Again and again there is widespread media coverage of cases of child abduction. This refers to cases in which one parent takes a child to another country or does not bring it back from there, thus violating the custody rights of the other parent. Only recently the Supreme Court again dealt with this issue OGH 12.5.2021, 6 Ob 83/21f).
In this case, a mother and her child did not return to the USA after a home stay in Austria. The mother reported that the father had physically assaulted her in the past. The father went to court and was proven right. The Supreme Court ordered the return of the child to the USA, stating that the mother could reasonably be expected to return to the USA with the child.
When parents separate, this can lead to fierce conflicts and years of court battles, even without an international connection. It becomes dramatic when one parent simply goes abroad with the child, thus “depriving” the other parent, who also has custody, of the child.
What is considered to be child abduction according to the Hague Convention
In this context, the Hague Convention on the Abduction of Children (CCHA) must be taken into account. The HCA is an international treaty that seeks to protect children in cases of cross-border abduction and to promote their return as quickly as possible. An EU regulation (Brussels IIa) further supplements the rules of the HCR.
If a parent arbitrarily transfers the child’s residence to another country, the “country of flight” must decide whether the child should be returned to the “country of origin”. The courts of the state of origin should then be able to decide who should have custody of the child in the future. Normally, the rapid return of the child will be in the best interests of the child. In the proceedings as to whether a child is to be returned or not, it is not primarily a question of which parent takes better care of the child. It is about the question of whether the removal of the child abroad was lawful in itself. One wants to prevent one parent from simply creating facts by perhaps taking the child to his or her home country and then obtaining the desired custody arrangement there.
In exceptional cases, for example, if bringing the child back would be associated with serious dangers for the child, this may be waived. It is also relevant whether the left-behind parent was (jointly) entitled to custody.
Is it a criminal offense in Austria?
The proceedings on the return of the child are civil proceedings. This means that it takes place regardless of whether the child abduction is a criminal offence in the state of origin or not.
In Austria, child abduction is a criminal offence. In the worst case, it is punishable by three years in prison. However, it is often not known that the crime can only be committed by someone who is not involved in the custody of the child. In concrete terms, this means that if two parents in Austria have joint custody of their child and one parent suddenly takes the the child to another country, this is not a criminal offence. Because the “fleeing” parent was also entitled to custody. Irrespective of this, however, the removal of the child can be unlawful and naturally lead to the child’s return to Austria. The transfer of a joint child could be relevant under criminal law if there is no joint custody. For example, if the mother has sole custody and the father takes the child abroad.
It is problematic that procedures for the return of children sometimes take a long time, which can result in additional difficulties for the child. If a procedure on a possible return lasts and is finally carried out, the child is once again torn away from his or her now familiar environment. It would therefore be desirable to have quick proceedings, i.e. either a quick repatriation or a quick decision that there will be no repatriation. It becomes (more) difficult if the HCNR is not applicable, e.g. because the country of flight or the country of origin are not party to the treaty.
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