Živković Samardžić’s Dispute Resolution team, led by associate Ana Jovanović, has successfully concluded another child return proceeding under the Hague Convention on the Civil Aspects of International Child Abduction.
Although the particularly sensitive nature of these proceedings prohibits us from disclosing the specific circumstances of the case, their successful conclusion, however, provides a good opportunity to reflect on some of the challenges that arise in the practical application of the Hague Convention.
Child return proceedings under the Hague Convention are among the more specific and demanding proceedings we encounter in practice, and which are, due to their low occurrence rate, often mistakenly conflated with proceedings aimed at determining parental responsibility or custody.
However, the question of which parent is better suited to provide care for the child, with whom the child should live, or where it would be “better” or “best” for the child to grow up is not what the court is called upon to decide in Hague Convention proceedings.
The focus is fundamentally different and is aimed at resolving the following: where did the child habitually reside immediately before the removal or retention?; was that removal or retention wrongful within the meaning of the Convention?; and are any of the narrowly defined exceptions to duty to return applicable?
Keeping these issues separate from questions of parental responsibility is one of the principal challenges in practice. The aforementioned becomes readily apparent when arguing before courts that, due to the relatively limited number of such cases, rarely have an opportunity to apply the Hague Convention. In Hague Convention proceedings the court is required not only to navigate domestic family and procedural law as in conventional family matters, but also to properly navigate and apply a specific legal framework prescribed by international law. This entails not only apt interpretation of the Convention’s autonomous concepts, but also ensuring that the proceedings remain within the boundaries of the issues the Convention was designed to address.
Time presents an additional challenge.
The Hague Convention is built around the principle of expeditious proceedings. Article 11 requires judicial and administrative authorities to act expeditiously, while the passage of six weeks without a decision entitles the applicant or the Central Authority to request a statement of the reasons for the delay. The right to this request suggests an informal deadline of six weeks for the conclusion of proceedings.
While the proceedings were designed to be exceptionally swift, in practice, however, they can last for months and sometimes close to a year.
The discrepancy between the informal deadline set out by the Hague Convention and the time it takes for court to actually come to a decision carries particular significance in these cases: while proceedings remain pending, the child continues to live in the environment to which they were removed or in which they have been retained, while the court is required to assess circumstances that existed immediately before that removal or retention, all of which can and not seldomly does lead to adverse effects on the child. For these reasons, Hague Convention cases require more than familiarity with domestic family law. They demand a thorough understanding of the purpose of the Convention, its autonomous terminology, relevant international practice and, perhaps most importantly, the distinction between proceedings for the prompt return of a child and proceedings in which parental responsibility and custody are actually determined.