Hubert Dudkiewicz, Katarzyna Duszyńska-Misarko, Małgorzata Jaskulska National School of Judiciary and Public Prosecution Poland Kramer v. Kramer Legal and Practical Issues Concerning Civil Aspects of International Child Abduction A paper for THEMIS Competition Semi-Final B: International Judicial Cooperation in Civil Matters - European Family Law, 17-20 May 2016, Vilnius, Lithuania
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Hubert Dudkiewicz, Katarzyna Duszyńska-Misarko, Małgorzata Jaskulska
National School of Judiciary and Public Prosecution
Poland
Kramer v. Kramer
Legal and Practical Issues Concerning Civil
Aspects of International Child Abduction
A paper for THEMIS Competition Semi-Final B: International Judicial Cooperation in Civil Matters
- European Family Law, 17-20 May 2016, Vilnius, Lithuania
1
Introduction to Kramer v. Kramer case
Let us imagine a young, but not recently married couple with their six years old adorable son, Billy.
They live in New York, leading an ordinary day-to-day life. The husband, Ted Kramer, is a well-known,
successful advertising executive, devoting a little too much time to his work, submitting his blossoming
career over family life. His wife Joanna begins to feel frustrated with her overworked beloved and at some
point she decides to leave him, applying for the divorce. Therefore Joanna hits the road, leaving Ted in the
lurch, to raise their son Billy by himself. Does the story ring the bell?
If the answer is yes, then probably You had a chance to see Robert Benton's hit entitled Kramer vs.
Kramer. The movie portrays marriage breakdown and ensuing of vicious battle for their son custody. Both
parties are prepared to win this fight at all costs, sometimes even at the child's expense. Even though the
movie was made in the late 70s, its subject still remains substantial, perhaps even more than it was 40
years ago.
Hence, this movie plot inspired us to put across Kramer's personal conflict on the background of
international family law regulation. We asked ourselves how would it look like today for the Kramer's
family – in the times of global neighbourhood, in the era of unlimited travel's opportunities, when the
world is down-scaling and European boarders are open? Whether the raising mobility of citizens within the
European Union and across the world would influence Kramer's case? What if the Kramers lived in the
Member State and had different nationalities, and one day one of them decided to come back to homeland,
taking their son without other's permission? What kind of repercussion could it induce? Are there any
sufficient legal instruments for abandoned parent or maybe he is left to his fate? Finally, whether the
created system of child's recovery is efficient, or does it require necessary changes?
For those and many more troubling questions we aim to provide answers. In our work we sought to
identify and analyse the practical challenges that might occur while applying the Hague Convention on the
Civil Aspects of International Child Abduction concluded 25 October 1980 (hereinafter also the Hague
Convention or Convention) well as European Law, in particular the 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 (hereinafter the Regulation or Brussels II bis). We concentrated on the matter of international
child abduction, identifying legal encumbrances that may come across for parties as well as for the judge in
cases when one parent seeks to relocate child to another state or even part of the world. Therefore, by
using the metaphor of Kramer's family and assuming different variants of their fortune and legal status, we
attempt to present the different acts of legislation, that would apply. We hope that after having read our
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work, these questions will not remain unanswered.
The scale of the phenomenon
At the beginning, it is vital to determine whether child's abduction by one parent is a real problem,
or is it a niche casus, that does not require special attention?
Statistical survey concerning a analysis of applications lodged under 1980 Hague Convention,
conducted in 2008, by the Centre of International Family Law Studies at Cardiff University Law School in
collaboration with the Permanent Bureau of the Hague Conference on Private International Law, showed
that the scale of this phenomenon is increasing1. Of course it must be considered that with each year the
number of Convention's signatories is rising, which has a way obvious influence on the amount of lodged
applications. Nevertheless, the collected data prove that this is a precedent of the constant nature.
According to the survey, in 2008 there was 2,321 incoming applications, comprising 1,961 return
and 360 access applications. Compared with the 2003, there has been a 45% increase in return
applications. What might be also interesting is the fact that 69% of taking persons were mothers, a figure
that has stayed almost constant - 68% in 2003 and 69% in 1999. What is more, in 2008, 28% of the taking
persons were fathers and the remaining 3% comprised grandparents, other relatives, or institutions.
Furthermore, out of a global total of 1,961 return applications, 985 were received by Brussels II2.
Drawing conclusions from the data presented in our thesis is that although the problem of child
abduction does not have a mass character, it is a real problem that the legislation is still trying to deal with.
Brief of international regulations that strive to solve the problem
We live in times of dynamic international cooperation in civil matters, not only in Europe, but all
across the world. In consequence, more and more spheres of our private life are subjected to the legal
regulations and a considerable number of international legal instruments aim to deal with problems
concerning the breakdown of the family life such as divorce and separation, children custody, parental
responsibility, alimony obligations, and many others, involving cross-border connections. In case of the
particular problem of the child abduction, the most significant international legal regulation is already
mentioned in Hague Convention on the Civil Aspects of International Child Abduction.
This
intergovernmental agreement, which was a meaningful step in the international system of children's rights
protection, was signed 25 October 1980, by the members of Hague Conference on Private International
1 Nigel Lowe, A Statistical Analysis Of Applications Made In 2008 Under The Hague Convention Of 25 October 1980 On The
Civil Aspects Of International Child Abduction, Part I – Global Report, November 2011,
Law (HCPIL). Its object was to create a complex and efficient instrument to counteract the phenomenon of
the international abduction of children by one of its parents (preamble, article 1 point a). It entered into
force three years later and governed matters concerning abduction or wrongful removal of children across
the borders3.
One of the legal systems, which prevails over the regulation of the 1980 Hague Convention, was
created and developed by the European Union. It must be bore in mind that one of the EU's objects is to
provide a unitary regime of judicial cooperation in civil and commercial matters within the Member States.
Moreover, one of the side effects of the open borders is a freedom of travel, which significantly facilitates
the wrongful removal of the child. To counteract this phenomenon European Union established more
developed, complex and efficient regulating which complies and clarifies the provisions of the Hague
Convention. It was intended to provide solutions to the loopholes and faults, which resulted in different
standards of implementation and protection among the countries, that have been already experienced in the
process of applying the Convention. The purpose of the new legislation was also to ensure automatic
recognition and direct enforcement of judgments within the Union, without any intermediate proceedings
or grounds for refusal of enforcement4.
On 1st March 2005 came into force Brussels II bis Regulation, which applies to the abduction
cases. It emphasized the need of automatic enforcement of the child return and narrowed the possibility of
court's refusal, introducing a special procedure in that event. What is more, a positive judgment of the
return was to be directly enforceable in the Member states, without the exequatur procedure6.
Nevertheless, introducing European Union legal regime did not mean that 1980 Hague Convention was no
longer applicable. The truth is that Brussels II bis Regulation prevails over Convention's provisions,
nevertheless the Convention continues to apply, not in original form, but elaborated and supplemented by
new Brussels II bis. What is more, in relation to the national law of the Member States of EU, it takes
precedent over domestic provisions, and is directly applicable, without any need of implementing statues7.
He/She took my child, now what?
Returning to our initial plot of the Kramer's family, basing on the different assumptions of their
story, we would sought to briefly introduce how does the procedure of the return of the child look like
under the provisions of Hague Convention and the Regulation Brussels II bis. This brief description will
3 Hague Convention, including related materials, is accessible on the website of the Hague Conference on Private International
Law (www.hcch.net), under “Conventions” or under the “Child Abduction Section”. 4 Katarina Trimmings, Child Abduction within the European Union, Studies in Private International Law, Oxford 2013,
p.1837-1838. 6 Ibid., p.1845-1846.
7 European Commission, Practice Guide for the application of the new Brussels II Regulation, 2005,
allow us to highlight possible arising practical and legal problems and analyse them in further part of our
work.
Thus, let us assume that the Kramers are residents of the United State of America. As a result of
their fierce quarrel, Joanna decides she can no longer stand her husband. Therefore, secretly, without Ted's
knowledge or consent, she takes Billy to Lithuania, where she has a very rich aunt eager to host her (as
aunty has always knew that Ted was nothing but trouble). What Mr. Kramer should do in such situation?
Bearing in mind that the USA is not a signatory to the European Regulations, the procedure for the
recovery of Billy shall be entirely based on the provisions of the Hague Convention, even though the child
was abducted within the territory of one of the Member States. Nevertheless, Billy was taken to the state
which acceded to the Hague Convention, therefore Mr. Kramer is able to recover him, following
Convention's provisions.
Firstly, he should turn to the so-called Central Authority, which will instruct Ted and intercede in
his case. Usually it is the Ministry of Justice, but the application can also be submitted to the Police Station
or in the family court, and from there it shall be directly transferred to the proper authority. The application
must contain substantial information such as the identity of the applicant, of the child and of the person
alleged to have removed or retained the child, the date of birth of the child, the grounds on which the
applicant's claim for return of the child is based, as well as all the available information relating to the
whereabouts of the child and the identity of the person with whom the child is presumed to be. The sample
of such request is usually accessible on the Ministry of Justice web site. All the documents, together with
the application, should be translated into the official language of the state which the child was relocated to.
Fortunately for Mr Kramer the Hague Convention is based on assumption that the immediate return
of the child is always in its best interest and stipulates the general rule of child's return, with only few
exceptions that will be explored later.
And how would this procedure would look like if Billy was abducted from Lithuania to Poland –
both Member States of the European Union?
As it was mentioned above, the Hague Convention, which has been ratified by all Member States,
applies in the relations between them. However, it is supplemented by certain provisions of the Regulation
Brussels II bis, which prevail over this international agreement5. As a general rule, the procedure of
applying Regulation in based on the provisions of the Convention, with a few exception. Nevertheless in
our work we aim to focused on the European Regulations, hence this matter will be pursued further.
Thanks to those changes, the procedure of child's return has become more efficient, but there are
still considerable doubts surrounding its application, which we endeavour to clarify in our work.
5 Ibid.
5
Consequently we would like to analyse the chosen practical and legal issues that may occur while
proceedings under Brussels II bis provisions, both for the parties, and the judge.
Habitual residence of a child
The first problem, which a judge may face in the Kramer's case is determination of Billy's habitual
residence. The term “habitual residence” supplanted the previously used in private international law,
traditional terms of nationality and domicile, which were considered to be problematic due to the fact that
several states might have concurrent authority in some matters, generating conflict of laws problems6.
Since then the term has been widely used in many acts of international private law, inter alia the
regulations of the European Union7.
Habitual residence is also one of the most important terms used in the provisions of the Hague
Convention on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation. It
does not only determine the jurisdiction in the child abduction cases, being one of its premises, established
in the articles 8 – 10 of the Regulation, but it is also an element of the definition of wrongful removal or
retention of a child according to the article 2 (11) of the Regulation and article 3 of the Convention. Hence,
one cannot decide if the removal or retention of a child was wrongful nor can establish the competent
jurisdiction in its case without prior determination of the state of its habitual residence. The concept of
habitual residence is therefore the most important threshold determination in child abduction proceedings8.
Habitual residence, yet so crucial, does not have any legal definition in the sources of international
private law. Although the idea of habitual residence in the Convention, as well as in the Regulation, is
intentionally undefined, created as factual concept designed to accommodate the diversity of legal systems9
and to allow the national courts to interpret the provisions of the Convention at ease10
, it makes
determination of habitual residence of a child a subject of many legal and practical problems in cases of
child abduction.
The meaning of the term, according to the Practice Guide for the application of the new Brussels
6 Ann Laquer Estin, Where (in the World) do Children Belong?, “BYU Journal of Public Law”, 2011, Vol. 25 Issue 2, p 220.
7 Leszek Kuziak, Uprowadzenie dziecka za granicę, [in:] Jacek Ignaczewski (ed.), Władza rodzicielska i kontakty z dzieckiem
– Komentarz, Warszawa 2012, p. 370. 8 Tai Vivatvaraphol, Back to Basics: Determining a Child's Habitual Residence in International Child Abduction Cases Under
the Hague Convention, “Fordham Law Review”, May 2009, Vol. 77 Issue 6, p. 3327. 9 Report on the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October
1980 on the Civil Aspects of International Child Abduction and the Practical Implementation of the Hague 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 (30 October – 9 November 2006), Permanent Bureau, Hague
Conference on Private International Law, The Hague 2007, p. 44. 10
L. Kuziak, op.cit., p. 371.
6
II Regulation, should be determined by the judge in each case on the basis of factual elements, in
accordance with the objectives and purposes of the Regulation11
. Hence, habitual residence is above all a
question of fact to be decided on a case-by-case basis12
, with no reference to any technicalities that have
surrounded concepts like “domicile” and “nationality”13
, which makes the national courts free to interpret
the meaning of the term in every single case, however it should be always done in a way that maximize the
achievement of the objectives of the Regulation. The problem arises when two courts, one in the state from
which the child was abducted, and the second in the state to which the child was abducted, define its
habitual residence differentially, assuming that each of them is exclusively competent in its case.
Let us imagine that in our case Mrs. and Mr. Kramer came from the U.S. first to Poland together
with their child. They wanted to find a job in Warsaw, but after one year they decided to move to
Lithuania, where Mr. Kramer found better opportunities for his career. Mrs. Kramer is starting to think
about divorce because of her husband’s workaholism, but Ted does not want to hear about it, claiming that
it is just a worse period in their marriage. After seven months, when Billy already attended Lithuanian
school, Mrs. Kramer moves back to Poland, where she had a better job, and brings her son along. She also
files an application for a sole custody with a Polish court. Subsequently, Ted files an application for Billy’s
return with the Lithuanian court. Which court is competent to decide in the case of the sole custody, and
which state has jurisdiction in the child’s return case? Was Mrs. Kramers’ act or was not a wrongful
removal? Answers depend on determination of Billy’s habitual residence.
According to the article 10 of the Regulation “in case of wrongful removal or retention of the child,
the courts of the Member State where the child was habitually resident immediately before the wrongful
removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in
another Member State” and has met some other strictly defined conditions. This provision protects the left-
behind parents and their children against the possibility of the jurisdiction change on the basis of unlawful
act of the second parent14. Therefore, the court of the state of Billy’s habitual residence will be competent
if one of the parents kidnaps him and decides to file an application for a sole custody, as well as in the case
of Billy’s return to the left-behind parent. In fact, in the later case, courts of both states: according to the
provisions of the Regulation - the one of Billy’s habitual residence and, according to the provisions of the
Hague Convention - the one to which he has been abducted, shall be considered as competent15
. But which
state: Poland, Lithuania or maybe even U.S. were the place of habitual residence of Kramers’ child? What
11
European Commission, Practice Guide for the application …, op.cit., p. 12. 12
Report on the Fifth Meeting…, op.cit., p. 45. 13
A.L. Estin, op.cit., p. 222. 14
Jolanta Zatorska, Komentarz do rozporządzenia nr 2201/2003 dotyczącego jurysdykcji oraz uznawania i wykonywania
orzeczeń w sprawach małżeńskich oraz w sprawach dotyczących odpowiedzialności rodzicielskiej, LEX/el., 2010. 15
Marcin Radwan, Wybrane zagadnienia postępowania wywołanego przez bezprawne uprowadzenie lub zatrzymanie dziecka w
innym państwie członkowskim, „Europejski Przegląd Sądowy”, 2011, No. 2, pp. 11 – 20.
7
if courts in both European states declare themselves competent to solve this matter, assuming that
correspondingly, Lithuania or Poland were the states of Billy’s habitual residence? It would take months,
lot of expense and paperwork to determine the competent court, and according to the Review of the
Implementation of Brussels II bis Regulation in Relation to Parental Abduction of Children, cases in which
more than one court claims its competence are not so uncommon16
.
However, the freedom of habitual residence interpretation is not unlimited. First of all, the meaning
of the term cannot stem from its interpretation in national legal system, being an autonomous concept of
private international law. In other case, the free movement of judgments would be hindered as some
Member States might have too broad or too narrow definitions in their national law17
. Secondly, as the
European Court of Justice stated, general and abstract rule defining the concept of habitual residence used
in other international legal acts “cannot be directly transposed in the context of the assessment of the
habitual residence of children”18
, because of the specific aim of the child abduction regulations, which is to
protect the best interest of the child. Therefore, the term contained in the Convention and in the Regulation
must be interpreted autonomously even in relation to its other meanings in international law, and always
shaped in the light of the best interest of the child19
. Moreover, as it must fulfil requirements of the
principle of legal certainty, the term cannot be interpreted without reference to its meaning established in
other cases of child abduction, both settled under the Convention, and the Regulation, which have the same
objectives and require uniformity in their application. That is why the court interpreting habitual residence
in its own case cannot do it without reference to the existing case law.
Taking into account the guidance of the Hague Conference on Private International Law and
determining the meaning of the concept on the basis of factual findings, a judge should first look at the
duration and regularity of the stay of a child on the territory of a particular state. However, a mere finding
that a child has spent in one place a top-down established period of time is not sufficient to determine its
habitual residence. What is more, as the Convention and Regulation do not lay down any minimum
duration of stay, its time may be only an indicator in the assessment of the permanence of residence20
. As
the U.S. Court of Appeals for the Sixth Circuit noted in Robert v. Tesson case, “a child’s habitual residence
is the place where he or she has been physically present for an amount of time sufficient for
16
Review of the Implementation of Brussels II Regulation in Relation to Parental Abduction of Children , Freshfields
Bruckhaus Deringer and the European Citizen Action Service (ECAS), Brussels 2006, pp. 6 – 8, http://www.jugendamt-