The meaning of an Article 15 declaration

by Martine Wernsen | Aug 22, 2023

The meaning of an Article 15 declaration

In a child abduction case, a parent can produce an Article 15 declaration. This is a declaration by the court in the country of origin that the child’s removal or retention in the other country is wrongful.

Using my client’s recent case, I will explain what, according to the Court of Appeal of The Hague, the meaning of such an article 15 declaration is in child abduction proceedings.

Relocation

The mother moved with her daughter (then 14) from Spain to the Netherlands in January 2023. The father asked the court (and subsequently the Court of Appeal) in the Netherlands for the daughter’s return to Spain. This request is based on Article 3 of the Hague Convention on Child Abduction. If the court finds that a parent has transferred a minor to another country in violation of a custody right of the other parent, the court in principle issues an order to return the child to the country of origin.

Article 15 declaration

The father simultaneously asked the court in Spain to declare that the daughter’s transfer to the Netherlands was wrongful. He also asked the Spanish court, among others, to order the daughter’s immediate return.

Article 15 of the Hague Convention on Child Abduction mentions the possibility for parents to ask the court in the country of origin for a declaration on the wrongfulness of the removal. In Spanish law, this possibility is laid down in Article 778.6 of the Spanish Code of Criminal Procedure. In Spain, a parent can ask the court for such a declaration in a ‘voluntary jurisdiction’ procedure.

‘Not wrongful’

The Spanish court ruled on 23 April 2023 that the daughter’s transfer to the Netherlands was not wrongful. The Spanish court reached that opinion because the court found that at the time of the transfer, the father was not exercising his parental authority.

‘No longer wrongful’

The father and mother bring the Spanish order into the child abduction proceedings in the Netherlands. The court rejects the father’s return application. The court finds that the January 2023 transfer of the daughter was wrongful, but that with the Spanish court’s April 2023 order, the wrongful transfer and retention of the daughter has ended.

Auxiliary

Both parents ask the Court of Appeal to rule differently. The Court of Appeal indicates in its decision that the Spanish order is not seen as a custody decision, but as an Article 15 declaration. The Court of Appeal sees the Spanish court’s refusal to issue a declaration that the transfer was wrongful as an Article 15 declaration. This Article 15 declaration serves as an aid to judges in answering the question whether there has been an wrongful removal or retention within the meaning of Article 3 of the Hague Convention on Child Abduction. It is therefore only an aid and the court and the Court of Appeal in the Netherlands are not bound by the order of the Spanish court.

‘Never been wrongful’

However, the Hague Court of Appeal comes to the same decision: the father has not exercised his parental authority for a long time.

The father moved within Spain in December 2019 without notice to a city 400 kilometres away from his daughter’s home town, without realising what this would mean for the daughter’s care and what impact it would have on her. The move had made the agreed co-parenting arrangement practically impossible. He did not make it clear how he had intended to fulfil his custody rights after the move. There has been little to no contact since December 2019. He has refused his consent for an application for a passport for the daughter. He informed the daughter very late about the birth of her half-brother and an operation he had to undergo himself. The father’s attitude and behaviour towards the daughter in the post-divorce period has left her severely disappointed with her father and consistent in her desire to have no contact with her father.

The Court of Appeal concluded that the father had not shown any concern for the minor’s interests after the divorce. The Court of Appeal considers that the father was not exercising his custody rights at the time of the move and in fact had not been exercising them for some time.

The Court of Appeal states that that opinion finds confirmation in the Spanish court’s Article 15 decision of 23 April 2023.

Thus, like the court, the Court of Appeal rejected the application for a return order. But unlike the court, the Court of Appeal finds that the transfer to the Netherlands was not wrongful from the outset.

Appeal in Spain

Incidentally, the father had appealed against the Spanish court’s decision. The court in the Netherlands had already decided that it did not want to await the outcome of that appeal, as return proceedings must be handled expeditiously.

Conclusion

The Court of Appeal thus clarifies the meaning of this Spanish court decision. Although the father’s application to determine that the transfer was wrongful was dealt with in a ‘voluntary jurisdiction’ procedure (article 87 Civil Code), the Court does not regard the Spanish court’s decision as a decision on parental responsibility by the court having jurisdiction on the merits, but only as an article-15 declaration. The Court of Appeal then made its own judgment on whether the daughter’s transfer was wrongful or not.

You can read the decision of the Court of Appeal of The Hague here (in Dutch).

All blogs from The Author:

All blogs from Martine Wernsen