Article | Last updated: 06/08/2013 | Child Abduction
A child abduction case is not the same as a child custody case. In a child abduction case pursuant to one of the conventions the court's task is to determine whether the child shall be repatriated following an unlawful abduction.
A child abduction case is not the same as a child custody decision. In a child abduction case pursuant to one of the conventions the court's task is to determine whether the child shall be repatriated following an unlawful abduction.
In a child custody case the issues to be addressed include parental responsibility, access, where the child shall live, etc. Such matters will generally be determined by the courts in the country in which the child was habitually resident prior to their abduction.
Unlawful abduction does not alter the child's habitual place of residence. This means that even though a parent has brought the child to Norway, they are staying here and intend to live here, the child will in principle not be deemed to be resident in Norway if the child came here as a result of unlawful abduction.
The District Court
The body that will determine whether the child shall be repatriated to another country or not is the District Court in the jurisdiction where the child is assumed to be staying in Norway. The decision will be issued in the form of a ruling.
The court shall make its decision as quickly as possible, and enforcement shall be implemented without undue delay. The court may seek to achieve the voluntary repatriation of the child. However, this must be balanced against the need for an expeditious conclusion to the case, and it will not be permitted to use this as a means to draw out the proceedings.
Hearing the parties on each side
It will be up to the judge in each case to decide whether to summon the parties to present their case orally at a hearing, or decide the case in chambers. The court shall apprise itself of the child's opinion if possible and expedient, given the child's age and level of maturity. As a guideline, children from the age of 7 are in principle given the opportunity to express their views. The judge will, exceptionally, appoint expert witnesses in connection with child abduction cases.
Service of judgment
The District Court's ruling shall be handed down to the parties concerned or, if relevant, their attorneys. If a party is not represented by an attorney and is located outside the country the court may request that judgment be served via the Ministry of Justice and Public Security. The court will ensure the necessary translations are provided.
The District Court's ruling may be appealed to the Court of Appeal and, if relevant, to the Supreme Court. Any appeal must be filed directly with the court that has ruled in the case. The usual deadline for filing an appeal in civil cases is four weeks.
If the court decides to grant the petition for repatriation, enforcement may be implemented immediately, unless the court decides otherwise. One of the intentions of the convention is that the child shall be immediately repatriated to the country in which they have their habitual residence. The courts will therefore be reticent with respect to allowing an appeal to have suspensive effect (ie delayed implementation). The District Court's decision with respect to suspensive effect may also be appealed.
Actual repatriation process
The courts decide how repatriation shall take place in practice. The ruling should provide complete instructions for how enforcement is to be achieved if the defendant does not voluntarily assist in the repatriation of the child. The District Court sends the repatriation order to the execution and enforcement authorities for implementation. Out of consideration for the child the Enforcement Officer should attempt to reach an amicable arrangement with the defendant. If no amicable solution can be arranged, the execution and enforcement authorities will set a date for compulsory enforcement.
Read more about court proceedings in the Judge's Handbook for Use in Court. This is a guide that has been prepared to assist the individual judge in child abduction cases. The guide will therefore provide useful information about how the courts work in relation to these cases.
For more information about Norwegian courts, see www.domstol.no.