- Professional News
- 10 May 2012
Children were not returned despite abduction
The girls, aged 8 and 13, were not returned to their father in Lithuania.
The children had lived together with their mother at the home of the father's parents in Lithuania for the past five years. The extent of the previous contact between the children and their father was in dispute.
The mother and father were not divorced, but the mother had commenced divorce proceedings in Lithuania. The parents had joint custody. The custody issue in respect of the children was considered as part of the divorce proceedings in Lithuania. The Court had rejected the father's request for a temporary arrangement in respect of the children in connection with the consideration of the case.
The mother travelled to Denmark from Lithuania with the children. The father commenced proceedings for the return of the children pursuant to the International Child Abduction Act. The mother explained that she had left the country due to threats by the father at the time when she commenced divorce proceedings. During a conversation with a child expert before the Enforcement Court, both girls expressed wishes to stay in Denmark.
The Enforcement Court based its decision on the fact that the mother had travelled to Denmark with the children without the father's consent. Since the parents had joint custody, this was an illegal act according to s. 10(2) of the International Child Abduction Act. The Enforcement Court was of the opinion that the children's own opinion should not be given decisive importance and that their relations to Denmark were poor and, consequently, the Court found for the father's claim for return of the children. An appeal was lodged with the Danish High Court against the ruling made by the Enforcement Court. The High Court of Eastern Denmark ruled that the children were not to be returned as they had clearly stated that they wanted to stay in Denmark and since their contact with the father had been sporadic for the past five years. The return of the children was denied pursuant to s. 11(ii) and (iii) of the International Child Abduction Act.
The general rule according to the International Child Abduction Act is that the children must be returned if they have been taken illegally to another country. Exemptions are for example as in this case if the court finds that the children may suffer physically or psychologically by being returned or if the children express a wish not to be returned. According to the Act, the children must be of a certain age and maturity before any importance is attached to their opinions.
(Ruling by the High Court of Eastern Denmark of 20 December 2011 in appeal no. B-3800-11 before the 21st Division, ss 10(2) and (11)(ii) and (iii) of the International Child Abduction Act)