the express consent of the father, the child came with the mother. She owned a flat in Croatia and began actively looking for a job while staying there. The child was enrolled in and attended a local kindergarten. In February 2016 the mother informed her husband that she would remain permanently in Croatia. The father initiated the procedure for the return of the child, by filing a return application with the German Central Authority in March 2016. The Croatian Central Authority submitted a request to the Social Welfare Centre (the relevant competent authority) to encourage the voluntary return of the mother and child to Germany. The mother refused to return voluntarily. The child was five years old at the time of the proceedings. The judicial proceedings in Croatia commenced on 30 May 2016.
The Court refused to grant the request for return of the child, holding that Art. 13(1)(b) of the Convention applied.
Mirela Župan, PhD, Associate Professor , Chair for Private International Law, Faculty of Law University of Osijek
Martina Drventić, research assistant at IZIP project, Faculty of Law University of Osijek
It was not contested by either of the parties that the mother took the child with the consent of the applicant, and that she subsequently retained him in Croatia against the will of the father. The Court assessed the wrongfulness of the child’s movement, as prescribed by Article 3 of the Hague Convention. However, the court did not assess whether the movement of a child was legal or wrongful, under the domestic law of the last State of habitual residence of the child (i.e. Germany), but rather under Articles 91 and 92 of the Family Act (Official Gazette No. 103/15) of Croatia. The Court explained that, despite the provisions of Hague Convention and the established fact that the last joint residence of the spouses, as well as of the child, was in Germany, it applied Croatian substantive law to determine custody rights because the parties were married in Croatia and the parents and child were all Croatian nationals.
The child’s retention in Croatia was held to breach the father’s rights of parental responsibility, which he shared with the mother under the law of the State in which the child had been habitually resident immediately before the removal and subsequent retention (Article 1626 of the German Civil Code). The retention was therefore found to be unlawful. In its analysis of the grounds for refusal to order return, the Court concluded that conditions for application of Art. 13(1)(b) had been met and that there was a grave risk of exposing the child to physical or psychological harm. The Court took into account available evidence (including Social Welfare Reports, minutes and opinions; evidence from the German kindergarten; e-mails of the applicant; SMS messages; photographs; medical statements; and expert opinions of the clinical psychologist, psychotherapist, and children’s home in Rijeka), as well as the opinion of the child and the social report issued by the Social Welfare Centre (see below: Objections of the Child to a Return).
The Court asked the Social Welfare Centre to examine and determine, having regard to his age and maturity, whether the child was opposed to return, and whether such a decision would affect his mental development and cause trauma. The report suspected that there had been domestic violence in the family home. Since information about the earlier family life of the child was lacking, it was unable to definitively answer to the questions posed by the Court. The child was noted to have polarised views of his parents: he claimed his father beat him and hence that he did not want to return, whereas his regard for his mother was completely positive. At the time the social report was drafted and the psychological examination conducted, the child and the father had been separated for six months, with no contact between them occurring during this period.
A special guardian was appointed to the child. Under Croatian law special guardians are obliged to: represent a child in the procedure for which is appointed; inform a child about the subject of the dispute and its course and outcome, in a manner appropriate to the child's age; and if necessary, to contact with the parent or other persons close to the child. The special guardian urged the Court to request the use of Central Authority co-operation measures to ascertain whether any social care measures had been taken to monitor the exercise of parental care over the child or whether any reports of domestic violence had been made in Germany. In addition, the special guardian asked the Court to request information on the measures that could be taken to ensure protection of the child if return were to be ordered. The special guardian expressed concern over the possible return of the child due to the illness of the father, noting that there was a lack of objective information on his condition and ability to care for the child. The special guardian further shared her concern and doubts about possible manipulation of the child’s views by the mother, noting that the truthfulness of the information presented to the child was in question.
The applicant father was not able to travel to Croatia and participate in the court proceedings for medical reasons. Instead, the father sent a written submission of his statements via the Central Authority.
M. Župan, M. Drventić, ‘Kindesentführung vor kroatischen Gerichten mit besonderer Rücksicht auf die aus Deutschland kommenden Anträge’, Revija za evropsko pravo 1, 2018, p63 (M Župan, M Drventić, ‘Child Abduction in Croatian Courts with a Special Focus on Cases from Germany’, Journal of European Law 1, 2018, p63)
T. Hoško, ‘Child abduction in Croatia: before and after the European Union legislation’ in: Mirela Župan (ed.), Private International Law in the Jurisprudence of European Courts - Family at Focus, Pravni fakultet Osijek, 2015.
M. Župan, T. Hoško, ‘Operation of the Hague 1980 Child Abduction Convention in Croatia’ in: Mirela Župan (ed.), Private International Law in the Jurisprudence of European Courts - Family at Focus, Pravni fakultet Osijek, 2015.
M. Župan, P. Poretti, ‘Concentration of jurisdiction in cross-border family matters – child abduction in focus’ in: Mario Vinković (ed.), New Developments in EU Labour, Equality and Human Rights Law, Pravni fakultet Osijek, Osijek, 2015.
I. Medić, T. Božić, Haška konvencija o građanskopravnim aspektima međunarodne otmice djeteta (1980) – casus belli, in: Branka Rešetar (ed.), Pravna zaštita prava na (zajedničku) roditeljsku skrb, Pravni fakultet Osijek, 2012. (I. Medić, T. Božić, ‘The Hague Convention on the Civil Aspects of International Child Abduction - Casus Belli’ in: Branka Rešetar (ed.), Legal Protection of the Right to (Joint) Parental Care, Osijek Faculty of Law, 2012).