International child abduction is regulated at an international level by the Hague Convention concluded in 1980 and in Romania by Law 369/2004. It refers to those cases when a child is removed or retained in another state than the State of the child’s habitual residence, without the consent of the parents or of one parent.
A removal or retention of a child is to be considered wrongful in the following cases:
- it is in breach of the rights of custody granted 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 retention; and
- at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Both conditions mentioned above must be met at the same time.
The application for the return of the child may be filed with the Bucharest Court, through a Romanian lawyer. The plaintiff from abroad must choose an address for service in Romania. Usually, this address for service is chosen at the registered address of the lawyer in Romania.
The Court must observe if all conditions for approving the application are met. Moreover, the judge may order the hearing of the child, depending on the child’s age. The hearing of a child that has reached the age of 10 is mandatory. However, the judge may also order the hearing if a younger child if considered necessary.
If the application is approved, the court sets a deadline for the return of the child. Such a term can’t exceed two weeks from the issuance of the court’s resolution.
A resolution passed by a court of first instance has a binding nature. Such a resolution may be appealed at the Bucharest Court of Appeal – Minor children and family, in 10 days after it was communicated. If appealed, the execution of the resolution is suspended.
After a final resolution is passed, if not executed willingly by the defendant, the Ministry of Justice may submit a forced execution request.
The resolution passed by the court shall include a deadline for the execution of the obligation to return the child. Such a deadline can’t exceed two weeks from its communication. Throughout this period, the Ministry of Justice shall monitor the obligation to return the child and if such obligation is observed. If the court resolution, for the return of the child to the State in which the child was habitually resident, is not executed voluntarily, within the time frame set by the court of law, then a forced execution procedure is initiated as per the Romanian Civil Procedure Code.
Publisher: Budușan & Associates