engleski

Private International Law in the Jurisprudence of European Courts – family at focus

This collection of papers consist of four major parts, containing 23 scientific papers, 20 of which are written in English, 2 are translations to the Croatian language and 1 is in German. I would like to take the opportunity and privilege to address each of these valuable contributions with a few sentences. Part 1 of the Conference Proceedings, titled EU Private International Family Law, deals with various topics pertaining to EU acquis and case law in the area of cross-border family relations. The first paper, titled Recent Developments on the Meaning of “Habitual Residence” in Alleged Child Abduction Cases, is presented by Paul Beaumont & Jayne Holliday. It argues that over the past 30 years the concept of habitual residence of the child in the UK has developed from one which put weight on parental intention to a mixed model, which takes a more child- centric and fact-based approach. By following the jurisprudence of the CJEU, the UK Supreme Court has made a genuine and conscious attempt to provide a uniform interpretation of the 1980 Abduction Convention. The authors argue that this would hopefully have the effect of creating a more uniform approach to the definition of habitual residence amongst all Contracting States to the Hague Abduction Convention. However, the authors are concerned if the CJEU would have the judicial expertise in private international law (especially the family law aspects thereof) to maintain a high quality interpretation of habitual residence based on international best practice. The discussion on EU issues continues with a topic of high interest to the Western Balkans states. In her contribution on Dilemmas in application of EU international family law in most recent EU Member States, Christa Jessel- Holst discusses some issues which are of special relevance for the most recent Member States. She puts special emphasis on the fact that new EU member states feel themselves confronted with a sudden change from the nationality principle to habitual residence as a main connecting factor. The author argues that without providing criteria for the proper interpretation of habitual residence, in particular the demarcation of habitual residence from the legal concept of domicile, the process may appear problematic for new member states. The author emphasises that the candidate countries for accession (Montenegro, Macedonia, Serbia and Albania) have in their (draft) legislations included legal definitions of habitual residence in the process of EU- harmonization of their private international law. These legal definitions provide uniform criteria for determining the habitual residence of a person, but they are, however, formulated in a flexible way so as to allow the countries to take into consideration the development on level of the European Union and the future practice of the Court of Justice of the European Union. The author concludes that dilemmas in application of European private international law are in no way restricted to accession states ; this fact is inter alia reflected in the decisions of the Court of Justice. The application of European private international law standards in disputed family cases has been in the focus of the contribution of Lilla Király. In her paper on The Hungarian court practice concerning the Brussels II bis Regulation, the author provides a thorough analysis of the entire legal background: Hungarian private international law rules, relevant Hague and other conventions, EU rules. Although it is to be applauded for achievements in setting its legal background, there are many problems to be solved regarding the application of the Brussels II bis Regulation. The author extracts several burning legal issues: the definition of the concept of marriage (whether it should be interpreted in EU legal terms, independently from the concepts used in the laws of the Member States, or as a national concept ; undefined issues relating to functions of central authority ; jurisdictional and enforcement problems). The paper raises the issue of a widespread social phenomenon where parents use the child as a weapon in their relationship. The author therefore argues for a holistic approach to legal settlement of splitting families, as social and psychological considerations have often been neglected in legal proceedings. The European section proceeds with the Ines Medić paper on International child relocation. The author argues that in an era of globalisation it is hard to expect people will not move all over the globe. Hence, international marriages and international child relocation are becoming a prominent question. Compared to interstate relocation, relocation to a foreign country involves added difficulties, such as a clash of culture, distance influencing contact rights, clash of several layers of fundamental human rights (on the one hand, the child has the right not to be separated from his or her parents against his or her will as well as to express his or her view freely and have contact on a regular basis with both parents ; on the other hand, the parent has the right to family life entailing the contact with his or her child(ren) and to move and reside throughout the territory of the European Union). The author presents a bundle of cases that confirms that these issues are a handful for a judge to take care of. The author advocates the use of international standards for interstate relocation, a guidance that would enable a judge to correspond to the demands of adjudication in international relocations. In the Croatian context, the author hopes for a new framework for evaluations in increasingly common cross-border relocations. Part 2 of the Conference Proceedings, under the heading Hague Conference and International Family Law – Child Abduction at Focus, covers various themes inherent to the HCCH unification process. The first paper of Philippe Lortie problematizes Direct Judicial Communications and The International Hague Network of Judges Under the Hague 1980 Child Abduction Convention. The author argues that an improved implementation of the Hague Convention of 1980 in the Western Balkans region calls upon the designation of judges to the International Hague Network of Judges (IHNJ) and the use of direct judicial communications. To assist States in this respect, the Permanent Bureau (Secretariat) of the Hague Conference on Private International Law, with the assistance of Members of the IHNJ, developed the “Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges”. The “Principles” are thoroughly examined through hypothetical cases, and Guidelines in the English and Croatian languages (translated by the publisher) are added as annexes to the paper. Tena Hoško writes on Child Abduction in Croatia: Before and After the European Union Legislation. The author discusses changes to the Croatian legal system due to its accession to the EU, with particular emphasis on the child abduction regime. The author finds that the entry into force of the Brussels II bis Regulation has changed the Croatian child abduction disputes’ regime in several manners. The first change relates to the fact that now two different regimes are set, dependant on the place of habitual residence of the child. If the place is within the EU, the Regulation applies, whereas towards thirds states the regime remains governed by the Child Abduction Convention. Looking at the Regulation’s regime specifically, there are some changes (the author deduces some of them, such as in the obligation to transmit the case after a non- return decision has been issued and in the recognition and enforcement system of judgments coming from the EU) and some nuances (the author particularly mentions the obligation to hear the child and the applicant). Two proposals need to amount to changes in order to enhance the Croatian practice in dealing with child abduction cases. The first is setting time limits that will hopefully influence the length of the procedure. The second is the needed change of interpretation of grave risk of harm. Now it is coupled with the duty to check the security arrangements that have been made in the country of habitual residence. Although it is only applicable to cases governed by the Regulation, this new duty might restrain the tendency of a too wide interpretation of the grave risk of harm defence that is reported in Croatian case law. Suzana Kraljić and Katja Drnovšek present a paper entitled Elterliche Internationale Kindesentführung, which deals with parental child abductions as well. The authors first consider the issues of the basic principle of the Hague Child Abduction Convention: fastest possible return of the kidnapped, wrongfully removed or retained child. The main guiding principle of protection of the child’s best interests, imposes on courts and other authorities and institutions involved in repatriation of children to act promptly, as further elaborated by the authors. In the end, the authors elaborate on the way in which the Hague Child Abduction Convention distinguishes between the unconditional return of the child, which is given before the expiration of one year, and the discretionary right of the court which is given after one year. The Conference Proceedings continue with the section National Reports on Operation of the Hague Child Abduction Convention in the Western Balkans Region. The Hague Child Abduction Convention was drafted to ensure a prompt return of children to the state of their prior habitual residence. It has proven to be a useful remedy in the international protection of children from the harmful effects of their wrongful removal or retention. However, even after more than thirty years of its application on worldwide level and more than twenty years of its application in the Western Balkans territories, it still raises many open issues and dilemmas. These Conference Proceedings present the first regional survey of the implementation of the Hague Child Abduction Convention where academics are attempting to specify the weak points of each and every system and offer solutions for the improvement of its application and interpretation. As the Questionnaire on the Operation of the Hague 1980 Child Abduction Convention in the SEE Regionis printed here as well, one may realise that many data are still lacking in the reports. I express my strong gratitude and admiration to the colleagues who have agreed to participate and draft a report, as all of them faced factual hardship in approaching statistical data and case law. All of the academics here cry for the transparency of data (for academic, monitoring and evaluation purposes, with data protection fully guaranteed). The contributing academics suggest a way forward to creating a world that discourages abductors in choosing a forum that is most favourable to them instead of a forum which is best acquainted with the situation – the forum of the child’s habitual residence. The first report on Operation of the 1980 Hague Child Abduction Convention in Bosnia and Herzegovina has been prepared by Anita Duraković and Zlatan Meškić. The authors have analysed the available court practice to conclude that the basic problem lies in the fact that resolutions of international child abduction cases are dealt with by judges without any specialization or knowledge in the methodology of resolving cross-border cases. Due to the fact that such cases are rare, judges lack motivation to follow judicial practice or conduct training. As these cases do not come frequently to each judge, no routine can be established or special knowledge gained. In the end, all of these matters affect the length of the proceedings. The lack of knowledge leads to a high proportion of refusals to return the child: any opinion of a child that refuses return to the country of origin is welcomed as a signal to use the Article 13b exception! The correct application and consistent interpretation of the Hague Child Abduction Convention could, according to the authors, be achieved by the adoption of an act on the implementation of the 1980 Convention, providing for concentrated jurisdiction (only the courts in Sarajevo and Banja Luka could adjudicate) and shorter terms for the conduct of particular actions in the procedure. Special training for the application of the 1980 Convention, as well as of international family law in general, is advocated. In the paper Operation of the Hague 1980 Child Abduction Convention in Croatia Mirela Župan and Tena Hoško have analysed a number of court rulings in order to pinpoint several matters of concern regarding the application of the Child Abduction Convention in Croatia. Some of them are included here. The authors detect that the uniform interpretation duty deriving from the Convention is not carried out by judges, and there is no publicly available case law regarding this matter either. Furthermore, mediation and voluntary return of the child are rarely practiced. Social welfare centres do not differentiate between giving an opinion regarding the child’s best interest in child abduction cases and in custody cases, which causes problems as judges rely on those opinions when rendering judgements and the return is often refused. Such practice should be diminished, since the aim of prompt return to the country of origin exists, inter alia, to ensure that custody disputes are settled in that country. The authors detect that the main principles (e.g. grave risk of harm) and connecting factors (e.g. habitual residence) of the Convention are often wrongly interpreted. From the legislative point of view, child abduction procedures are dealt with as any other regular family matter: there is no concentration of jurisdiction, there are no shorter periods for appeals, no legislative founding to enable a court’s prompt reaction. Further on, the poor official translation of the Convention impedes its proper application. Several steps may be taken. Legislative action should be set in motion in order to enact proper implementing rules for the Hague Child Abduction Convention ; special procedures to enable true promptness in handling cases, concentration of jurisdiction (it should be considered whether the jurisdiction should be concentrated to the four biggest cities or even only to the capital city of Zagreb’s municipal court), reducing the number of appeals and time limits for such appeals, or even prescribing that appeal would not affect execution. Training should be provided to judges and the Central Authority’s personnel. Having in mind the general lack of knowledge of foreign languages amongst persons applying the Convention, publications in the languages of the SEE region would be quite useful. A Croatian judge should be appointed to the IHNJ. Macedonian law and practices related to child abduction cases are presented in Ilija Rumenov’s paper Application of the Hague Child Abduction Convention in Macedonia. The author points to several challenges that lie ahead in the future. Developing regular training programmes for persons involved in the process (judges, employees of Centres for Social Work and the Central Authority staff) is found indispensable. Not merely national, but regional training on sharing the experiences of the implementation of the 1980 Convention is supported by the author. The author also finds justification for introducing regular screening of the HC 1980 implementation on the national level. This would serve the purpose of having a transparent procedure, which would elevate the implementation of the Convention to higher standards and reduce the possibility of its improper application. The measures that need to be taken in Macedonia are listed as follows: a) adoption of implementing legislation for the application of the 1980 Convention ; b) enacting a new, special non-litigious procedure for return of wrongfully removed or retained children, with a proper involvement of Centres for Social Work and the Central Authority (courts are the proper authorities to decide on the issue of return of abducted children, rather than the administrative authorities, as is the present practice) ; c) developing training programmes (national/regional) that would help involved persons in proper understanding of the return mechanism and thus facilitate more expeditious procedures of return of children and strengthen the mutual trust between authorities. Maja Kostić Mandić presents the Montenegrin system where child abduction is at stake. Country Report on Application of the Hague Child Abduction Convention – Montenegro reaches a conclusion that the Ministry of Justice as the Central Authority for the Hague Child Abduction Convention does not comply with Article 7 of the Convention. The Ministry has limited its actions only to: forwarding applications for return or rights of access to the Central Authority of the country where the child is situated after the abduction or retention ; forwarding applications obtained from a foreign central authority to the competent courts in Montenegro which is seized with respective cases ; and providing for information of a general character. The author advocates that the dispersion of competence of the central authorities, courts and judges who can hear return applications under the Convention should be overcome by concentrating jurisdiction. Designation of a judge to the International Network of Judges is found to be an urgent matter as well. The author argues that full conformity with the obligations arising from the Convention requires organizational and capacity-building activities. She places particular emphasis on the indispensable education and training of civil servants and judges regarding the application of the Convention as well as the urgent need to publish a handbook dealing with implementation issues in the local language. Some open issues in the application of the 1980 Child Abduction Convention in the Republic of Serbia are elaborated by Sanja Marjanović. Considering the shortcomings in the practical application of the 1980 Convention in the Republic of Serbia, the issues concerning the concentration of jurisdiction, the correct application of foreign law in order to determine the custody right, the differentiation between the exceptions for the return of the child are detected as crucial for improving the national judicial practice. In this context, the author finds no dispute that the adoption of the Draft Implementation Act will significantly contribute to a better application of the 1980 Convention in Serbia. However, as this piece of legislation cannot address all of the practical issues, several additional methods for their improvement are envisaged: a) translation of all the 1980 Convention Good Practice Guides ; b) ensuring trainings of judges, the Central Authority officers and the officers of Social Care Centres. In addition to these steps, the author suggests engaging all private international law experts, with the support of the Hague Conference, to compile a joint handbook. This book should include, inter alia, the leading decisions rendered by the national courts of other State Parties, as well as the CJEU and the ECtHR decisions in cases pertaining to the 1980 Convention. An overview of the Slovenian practice has been prepared by Suzana Kraljić. The paper titled Operation of the Hague 1980 Child Abduction Convention in Slovenia elaborates on a small number of cases and scarce literature on the application of the Hague Child Abduction (only 6 papers published in Slovenia). In comparison to judges, who are not well-trained, lack foreign language skills and the appropriate knowledge on the issue and therefore fail to obey the time limits given by the 1980 Convention, the author provides an example of the Slovenian Central Authority, where the evidence/statistics of abduction cases is more up-to-date, consistent, effective and integrated. In addition, the staff is more qualified, specialised for abduction cases, and they are regularly involved in various national, European and international activities related to international child abduction actions. If current regulation providing every Slovenian district court with the jurisdiction to adjudicate abduction cases is to be maintained, the author suggests more training of related judges. However, if the possibility to introduce “concentrated jurisdiction” is considered, a smaller number of judges ought to be trained. The third part of these Conference Proceedings is dedicated to Human Rights Considerations in Child Abduction Cases. Paper on The Interaction between the European Court of Human Rights and the Hague Child Abduction Convention by Nina Vajić brings a thorough analysis of a much debated ECtHR case in X vs. Latvia. The author starts with the fact that several ECtHR interpretations have raised much debate on the interaction of human rights notions and the child abduction regime set by the 1980 Convention. The author briefly refers to the Neulinger and Shuruk v. Switzerland Grand Chamber judgment of 2010 and proceeds with a detailed analysis of the X. v. Latvia Grand Chamber judgment of November 2013. The author arrives at the following conclusion: when the principle of the immediate return of an abducted child, which is the basis of the Hague Convention, does not materialize within a reasonable time – for whatever reason this may happen – the principle has to be moderated by other considerations, as the one of the best interest of the child. The author brings forward the procedural suggestion that the ECtHR ought to introduce a special speedy procedure for dealing with such type of urgent situations as are child abduction cases. Such goal can be achieved without any further changes of the Rules of the Court. Alongside the critical remarks by the author, who at the time of delivery of the judgement acted as a judge to the analysed case, she calls attention to a large body of the ECtHR case law which has considerably contributed to reinforce the operation of the Child Abduction Convention worldwide. If speedy procedures are introduced, the Court will be in possession of all the elements necessary for a harmonious interpretation of both the European Human Rights Convention and the 1980 Convention in order to achieve the paramount goal – to act in the best interest of the child. Legal Framework for International Child Abduction in the European Union – the Need for Changes in the Light of Povse v. Austria, by Vesna Lazić, examines the appropriateness of application of the 1980 Child Abduction Convention within the framework of the Brussels IIa Regulation in the light of the Povse v. Austria decision. This factually and legally complex case, submitted to the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), illustrates the deficiencies of the current procedural framework on international child abduction in the European Union. The author uses the Povse case to illustrate the fact that legal framework does not necessarily ensure an adequate protection of the best interest of child. Since the current EU system implies two- fold or parallel applications of the 1980 Hague Convention, one amongst the EU Member States and the other for non-EU members, it is suggested by the author that inconsistencies in the administration of justice may occur. The author offers suggestions on how to adjust the legislative framework so as to more appropriately accommodate the needs of actors in cross-border child abduction litigation. She advocates that: a) regarding child abductions, the scheme under Articles 11(8) and 42 should be abandoned ; and b) regarding possible abolition of exequatur for decision on the custody of the child, certain minimum standards of compliance with the basic notions of morality and justice pertaining to public policy should be able to be examined at the enforcement stage. Part 4 of the Conference Proceedings entails a number of papers under the general denominator: Status and Family Matters in Comparative Family Private International Law. Anatol Dutta’s paper Habitual residence versus nationality – In search of the European personal connecting factor in family matters comes translated into the Croatian language. This paper is a polemic on the search for the best personal connecting factor in international family law. If the closest connection principle is a starting point, the author argues whether the factual connecting factor of habitual residence, on the one hand, and the more legal connecting factor of nationality, on the other hand, are the most suitable for handling status, personal and family matters. Dutta concludes that the policy of the EU legislator to follow the habitual residence principle is justified. In the long term, the author sees the nationality principle as playing only a secondary role, that of a subsidiary connecting factor. However, for civil status matters (the conflict rules for parentage, marriage, names and adoption), the nationality principle is much more rooted in Member States’ private international laws, and it remains to be seen if the European legislator would depart from it for the benefit of habitual residence. An article by Csongor István Nagy, entitled What functions may party autonomy have in international family and succession law? An EU perspective comes in a Croatian language translation as well.The article examines, from an EU perspective, what functions and considerations may justify party autonomy in the fields of international family and succession law. The author argues that in family and succession law the main function of party autonomy should be to tackle the uncertainties related to the applicable law (predictability), to protect vested rights and to ensure the operation of the country-of- origin principle. It is also submitted that this function is less relevant regarding matters connected to legal systems that contain uniform choice-of-law rules, like the Member States of the EU. Furthermore, the article also argues that in the EU the mutual recognition of the choice-of-law rules of the Member States may also justify party autonomy, especially in family and succession law. Aida Bushati (Gugu) and Eniana Qarri write on Albanian Private International Law in Family Matters. The Albanian Private International Law Act of 2011 has made significant improvements compared to the old law. The law tries to approximate the provisions of Albanian private international law with the best European and international practices. Concerning foreign judgments, they are recognized and enforced according to the provisions of national (the Civil Procedure Code) and international (multilateral and bilateral agreements) laws applicable in Albania. As regards the regulation of family matters, the new law has brought considerable novelties both from the qualitative aspect, regarding a more detailed regulation of the matrimonial relationship, as well as from the quantitative aspect, regarding the regulation of new relationships which were not covered by the previous law, such as the matrimonial patrimony regime. Along with the traditional connection criteria provided by the previous law, the new law, as regards the determination of the substantive law applicable to marriage with foreign elements, provides for two new connection criteria: “habitual residence” and “closest connection”. Despite the improvements, the PIL Act will necessarily continue to be subject to further revision and clarification needed not only to further approximate it with the developing European regulation, but also to correct and improve some of the existing provisions. Boriana Musseva elaborates on Application of Family Private International Law in Bulgaria, with particular emphasis on the application of the Brussels II bis Regulation and of the Hague Child Abduction Convention. The author presents the case law to prove that in seven years after Bulgaria joined the EU these legal sources have been applied more frequently, ending in correct application in most of the cases. Problems may arise due to habits created by the old legislation always providing access to Bulgarian courts for Bulgarian citizens and due to principles contained in “the bible of the judges“ – the Bulgarian civil procedural code, often considered by the judiciary as superior to EU regulations. In the end, Musseva analyses some problems in the application of the Brussels II bis and Hague 1980 Convention rules. Toni Deskoski & Vangel Dokovski write on Connecting Factors, Party Autonomy and Renvoi in Family Matters in Macedonia

international family law, private international law, child abduction

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