Published on 21 June 2021
FIRST SECTION
Application no. 21347/21
Matija DOMITREK
against Croatia
lodged on 12 April 2021
communicated on 2 June 2021
SUBJECT MATTER OF THE CASE
The application concerns proceedings for the return of children under the Hague Convention on the Civil Aspects of International Child Abduction in which the domestic courts refused to order the return of the applicant’s four children to Germany after their mother had retained them in Croatia.
Those courts established: (a) that the children had been born in Croatia but had before their retention had habitual residence in Germany, (b) the applicant and the children’s mother had never married and, (c) under German law, which was applicable because of the children’s habitual residence, the custody of children of unmarried parents belonged only to the mother.
Since under the German law the father had thus not had the right of custody over the children, their retention by their mother in Croatia had not been in breach of his right of custody and thus had not been wrongful within the meaning of the Hague Convention.
The applicant automatically, as a parent acquired, the right of custody of the children under the Croatian law because they were born in Croatia. He argued that he could not have lost that right by the fact that he and the children had moved to Germany, as this would have been contrary to the Hague Convention on parental responsibility and protection of children, which was binding on both countries.
QUESTIONS TO THE PARTIES
1. Was the interference with the applicant’s right to respect for his family life in accordance with the law in terms of Article 8 § 2 of the Convention? In particular, was the domestic courts’ finding that the retention of the children was not wrongful within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction because it was not in breach of the applicant’s right of custody, contrary to Article 16 § 3 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children?
2. If the interference was lawful, did it pursue a legitimate aim and was it necessary in terms of Article 8 § 2 of the Convention? In particular, did the domestic courts strike the requisite balance between the competing interests at stake and, more specifically, did they take into account the children’s best interests as a primary consideration?
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