*Article* **Brazil's Experience with Recognition and Enforcement of Family Agreements in International Child Disputes**

**Lalisa Froeder Dittrich**

Ministry of Justice and Public Security, Brasilia 70064-900, Brazil; lalifroeder@gmail.com

**Abstract:** Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child's situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child's return. However, enforcing these agreements can be challenging. This article examines Brazil's experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states.

**Keywords:** child abduction; mediation; recognition and enforcement; voluntary agreements; Hague Conventions

#### **1. Introduction**

Family conflicts can be emotionally and legally challenging, especially if children are involved. When a marriage between people of different nationalities or who live in countries other than theirs ends, the family may have to face, in addition to the typical difficulties of separation, the potential complexities involved in cross-border family disputes.

Take the hypothetical—but increasingly common—case of the divorce of a couple formed by a mother (Brazilian) and a father (Portuguese) who reside in the United States, where their child was born. The end of this marriage can lead to one wanting to relocate to her/his country with the child. In extreme cases, the lack of agreement between the parents can even result in one of them travelling with the child without the proper authorisation, which is considered an international child abduction. In any case, the family will need to navigate the legislation of two or more states with which they are somewhat connected to resolve issues such as custody, visitation rights, and child support.

The legal framework to deal with these conflicts is formed by several bilateral and multilateral agreements, with the most geographically comprehensive being the treaties of the Hague Conference on Private International Law ("HCCH") that apply to international family disputes involving children. This collection of conventions comprises the Convention of 1980 on the Civil Aspects of International Child Abduction ("Child Abduction Convention"), the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children ("Protection Convention"), and the Convention of 23 November 2007 on the

**Citation:** Froeder Dittrich, Lalisa. 2023. Brazil's Experience with Recognition and Enforcement of Family Agreements in International Child Disputes. *Laws* 12: 77. https://doi.org/10.3390/ laws12050077

Academic Editors: Marilyn Freeman and Nicola Taylor

Received: 1 July 2023 Revised: 27 August 2023 Accepted: 29 August 2023 Published: 4 September 2023

**Copyright:** © 2023 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

International Recovery of Child Support and Other Forms of Family Maintenance ("Child Support Convention") that are supposed to work together and complement each other. Among the standard features between them are the use of central authorities—main focal points designated by states to receive and transmit requests—and the promotion—with different degrees of emphasis—for the amicable resolution of disputes.1

Turning back to the hypothetical case, the mother takes the child to Brazil, where she obtains an order for custody and child support. The father opposes the Brazilian court's jurisdiction to decide about custody so as not to consent to the child's relocation to Brazil. A request to return the child to the United States is initiated under the Child Abduction Convention. The dispute escalates. The judge in Brazil suggests mediation. During the sessions, the father reveals that he would consent to the child's relocation to Brazil, conditioned to his free access to his daughter and the right to participate actively in the child's upbringing. They make arrangements that cover relocation, child support, custody, and access rights—including annual visits to Portugal, where the paternal family lives. They want to ensure their agreement will be valid and enforceable in Brazil, Portugal, and the United States.

Whilst it is noticeable that greater emphasis has been placed on promoting amicable solutions in cross-border family cases in recent years, reaching an agreement is just one step towards the resolution when the dispute involves one or more jurisdictions, as the parties need the assurance that they will have more than just the other party's word in case things do not go as planned. In this context, in 2022, the HCCH published the *Practitioners' Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children* ("Practitioner's Tool", HCCH 2022) 2, the result of many years of work of experts from different member states. The publication was presented as a soft law instrument to assist "legal or professional advisers (e.g., mediators) who are helping families with children navigate cross-border issues through a formal agreement." This publication was developed after several meetings and followed the Guide to Good Practice on Child Abduction Convention: Part V—Mediation (HCCH 2012a, 2012b), which also addresses the promotion of amicable resolution of family disputes in which one or more Hague conventions apply.

The *Practitioner's Tool* was the response of the HCCH—the 130-year-old organisation whose mission is to promote the harmonisation of international law, constructing "bridges" between jurisdictions—to the difficult task of bringing more certainty and predictability to families such as the hypothetical one presented as an example. Even though the work did not result in a new treaty—which could, for example, make an agreement enforceable in several states by operation of the law, subject to its meeting determined grounds of jurisdiction, it is expected that this guide will help judges and law practitioners to take into consideration the many issues involved in the construction of realistic and viable agreements, with the help of one or more of the Hague instruments.

Notwithstanding its merits, one of the difficulties with using the new soft law instrument is that it assumes that a state must be a party to all three of the "Hague Children's Conventions" for it to work correctly, which is still not the case for many countries. Its limited scope is understandable, given the mandate of the Experts' Group3 and the objective of encouraging more states to become members of all the Children's Conventions. Still, it does not resolve all issues in states such as Brazil, where only two of the Conventions—Child Abduction and Child Support—are available so far, and where creative solutions must be

<sup>1</sup> The Child Abduction Convention mentions in Article 7(c) that one of the duties of the Central Authority is to "secure the voluntary return of the child or to facilitate an amicable resolution", and the Child Support Convention explicitly determines in Article 6 that it is the responsibility of Central Authorities to "encourage amicable solutions with a view to obtaining voluntary payment of maintenance, where appropriate through mediation, conciliation or similar processes".

<sup>2</sup> The *Practitioners' Tool* (HCCH 2022) is available at https://assets.hcch.net/docs/c7696f38-9469-4f18-a897-e9 b0e1f6505a.pdf (accessed on 1 July 2023).

<sup>3</sup> For a detailed account of the work of the Experts' Group, see Beaumont and Rubaja (2022).

explored to promote agreements and, in some cases, to guarantee that undertakings will be respected in other states.

The main point of this article, thus, is to explore how alternative dispute resolution methods are used in cross-border disputes, focusing on the challenges presented by the recognition in other jurisdictions of family agreements obtained in Brazil. Departing from a brief explanation of how two of the family Hague Conventions in force in Brazil—the Child Abduction Convention and the newer Child Support Convention—work, four real cases will be presented to explain how the available legal framework has been used to secure voluntary agreements in the context of international legal cooperation requests handled by the Brazilian Central Authority (BCA), the Ministry of Justice and Public Security of Brazil. To this end, the methodology chosen was a literature review of the two Conventions and, more specifically, of the difficulties to recognise and enforce agreements made in the context of child abduction disputes. Except where the dispute has been widely publicised, none of the details that could lead to the identification of the parties will be disclosed.

#### **2. The Hague Children's Conventions of 1980 and 2007 in Brazil**

Implementing the Hague Conventions played an essential role in the evolution of Brazil's international legal cooperation system, especially regarding establishing central authorities and developing mutual assistance. These two concepts were recently incorporated into the newly reformed Brazilian Code of Civil Procedure (Brazil 2015a), in an example of how the work of the HCCH has been shaping and influencing domestic law in the country.4

Since 2000, Brazil has adhered to three of four HCCH conventions related to children: the Hague Convention Relating to the Protection of Children and Cooperation in Respect of Intercountry Adoption of 1993 ("Adoption Convention"), in force in Brazil since 1999; the Child Abduction Convention of 1980, in force in Brazil since 2001; and the Child Support Convention of 2007, in force in Brazil since 2017. The adhesion to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children of 1996 ("Child Protection Convention") is still the object of discussion, as some changes in domestic legislation may be necessary for the incorporation of this treaty in Brazil.

Among these, the Child Abduction Convention, considered one of the most successful of the HCCH's conventions, with the participation of 103 member states as of June 2023 undoubtedly is the one that stirred more controversy in Brazil, having attracted much criticism since it became more broadly known in the country5. Its implementation in Brazil occurred at a time when some of its fundaments were already the object of debates in other countries, and, 20 years on, its application in Brazil is challenged by controversies involving the profile of abductors—which follows the same patterns observed worldwide, mothers and primary caretakers (Lowe 2018) 6—allegations of domestic violence and, to a lesser extent, the need to include the child's voice in the context of family disputes.

#### *2.1. The 1980 Hague Child Abduction Convention*

The Convention of 1980 on the Civil Aspects of International Child Abduction is a treaty that seeks a) to ensure the immediate return of a child who was unlawfully removed

<sup>4</sup> Although Brazil is a member of several other Inter-American conventions, including those related to the protection of children, the argument remains, as those treaties were "clearly inspired by some of the Hague Conventions", according to Boggiano (1992).

<sup>5</sup> The turning point for the treaty to gain wider recognition (and to attract criticism) in the country was Sean Goldman's case, which gained significant attention from the press and the public in 2008. The "Goldman Case" involved politicians and even had an intervention of the then USA President, Obama, who met with Brazil's President, Lula. The case divided public opinion and sparked passionate debates in Brazil, where the HC80 Convention was largely unknown. Sean returned to the United States in December 2009. "Goldman v Goldman" (case 2009.51.01.018422-0, Justiça Federal do Rio de Janeiro).

<sup>6</sup> In 2015, 73% of the persons taking children were their mothers and 91% of this total amount were the child's primary caregivers. Overall, 80% of the persons taking children in 2015 were the primary or joint-primary carers of the children involved (Lowe 2018).

or retained in a contracting state other than the one where she/he has its habitual residence and b) to guarantee the respect for visitation rights in all contracting states. In a broader scope, it aims to prevent child abductions and discourage forum shopping; that is, the search for a more favourable jurisdiction by one of the parties.

The Convention on Child Abduction is highly praised for its simplicity and innovative mechanism of administrative cooperation between central authorities; according to Elrod (2023), it "marked a new era of global cooperation over issues relating to children".

Under this treaty, habitual residence is the connecting factor for establishing jurisdiction for conflicts involving fundamental issues in a child's life because it is easier to obtain evidence and elements to support a decision where the child has his/her school, family, home, and friends. Thus, a child abduction occurs when a child is wrongfully removed from her/his place of habitual residence, in breach of another person's custody rights custody being an autonomous concept whose meaning must adjust to the corresponding idea in the domestic legislation pertinent to the concrete case.

Therefore, custody must be understood as corresponding to the right to decide on the most relevant issues of the child's life, including, necessarily, in this list, the right to determine, unilaterally or not, the place of her/his residence (Pérez-Vera 1982). With the choice of habitual residence as its connecting factor,

*"(*...*) the Convention avoided the seemingly unresolvable issue of recognition of custody orders by shifting the focus from enforcement to cooperation. Instead of a focus on enforcing existing orders, the Convention attempts to ensure that any litigation over child custody occurs in the place in which the child has been habitually resident before the wrongful removal or retention". (Elrod 2023)*

The Child Abduction Convention entered into force in Brazil in 2001, marking the country's return to the HCCH7. However, only at the end of 2002 was the Brazilian Central Authority adequately established, and the first requests were filed before the Brazilian Courts (Dittrich 2015). Under Brazilian law, custody rights for the means of the Child Abduction Convention are held by parents who have not been deprived of family power over their children, even if they do not share custody. This is what can be inferred, for example, from the legal requirement (Brazil 1990).8 for the express authorisation of both father and mother for a child to have a passport and to leave the country unaccompanied or in the company of only one of the parents. This authorisation does not allow a parent to change the child's residence to another state Thus, whoever removes a child from Brazil without judicial or express authorisation from the person exercising family power will be committing an illegal removal.

The cooperation mechanism devised by the Child Abduction Convention relies on the work of central authorities. The Brazilian Central Authority for this Convention was first established at the Secretariat of Human Rights. It was then placed within the structure of the Ministry of Justice to concentrate all instruments for legal cooperation in just one governmental body, where civil service officers would then specialise in all matters relating to private international law.9

At the BCA, once a return request is received, the team, composed of civil servants from different backgrounds, verifies that the documentation submitted is complete and that the essential criteria for admissibility of the request are fulfilled: whether the child is under 16 years of age, whether there is any document establishing residence in the requesting country, and whether the person requesting return—known as the "left behind parent" has presented documentation that serves as proof that he or she had custody rights over

<sup>7</sup> Brazil left the HCCH in 1978 and only returned as a member in 2001.

<sup>8</sup> Article 83 of the Child and Adolescent Statute—Law 8069 (Brazil 1990).

<sup>9</sup> The Department of Asset Recovery and International Legal Cooperation (DRCI) is a Ministry of Justice and Public Security Department. Created in 2004, it acts as the Central Authority for international legal cooperation in criminal and civil matters.

the child. Since 2005, a letter has been sent to the person accused of having removed or detained the child in Brazil, with the primary objective of seeking a voluntary return.

In case a voluntary return or an agreement for relocation is not possible, the BCA sends the request to the Office of the Attorney's General (OAG), the public body in charge of representing the Brazilian state before a Federal Court, which is competent to judge requests based on international treaties, by article 109, III, of the 1988 Brazilian Federal Constitution. Brazil receives and sends around 200 requests per year under the Child Abduction Convention and faces, internally, the same challenges reported in other states regarding its appropriateness in responding to allegations of domestic violence and the protection of the child once a return occurs.

#### *2.2. The 2007 Hague Child Support Convention and the Maintenance Protocol*

The Child Support Convention aims to provide a framework for effectively enforcing child support obligations across borders. It was adopted in 2007 and has since been ratified by 47 countries. The Convention establishes a system for obtaining, recognising, and enforcing child support orders, ensuring that children and, in some cases, spouses living in different countries can receive financial assistance. This Convention applies to all children, regardless of whether they are born in or out of wedlock, an essential step towards protecting children's rights.

The other innovative aspects of this new Convention are the many kinds of requests available to both creditors and debtors and the introduction of party autonomy in its protocol for applicable law—although excluding the possibility of choice of forum in agreements involving children and vulnerable persons (González Beilfuss 2020). Moreover, whilst existing instruments (such as the 1956 UN Convention on the Recovery Abroad of Maintenance and the previous Hague Convention of 1958) focused on the obligation of states to recognise and enforce support orders, the 2007 Child Support Convention obligates contracting states to actively provide access to procedures with no costs to the parties. Thus, a creditor can, for example, request the obtention of a decision (and the establishment of paternity, if necessary), resourcing to the mechanism of mutual assistance, or ask for the recognition and enforcement of an existing decision obtained in the requesting, requested, or other member state. There is also the possibility of asking for the recognition and enforcement of an agreement if the requested state did not make a reservation to Article 30 under the provisions of Article 62.

The Child Support Convention entered into force in Brazil in October 2017. As mentioned before, under the law, the Ministry of Justice and Public Security is the central authority for three of the Children's Hague Convention and several other bilateral and multilateral treaties. The concentration of treaties in the same government body was an advantage to successfully implementing the new Convention following the challenging first years of the Child Abduction Convention in Brazil.

Since the beginning, inspired by the already established practice of the BCA in promoting amicable agreements in child abduction cases, it was decided that a letter for voluntary payment would be sent to the debtor in all cases received by the BCA. This decision was derived not only from the obligation found in Article 6 but was also based on the good results of contacting the parties before starting judicial proceedings observed in the years of working with the Child Abduction Convention. This may come as a surprise given the reservation made by Brazil to Article 20(1) and 30(8), which provides the recognition and enforcement of agreements.10

<sup>10</sup> Reservations made by Brazil: to Article 20(1)(e): Brazil does not recognize or enforce a decision in which an agreement to the jurisdiction has been reached in writing by the parties when the litigation involves obligations to provide maintenance for children or for individuals considered incapacitated adults and elderly persons, categories defined by the Brazilian legislation and which will be specified in accordance with Article 57. To Article 30(8): Brazil does not recognize or enforce a maintenance arrangement containing provisions regarding minors, incapacitated adults, and elderly persons, categories defined by the Brazilian legislation and which will be specified in accordance with Article 57 of the Convention.

In fact, at the time of the reservation, the idea seems to have been avoiding conflict with domestic law, which prescribes that agreements involving children and incapacitated or vulnerable adults can only be recognised and enforced after a revision on the merits by a judge, and after the hearing of the Public Prosecutor's Office. The reservation is derived from paternalistic principles that permeate Brazilian legislation, severely restricting party autonomy in matters involving children (Araujo and Vargas 2014). However, the changes made in the Brazilian Code of Civil Procedure11 and the implementation of the new Law on Mediation12 in the country, just two years before the Convention on Child Support entered into force in Brazil, as well as the emphasis from the Judiciary and the Executive branches on public policies to promote negotiated agreements, conflict with the excessive caution taken by the negotiators at the time of the reservation.

Under current legislation, an arrangement that involves non-disposable rights (i.e., rights one cannot surrender, transfer, or dispose of) but can be the object of an agreement is not enforceable unless it is validated by a judge.<sup>13</sup> That means that, although a parent cannot decide whether a child has the right to receive child support, an arrangement regarding the amount and frequency of payments is acceptable and enforceable after a judge's review.

In practice, since the Child Support Convention initiated its operation in Brazil, arrangements that a court of another member state approved—and, thus, that became a court order—have been accepted for recognition and enforcement by Brazilian authorities under Article 10 (1a), based on the understanding that if the agreement is enforceable in the other state as a court order, it can be recognised in Brazil as a foreign decision. It is a reasonable approach considering that the basis for the recent modernisation of Brazilian law is that negotiated solutions are preferred and prioritised by the Judiciary, especially in family law.

Therefore, although the reservation has not been an obstacle to accepting a request for recognition and enforcement received by Brazil to date, there are discussions in place regarding the possibility and convenience of removing the reservation made in 2017, as practice—as well as a review of country profiles—has shown that contracting states mainly share the same principles regarding the protection of children and other weaker parties when it comes to approving and enforcing agreements.

In the same direction, the BCA, as mentioned before, has been encouraging agreements since the beginning of the implementation of the Child Support Convention. Once a letter is sent to the debtor, the BCA will help the parties to exchange proposals for the voluntary payment of the debt and, in some cases, to establish paternity. Only when a voluntary agreement is impossible the request is sent to the Public Defender's Office (DPU), a public body whose mission is to guarantee access to justice for those who cannot afford to pay attorneys. The Public Defenders will also work with the parties to obtain an amicable agreement at any point in the proceedings, and the judge will make another attempt in most cases, as prescribed by law (Brazil 2015a).14

In contact with the parties, it was noticeable, from the start, that many requests for the obtention of a decision or recognition and enforcement of a child support order involved parties that were either left-behind parents or abducting parents in previous or current cases handled by the BCA. Unsurprisingly, the same complaints and accusations were brought back to the dispute: lack of contact, resentments about the abduction, disagreement with the relocation, and non-compliance with child support orders obtained in one or more

<sup>11</sup> (Brazil 2015a). Law 13.105/15. Available at https://www.planalto.gov.br/ccivil\_03/\_ato2015-2018/2015/lei/ l13105.htm (accessed on 1 July 2023).

<sup>12</sup> (Brazil 2015b). Law 13.140/15. Available at https://www.planalto.gov.br/ccivil\_03/\_ato2015-2018/2015/lei/ l13140.htm (accessed on 1 July 2023).

<sup>13</sup> Law 13140/2015, Article 2, Paragraph 2: *The consensus of the parties involving undisposable but negotiable rights must be ratified in court, requiring the hearing of the Public Prosecutor's Office.*

<sup>14</sup> The Brazilian Code of Civil Procedure (2015) states in Article 3. (...)*Paragraph 2. The State shall promote, whenever possible, the consensual resolution of conflicts.Paragraph 3. Conciliation, mediation, and other methods of consensual dispute resolution shall be encouraged by judges, lawyers, public defenders, and members of the Public Prosecutor's Office, including during the course of judicial proceedings.*

jurisdictions.15 The need for these disputes to be addressed as a set of complex and intertwined issues, which in cross-border cases is more realistic with the use of mediation, became visible in practice.

#### **3. Mediation in Cross-Border Family Disputes**

Just as it happened in European countries and the United States in the 1970s and, more recently, in Latin American countries, where the promotion of alternative dispute resolution methods emerged as a response to excessive litigation (Melo Filho 2003), the interest in the use of consensual methods by the HCCH coincides with the yearly increase in the number of requests for international legal cooperation involving children (Vigers 2011). The enthusiasm for using mediation in international family disputes also derived from successful experiences and studies demonstrating that this method could lead to more favourable outcomes for the parties, particularly children (Roberts 2008).

Mediation, in this context, arises not only as an alternative to the slowness of the justice system but as a process that values the autonomy of the parties and has as its main advantage the potential to improve communication between parents, who, because their children bind them, will be required to maintain an ongoing relationship that does not end with the conclusion of the judicial process (Mnookin and Kornhauser 1979).

Some advantages of mediation in family cases are (a) decreased animosity; (b) a sense of greater control for the parties over the process; (c) greater adherence to and respect for the agreed-upon terms (Roberts and Palmer 2008); (d) increased possibility that the agreement will serve the best interests of the child; (e) the ability to address various aspects of the conflict in the agreement, even those that are not the subject of the legal action or international legal cooperation request; (f) improved cost–benefit ratio, as mediation tends to be shorter in duration and involve fewer financial resources (Coester-Waltjen 2000).

In cases of international child abduction, expanding the aspects discussed in mediation seems to play an important role, meaning the difference between a quick voluntary return and a costly and lengthy judicial process, which may potentially harm the child's wellbeing16. Furthermore, an agreement between the parties tends to prevent future abductions (Mosten 1993). Practical experience in Brazil showed that negotiating an agreement for a voluntary return was easier when there was the possibility of addressing other aspects of the family relationship, such as visitation rights, custody, and child support (Dittrich 2015).

However, mediating international child abduction disputes presents some challenges, as mediation must be adapted to meet the contingencies imposed by distance and time. Projects underway in Europe, such as in England, Germany, and The Netherlands17, indicate that the ideal mediation, in these cases, would involve the presence of two mediators, respectively, of the gender and nationality of each party. The language used should be the common language of the couple. Still, a translator may also be necessary since the parties cannot always express intense emotions in a language other than their mother tongue (Paul and Kiesewetter 2014).

Another challenging task when it comes to elaborating on an agreement that involves different jurisdictions is the "reality test"—is what is being agreed realistic? Is it feasible in financial and logistical terms? Will it be adequate in one or two years, or should it be reviewed in a pre-determined timeframe? More fundamentally, will it be valid in both (or

<sup>15</sup> In 2023, there were 18 open cases at the BCA in which the child for whom maintenance is requested is involved at some point in disputes under the Child Abduction Convention. Unpublished data are available under request to the author.

<sup>16</sup> That seems to also be the case in South Africa. Ferreira (2019) argues that *"the reality is that a court-imposed outcome is seldom a good fit in family matters. The issues are just too personal and require a level of detailed attention that overburdened courts in South Africa cannot provide. Alternative dispute resolution, or dispute resolution by agreement, provides an alternative to court procedures, and it is a quicker, non-confrontational, conciliatory approach to resolving matters"*.

<sup>17</sup> From 2019 to 2020, the European Justice Program funded the AMICABLE project to promote a court model mediation into international child abduction proceedings in the EU. See: https://www.amicable-eu.org/ (accessed on 1 July 2023).

more) jurisdictions? The need for certainty and predictability is a significant factor for the parties to agree on the return or relocation of a child, and the HCCH acknowledged the need to respond to these demands with the creation of a working group to explore the convenience of elaborating on new binding or non-binding instruments to uniformise rules among member states.

#### *Recognition and Enforcement of Agreements in Cross-border Family Disputes Involving Children*

The primary objective of the Child Abduction Convention is the immediate return of the child, explicitly limiting the jurisdiction of the judge in the country to which the child has been taken or is being retained solely to determine whether the child's removal or retention was wrongful. Custody decisions, which should be made in the child's habitual residence state, are not allowed. In other words, discussions about custody should only take place after the child's return to the state of habitual residence, and any eventual agreement could only be approved by the judge of the requested state regarding the issue of the child's return.

When the parties are not allowed to discuss the real issues that led to the child's abduction in the first place, it is unlikely that the mediation will result in a genuinely consensual agreement. Baroness Hale (2023) rightly stated that although the apparent answer to child abductions is to bring the child back as soon as possible to restore stability, *"human life is not so simple"*, and there may be many reasons for an abduction that may impend the return. *"What about poverty? A parent may have been abandoned without resources in a country with little or no welfare benefit provision. What about inequality of arms? A parent may be vulnerable to losing her children to the other parent if he has money for lawyers and she does not)".18*

For Grammaticaki-Alexiou (2020), the idea that the status quo ante will be restored with the return is not a given fact, as another dispute will probably begin in the state of habitual residence, *"which may result in the change of the custodial parent, or a significant change in the everyday life of the child, often to the worse"*. <sup>19</sup> In this sense, it might be in the child's best interest to have an arrangement if the parents are willing to negotiate a solution to their dispute. This is only possible, however, with the knowledge that an agreement will be respected and there will be a way to enforce it in case of non-compliance, as otherwise, one of the parties would be left with only trust in the other's good faith. Unfortunately, trust between the parties involved in such cases can be compromised after an international abduction.20

The main challenge regarding the recognition and enforcement of "package agreements" in child abduction disputes is the lack of jurisdiction of the judge in the requested state, derived from the Child Abduction Convention, which expressly prohibits a court in the requested state from deciding on the merits of custody until there is a decision for the non-return of the child Article 16), and to refuse a return order based on the existence of a custody order in the requested state (Article 17). In the case of non-return, it should be easier to determine the shift in the child's habitual residence, but there is still controversy about the moment this occurs. Nonetheless, it seems logical that when both parents agree with the non-return of the child, they agree to change her/his residence to the requested

<sup>18</sup> Hale (2023). "Foreword". In *Research Handbook on International Child Abduction*. Cheltenham, UK: Edward Elgar Publishing, p. 1.

<sup>19</sup> Grammaticaki-Alexiou (2020). "Best Interests of the Child in Private International Law (Volume 412)". Collected Courses of the Hague Academy of International Law. Brill Reference Online. Retrieved 10 Aug. 2023 from https://referenceworks-brillonline-com.peacepalace.idm.oclc.org/media/pplrdc/1875-8096\_412- 02.pdf?id=the-hague-academy-collected-courses/best-interests-of-the-child-in-private-international-lawvolume-412-A9789004448995\_02#pagemode=bookmarks&page=1 (accessed on 1 July 2023).

<sup>20</sup> For Treichl "*it goes without saying that consensus between the parties is a prerequisite of any settlement agreement. As a result, one would assume the recognition of settlement agreements, and eventually their enforcement, become questions of lesser importance. (*...*) However, enhancing the enforcement of settlement agreements beyond the status of a mere contract is likely to provide parties with a perhaps decisive incentive to settle. This is especially so in international contexts because parties are all the more disinclined to initiate litigation for breach of a settlement agreement if they are forced to do so abroad and could be required to re-litigate a merits phase*" (Treichl 2020).

state. It would make no sense to ask them to first present a case to the court in the requested state—where, in many cases, there are no pending proceedings—before being able to recognise an agreement in the new state of habitual residence. A pragmatic approach should prevail in these cases as time and money can be saved when a decision can be made regarding the non-return and all other issues agreed upon by the parents simultaneously. However, the question of how to recognise the agreement in the other state remains.

It is also debatable if an agreement that includes more than just the decision about return or non-return could be incorporated in a court order to be enforced in another jurisdiction. The question is even more complicated regarding an arrangement for the voluntary return, as the agreement may not be accepted in the state of habitual residence, leading to a new dispute to rediscuss its terms.

Therefore, when an agreement is being elaborated on, the parties must know the rules of jurisdictions regarding custody, child support, access rights, parental rights, and any other matter affecting their arrangement. In the absence of uniform rules at the international level guaranteeing that an agreement will not be "just a piece of paper"21 or an empty promise, legal practitioners must be creative in providing some predictability to the parties.

In this regard, the most expected instrument to help shed light on this complicated issue was the 2022 HCCH *Practitioner's Tool*. This document explores different scenarios based on the intersection between three of the Children's Hague Convention (Abduction, Protection and Child Support). Although helpful as a tool to understand which elements must be considered in elaborating an agreement (habitual residence being the common connecting factor to all three Conventions), the guide is of limited use for states where one or two of the Conventions are not in force. It is particularly challenging for states where the 1996 Protection Convention, a treaty that provides a framework to incorporate protection measures into return orders and set rules for the temporary transfer of jurisdiction between states, somewhat supplementing the other two Conventions, is not in force. In this sense, the *Practitioner's Tool* also aims to engage more states in joining all three Conventions whilst still encouraging close cooperation between central authorities and judges' networks to fill eventual gaps in the law for states that cannot rely on the use of all these treaties.

As the 1996 Protection Convention—considered by some to be the stitch of the other Conventions (Estin 2010)—is not in force in Brazil, the *Practitioner's Tool* is not yet a helpful instrument to solve some of the cases that involve the need for undertakings as a condition for a voluntary return, for example, or the recognition of a custody arrangement obtained in Brazil after the return of a child is denied under one of the exceptions for non-return. Nonetheless, it may help accelerate the country's adhesion to the Protection Convention. This demand is even more urgent in the context of the limitations of regional agreements within Latin America dealing with these matters—contrary to what happens in the European Union, where there is the Brussels IIb Regulation providing mechanisms to facilitate the recognition of agreements22—and the fact that most cases of child abduction in Brazil involve a European country or the United States of America.<sup>23</sup> Meanwhile, the need for close cooperation between the BCA and other central authorities will be essential to circumvent the limitations imposed by the lack of an international instrument for the recognition and enforcement of agreements made in Brazil, where the use of mediation and conciliation has been increasingly promoted as the basis of a public policy to reduce litigation in the country, as it is going to be discussed in the following part of this article.

<sup>21</sup> That is also true regarding undertakings negotiated by judges, as reported by Freeman (2006) on the results of a Reunite scheme research study: *'one abducting parent described how the left-behind parent referred to the undertakings he had given to the English court as "toilet paper'*.

<sup>22</sup> EC Regulation 2019/1111 or Brussels IIb Recast Regulation replaced the Brussels IIa Regulation in August 2022. This binding regulation facilitates the recognition and enforcement of judgments in matrimonial and parental responsibility matters within EU Member States.

<sup>23</sup> Data from the Brazilian Central Authority show that more than half the cases of child abduction involve the United States, Portugal, Spain, Italy, Germany, and France. Argentina comes in the fourth position. Regarding child support requests, half the cases involve Portugal and the United States of America.

#### **4. Cross-Border Family Disputes in Brazil: Case Studies**

In Brazil, the use of consensual methods for resolving disputes was mainly motivated by the massive backlog of the courts (Melo Filho 2003). In 2019, the Council of National Justice revealed that, at the end of that year, there were 77.1 million cases pending resolution (Conselho Nacional de Justiça 2022).

Since 2016, the practice of mediation and conciliation has been regulated by the Code of Civil Procedure ("CPC"—Law 13.105/2015)24 and by the Law on Mediation (Law 13.140/2015). These two instruments establish that private agreements have the status of extrajudicial enforceable documents. In cases involving children, however, arrangements must be judicially approved to have the status of an enforceable decision, which means that agreements that define custody, visitation, and child support must be submitted to the scrutiny of a judge, after which they hold the value of a court judgment25. The Law on Mediation and the changes made in the CPC have been slowly changing the judicial scenario in the country. In 2019, 12.5% of the cases were resolved with a judgment homologating an amicable agreement (Conselho Nacional de Justiça 2022).

Regarding international child abduction disputes, in 2018, around 23% of the requests handled by the Brazilian Central Authority (BCA) were resolved with voluntary returns, and 7% ended with the child's relocation to Brazil. There are no consolidated statistics on the use of consensual methods in child support cases, as the implementation of the Child Support Convention is still recent. The BCA, however, registered a few cases that ended in agreement after the debtor received and responded to the voluntary payment letter and others that ended in agreement during court proceedings26. The Child Support Convention greatly facilitated the recognition of these agreements for the voluntary payment of child support. However, when the dispute involved visitation rights or other issues, there were several limitations and challenges for central authorities and parties involved.

In the last part of this article, some of the issues involving voluntary methods in resolving cross-border disputes in Brazil will be explored and illustrated by four cases that the BCA handled between 2016 and 2019.

#### **Case 1.** *Agreement for temporary relocation from Brazil to Scotland.27*

The case involves two Brazilian nationals who had a child in Brazil and separated soon after. They shared custody of their child and had an amicable relationship. The mother decided to move to Scotland, and the father agreed to let the child go with the condition that she would return to Brazil after two years. To this end, the couple signed an agreement before a notary in Brazil, in which they both stated the child's habitual residence was in Brazil and the move would be temporary. The agreement was not considered enforceable in Brazil, as all agreements involving children must be reviewed by a judge to have the force of a judicial decision.

After two years, the child did not return, and the mother alleged that it was the child's wish to stay in Scotland, where she made friends and adapted to a new school. A request for the child's return was sent to Scotland under the argument that the father disagreed with the permanent change of residence of the child. A social worker heard the child before judicial proceedings were initiated. Based on the report of this professional, who considered that the child was habituated to her new place and did not want to return, the case was not considered strong enough to be presented to a court and the father was left with the option to negotiate visitation rights with the help of an appointed lawyer.

<sup>24</sup> Brazilian Code of Civil Procedure (2015). Article 3. No threat or violation of rights shall be excluded from judicial review.*Paragraph 2. The State shall promote, whenever possible, the consensual resolution of conflicts.Paragraph 3. Conciliation, mediation, and other methods of consensual dispute resolution shall be encouraged by judges, lawyers, public defenders, and members of the Public Prosecutor's Office, including during the course of judicial proceedings.*

<sup>25</sup> Article 2, Paragraph 2: *The consensus of the parties involving unavailable but negotiable rights must be ratified in court, requiring the hearing of the Public Prosecutor's Office.* Law 13140/2015.

<sup>26</sup> Ministry of Justice and Public Security (2018). Statistics. Brasilia, DF. Unpublished.

<sup>27</sup> Child abduction case handled by the Brazilian Central Authority in 2018. Unpublished.

In this case, three things show the difficulties involving cross-border family agreements:


#### **Case 2.** *Voluntary return from Brazil to Germany.28*

In this case, the BCA received a request to return a child born in Germany, where she lived with her German father and her Brazilian mother. The couple separated, and the mother, who had no income or extended family in Germany, started talking about moving to Brazil with the child. Afraid of having the child removed from the country, the father went to court and obtained a temporary order for sole custody of the child in Germany. Fearing losing child custody, the mother flew to Brazil at the end of 2016.

With the help of the BCA and the German Central Authority, before court proceedings were initiated, the parents agreed that the child should return to Germany, where she would live with her mother. It was revealed during negotiations that the father considered her ex-partner a good mother and did not oppose his daughter living with her mother as long as they shared custody over the child. The mother revealed that she wanted to live in Germany but feared she would not have the means to support herself and that her poor financial conditions meant she would never be granted custody of her daughter. The couple agreed on place of residence, maintenance, custody, and visitation rights, and a voluntary return of the child seemed easy to guarantee.

However, the mother wanted to ensure the agreement would be enforceable in Germany before the return. The German legislation did not allow for a decision for custody to be issued whilst the child was not back in Germany, even though the German court had jurisdiction over custody matters under the Child Abduction Convention and the Child Protection Convention, which was in force only in Germany.

The solution was signing a document before a notary in Germany with the promise of the father to comply with the agreement. This document would not be enforceable in Germany but could be used as evidence in favour of the mother in future custody proceedings. The child returned at the beginning of 2018, and further contact with the parties revealed that both parents respected the agreement.

This successful case demonstrated two critical factors. Firstly, the collaboration between central authorities led to a creative solution that eased the mother's concerns. She was worried about being unable to support herself in a foreign state due to having a lower income and education than her ex-partner. Secondly, it highlighted the significance of broadening the discussion's scope beyond the child's return. This allowed for effective

<sup>28</sup> Child abduction case from 2016. Unpublished.

communication between the parties, resulting in the father admitting he did not want to be the sole custodian parent. As a result, arrangements were made in the child's best interest.

Even though this resulted in a good solution for the parties, it could have been handled differently if both the Child Protection and the Child Support Convention had been in force between Germany and Brazil at the time. For once, a child support order could be established in Brazil and recognised in Germany under the Child Support Convention, somewhat protecting the mother if the father changed his mind regarding the promise of helping her financially until she found work.

#### **Case 3.** *Agreement after a return order from Brazil to the United States of America (US).29*

The case involved a child born in the US to Brazilian parents who lived there. The mother came to Brazil with the child in 2009 to visit their extended family and did not return. She asked for a divorce and custody of the child in Brazil. After a failed attempt to obtain a voluntary return, the case was presented to a court in 2010. The child's return was ordered, but the mother reversed the decision with an appeal, which was overturned again in a different court. The parties' attorneys negotiated an agreement to return the mother and child to the US under the condition that a court in the US and Brazil first homologated the agreement.

After the "parenting plan" approval by a US court30, the agreement was recognised in Brazil, where the law allows for the recognition of foreign decisions if some conditions are met (Brazil 2015a) 31. After recognising the decision in the US, the mother withdrew her appeal in Brazil and returned with the child32.

The agreement involved arrangements for visitation rights, custody, child support, religious education, and habitual residence. There were multilateral agreements between the US and Brazil, but none that applied to the case besides the Child Abduction Convention. The US court did not require the child's presence in its territory to homologate an agreement, and Brazil does not require the existence of a treaty or the promise of reciprocity to recognise foreign decisions. However, it took the parties several months to have "mirror" orders in place to allow for the child's return, which occurred in 2018.

It should be noted that this case took eight years to conclude in Brazil for several reasons, the main one being the fear of the judges separating a small child from her mother, who was also allegedly a victim of domestic violence. It can be hypothesised, therefore, that an agreement was only possible when the "best alternative to a negotiated agreement" (Fisher and Ury 1991) for the mother was not a good one: returning to the US without any undertakings in place. This case also involved allegations of parental alienation, as the father lost contact with the child. The relationship between the parties was worsened after many years of battling in court, and the whole family was traumatised by the experience.

#### **Case 4.** *Agreement for relocation to Brazil from the US.33*

The final scenario presented involves a boy taken to Brazil by his mother from the US in late 2012.

In this case, the parents were not married, and both lived in the US. The father took legal action to establish paternity and gain shared custody of the child shortly after his birth. Upon receiving notification of these proceedings from the US court, the mother, a

<sup>29</sup> Child abduction case that was finalized in 2010. Unpublished.

<sup>30</sup> In this case, it seems the US court relied on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). According to Estin (2010), under these provisions, "state courts consider foreign countries as if they were states of the United States for jurisdictional purposes".

<sup>31</sup> Under Article 963 of the Brazilian Code of Civil Procedure, the indispensable requirements for the approval of the decision are as follows:*I—To be issued by a competent authority;II—To be preceded by regular citation, even in the case of default;III—To be effective in the country in which it was issued;IV—Not to violate the Brazilian res judicata;V—To be accompanied by an official translation, unless there is a provision in a treaty that exempts it;VI—Not to contain a manifest offense to public order.*

<sup>32</sup> Superior Court of Justice. RESP 1.458.218. Available at: www.stj.jus.br (accessed on 28 June 2023).

<sup>33</sup> Child abduction case finalised in 2013. Unpublished.

Brazilian citizen living undocumented in the US, fearing losing custody, took the child to Brazil.

The BCA received the Hague request for the child's return at the beginning of 2013. Return proceedings were initiated after an unsuccessful attempt to have the child voluntarily returned to the US. The child's mother argued that she would not be permitted entry into the country and could not bear to be separated from her young child. In 2016, during a conciliation hearing before a judge in Brazil, the parties agreed to relocate the child to Brazil until 2022, when he would then move to the US to live with his father. According to the agreement, the parents will share custody of their child. Visitation rights and child support were also objects of the agreement, which was first homologated by the court in the US, where paternity and custody rights were decided. With the relocation, the Brazilian court had jurisdiction over the matters, and the agreement was replicated in Brazil.

Many issues were involved in this case: the possible application of Article 13 (a) of the Child Abduction Convention as an exception for the return since the father did not have custody rights at the time of the removal (although the US court has already retained jurisdiction to establish custody rights); the challenges presented by the immigration status of the mother, which could not be the object of negotiations and that imposed severe difficulties for a voluntary return and future contacts with the child; the young age of the boy, who would allegedly be at risk of losing contact with his mother, who was his primary caretaker since his birth; the shift in jurisdiction after a relocation agreement and the future difficulties to enforce an agreement that established a change in the place of residence of the child seven years later (2022). Both courts (in the US and Brazil) solved the case by retaining jurisdiction and "mirroring" their orders. Straight cooperation between the BCA, the US Central Authority, and the US Embassy in Brazil fundamentally solved this dispute.

#### **5. Conclusions**

The Brazilian experience with the Hague Children's Conventions underscores the significance of exploring different solutions to address the difficulties involving recognising and enforcing agreements in cross-border family disputes. Despite potential obstacles and limitations, these conventions provide a framework for international collaboration and assistance to families in an ever-changing world.

In this article, the advantages of using mediation to resolve high-conflict cases were presented, such as the improvement of communication in the family, the possibility of discussing arrangements for the child's future, and the higher adherence to agreements as a result of the parties being more satisfied with the solution construed by themselves. The challenges to the use of consensual methods when more than one jurisdiction is involved, as in cases of child abduction, were also highlighted to raise possible solutions, especially for states that are not members of the European Union, where regional instruments and resolutions, such as the recently reformed Brussels IIb—make it more accessible to obtain a document that can "travel" between jurisdictions without the need for lengthy and costly proceedings.

In child abduction cases, extra care must be taken with time constraints, as mediation cannot jeopardise the primary goal of promoting the child's return. As in all mediations, the agreement must be tested to avoid unrealistic expectations and to comply with legal requirements. In cases in which agreements will need to be in force in more than one jurisdiction, this involves spending more time considering domestic legislation and the international framework available to recognise the final decision in all states involved.

In Brazil, where mediation has recently become incorporated into domestic legislation, promoting voluntary agreements in cross-border disputes proved a valuable alternative to years of litigation before the child's return is finally decided. It has also served to broaden the scope of the matters that can be decided in one jurisdiction, bringing more certainty to families and judges who might not feel comfortable ordering a return in cases where the mother and the child could be left in a vulnerable situation in another state—for example, with no resources to dispute custody rights.

Given the difficulties caused by the lack of an instrument that standardises the practice of recognition and enforcement of family agreements at the international level for states such as Brazil, which is not a party of the Child Protection Convention, practitioners must seek alternatives to provide some legal predictability to the parties. The HCCH *Practitioner's Tool* may help to guide the elaboration of agreements, even though it has limited applicability for states that are not members of all three Children's Conventions.

Finally, although there is a strong argument in favour of more states becoming parties to the Child Protection Convention, there are indications that more is needed to address many dispute complexities. There is undoubtedly a case for elaborating on a new international agreement to facilitate the recognition of family agreements across borders, making them "portable documents". Meanwhile, solutions must be built with cooperation between Central Authorities, judges' networks, and the creative use of other bilateral and multilateral agreements.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** The data presented in the case studies are available on request from the corresponding author, with restrictions (names of the parties cannot be disclosed). Data are not publicly available due to domestic law that protects information in all proceedings involving minor children.

**Conflicts of Interest:** The author declares no conflict of interest.

#### **References**


Conselho Nacional de Justiça. 2022. *Justiça em números*. Brasilia: CNJ.


Fisher, Roger, and William Ury. 1991. *Getting to Yes: Negotiating Agreement without Giving in*, 2nd ed. New York: Penguin Books. Freeman, Marilyn. 2006. *International Child Abduction: The Effects*. London: Reunite Research Unit.


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**Mirela Župan \* and Martina Drventi´c Barišin \***

Faculty of Law, Josip Juraj Strossmayer University of Osijek, 31000 Osijek, Croatia **\*** Correspondence: mzupan@pravos.hr (M.Ž.); mdrventic@pravos.hr (M.D.B.)

**Abstract:** The new ECtHR decision in the case of *Z. v. Croatia* suggests that the rule of parental responsibility acquired *ex lege* is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the *ex lege* right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of *Z. v. Croatia* raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case.

**Keywords:** child abduction; parental responsibility acquired *ex lege*; habitual residence; *renvoi*; *Z. v. Croatia*; Child Abduction Convention; Child Protection Convention

#### **1. Introduction**

The provision of Article 3 of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter: Child Abduction Convention) (HCCH 1980), which regulates a wrongful removal or retention of a child, is the key provision of this instrument.<sup>1</sup> The obligation to return the child exists only if the removal or retention of a child can be considered wrongful under the Child Abduction Convention. This provision governs the relations protected by the Child Abduction Convention itself, and at the same time, establishes the conditions under which a unilateral change in the *status quo* may be considered wrongful. A wrongful removal or retention of a child depends on two facts: the existence of the right to parental responsibility under the law of the state of a child's habitual residence, and the actual exercise of that right prior to the removal or retention of a child (Pérez-Vera 1982, para 64). In this way, the Child Abduction Convention protects family relationships that have already been protected by virtue of the manifest right to parental responsibility acquired in the country of the child's habitual residence (Pérez-Vera 1982, pars 65). The removal or retention of the child by one parent who has joint parental responsibility without the consent of the other parent is also unlawful, regardless of whether it is grounded in the law or by court order. Wrongfulness stems from the fact that this type of unilateral action violates the protected rights of the other parent, who is

**Citation:** Župan, Mirela, and Martina Drventi´c Barišin. 2023. Continuity of Parental Responsibility in Child Abduction Cases: Lesson Learned from the Case of *Z. v. Croatia*. *Laws* 12: 82. https://doi.org/10.3390/ laws12050082

Academic Editors: Marilyn Freeman and Nicola Taylor

Received: 23 June 2023 Revised: 25 September 2023 Accepted: 25 September 2023 Published: 29 September 2023

**Copyright:** © 2023 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

<sup>1</sup> "(1) 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 retention; and (b) 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. (2) 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."

prevented from exercising those rights normally (Beaumont and McEleavy 1999, p. 4). Joint parental responsibility does not always arise *ex lege*. There are national legal systems that do not automatically recognise the joint parental responsibility of fathers when the parents are not married.2 This type of national legislation does not contradict the fundamental right to family life. It was clearly stated by the Court of Justice of the European Union (hereinafter: CJEU) in the child abduction case *McB*. <sup>3</sup> The European Court of Human Rights (hereinafter: ECtHR) did not determine such national legislation as being generally contrary to the right to family life and to the prohibition of discrimination. Nevertheless, it gave its opinion on domestic legislative solutions where the mother's consent is a prerequisite for the father to acquire the right to parental responsibility, and established discrimination in this respect.<sup>4</sup>

The law applicable to parental responsibility is generally governed by the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter: Child Protection Convention) (HCCH 1996), which also contains, in Article 16, the rule on the law applicable to parental responsibility, which takes into account a change in the child's habitual residence.5

The facts of the recent case of *Z. v. Croatia*<sup>6</sup> show the inevitable need to take into account the rules of both Hague Conventions. The case concerns the proceedings for the return of children under the Child Abduction Convention, 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. The parents—Ms X and Mr Z, both Croatian nationals—had lived as an unmarried couple since 2007. They had four children, all born in Croatia. In the period between 2011 and 2018, the family moved frequently and lived in Greece, Slovakia, Hungary, Sweden, and France, and, as of 2018, again in Croatia. In 2018, Ms X and Mr Z ended their relationship. In October 2018, the mother gave the father written consent to bring the children from Croatia, where they were living at the time, to Germany, and to take care of them there, fully and independently. In December 2018, the father moved with the children to Germany, where he enrolled them in a private school and kindergarten. In July 2019, the mother revoked her consent, and in August of the same year, she came to Germany and took the children to Croatia. She refused to return the children to Germany after the summer holidays. The national courts in both instances refused to return the children, holding that prior to the abduction, the children had their habitual residence in Germany and that German law was applicable for assessing whether the retention of the children in Croatia is wrongful. According to German law, the retention of the children in Croatia by their mother did not represent a breach of the father's right to parental responsibility because he did not have such a right.<sup>7</sup> The national court did not take into

<sup>2</sup> UK, some of the USA states, New Zeeland, France, the Netherlands. (Schuz 2013, p. 151).

<sup>3</sup> CJEU, Case C–400/10 PPU *McB*, 2010, EU:C:2010:582.

<sup>4</sup> *E.g.,* ECtHR, *Paparrigopoilos v. Greece*, Application No 61657/16, 30.6.2022; *Zaunegger v. Germany*, Application No 22028/04, 3.12.2009; For more information, see: (Hanke 2011; Koukoulis 2022).

<sup>5</sup> "(1) The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child. (2) The attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority, is governed by the law of the State of the child's habitual residence at the time when the agreement or unilateral act takes effect. (3) Parental responsibility which exists under the law of the State of the child's habitual residence subsists after a change of that habitual residence to another State. (4) If the child's habitual residence changes, the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the State of the new habitual residence."

<sup>6</sup> ECtHR, *Z. v. Croatia*, Application No. 21347/21, 1.9. 2022. The ECtHR already conducted several cases against Croatia, in which a violation was established due to the improper implementation of the Child Abduction Convention—*Karadži´c v. Croatia*, Application No. 35030/04, 15.12.2005; *Adži´c v. Croatia*, Application No. 22643/14, 12.3.2015; *Vujica v. Croatia*, Application No. 56163/12, 8.10.2015; *Adži´c (2) v. Croatia*, Application No. 19601/16, 2.5.2019. For the analysis of national legislation and court practice on child abduction, see: (Tomljenovi´c and Kunda 2010; Župan and Ledi´c 2013; Hoško 2015; Župan and Hoško 2015; Župan et al. 2019, 2021).

<sup>7</sup> According to Article 1626a of the German Civil Code, the mothers of children born out of wedlock have sole custody and fathers have no right unless both parents agree on joint custody or the court imposes it.

account the father's argument that he had acquired parental responsibility automatically under Croatian law and that he could not have lost this right by moving with the children to Germany.8 Prompted by this case, the aim of this paper is to expose and discuss how the Child Abduction Convention and the Child Protection Convention interact in view of the continuity of parental responsibility and to suggest ways of resolving the difficulties that occur in this regard. The discussion will be framed in legal sources, the broad literature, and case laws concerning parental responsibility and custody rights.

#### **2. Concept and Matter of Continuity of Parental Responsibility in Child Abduction Cases**

#### *2.1. Semi-Autonomous Nature of Parental Responsibility*

Before discussing the presented case law, it is necessary to consider the concept of the right to custody—i.e., parental responsibility—contained in the Child Abduction Convention. The "right to custody", as provided in the Child Abduction Convention, is not so common in contemporary family law.9 Most countries have replaced it in their legislations with the concept of parental rights and responsibilities (Lowe 1997). The Child Abduction Convention has not followed this trend as, within its framework, the "right to custody" has an autonomous meaning.10 This concept is independent of any legislative construction of the Contracting States. In order to determine the substance of parental responsibility, the law of the state in which the child has habitual residence must be consulted; only then can the court of the requested state determine whether the right in question falls under the concept "the right to custody" in the Child Abduction Convention and whether there has been a violation of that right (Pérez-Vera 1982, para 39). In this sense, the right to custody under the Child Abduction Convention is semi-autonomous (Beaumont and McEleavy 1999, p. 74). The Child Abduction Convention defines the "right to custody" as the right that includes the custody of the child as a person, and in particular the right to determine the child's place of residence.<sup>11</sup> This definition should be interpreted in accordance with the objectives of the convention (HCCH 1993).

An autonomous definition from the Child Abduction Convention and the concept of the right to parental responsibility in the contracting states may differ, and as such, this may cause confusion. Schuz proposes a two-step approach to resolve these difficulties. The first step is to recognise the rights that the parent or guardian has over the child under the law of the country in which the child has habitual residence. The second step is to characterise those rights according to the autonomous definition from the convention; i.e., to determine whether or not those domestic rights can be considered the "right to custody" within the meaning of the convention.12

When deciding on the request for the return of the child, the Croatian courts technically followed the recommended approach. This proved insufficient in this case, as the ECtHR blamed the domestic courts for the lack of sound reasoning in their decisions. In what follows, this article will further examine the possible failures in the application

Bürgerliches Gesetzbuch in der Fassung der Bekanntmachung vom 2. Januar 2002 (BGBl. I S. 42, 2909; 2003 I S. 738), das zuletzt durch Artikel 1 des Gesetzes vom 14. März 2023 (BGBl. 2023 I Nr. 72) geändert worden ist.

<sup>8</sup> The Family Act of 2003 (Obiteljski zakon, Official Gazette no 163/03) was in force at the time the children were born. Under Article 99(1), both parents of a child (regardless of whether the child was born in or out of wedlock) acquired parental responsibility jointly by operation of law. The current Family Act (Obiteljski zakon, Official Gazette nos 103/15, 98/19, 47/20, 49/23) kept the same regulation of joint parental responsibility in Article 104.

<sup>9</sup> In this paper, the term "parental responsibility" is used generally, while the term "custody" is used only when it explicitly refers to Article 3 of the Child Abduction Convention. See also: (Scherpe 2009).

<sup>10</sup> The Overall Conclusion of the Special Commission of October 1989 on the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, 29 ILM, 1990, para 9; (Freeman 2000).

<sup>11</sup> Child Abduction Convention, Article 5(a)f; (Harrison et al. 2020).

<sup>12</sup> Schuz's proposal was supported in practice: *Re V-B* (Minors: Child Abduction: Custody Rights), 1999, 2 FLR 192, 196B; *Hunter v. Murrow*, 2005, EWCA Civ 976; *Fairfax v. Ireton*, 2009, NZFLR 433, NZCA 100; *Re D* (A Child) (Abduction: Foreign Custody Rights), 2006, UKHL 51; *Abbott v. Abbott,* 2010, 130 S Ct 1983. (Schuz 2013, p. 147).

of the relevant provisions of the Child Abduction Convention and the Child Protection Convention in more detail.

#### *2.2. Renvoi*

This scenario leads to the first general question of private international law relevant to the application of Article 3 of the Child Abduction Convention; i.e., is the applicable law determined by the convention law of the state concerned in its entirety (entailing also its rules of private international law), or is it merely a reference to substantive law? The question is well-known in the doctrine as *renvoi*. In international treaties containing the uniform rules concerning conflicts of laws, *renvoi* is usually expressly excluded. Unlike other Hague conventions on applicable law (since 1955), the drafter of the Child Abduction Convention chose to break with this tradition and not to address the issue. This approach was generally understood as a decision *pro renvoi*. The Explanatory Report confirms that the fact that the traditional approach of the HCCH to avoid *renvoi* and to refer to "internal" law was abolished can only mean that the word "law" is to be understood in its broadest sense, including also the rules concerning conflict of laws of the relevant legal system. Despite initiatives to clarify that the reference to the "law of habitual residence" refers to the domestic law of that state as the designated law, as applicable by its conflict of laws rules, the HCCH held that it was "unnecessary and became implicit anyway once the text neither directly nor indirectly excluded the rules in question" (Pérez-Vera 1982, para 66).

The landmark writings on the Child Abduction Convention confirm this understanding (Sonnentag 2017, p. 1541; Schuz 2013, p. 146). Beaumont and McEleavy argue that the standard form clause of earlier HCCH conventions restricting the applicable law to the domestic law was intentionally omitted. The Child Abduction Convention thus leaves room for *renvoi* in order to allow for a broader range of custody rights to be considered (Beaumont and McEleavy 1999, p. 46). The fact that the return of the child to the place of habitual residence does not automatically trigger the application of the substantive law of that state to the proceedings has been reiterated by the doctrine (Wolfe 2000, p. 302).

Some authors still believe that the drafters should have been clearer on this issue. For example, Beevers and Perez Milla emphasise that Article 3 should have been worded more precisely to explicitly allow *in favorem renvoi,* but only if it achieves the desired result (Beevers and Milla 2007, p. 226). This approach could be supported by the intention of the drafters of the convention to bring as many cases as possible under the scope of Article 3 (Pérez-Vera 1982, para 67). Schuz advocates for this approach: wherever custody rights have been violated, either under domestic law or under the choice of law rules of the state of habitual residence, the removal or retention will be wrongful (Schuz 2013, p. 170). Driven by the objectives of the convention, these authors propose a layered application of *renvoi*. The abducting court should first consider the domestic law of the child's habitual residence. If the applicant (the left-behind parent) does not invoke the convention under those rules, the conflict of laws rules of the relevant state should be invoked (Beevers and Milla 2007).

In light of some older national case laws on *renvoi* in the context of child abduction, this approach seems reasonable. In the 2004 *Re JB*<sup>13</sup> decision on the abduction of a child from Spain to the United Kingdom (UK), the UK court's application of *renvoi* led to results that were unfavourable from the perspective of the drafters of the convention. Namely, although the father had custody under Spanish substantive law, the application of Spanish private international law referred to the law of the nationality of the child—that is, English substantive law—which deprived the father of custody rights. This case illustrates the danger of sticking to the letter of the law, which may lead to a result that the convention aimed to prevent. Although the father had secured his parental rights under Spanish law, he did not foresee that he would also have to do so under English law. The decision was in favour of the abducting parent, who gained an advantage by removing the child to

<sup>13</sup> *Re JB* (Child Abduction: Rights of Custody: Spain), 2003, EWHC 2130 (Fan), 20041 1 FLR 796.

another jurisdiction. These results are outdated in all States Parties to the Child Protection Convention, as they all apply the connecting factor of the child's habitual residence.

It is worth noting that the available national law is not consistent, even within the same jurisdiction. Subsequent court decisions in the UK,<sup>14</sup> as well as the practice in New Zealand15 and the Croatian case we examine in this paper, refer to internal law. *Renvoi* has not been addressed by either of the rulings adopted by the national courts or ECtHR in the case of *Z. v. Croatia*.

The Child Abduction Convention has opted for *renvoi*. However, the approach to *renvoi* in child abduction should be policy-oriented. A mechanical application of *renvoi* may violate fundamental rights, which fall under the ambit of public policy. When ruling on Article 3 of the Child Abduction Convention, one must bear in mind the intention of the drafters to include as many cases as possible within the scope of the convention. The right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR), which also includes the legitimate expectations of parents regarding the right to the continuity of the once acquired parental responsibility settlement, should be taken into account. Only such an approach can guarantee the best interest of the child. This approach takes advantage of the *renvoi* doctrine while avoiding its disadvantages in a way that promotes the objectives of the convention (Schuz 2013, p. 170; See 2012). In the Contracting States of the Child Protection Convention, the conflict of laws rule is the same as that of the Child Abduction Convention: it focuses on a child's habitual residence. Moreover, Article 16(3) of the Child Protection Convention effectively monitors the *conflict mobile* in the event of the connecting factor not being established as it guarantees that parental responsibility as it exists under the law of the state of the child's habitual residence subsists after that habitual residence is transferred to another state. However, the application of the conflict of laws rules of the Child Protection Convention broadens the scope of the rule and makes it possible to fully implement the policy advocated by both instruments.

For the sake of all States Parties to the Child Abduction Convention that are not States Parties to the Child Protection Convention, the HCCH should clarify whether *renvoi* should be treated as an alternative referral rule (where the left-behind parent does not have custody rights under the domestic substantive law, the choice of law rules of the state of habitual residence are taken into consideration) or whether the legitimate policy objectives should be achieved by other means.

#### *2.3. Habitual Residence*

Without establishing the child's habitual residence at the time of the alleged wrongful removal or retention, it is not possible to establish whether or not the act of removal or retention was wrongful (Kruger 2011, p. 21). The Child Abduction Convention provides that the law of the state of the child's habitual residence is the only applicable law under which the wrongfulness of the abduction can be determined. The connecting factor of habitual residence is a well-established HCCH concept,<sup>16</sup> which was primarily considered as a factual concept,17 and in this respect, it was distinguished from residence. It is considered appropriate for practice because it is important that the competent authorities of the place where the child is actually located are responsible for their physical well-being and can decide on their financial needs (De Winter 1969, p. 470). Habitual residence as a connecting factor meets the requirements of a modern and mobile society, which cannot be addressed according to residence and citizenship (Beaumont and McEleavy 1999, p. 89). It

<sup>14</sup> *Hunter v. Murrow*, 2005, EWCA Civ 976, 12005 2 FLR 1119.

<sup>15</sup> New Zealand Court of Appeal in *Fairfax v. Ireton,* 2009, NZCA 100, 12009 3 NZLR 289.

<sup>16</sup> The concept was first introduced in the 1902 Guardianship Convention and it has since then been part of all Hague conventions dealing with family matters.

<sup>17</sup> Although in early documents, including the Explanatory Report, this concept is considered exclusively factual, this is a terminological mistake. The determination of habitual residence presupposes the application of legal standards to the fact of a specific case. (Kunda 2019; Beaumont and Holliday 2021).

indicates a person's actual, real (closest) connection to a legal order, provides the possibility that several different family relationships are subject to the same applicable law, and promotes greater harmony between the rules of jurisdiction and the applicable law when both are based on habitual residence (Dutta 2017, p. 559). It is considered logical to prescribe the habitual residence of a child as a connecting factor to determine the wrongfulness of abduction. This is supported by the importance of child protection and the very nature of the Child Abduction Convention; i.e., its limited scope of application (Pérez-Vera 1982, para 66; Beaumont and McEleavy 1999, p. 88). The nature of this concept causes difficulties in abduction cases because it may benefit the abducting parent, who are able to remain undetected by giving the child sufficient time to adjust to the new environment. Therefore, it is not uncommon for the interpretation of the concept of habitual residence to arise as a difficulty in proceedings under the convention, nor for it to be interpreted differently by the courts of different states, and even by the courts of the same state (Schuz 2013, p. 175).

The case of *Z. v. Croatia* raises the question of whether the children actually had their habitual residence in Croatia before they moved to Germany and acquired it there. This question is significant from the point of view of establishing parental responsibility on the basis of Croatian national law. The Croatian Government argued before the ECtHR that the children did not have their habitual residence in Croatia before moving to Germany. The Government argued that before moving to Germany, the family had lived in Croatia, Greece, Slovakia, Sweden, and France, and then again in Croatia. The children were born between 2008 and 2015, and some of them had only resided in Croatia for a few months and had not attended school or kindergarten there.18 On the other hand, the father claimed that the children had habitually resided in Croatia before moving to Germany. He emphasised that Croatia was the country with which the children had the closest connection: they had been born in Croatia and had Croatian citizenship, just like their parents. After the family's numerous temporary stays abroad, they had always returned to Croatia. The fact that they did not attend school or kindergarten was related to their parents' specific lifestyle. The older children took correspondence courses and were home-schooled (*Ibid,* para 74). The applicant also referred to the arguments raised by the children's mother during the return proceedings concerning their integration into a social and family environment in Croatia (*Ibid*, para 22). Finally, the ECtHR decided that, in accordance with the principle of subsidiarity, it was not appropriate to examine the issue of habitual residence in the proceedings as it was not examined by the domestic courts in the return proceedings. Given the specific circumstance of family life and the significance of the matter in establishing the continuity of parental responsibility, it is the failure of the national courts to not have further examined the issue of the children's habitual residence. In this sense, it was necessary for the courts to establish all elements of the children's habitual residence in Croatia, especially the fact of their actual physical presence and the parents' intention to stay (Kunda 2019, p. 301), in line with the rich practice of the CJEU.19

#### *2.4. Parental Responsibility Arising Ex Lege*

The sources of the right to parental responsibility are those on which the child return request can be based under the respective legal system. The Child Abduction Convention takes into account the most significant sources, such as parental responsibility arising *ex lege*, the right to parental responsibility established by a judicial or administrative decision, and the right to parental responsibility established by an agreement with legal effect. This list is not exhaustive (Schuz 2013, p. 146). The wording of Article 3 contains the phrase:

<sup>18</sup> *Z. v. Croatia,* para 77.

<sup>19</sup> C-523/07 *A*, 2009, EU:C:2009:225; C-512/17, *HR*, 2018, EU:C:2018:513; C-499/15 PPU, *W. and V. vs. X*, 2017, EU:C:2017:118; C-393/18 PPU, *UD vs. XB*, 2018, EU:C:2018:835; C-111/17 PPU, *OL vs. PQ*, 2017,EU:C:2017:436; C-85/18 PPU, *CV vs. DU*, EU:C:2018:220; C-372/22 *CM*, 2023, EU:C:2023:364; C-572/21 *CC*, 2022, EU:C:2022:562; C-644/20 *W. J*., 2022, EU:C:2022:371; C-603/20 PPU *MCP*, 2021, EU:C:2021:231; C-501/20 *MPA*, 2022, EU:C:2022:619; C-759/18, *OF*, 2019, EU:C:2019:816; C-530/18 *EP*, 2019, EU:C:2019:583; C-468/18 *R*, 2019, EU:C:2019:666.

"may arise in particular", which emphasises the fact that there may be other types of arrangements that are not provided for in this provision. It is clear that these sources of the right to parental responsibility cover a wide area of law, but the fact that the list is not exhaustive renders the rule subject to flexible interpretation and applicable to a large number of factual situations (Eekelaar 1982, p. 320).

The Child Abduction Convention primarily provides for the law as a source of parental responsibility. It thus confirms one of the main characteristics of the child return system; namely, the protection of the right to parental responsibility even before any decision has been made on that matter. This is especially important in cases where the child has been removed or retained prior to the decision on parental responsibility (Beaumont and McEleavy 1999, p. 48). The Explanatory Report states that at the time the convention was drafted, the parent from whom the child was removed had no other option to regain the child than to resort to force or other actions that are harmful to the child. By including the cases with no decision on parental responsibility within the scope of the application of the convention, a significant step was taken toward resolving real problems that had previously been outside of the scope of the traditional private international law mechanisms (Pérez-Vera 1982, para 68). At present, the Child Abduction Convention provides that the removal of a child by a parent who has joint parental responsibility without the consent of the other parent is equally wrongful. Wrongfulness stems from the fact that the protected right of the left-behind parent, who is prevented from exercising that right normally, is violated by such a procedure. This confirms the legal nature of the convention, which is not intended to determine the merits of parental responsibility or the issue of the change of the right to joint parental responsibility due to subsequent changes to the facts. The aim of the convention is to prevent the decision on parental responsibility from being affected by factual changes caused by the unilateral action of one of the parents (Beaumont and McEleavy 1999, p. 49; Taylor and Freeman 2023, p. 4.; Bryant 2020, p. 182).

The purpose of the Child Abduction Convention is to protect all ways in which parental responsibility can be exercised. In terms of Article 3 of the Child Abduction Convention, the right to parental responsibility may be conferred on the person who requests it, independently or jointly with another person. It is difficult to imagine any other arrangement considering that joint parental responsibility, based on the principle of gender equality, is part of the internal law of most modern countries (Pérez-Vera 1982, para 71). Joint parental responsibility does not always arise *ex lege*. This is confirmed by national legislation, which does not automatically recognise the system of joint parental responsibility in relation to the father if the parents are not married. Some of these laws provide legal arrangements under which the unmarried father has no right to parental responsibility unless he has obtained it through a court order or some other method recognised by the state, such as the mother's consent or registration. In such a system, if the mother or another person takes the child before the father has made the necessary arrangements to obtain parental responsibility, such removal cannot be considered wrongful. This also applies to cases in which the father *de facto* takes care of the child either independently or jointly with the mother (Schuz 2013, p. 151; See also: Beevers 2006; JiméNez Blanco 2012; Župan and Drventi´c 2023, p. 20). A child abduction case from a state with such legal regulation was brought before the Court of Justice. In the *McB* case, the CJEU ruled on the application of Article 7 on the right to respect for family life of the Charter in relation to the existence and realisation of the right to parental responsibility. The facts of the case considered the mother and the father of three children who were not married. Under Irish law, where the children were habitual residents, the father was not entitled to the right of parental responsibility without a court order or consent. By the force of the law, the mother is the sole bearer of parental responsibility over a child born out of wedlock. Due to the disrupted family relationship, the mother took the children to England, and the father submitted a request for the return of the children back to Ireland. The English court rejected the father's request, explaining that the removal of the children was not wrongful. Following the father's appeal, the Supreme Court of Ireland referred a request for a preliminary ruling to the

CJEU regarding the possible application of Article 7 of the Charter when determining the existence of the right to care in order to establish the wrongfulness of the child abduction. The CJEU replied that Member States are not prevented from prescribing, in their national law, that the unmarried father must first obtain a court decision granting him the right to parental responsibility in order to acquire the right to parental care, which would mean that removing the child from the country of habitual residence is wrongful.20 The Court did not find such a national solution to be in violation of the Charter.

Cases with a similar scenario are not unknown to the Croatian courts. Recent research (Drventi´c 2022) of national judicial practice has recorded cases questioning the right to parental responsibility of an unmarried father as an applicant through direct judicial communication,21 administrative cooperation,<sup>22</sup> or independent research into the law of the state of habitual residence.23 This had led to the conclusion that when domestic authorities receive a request for the return of a child by the unmarried applicant father, they will always inquire in some way about the content of the foreign law on parental responsibility of the requesting state. However, all of these cases considered the facts in which the family was established in the state of habitual residence before the abduction. The case of *Z. v. Croatia* indicated that greater attention is required in those child abduction cases where the family moves from Croatia (or any other country which provides for joint parental responsibility of unmarried parents) to another state that may not automatically recognise the right to joint parental responsibility.

#### *2.5. Applicable Law Provisions in the Hague Child Protection Convention*

In Article 16, the Child Protection Convention governs the law as applicable to parental responsibility. The general rule provides that the law of the state in which a child is a habitual resident is applicable to the assignment or termination of parental responsibility.24 The significant provisions for this research are those that consider a change in the habitual residence of a child contained in Article 16(3) and (4). The Lagarde Report brought to our attention that these provisions were the results of two divided opinions, neither of which took into account the totality of the elements of the problems (Lagarde 1998, para 105). The first opinion was grounded in variability. It held that for each change in the state of habitual residence, there is a necessary corresponding change to the applicable law to the assignment or termination of parental responsibility through the operation of the law. The opinion relied on the need for simplicity and security. The second opinion advocated for the continuity of protection; it argued that parental responsibility conferred through the operation of the law of the state of the child's habitual residence should subsist despite the change in the child's habitual residence. The main advantage of this opinion is the continuity of protection, especially in situations where the law of the state of the new habitual residence does not assign parental responsibility through the operation of the law. The opinion was grounded on the hypothesis that continuity would allow the holder of parental responsibility to continue caring for a child in the new state of habitual residence and to represent them in ordinary day-to-day transactions (*Ibid*, para 106). Finally, the drafters decided to embrace the second solution referring to continuity of parental responsibility. The actual provisions provide that parental responsibility existing under the law of the state of the child's habitual residence continues, notwithstanding the change of the child's habitual residence to another state.<sup>25</sup> Nevertheless, where the law of the state of the child's new habitual residence automatically confers parental responsibility on a person who does not already have it, it is the latter law that prevails (*Ibid*, Article 16(4); HCCH 2014, p. 96; Detrick 1996). In other words, a change in habitual residence cannot

<sup>20</sup> *McB*, para 64.

<sup>21</sup> Municipal Civil Court in Zagreb (Op´cinski gradanski sud u Zagrebu), 131 R1 Ob-1746/20-8, 21.10.2020. ¯

<sup>22</sup> Municipal Civil Court in Zagreb (Op´cinski gradanski sud u Zagrebu) 146-R1 Ob-2395/2019-4, 11.12.2019. ¯

<sup>23</sup> Municipal Civil Court in Zagreb (Op´cinski gradanski sud u Zagrebu), 130 R1 Ob-937/2019-22, 18.11.2019. ¯

<sup>24</sup> Child Protection Convention, Article 16(1) and (2).

<sup>25</sup> Child Protection Convention, Article 16(3).

terminate parental responsibility, but it can confer it, which effectively means that the Child Protection Convention gives preference to a substantive rule that imposes parental responsibility whenever possible (Lowe 2010; Župan 2012, p. 213). Applying these rules to the circumstances of the case of *Z. v. Croatia*, the following can be concluded: Assuming that the children's previous habitual residence was in Croatia, the unmarried couple had joint parental responsibility under Croatian law. When the father moved with the children to Germany, whose national legislation assigns parental responsibility only to the unmarried mother, the German law should remain, without any effect on the rights of the father, who would retain parental responsibility as conferred on him by the first law (Lagarde 1998, para 107).

#### *2.6. The Impact of the Applicable Law Provision on the Child Abduction Proceedings*

Despite the rather clear application of Article 16(3) to the circumstances of the case, there is still the question of the interrelation of the applicable law provisions of the Child Protection Convention and the provisions of the Child Abduction Convention governing the wrongful removal of children. The relationship between these two conventions is thus complex (DeHart 2000). When it comes to cases where both Conventions can be applied, as in the present case, the Child Protection Convention does not change or replace the mechanism established by the Child Abduction Convention. On the contrary, it complements and strengthens the Child Abduction Convention in certain aspects (Duncan 2010). This means that a number of its provisions can be used to complement the mechanism of the Child Abduction Convention when it is applied to a specific case. Article 50 provides that the Child Protection Convention "shall not affect" the application of the Child Abduction Convention; further, Article 50 clarifies that: "Nothing, however, precludes provisions of this Convention from being invoked for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights." The applicable law provisions on parental responsibility in the Child Protection Convention are thus relevant to the application of the Child Abduction Convention and, in particular, to establishing whether the applicant has the right to parental responsibility within the meaning of Article 3 of the Child Abduction Convention (Lowe 2010, p. 7).

#### **3. Overview of the Case of** *Z. v. Croatia*

#### *3.1. Child Abduction Proceedings*

In October 2019, the father instituted the proceedings before the Municipal Civil Court in Zagreb for the return of his children to Germany in accordance with the Child Abduction Convention and the Brussels II*bis* Regulation.26 Before the court, the father stated that the mother had wrongfully retained the children in Croatia, while the mother claimed that the applicant had agreed on taking the children back to Croatia permanently. During the administrative procedure between two Central Authorities, the officers corresponded via e-mail. In the course of that correspondence, an official from the German Central Authority referred to the request of the Croatian Central Authority for the delivery of the relevant provision of German law regarding parental care. In the letter, the officer stressed that German law is not applicable in this case as the children were born in Croatia, where they previously lived with the parents. The German Central Authority pointed out on two occasions that the parents had joint parental responsibility with respect to the children in Croatia under Croatian law. The German Central Authority grounded its opinion in Article 16(3) of the Child Protection Convention. It is not clear whether the judge of the Municipal Civil Court in Zagreb was aware of this correspondence at the time. However, at the court hearings, the applicant's lawyer provided the court with a copy of the correspondence between the two Central Authorities. In the court proceedings, a judge of the Municipal Civil Court in Zagreb, who was appointed contact judge for the purposes

<sup>26</sup> Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, pp. 1–29.

of the International Hague Network of Judges and the European Judicial Network, asked the German counterpart for information regarding the parental responsibility of fathers of children born out of wedlock under German law. In its response, the German court referred the judge to Article 1626a of the German Civil Code, which states that mothers of children born out of wedlock have sole custody and that fathers have no right unless both parents agreed on joint custody or a court imposed it.27 In its decision of 15 November 2019, the Municipal Civil Court in Zagreb dismissed the father's request for the return of the children. The court held that prior to the abduction, the children had their habitual residence in Germany, and that the German law was applicable for assessing whether the retention of the children in Croatia constituted a breach of the applicant's right to parental responsibility. The court referred to the provision of the German Civil Code and concluded that the retention of the children in Croatia by their mother did not represent a breach of the father's right to parental responsibility because he has not such right.28

The applicant appealed. He argued that he had acquired parental responsibility automatically under Croatian law and that he could not have lost this right by moving with the children to Germany. He considered that this court's decision is contrary to Article 16(3) of the Child Protection Convention. The County Court of Zagreb dismissed the appeal and upheld the first-instance decision. In doing so, the appellate court referred only to the German Civil Code, agreeing, in this way, with the court of the first instance that the retention was not wrongful. The County Court did not refer at all to the applicant's argument regarding the application of the Child Protection Convention.29

Following this, the father lodged a constitutional complaint before the Constitutional Court of the Republic of Croatia, claiming that the decisions of the civil courts had breached his right to fair proceedings and the right to respect for his family life. He again stressed that the civil courts misapplied substantive law by applying German law and not Article 16(3) of the Child Protection Convention. The Constitutional Court held that there had been no breach of his constitutional rights. It merely noted that the applicant had invoked Article 16(3) of the Child Protection Convention, without further elaboration. In addition, the Constitutional Court referred to Article 7 of the same Convention, which defines wrongfulness in removal or retention, without explaining why that article was relevant at all. Finally, it concluded that the reasons given by the Municipal Civil Court in Zagreb and the County Court of Zagreb were relevant and sufficient and did not disclose any arbitrariness with regard to the father.30

#### *3.2. ECHR Assessment*

The ECtHR found that there were no justified reasons for the domestic courts to interfere with the father's family life and established a violation of Article 8 on the right to respect for private and family life in the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR).31 The ECtHR considered that insufficient reasoning in a ruling dismissing or accepting objections to the return of a child under the Child Abduction Convention was contrary to the requirement of Article 8 of the ECHR. The ECtHR found that that the appellate court did not address the issues stressed by the father that were relevant to establishing the wrongful retention of the children. The nature and importance of those arguments required a specific and express reply.<sup>32</sup> In regard to the decision of the Constitutional Court, the ECtHR found that the Constitutional Court had only referred to Article 7 of the Child Protection Convention, but did not explain how this article was relevant for dismissing the complaint (*Ibid,* para 90). Taking these

<sup>27</sup> Bürgerliches Gesetzbuch.

<sup>28</sup> Municipal Civil Court of Zagreb (Op´cinski gradanski sud u Zagrebu), 145-R1-Ob-2080/19-19, 15.11.2019. ¯

<sup>29</sup> County Court of Zagreb (Županijski sud u Zagrebu), 10 Gž Ob-36/20-2, 15.1.2020.

<sup>30</sup> Constitutional Court of the Republic of Croatia (Ustavni sud Republike Hrvatske), U-III-4062/2020, 13.2.2021.

<sup>31</sup> Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5.

<sup>32</sup> *Z. v. Croatia,* para 89.

circumstances into account, in addition to their previously established practice,33 the ECtHR found that the reasons stated by the domestic courts were neither relevant nor sufficient to justify the interference with the applicant's right to respect for his family life.34

#### **4. Conclusions**

In the case of *Z. v. Croatia*, the ECtHR brought another case against Croatia, which has already had a history of inadequate implementation of the Child Abduction Convention. In this case, the reasoning from Strasbourg bypasses a universally significant and essentially relevant issue for the application of Article 8 of the ECHR and the Child Abduction Convention—that of the continuity of parental care. On the contrary, the ECtHR took an easier path and focused only on the aspects of the insufficient application of the Child Abduction Convention with regard to the insufficiently reasoned decision of the national courts.

This paper looks at the notion of parental responsibility in child abduction proceedings from multiple angles. The right to custody under the Child Abduction Convention is semiautonomous. It is roughly defined by Article 3. In order to determine the content of parental responsibility, the law of the state in which the child had habitual residence before the abduction must be consulted. Only then can the court of the requested state determine whether the right in question falls under the concept of "the right to custody" in the Child Abduction Convention and whether there has been a violation of that right. There are different domestic legislation approaches to the notion of parental responsibility. In the context of this research, the most significant aspect is with respect to domestic substantive laws that do not attribute parental responsibility to fathers *ex lege*. However, the entire exercise of the application of Article 3 described above should be governed by the objectives of the convention.

Another plea for teleological interpretation refers to the matter of *renvoi* in the course of child abduction proceedings. The matter has not been addressed by any of the courts involved in many instances of the dispute in *Z v. Croatia*. When ruling on Article 3 of the Child Abduction Convention, the court must bear in mind the intention of the drafters to include as many cases as possible within the scope of the convention. Courts should also take into account the right to respect for family life under the state's fundamental rights, which also includes the legitimate expectations of parents regarding the right to the continuity of the once acquired parental responsibility settlement. Only such an approach can guarantee the best interest of the child.

It is sustained here that the Child Abduction Convention opts for *renvoi*. Thus, the applicable law determined by Article 3 is the law of the state concerned in its entirety, entailing also its rules of private international law. Such an approach speaks for a combined application of both Hague conventions, of 1980 and 1996, in handling child abduction proceedings. When it comes to cases where both conventions can apply, as in the present case, the Child Protection Convention does not change or replace the mechanism established by the Child Abduction Convention. The demarcation clauses sustain that the Child Protection Convention complements and strengthens the Child Abduction Convention in certain aspects.

In Article 16, the Child Protection Convention governs the law applicable to parental responsibility. The general rule provides that the law of the state in which a child is a habitual resident is applicable to the assignment or termination of parental responsibility. The significant provisions for this research are those that consider a change in the child's habitual residence and are contained in Article 16(3) and (4). They effectively monitor the *conflict mobile* in the event that the connecting factor is not established as it guarantees that parental responsibility as it exists under the law of the state of the child's habitual

<sup>33</sup> ECtHR already sanctioned insufficient reasoning in several child abduction cases: *X. v. Latvia*, Application No. 27853/09, 26.11.2013, para 106 and 107; *Blaga v. Romania*, Application No. 54443/10, 1.7.2014, para 70.

<sup>34</sup> *Z. v. Croatia,* para 91.

residence subsists after that habitual residence is transferred to another state. However, the application of the conflict of laws rules of the Child Protection Convention broadens the scope of the rule and makes it possible to fully implement the policy advocated by both instruments. Based on the considerations in this research, it follows that the provision on the continuity of parental responsibility should be applied and taken into account in cases of international child abduction when determining the wrongfulness of child removal or retention.

**Author Contributions:** Conceptualization, M.Ž. and M.D.B.; methodology, M.Ž. and M.D.B.; writing original draft preparation, M.Ž. and M.D.B.; writing—review and editing, M.Ž. and M.D.B.; funding acquisition, M.Ž. and M.D.B. All authors have read and agreed to the published version of the manuscript.

**Funding:** This paper is a product of work that has been fully supported by the Faculty of Law Osijek Josip Juraj Strossmayer University of Osijek under the project nr. IP-PRAVOS-23 "Contemporary Issues and Problems to the Protection and Promotion of Human Rights".

**Informed Consent Statement:** Not applicable.

**Conflicts of Interest:** The authors declare no conflict of interest.

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#### **Published References**

Beaumont, Paul, and Jayne Holliday. 2021. Habitual Residence in Child Abduction Cases: The Hybrid Approach Is Now the Norm but How Much Weight Should Be Given to Parental Intention? In *Liber Amicorum Monika Pauknerova*. Edited by Pfeiffer Magdalena Brodec Jan, Bˇríza Petr and Zavadilová Marta. Prague: Wolters Kluwer, pp. 27–36.

Beaumont, Paul, and Peter McEleavy. 1999. *The Hague Convention on International Child Abduction*. Oxford: Oxford University Press.


Kruger, Thalia. 2011. *International Child Abduction. The Inadequacies of the Law*. Oxford: Hart Publishing.


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