Cross-border parental child abduction in the European Union: what to do in case of cross-border parental child abduction in the EU.
Cross-border parental child abduction in the European Union refers to a situation when a child is removed from the country of habitual residence to another country without the consent of the person with parental responsibility (custodial parent).
In a broad sense, cross-border parental child abduction includes the illegal transfer of the child's residence abroad, away from the child's habitual residence, as well as its dear ones, its friends, and its home environment.
Illegal transfer of the child's residence abroad is governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which applies to all participating countries.
The EU Regulation 2201/2003, which applies to Eu-Member States (except for Denmark), includes additional rules.
Cross-border parental child abduction in the European Union: Is it a criminal offence?
International abduction of children in the European Union is a criminal offence. In Italy, it is punished by a term of imprisonment of between one and four years, pursuant to Art. 574b of the Italian Criminal Code.
Moreover, in case the offence is committed by one of the child's parents, parental responsibility is also suspended as an ancillary sanction.
In case of international abduction of children in the European Union, the custodial parent can lodge a criminal complaint, in order to initiate a procedure aimed at obtaining the return of children wrongfully removed.
Lodging a criminal complaint is of crucial importance in case one does not know where the child has been removed or where it is retained. In such cases, apart from lodging the complaint, it is possible to request entry of the names of the child and the person who has abducted the child into the database of international and European police forces.
Cross-border parental child abduction in the European Union: Return proceedings
Return proceedings vary according to wether the country to which the child has been removed is party either to the Hague Convention or the above mentioned European Regulation.
Contracting States of the Hague Convention have established "Central Authorities" which should promote international cooperation between different countries, in order to ensure the prompt return of children wrongfully abducted. The Central Authority designated by Italy is the Department of Juvenile and Community Justice.
There are different steps in return proceedings:
- Investigation step in the country of habitual residence
the first step is to provide the Central Authority of the child's original country with all documents necessary to identify the child (birth certificates, photographs, etc.), to clarify the relationship between the child and the person lodging the complaint (e.g. custody orders, etc.), as well as to provide evidence of the child's actual habitual residence.
The person lodging the complaint for international abduction of children, where informed thereof, should also give the address where the child could be retained and the names of the people involved in the child's abduction.
The Central Authority should assess whether the complaint meets all legal requirements, and in case of positive response, transmit the complaint to the Central Authority of the country where the child is retained.
- Investigation step abroad
The Central Authority of the country where the child is retained locates the child and communicates its location to the Central Authority of the child's original country, together with the declarations of the person who has abducted the child, trying to reach, where possible, the amicable resolution of the dispute and the prompt return of the abducted child.
- Judicial step
In case the parties cannot reach an agreement, legal proceedings will be initiated in the country where the child is retained.
During legal proceedings, it is recommended that custody parents are represented by a lawyer before the authorities of the country where the child is retained.
The interested party has the right to a fair hearing, with the assistance of an interpreter.
The child should also be heard in the proceedings, under the Laws of the country in which the proceedings take place and with regard to the child's age.
Any first instance decision may be appealed pursuant to the Laws of the country where the proceedings take place.
- Executive step
It is recommended that the parent who has obtained the return order takes part in the executive step, pursuant to the provisions of the return order, e.g. reaching the country where the child is retained in order to pick it up.
In case a child has been illegally removed to or retained in a country which is not a party to the Hague Convention or whose accession was not accepted by Italy, then the person lodging the complaint should autonomously initiate, by means of a lawyer, the administrative or judicial procedures provided for by the State in which the child was retained. In such cases, thus, one cannot make use of Central Authorities.
Cross-border parental child abduction in the European Union: How can we help?
Arnone&Sicomo international Law Firm provides legal assistance to Italian and foreign parents, whose child has been illegally transferred abroad. Unfortunately, cases of cross-border parental child abduction are increasingly frequent and it is essential to have a professional to rely on, in order to obtain a prompt return of the abducted child.
We help parents to reunite with their children, representing their interests before any Italian juvenile Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.