Child abduction decisions from other Member States to be recognized in the Czech

17/09/15 | Events

General courts in the Czech Republic must respect the earlier decision of another court in a Member State of the EU in cases of international child abduction.

The Constitutional Court in Brno upheld the constitutional complaint and set aside the judgment of the Municipal Court in Brno and the Regional Court in Brno, because they violated the complainant's constitutionally guaranteed right to a fair trial.

The complainant is a citizen of Great Britain living in London, who has an infant son (b. September 2011) with his Czech wife. The last joint residence of the parents and the child was in London until 22. 11. 2013, when mother and child travelled to the Czech Republic for a few days stay and have not returned to him.

The High Court in London issued an order to return the minor to the UK on 19. 3. 2014. Eventually, the complainant sought referring to the Convention on the Civil Aspects of International Child Abduction dated 25. 10. 1980 (no. 34/1998 Coll., "Hague Convention, the decision on the return of the son to the UK.

The decision of the lower courts shows that they disputed the question of habitual residence of the child, because of the alternating residence of mother and child in the Czech Republic and Great Britain. To answer the question of habitual residence was carried evidence from which the Court concluded that the child was not at the date of 25. 11. 2013 - when it was under the complainant's allegations of illegally detained in the Czech Republic - habitually resident in the UK and concluded that Mother did not make improper removal of a minor in the Czech Republic since her stay with him in the UK had more the character of visits of the complainant.

The Constitutional Court concluded that the ordinary courts, in conflict with Art. 42 par. 1 of Council Regulation (EC) no. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC ) no. 1347/2000 (hereinafter "Regulation"), refused to recognize and enforce the decision of the British court and return the child, based on the wrongful removal of a child from the place of habitual residence in Britain to the Czech Republic and its retention on Czech territory. The Constitutional Court concluded that lower courts were not allowed questioning the jurisdiction of the courts of another Member State and a review of the decision on the merits as Regulation expressly prohibited.

As the Municipal Court in Brno, and the Regional Court in Brno, did not respect the order of the High Court in London, in which the Senate for family law states that the complainant has rights of custody under Art. 5 of the Hague Convention, the minor will remain in the territory England and Wales because there is his real residence, which he received shortly after the date 12. 12. 2011 and since then it has never lost, the minor was taken to the Czech Republic by his mother on 22. 11. 2013, and it was agreed he will be returned to England at least 24 to 25 2013 by his mother but did not return in this time and, consequently, it is retained in the Czech Republic illegally. The High Court in London ordered immediate return to England and Wales.

The Constitutional Court has held that findings in the decision the High Court in London as the court of a Member State of the European Union, represent an obstacle to a substantive review of this issue by the courts in the Czech Republic.

The Constitutional Court adds that mother could appeal the decision of the High Court in London before the complainant asked the Czech Republic for execution of the decision, which she did not use.

By national lower courts decisions the complainant's constitutionally guaranteed right to a fair trial was violated because he was prevented to have his case heard prescribed procedure before an independent and impartial court. The Constitutional Court upheld the complaints, without considering the substance of the case.

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