Definitions
International child abduction can consist of wrongfully removing or wrongfully retaining the child.
Removal is where a parent takes the child to a country other than that of the child’s habitual residence.
Retention is where a parent lawfully takes a child to a country other than that of his or her habitual residence, but does not return the child.
Wrongfulness must be considered with regard to custody rights of the other parent (the left-behind parent). Such custody rights can exist:
- by operation of law in the country of the child’s habitual residence prior to the abduction;
- by a judgment or decision of an administrative body (the powers of judicial and administrative bodies vary in the various States);
- by an agreement which has legal effect (Art. 2(11) Brussels IIbis Regulation and Art. 3 Hague Child Abduction Convention).
Custody rights include rights and duties relating to the person of a child, and in particular the right to determine the child’s place of residence (Art. 2(9) Brussels IIbis Regulation and Art. 5 Hague Child Abduction Convention).
The custody rights must actually have been exercised. If not, the removal or retention will not be considered wrongful (Art. 3 Hague Child Abduction Convention).
Note that the custody rights attributed to unmarried fathers differ in the various EU Member States. The European Court of Justice has ruled in C-400/10, J. McB. v. L.E. that although an autonomous definition exists about what custody rights are (see above), national law determines who possesses such rights. The fact that some national law systems require unmarried fathers to take certain judicial or administrative steps in order to obtain custody rights, does not infringe the right to family life (Art. 7 of the Charter of Fundamental rights of the EU). For an overview of the different national rules on custody rights of unmarried fathers, see the View of Advocate General Jääskinen in this case.