The dissertation addresses the civil procedural law aspect of the international mechanism set up to deal with situations of family separations, where an unlawful conduct of one of the parents who relocates the child to another country occurs, perhaps even prior to the Court’s ruling on the custody of the child or after the Court’s ruling on the matter, but where one of the parents has been unable to accept that decision. The mechanism consists of three levels. At international level, the Convention on Civil Law Aspects of International Child Abduction identifies an infringement of the beneficiary’s right to exercise parental responsibility obtained by virtue of a law or decision as a wrongful act. The Convention, as an instrument of private international law, has been incorporated and upgraded in the European Union legal area (second level) through Regulation No. 2201/2003 (known as Brussels II bis Regulation) which aims to ensure a closer judicial cooperation between Member States on basis of mutual trust. The third level is the national level, where the provisions of those acts are applied by national courts.
The dissertation consists, first of all, of presenting the regulatory framework, including the relevant case-law, at international, European and national levels. Secondly, it highlights, by means of an empirical examination of Slovenian case-law, the elements that enable an evaluation of the effectiveness of the mechanism within the Slovenian legal system. It is on the basis of those considerations that the dissertation provides suggestions regarding the maintenance or improvement of the effectiveness of the international mechanism in the Slovenian legal area.
The introductory chapter presents the „international mechanism“ by specifying its intended purpose and structure, in addition to identifying the hypothesis set and its elements, as well as shedding light on terminological issues. The second chapter sets forth the evolution of the civil procedure system for the treatment of international child abduction, with its origins in the basic act, i.e. the Convention on Civil Law Aspects of International Child Abduction, signed in The Hague in 1980 under the auspices of the Hague Conference on Private International Law. In its continuation, the dissertation presents the 1989 UN Convention on the Rights of the Child, which established the legal standard of „best interest of the child“ and laid down the obligation to enable the child to express his or her views when decisions are made regarding the child’s best interests. Another aspect this dissertation dwells on is the development of the area in question at regional level. It presents the case-law of the European Court of Human Rights (ECHR) which assesses the adequacy of judicial systems in the Council of Europe’s Member States in the area dealt with by this dissertation, both in the context of the competence to rule on a fair and, most of all, fast trial (Article 6 of the ECHR) and in the context of an individual’s right to family life (Article 8 of the ECHR). The next matter that the dissertation addresses is the establishment of the system and the supervision thereof at EU level. The development of the competence of the European Union, in the sense that family matters (albeit only those with a cross-border element) may also be subject to regulation, is elucidated both from the perspective of the adoption of legislation — namely, Regulation No 2001/2003 — as well as the point of view of oversight, i.e. the case-law of the Court of Justice of the European Union in Luxembourg. As the final piece of the „puzzle“, the national framework is presented, both the legal bases and the case-law of the courts of the Republic of Slovenia. The third chapter concerns the question of the jurisdiction of the courts, throwing light on the characteristics of private international law regarding the international jurisdiction of courts and the norms of international jurisdiction provided for in the Convention, as well as in Regulation No 2201/2003. It also analyses the question of determining the „habitual residence“, which in the acts listed constitutes the connecting factor for the purposes of determining international jurisdiction, both in national and regional courts. The fourth chapter answers the question of the applicable law of the Convention and Regulation No 2201/2003 to international child abduction procedures. The chapter examines all three possible situations: where either the country of habitual residence or the country of abduction is not party to the Convention; where both the countries are party to the Convention, but only one of them is a Member State of the European Union; where both countries are Member States of the European Union. Chapter 5 highlights the EU law’s most pressing issue, namely the enforcement of decisions. Since the procedure provided for in the provisions of the Convention is conducted in the country of relocation and enforcement is also pursued in the country of relocation, the enforcement takes place, in the vast majority of cases, in accordance with the national legislation of the country of relocation. At regional level, the question of decision enforcement is more problematic. Due to the re-evaluation mechanism provided for in Article 11 of Regulation No 2201/2003, which ensures that jurisdiction is maintained in the Member State of habitual residence, a subsequent decision ordering the return of the child may create a need for cross-border enforcement or the enforcement of a foreign decision. In that case, the parties have two possibilities: direct enforcement, which excludes exequatur, and indirect enforcement requiring a procedure for recognition of the decision and its enforceability. The sixth chapter deals more specifically with the question of when enabling to acquire the child’s opinion is mandatory, namely which acts constitute the legal basis for that obligation, in which procedures and stages thereof the obligation exists, and the extent to which it is applied and considered. The seventh chapter of the dissertation presents the Slovenian national regulation. Emphasis is placed on the fact that in the area of international child abduction, the Republic of Slovenia does not have a specific procedural rule at national level. Consequently, the courts rely on Article 8 of the Constitution of the Republic of Slovenia, as well as on EU law, and inspect the case-law which, although not yet extensive, is increasing. Based on the analysis of an empirical research, the area of organization of courts and the aspect of legislative activity are also addressed, and suggestions are put forward that would allow for the desired progress to materialize and hence duly ensure the effect of the Convention and Regulation No 2001/2003, as well as Regulation No 1111/2019 also in the future.
In the final, eighth chapter of the dissertation, conclusions are laid out. They confirm the hypothesis that the effectiveness of the system of rights put in place within civil procedural law in cases of international child abduction is currently satisfactory, but there is still room for improvements, and these will be inevitable in the near future, both because of international developments in this field and the application of Regulation No 1111/2019.
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