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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.

Author: 

Mirela Župan, PhD, Associate Professor , Chair for Private International Law, Faculty of Law University of Osijek

Co-Author:

Martina Drventić, research assistant at IZIP project, Faculty of Law University of Osijek

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

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.