Return order not required

by Martine Wernsen | Jan 14, 2024

Return order not required

The removal or the retention of a child is to be considered wrongful if this is happening without consent of the other parent with custodial rights. That parent can choose to start a Return procedure, to ask the court for a return order. But this is not always necessary.

Interlocutory proceedings

The court of The Hague had to make a decision about two children from Sweden in an interlocutory procedure.

The mother had started proceedings against the Dutch State and Nidos, the guardianship institute. The Dutch State and Nidos intended to hand over the children (7 and 10) to the father. He would then take the children to Sweden. Mother felt that transferring the children to the father was therefore an unlawful act against her.

Sole custody

Apparently, the father did not yet have custody of the children at the time mother left the country with the children. Only later, on 5 December 2022, the Swedish court granted the father sole custody. The Swedish court also decided that the mother had to hand over the children to the father. If she did not, she would have to pay a penalty. The mother did not handover the children. According to the mother, the children had not seen the father for several years.

European Arrest Warrant

The Swedish prosecutor’s office had issued a European Arrest Warrant against the mother. She was arrested on 28 December 2023, when she had traveled into the Netherlands with the children. She was transferred to a detention facility and the children were handed over to the guardianship institute.

Wrongful act

The mother initiated interlocutory proceedings against the Dutch state and Nidos. She wanted the court to prohibit them from handing over the children to another person for the purpose of taking them to Sweden, unless an irrevocable return order was issued by the court, under the Hague Child Abduction convention. She believed handing over her children to the father would be a wrongful act from the State and Nidos.

Brussels II ter Regulation

The court ordered that the Swedish court’s decision from December 5th 2022 can be recognized and executed immediately in The Netherlands, based on the Brussels II ter Regulation, as Sweden and The Netherlands are both member states of the European Union. This means that the actions that contribute to executing this Swedish court decision are not a wrongful act against the mother.

Conclusion

If parents disagree about where a child shall live, and one parents decides to take a child abroad without permission, the Hague Child Abduction Convention gives the left behind parent the possibility to ask for a return order. He or she must start that procedure in the country where the child is then staying. The court can order the abducting parent to bring the child back to the home country. The court can also order the abducting parent to hand over the children to the other parent, so the other parent can bring the children back to the home country.

In this case the court in Sweden had already made the decision that the mother had to hand over the children to the father, and that court decision is ready to be recognized and executed in the Netherlands. The court ordered that executing that decision is not a wrongful act. And a return order is not required.

You can read the full court decision from the court of The Hague from January 5th 2024 here.

You can read more about international child abduction or about family lawyer Martine Wernsen.

Return order not required