FIRST SECTION
Application no. 56163/12
Klaudia VUJICA
against Croatia
lodged on 14 August 2012
STATEMENT OF FACTS
The applicant, Ms Klaudia Vujica, is an Austrian national, who was born in 1974 and lives in Graz (Austria). She is represented before the Court by Ms G. Ćorluka, an advocate practising in Vinkovci.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 March 1997 the applicant married Mr S.V. in Vienna (Austria). They lived in Vienna until January 2006 when they decided to move to Komletinci (Croatia).
Meanwhile, on 3 January 1999 the applicant gave birth to their daughter E.V, on 6 June 2001 to their son F.V. and on 21 January 2006 to their second daughter L.V.
On 6 January 2009 the applicant and S.V. separated. He remained living in Croatia whereas the applicant returned to Austria.
The applicant stressed that it could not be said that she had taken the children with her to Austria when she had separated from her husband because at the time they were already in Austria where they had been spending Christmas holidays with their paternal grandparents.
It would appear that after the separation the children remained living with the applicant but maintained contacts with their father.
In August 2010, after summer holidays, which the children were spending with their father and paternal grandparents in Croatia, the father refused to return them to the applicant.
1. Non-contentious proceedings for the return of children
In September 2010, relying on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant requested the Austrian Ministry of Justice, as the Austrian central authority, to return her children. The Ministry of Justice immediately contacted the Croatian Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) as the Croatian central authority.
On 7 October 2010 the Ministry of Health and Social Welfare forwarded the applicant’s request to the Vinkovci Municipal Court (Općinski sud u Vinkovcima) and thus instituted non-contentious proceedings for the return of the children.
On 19 November 2010 the Vinkovci Municipal Court dismissed the applicant’s request. The relevant part of that decision read as follows:
“The petitioner ... maintains her request that her children be returned to Austria where they had the last domicile, that is, habitual residence and where they went to school. The fact that the social welfare centre gave its opinion in the [parallel] civil proceedings for divorce [and child custody] is of no relevance for reaching a decision in these [non-contentious] proceedings because the Republic of Croatia, as a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, bound itself that it would honour the provisions of that Convention.
The counterparty ... in his reply opposes the [petitioner’s] request considering that the conditions prescribed in the Hague Convention are not met in the present case. In particular, in order to apply the Hague Convention it is necessary that the children are wrongfully removed or wrongfully retained and also that there was a breach of rights of custody. The law did not attribute the right of custody to the petitioner nor was she awarded that right by a judicial or administrative decision or an agreement equal to such decisions. Hence, the petitioner herself does not have the right of custody more than the counterparty himself, given that the divorce proceedings, where [the issue of] custody is being examined, are still pending before this court.
He also invokes Article 13 paragraph 1 (b) [of the Hague Convention] which provides that the court is not bound to order the return of the child if it establishes that the return would expose the child to, inter alia, psychological harm, and that it may also refuse to do so if the child objects to being returned.
The representative of the Vinkovci Social Welfare Centre in her observations considers that the present case does not concern wrongful retention of children because the Centre had, even before the petitioner submitted her request, been involved in the anamnesis of the family. Namely, the children’s’ father had addressed the Centre at the time when in 2009 during a visit of the children to his parents in Austria the spouses had separated, that is to say, when the petitioner had left [him], gone to Austria, taken the children, retained them and enrolled them in a school in Austria. The father, in order to protect the interests of the children, had decided not to take certain steps but had instead been visiting the children in Austria as much as he could. When the children this summer had come to Croatia with his parents, they had not wanted to go back to Austria. The father had then sought an advice from the Centre which had advised him that he should not return the children to their mother by force. After that he had brought an action for divorce and the petitioner the request for the return of wrongfully retained children.
In the proceedings conducted before the Vinkovci Social Welfare Centre, the children were heard, all three of them together, and then individually, and they expressed the wish to live in Croatia. Therefore, the representative of the Social Welfare Centre considers that, in order to protect the children’s interests and well-being, it is necessary, to dismiss the petitioner’s request as unfounded.
...
In these proceedings following the request of the petitioner for the return of the children, the court has to apply the Act on the Ratification of the Hague Convention on the Civil Aspects of International Child Abduction.
Article 12 paragraph 2 of that Act provides that the court shall refuse to order the return of the child if the child is settled in its new environment.
According to evidence taken it was established that the parties married on 7 March 1997 in Austria, in Vienna. During the marriage, on 3 January 1999 E.V. was born, on 6 June 2001 F.V. and on 21 January 2006 L.V. After all three children had been born, the parties came to live in Croatia, in Komletinci.
... In an altercation during [2008] Christmas holidays [the petitioner] verbalised the wish to end their life together, [she] left the common household and went to live in Austria. At that time the children were in Austria, visiting [their father’s] parents. The petitioner immediately upon her arrival to Austria went to pick up the children and did not allow the father to take them back to Croatia even though the children wanted to go to Croatia and had to finish another school semester [there].
[In] summer [2010] the children together with [their paternal grandparents] came to [Croatia to] spend three weeks of summer holidays at the seaside. After returning from the seaside, the children came to live in Komletinci. According to the counterparty’s statement, which the petitioner acknowledged, the two older children had refused to come back to Austria expressing the wish to stay living in Komletinci.
From the enclosed certificates of domicile issued by the [police authorities] it was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006. Therefore, the petitioner’s arguments that the children have registered domicile only in Austria are incorrect.
In the present case the court has not yet rendered a final decision in the [parallel civil] proceedings [for divorce and child custody]. However, that does not affect the adoption of the decision on the request for the return of children on the basis of the Hague Convention on the Civil Aspects of International Child Abduction.
It is the opinion of this court that the father did not without the knowledge and approval of the mother abduct the children from the living environment to which they were settled. It is to be noted that the children have previously lived in Komletinci, so that E.V. finished the second grade of the elementary school in Komletinci where she went to school until the first semester of the third grade whereas F.V. also attended the first grade in the school in Komletinci. It therefore follows that the children were retained in the environment where they have previously accustomed to live. This school year E.V. and F.V. again attend the elementary school in Komletinci.
From the opinion of the psychologist at the Vinkovci Social Welfare Centre it undoubtedly stems that it is not in the children’s [best] interests to change school again because they would again have to adapt to [new] teachers, curriculum, friends, etc. From the opinion submitted it is evident that the children adapted to the current living and school environment, and that they verbalise the wish to live with their father.
Given all the aforementioned, this court, relying on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the Hague Convention on the Civil Aspects of International Child Abduction refused to order the return of the children finding that the children had adapted without any problems to the environment in which they had previously lived and that in the given circumstances returning them to the mother in Austria would have put them in an unfavourable position.
It is also to be noted that the children themselves, especially the two older children, object to being returned to Austria.
Having regard to all the above, this court decided as [stated] in the operative part”
On 30 November 2010 the applicant appealed against the first-instance decision.
On 24 February 2011 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision read as follows:
“The appellant claims that the aim of the [Hague] Convention is the prompt return of children to the country of their habitual residence, and that what is protected is the last status of the children.
In the appellant’s opinion it was necessary to apply exclusively Article 12 paragraph 1 of the said Convention and order the children’s return forthwith.
...
It was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006.
The first-instance court correctly found that the father did not without the knowledge and approval of the mother abduct the children from the living environment to which they were accustomed because the children have previously lived in Komletinci, [where] E.V. finished the second grade of the elementary school ... and F.V. attended the first grade ...
The first-instance court relied on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the [Hague] Convention.
As rightly pointed out by the appellant, the first-instance court had erred in relying on Article 12 paragraph 2 of that Convention because the children had been brought to Croatia at the beginning of July 2010 whereas the proceedings before judicial or administrative authority were instituted in September 2010, that is, before the expiration of the period of one year referred to in paragraph 1 of Article 12 of the [Hague] Convention.
However, this second-instance court finds that the first-instance court correctly applied Article 13 paragraph 1 (a) and (b) of the [Hague] Convention, and, in the opinion of this court, also paragraph 2 of that Article because the two older children, whose views are appropriate to take into account given their age, object to being returned.
Since the children have already accustomed to the life in this environment (in which they have previously lived – before going to Austria) there is a grave risk that the return would expose the children to psychological harm. The change of school environment would have harmful effects on the two older children if during the school year they were to be transferred to Austria where the curriculum is completely different.
For these reasons the appeal was dismissed and the first-instance decision upheld.”
The applicant then, on 15 April 2011, lodged a constitutional complaint alleging, inter alia, violations of her constitutional rights to a fair hearing and to respect for her family life. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows:
“[The complainant] considers that the [constitutional] rights guaranteed in Article 14 paragraph 2, 16, 26, 29 paragraph 1, 35, 62, 63 and 140 of the Constitution were breached by the contested decision of the lower-instance courts.
...
Having regard to the arguments raised in the constitutional complaint the Constitutional Court examined the contested decisions under Article 29 paragraph 1 and Article 63 of the Constitution.
...
Having regard to the opinion of the Vinkovci Social Welfare Centre ... and the fact that both older children ... (E.V. and F.V.) expressed the wish as to where and with which parent they wanted to continue living after [their parents’] divorce, and that they refuse to be separated from their father, the Constitutional Court finds that the competent courts rendered the contested decisions by correctly assessing all the particular circumstances of the present case.”
2. Civil proceedings for divorce and child custody
Meanwhile, on 27 August 2010 S.V. brought a civil action against the applicant in the Vinkovci Municipal Court seeking divorce, the sole custody of, and the maintenance for their children.
As the applicant did not oppose the divorce, at the hearing held on 18 November 2010 the court ruled that S.V.’s civil action was to be considered a joint petition for divorce.
On 19 November 2010 the Municipal Court adopted a judgment whereby it: (a) divorced the marriage between the applicant and S.V., (b) awarded the sole custody of their children to S.V., (c) granted the applicant access (visitation) rights, and (d) ordered the applicant to regularly pay a certain amount of money as maintenance for their children. The relevant part of that judgment reads as follows:
“As regards their minor children E.V. and F.V. the parties reached an agreement that the custody be awarded to the father. However, the mother argued that it was in the [best] interests of [their younger daughter] L.V., who is four years old, to live with her as she was emotionally attached to her [mother].
From the report of the social welfare centre it follows that the children want, as the most of children in their case do, the parents to live together in a harmonious relationship, that they are aware of the fact that their father and mother are divorcing, and that they are not taking the side of [either] the father or the mother. However, they express a wish to live with their father because they consider their relationship with their father much closer and that they are more emotionally attached to him. Furthermore, it follows from the report that the children like the life in Komletinci, that is, [a life] in a small community where they have more free time, socialise with other children of their age [and] spend their free time playing, which is not the case in Austria. If further follows from the report that the children are well accepted in school and that it is not in the children’s best interests to change the school again, which they consider stressful as they would again have to adjust to [new] teachers, curriculum and friends. Therefore, in the opinion of the social welfare centre, the children should remain living with their father given that he adequately takes care of their needs, their upbringing and schooling and that, at the same time, the children verbalise the wish to live with their father.
At the hearing ... the representative of the social welfare centre stated that she maintained the opinion provided [in the report of the social welfare centre] and reiterated that the children were very attached to each other and that it would not be advisable to separate them.
The plaintiff stated at the same hearing that he did not dispute that the mother meets the conditions to be awarded custody of the children but that he considered that it would be in the best interests of the children to live together, which was what the children wanted, and that he was willing to allow the defendant to maintain more extensive contact with L.V. given that she was not burdened by school obligations.
When awarding custody it has to be taken into account that brothers and sisters with existing emotional connections should not be separated unless that is contrary to their wishes or their best interests. Given that from the report of the social welfare centre it follows that the children verbalise the wish to live together, the court, promoting the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, has decided to award custody to their father.
When deciding on the mother’s access (visitation) rights, the court has, having regard to the agreement of the parties that the mother shall exercise those rights in the manner proposed by the social welfare centre, but so that the mother takes the children to her household in Austria, [decided] that [she should exercise her access rights] on the last weekend of every month or any other weekend if the parties agree otherwise, as well as during seven days of winter holidays, fifteen days of summer holidays and during other holidays interchangeably.”
On 23 February 2011 the Vukovar County Court dismissed an appeal by the applicant and upheld the first-instance judgment, which thereby became final.
“In her appeal the appellant argues that ... the [first-instance] court was not allowed to proceed in these [civil] proceedings until the final resolution of the [non-contentious] proceedings for the return of wrongfully retained children pending before the same court, in accordance with Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction because the purpose of that Convention was that children were returned to the State from which they had been abducted and only then to conduct the proceedings for custody given that the children had been uprooted from the milieu in which they had lived hitherto.
[The appellant] also argues that she had not participated in the proceedings before the Vinkovci Social Welfare centre, and considers that the youngest child L.V. was very emotionally attached to her and that the [first-instance] court should have taken that into account.
...
As the parties, however, did not agree on custody in respect of their youngest child, L.V., the court, deferring to the opinion of the social welfare centre and respecting the wishes of the children, decided that she should remain living with her father, brother and sister in Komletinici.
...
Since the children verbalised the wish to live together and given that L.V. did not yet have school obligations – which made it possible for her to maintain more extensive contacts with her mother, if the parents agreed – the first-instance court, promoting the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, correctly decided that the children should remain living with their father [while] leaving open the possibility that this decision be altered if circumstances change.
...
The case-file also contains certificates of domicile in respect of all parties’ children from which it is evident that they have the registered address in Komletinci since 17 October 2006. In any event, the whole family previously lived together in Komletinci.
Having regard to the above, the appellant’s argument that she was prevented from participating in the proceedings before the social welfare centre is unfounded because she participated in the proceedings before the [first-instance] court, as the father did, where the representative of the social welfare centre was present and where they as the parents reached an agreement as to the custody [of the children] except L.V. Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contacts with their mother, it could not be said that they were abducted or uprooted from the milieu in which they lived, particularly taking into account the wishes of the children and the fact that two older children go to school in Komletinci.”
The applicant then, on 15 April 2011, lodged a constitutional complaint alleging, inter alia, violations of her constitutional rights to a fair hearing and to respect for her family life. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows:
“... the report of the Vinkovci Social Welfare Centre of 20 October 2010 and the opinion of a psychologist are enclosed with the case-file of the first-instance court. Both [documents] arrive to the same conclusion that the children of the parties should after the divorce continue living with their father.
At the main hearing held in the case on 19 November 2011 the both parties proposed that the two older children (E.V. and F.V.) remain living with their father and that [the youngest child] L.V. remain living with her mother – who lodged the constitutional complaint. At that hearing the complainant as the defendant did not ask for the application of the Hague Convention on the Civil Aspects of International Child Abduction.
...
The Constitutional Court considers that in every [set of] proceedings concerning custody of children the best interests of the child must have the central place.
...
The Constitutional Court found that ... the Vinkovci Social Welfare Centre had, before adopting the report concerning custody of the children, undertaken necessary steps.
The proposal expressed in the report of the Social Welfare Centre that all three children should after the divorce continue living with their father, is after all, in line with the opinion of the psychologist.
Proposing so was based on the fact that both older children (E.L. and F.L.) expressed the wish as to with which parent they wanted to live whereas as regards the [youngest child] L.V. it was established that she was “still at the age where she does not completely understand the situation around her parents”, and that all three children were very emotionally attached to each other and that, accepting the fact that their parents were divorcing, they wanted to continue living together at least with one parent.
...
Because of the above, the Constitutional Court considers that the constitutional rights provided in Article 29 paragraph 1 and Article 35 of the Constitution, or the rights guaranteed by Article 6 and Article 8 of the Convention were not breached by the contested decisions.
The Constitutional Court also notes that the legal views expressed in the contested judgments ... are primarily based on the best interests of the child and are also founded on the established principles of international law.
...
As regards the complainant’s arguments on the need to apply the Hague Convention on the Civil Aspects of International Child Abduction in the instant case, the Constitutional Court finds correct the ... reasoning expressed in the contested judgment of the Vukovar County Court, which ... reads:
“‘(...) Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contacts with their mother, it could not be said that they were abducted (...)’”
B. Relevant domestic and international law
1. The Constitution
The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia, nos. 56/90, 135/97, 8/98 (consolidated text), 113/00, 124/2000 (consolidated text), 28/01 and 41/01 (consolidated text), 55/01 (corrigendum), 76/10 and 85/10 (consolidated text)) read as follows:
Article 16
“(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health.
(2) Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.
Article 29(1)
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
Article 35
“Everyone shall be guaranteed respect for, and legal protection of, his personal and family life ...”
Article 62
“The State shall protect maternity, children and youths, and shall create social, cultural, educational, material and other conditions promoting the right to a decent life.”
2. The Family Act
The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 163/03, 17/04, 136/04, 107/07, 57/11, 61/11) read as follows:
3. Mediation before divorce
Section 44
“The [mandatory] mediation procedure shall be conducted:
1) when the [civil] proceedings for divorce are instituted by an action [of one spouse],
2) when the [civil] proceedings for divorce are instituted by a joint petition [for divorce] [of both spouses] and the spouses have minor common or adopted children or [adult] children in respect of which they exercise parental authority.”
Section 45(3) and (4)
“(3) The [mandatory] mediation procedure shall not be conducted if one or both spouses live abroad.
(4) As an exception from paragraph 3 of this section, the mediation procedure shall be conducted if the spouses have minor common or adopted children or [adult] children in respect of which they exercise parental authority, and the court finds that there are no significant difficulties for the spouses to participate in the mediation procedure.”
...
JUDICIAL PROCEEDINGS
I. COMMON PROVISIONS
Section 263
“(1) The provisions of this part of the Act determine the rules by which the courts shall proceed in special civil [contentious] and non-contentious proceedings and special enforcement and security proceedings when deciding in matrimonial, family and other matters regulated by this Act.
(2) The proceedings referred to in paragraph 1 of this section shall be urgent.”
...
Section 265
“In special [contentious] civil and, where appropriate, non-contentious proceedings referred to in section 263 paragraph 1 of this Act, the first hearing must be held within fifteen days of the date the statement of claim or the petition was received in court, unless this Act provides otherwise.”
Section 266
“The second-instance court shall issue and dispatch a decision on the appeal against the first-instance decision rendered in cases referred to in section 263 paragraph 1 of this Act within sixty days from the date the appeal was received.”
3. The Hague Convention on the Civil Aspects of International Child Abduction
The preamble of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which entered into force in respect of Croatia on 20 June 1991 (Official Gazette – International Agreements no. 7/91), includes the following statement as to its purpose:
“... to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence ...”
The relevant provisions of the Hague Convention read as follows:
Article 1
“The objects of the present Convention are -
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 2
“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”
Article 3
“The removal or the retention of a child is to be considered wrongful where
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and
b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 4
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
Article 5
“For the purposes of this Convention –
a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
...
Article 11
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay ...”
Article 12
“Where a child has been wrongfully removed or retained in terms of Article 3 and at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
Article 14
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”
Article 15
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
Article 16
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”
Article 17
“The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”
Article 18
“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”
Article 19
“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
Article 20
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that the domestic authorities violated her right to respect for her family life in that:
(a) the domestic courts in the non-contentious proceedings for the return of children misconstrued the notion of “habitual residence” and therefore erred in holding that the retention of her children in Croatia by their father was not “wrongful” within the meaning of Article 3 of the Hague Convention;
(b) the civil proceedings for divorce and custody had been concluded by a final judgment before the non-contentious proceedings for the return of children were concluded by a final decision, contrary to Article 16 of the Hague Convention;
(c) the domestic courts in the non-contentious proceedings for the return of children did not act expeditiously, contrary to Article 11 of the Hague Convention
(d) the domestic courts in the non-contentious proceedings for the return of children refused to order that her children be returned to her forthwith, even though less than a year has elapsed from the date of their retention in Croatia and the commencement of the non-contentious proceedings for their return, contrary to Article 12 § 1 of the Hague Convention;
(e) the domestic courts proceeded in the civil proceedings for divorce and custody without requesting the parties to undergo a mediation beforehand, contrary to section 44(1) sub-paragraph 1 and 45 (4) of the Family Act.
2. The applicant also complains under Article 6 § 1 of the Convention that the principle of equality of arms was not respected in the above civil proceedings because she did not participate in the proceedings before the Vinkovci Social Welfare Centre which lead to the adoption of the report on which the domestic courts heavily relied when awarding the sole custody of her children to her former husband.
QUESTIONS TO THE PARTIES
1. Was the refusal of the domestic court to order the return of the applicant’s children, and in particular her youngest child, contrary to the relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction, and therefore in breach of the State’s positive obligation under Article 8 of the Convention to reunite parents with their children?
2. Did the domestic courts in the non-contentious proceedings for the return of the applicant’s children act expeditiously and use the most expeditious procedures available, as required by Articles 2 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction, and thereby comply with their procedural positive obligations under Article 8 of the Convention? In particular, did the domestic courts accord priority treatment to the applicant’s case?
3. Did the decision to award the sole custody of all the applicant’s children, and in particular of her youngest child, to her former husband amount to a violation of the applicant’s right to respect for her family life, contrary to Article 8 § 1 of the Convention? In particular:
(a) Was the judgment of the domestic courts on custody of the applicant’s children in accordance with the law in terms of Article 8 § 2, having regard to Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction, and to the absence of mandatory mediation proceedings, required by sections 44(1) sub-paragraph 1 and 45(4) of the Family Act, prior to the divorce between the applicant and her husband?
(b) If so, was the decision to award the sole custody of all the applicant’s children, and in particular of her youngest child, to her former husband necessary in terms of Article 8 § 2 Convention?
4. Did the fact that the applicant did not participate in the proceedings before the Vinkovci Social Welfare Centre that led to the adoption of the report on which the domestic courts relied when refusing to order the return of the applicant’s children and when awarding the sole custody of her children to her former husband, amount to a violation of the applicant’s right to fair hearing as guaranteed under Article 6 § 1 of the Convention or to a violation of her right to respect for her family life under Article 8 of the Convention?
Full & Egal Universal Law Academy