Tuesday, July 01, 2014
The Hague Abduction Convention in Bulgaria
The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Bulgaria
By Judge Bogdana JELIAVSKA, Vice President of the Soﬁa City Court, Soﬁa, Bulgaria
The Republic of Bulgaria has been a Contracting State to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention) since 2003, when this instrument was oﬃcially ratiﬁed by a law published in the State Gazette, 20/04.03.2003, including a declaration pursuant to Article 6 for the designation of the Ministry of Justice as the Central Authority, and a reservation in accordance with Article 26(2).
The current procedural rules implementing the 1980 Child Abduction Convention are in the Child Protection Act, Chapter 3, Article 22(a) to (g). As provided, applications are submitted by the interested party directly to the Soﬁ a Regional Court or through the Central Authority, the Ministry of Justice. The Court has exclusive jurisdiction, regardless of the city or region where the alleged abductor and the child are located at the time of the submission of the application under the Convention. The procedural rules are clear and the legislator has created a shortened, abbreviated procedure in order to try to meet the deadlines set out in the Convention.
In the ﬁrst ﬁve years subsequent to ratiﬁcation of the 1980 Child Abduction Convention, all ﬁrst instance judges of the Soﬁa Regional Court (which formed part of the Civil Section) dealt with cases of illicit removal or non-return of children, whether they were judges of family or civil matters.
In 2009 the organisation of the Court was changed, providing competence on child abduction matters only to family law judges and thus creating a specialised Section for both domestic and international family law disputes.
At present, based on the practice of this Section, judges are endeavouring to create uniﬁed standards for the application of the 1980 Child Abduction Convention – a rather diﬃcult task, taking into account the complexity of the subject, both in the ﬁeld of sociology, and in the application of private international law. But gradually, over time, practice is improving.
In the period between 2007 and 2009, 26 cases were completed at the Soﬁa Regional Court. The judges applied the return mechanism of the 1980 Child Abduction Convention in only ﬁve of these cases, where children were returned to the left-behind parent. In the other 21 cases where judges denied return, they used a variety of exceptions and applied diﬀerent criteria, giving the impression that the judges were not familiar with the Convention nor its objectives, and were without relevant previous experience in both domestic family law and in international family disputes. They obviously found it diﬃcult to ﬁnd the right solution.
After the 2009 reforms by the Presidency of the Court, according to which child abduction cases based on the 1980 Child Abduction Convention were given to judges of the Family Section, the creation of Bulgarian judicial practice in this area began – judicial practice that not only took place in a single court, but also in a specialised section of this court.
Bulgaria is a small European country and thus probably for this reason does not have a high volume of cases under the1980 Child Abduction Convention in comparison with other larger countries and with those with more of a tradition in the ﬁeld of international marital disputes. But as a result of the free movement of persons and open borders at both the European and global levels – as well as a signiﬁcant increase of cross-border marriages – cases of illicit removal and non-return of children have also increased by a large percentage in recent years. Thus, in a period of just three years – between 2009 and 2012 – the Soﬁa Regional Court has had 38 cases from diﬀerent countries, including the United States of America, the Netherlands, Norway, Australia, Spain, France, Greece, Italy, Slovenia, Belgium, the United Kingdom, Luxembourg and Denmark.
In ﬁve of the cases, judges ordered the closing of the procedure because the application was withdrawn by the parent who had requested the return, citing reasons of absence of an illicit removal or on the basis of the interests of the child.
In 20 cases the application was rejected with reasons of a diﬀerent nature: from not meeting the requirements of Article 3, through to the application of Article 13(a) and 13(b), to even the application of the exception of Art 20 of the 1980 Child Abduction Convention relating to the protection of human rights and fundamental freedoms.
In the remaining cases the return of the child was ordered. Concentration of jurisdiction, in particular among judges of the Family Section of the Soﬁa Regional Court, which has exclusive jurisdiction in matters under the 1980 Child Abduction Convention, has led to the following practical results:
- judgments for Child Abduction Convention cases given after 2009 are based on the practical experience of the judges of the Family Section;
- judges have started using unified criteria for the application of the Convention;
- the quality of judicial decisions has improved signiﬁcantly, even as to the application of general rules of private international law and, in particular, with respect to the Convention itself;
- complexity has been evidenced in cases of child abduction, sociologically and legally speaking, pointing to the need for the continuous training of judges, in order to gain foreign legal experience, and to become familiar with good practice guides and various private international law instruments; and,
- it has become evident that cases where the Convention is applied require more time and eﬀort on the part of judges, compared to domestic family disputes, and thus a reform in the organisation of the work in the Section is needed. For instance, to develop new criteria for the distribution of child abduction cases and other family cases, to change how hearings are scheduled, to increase the number of judges and oﬃcials in the Section, etc.
As provided for in the current procedural law, appeals of judgments from the Soﬁa Regional Court are permitted within 14 days after notice is given, solely and exclusively at the Court of Appeal of Soﬁa. Unfortunately, there is no specialisation among judges in the appeal court, and cases are distributed among all civil judges. As a result, in most disputes, judicial practice of the Court of Appeal of Soﬁa is diﬀerent depending on the chamber hearing the case. Practice is often contradictory, and this fact, taking into account the impossibility of appealing the second instance decision, can cause serious problems, resulting even in danger for the children involved.
Therefore, it will be necessary to change the organisation of the second instance court to ensure that cases are heard by specialised judges, thus allowing appropriate formation and the concentration of jurisdiction in specialised courts only.
To conclude this brief study of Bulgarian judicial practice in applying the 1980 Child Abduction Convention, we can deduce that in our country there is a concentration of cases in the Family Section of the Soﬁa Regional Court under the Child Protection Act which has led, over time, to good results.We still have much work and study to do. But most importantly, as a result of the systematic application of the 1980 Child Abduction Convention, the judges of the Family Section have begun to understand its purpose, and the need to act quickly and in a responsible way, always in the public interest – that is, with respect for the law and the protection of rights of custody based on what is most important, the interest of children. Because the Convention was adopted for all – for children, parents, and the world community – it must be respected and applied to defend the rights of each of us in the free, democratic and modern world of the 21st Century.