Županijski sud u Zagrebu
Tribunal de Apelaciones
11 October 2016
Case remitted to lower court
Reglamento Bruselas II bis Reglamento (CE) No 2201/2003 del Consejo
Devolución de la causa al tribunal inferior
Brussels II a Regulation, Art 10, 11, 60
Charter of Fundamental Rights of the EU, Art 24(3)
Civil Procedure Act (Official Gazette, No. 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 8, 354(2)6), 380(3)
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 custody according to the German Civil Code and under Croatian law – Child lived in Germany until December2015 – 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 - The Court granted the appeal, set aside the first instance judgment and remitted the case for a new trial to the court of first instance – Main issues: Rights of Custody, Brussels IIa Regulation –The first instance court should have applied the Brussels II a Regulation, including its requirement for return to be ordered in Art. 13(1)(b) cases in which it has been established that adequate arrangements have been made to secure the protection of the child upon his return.
The procedure for the return of an unlawfully retained child was initiated by the father through the German Central Authority. 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 along with the mother. The mother 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 permanently stay in Croatia. Father initiated the procedure for the return of the child, by filing a return application with the German Central Authority in March 2016. The return proceedings before the Croatian courts commenced on 30 May 2016. The Municipal Court of Rijeka, No. R1 Ob-336/16 of 27 July 2016 (INCADAT Reference 1392) refused the request for the child’s return. The grounds for this refusal was held to be Art (13)( 1) (b) of the 1980 Hague Child Abduction Convention, based on evidence of physical violence and unstable circumstances due to the long-term psychiatric hospitalization of the father.
The first instance court decision was appealed by the applicant father and the special guardian that had been appointed to the child. The special guardian alleged that there had been substantial violation of the rules of civil procedure, an incomplete an erroneous establishment of the facts, and misapplication of substantive law.
The County Court upheld the appeals, abolished the first-instance decision and remitted the case to the first instance court for a new trial.
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
The Court considered the appeals founded. It accepted the facts as partially established by the first instance court, held that the Brussels II a Regulation should have been applied, and that the applicant had not been heard even though he had requested a hearing (and it would have been possible under the framework of Regulation 1206/2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters). The Court further held that Article 11(4) of the Brussels IIa Regulation—which provides that return cannot be refused under Article 13(1)(b) of the 1980 Hague Convention “if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”—should have been considered before making the final order refusing return.