International custody

The Service, acting as the central authority, cooperates with the competent authorities of foreign countries in accordance with the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of parental responsibility and measures for the protection of children, the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In cases where the parents of the child fail to secure the protection of the rights and the bests interests of the child when the family lives abroad, when violations of the protection of the child‘s rights are found in the family (for example, child neglect, poverty, alcohol or drug abuse, violence against the child, etc.) and the matters in respect of the child removed from parental care in a foreign country are being dealt with, the Service, in accordance with the national and international legislation, cooperates with the territorial divisions of the Service and with the central authorities of foreign countries - mediates the exchange of information related to the child's family, searches for the relatives of the child or the persons who wish and are able to take care of the child, takes other actions related to the protection of the rights and best interests of the child. In line with the best interests of the child and a specific link of a child with the Republic of Lithuania, the Service shall have the right to approach the competent authorities of foreign countries regarding transfer of jurisdiction, i.e. to request referral of the case to a competent court of the Republic of Lithuania, also to cooperate on other matters that fall within the competence of the Service trying to ensure a comprehensive well-being of children who require protection.

The Service notes that in cases where the families acquire a habitual residence in a foreign country (the international legislation provides for a 6-month period after which it should be assumed that the child has adapted to new surroundings of the foreign country to which the child has moved and has acquired a habitual residence in that foreign country), the competent authorities and/or courts of that foreign country acquire jurisdiction to resolve matters related to organization, establishment / cancellation of child custody. The authorities of the Republic of Lithuania cannot on the basis of their competence adopt decisions in respect of children who permanently reside in a foreign country.

The placement procedure

The individuals who wish to take care of a child who resides in another country are subject to the provisions of the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereinafter referred to as the Regulation). The Article 56 of the Regulation sets forth that the authorities of the country of the child‘s habitual residence may consider the matter concerning the placement of the child in the care institution or family in another Member State of the European Union, but must first consult the Central Authority of the latter Member State in which intervention by the authorities in that Member State is necessary cases for the child‘s placement. It means that a consent and/or authorization of the competent authorities (responsible for the protection of the child rights) of the country of the habitual residence of potential foster parents or guardians, i.e. of a foreign state, to take care of the child. The documents prepared by the competent authorities of the foreign countries shall be provided with apostille affixed thereto and translated to Lithuanian.

The Service, in accordance with the provisions of the Article 56 of the Regulation, may approach the Central Authority of the foreign country in which the person who wishes to take care of the child resides and inform on the desire expressed by the person to become a foster parent of the child and seek contribution from the Central Authority during the check of the readiness of the person to take care of (to guard) the child, when drawing up conclusions and providing a consent on the placement of the child in the foreign state.

Persons may directly approach the Central Authority of the country of their habitual residence for the assessment of the applicant as a potential foster parent of a child, and for a consent of the Central Authority of the foreign country for the placement of the child in the foreign country. We note that, in certain cases, the Central Authorities of foreign countries require an official request of the Service.

Thus, the court of the country of the habitual residence of a child may consider the matter of the placement of the child in another Member State and the change of the foster parent. However, a consent and/or authorization of the competent authorities (responsible for the protection of the child rights) of the foreign country in which the person who wishes to take care of a child resides to take care of or to guard the child must be lodged at the court. As indicated above, the Service or a person who wishes to take care of the child himself or herself may approach the Central Authority of a foreign country for the issue of the said documents. The Service, upon receipt of the necessary documents, would forward them to the territorial division of the Service which, in accordance with the Article 3.263 of the Civil Code of the Republic of Lithuania and the Article 497 (2) of the Code of Civil Procedure of the Republic of Lithuania, would approach a competent court for the appointment of the person as a foster parent of the child and the change of the habitual residence of the child.

Departure of a foster parent (guardian) and a foster child (child under guardianship) to a foreign state

After a person has been appointed as a foster parent (guardian) of a child, the person as a legal representative of the foster child (child under guardianship) may address the matter concerning the change of the place of residence of the minor child by moving to a foreign country with the foster child (child under guardianship). In such case, 30 days before moving to a foreign country for the purpose of permanent residence the foster parent (guardian) must notify the territorial division of the Service on the date of departure and the address of new habitual place. The departure of a child who is in temporary custody (under temporary guardianship) with the foster parent (guardian) to a foreign country for the purpose of permanent residence should not become a routine practice because the purpose of a temporary custody (guardianship) is to return a child to his or her family. When a foster child (child under guardianship) moves to a foreign country for the purpose of permanent residence achieving the said purpose becomes complicated or impossible. In this light, the departure of a child who is in temporary custody (under temporary guardianship) with the foster parent (guardian) to a foreign country for the purpose of permanent residence should not become a routine practice.

In cases where the matter regarding a foster parent and further care (guardianship) of his or her foster children who have moved abroad is being dealt with, the Service cooperates with the competent authorities of foreign countries in accordance with the 1961 Hague Convention concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors (hereinafter referred to as the Convention). The territorial division of the Service, upon receipt of the notice from the foster parent (guardian) on the departure of the foster parent (guardian) to a foreign country that acceded to the Hague Convention, must notify the Service within 7 calendar days on the departure of the foster parent (guardian) and the foster child (child under guardianship) to a foreign country. If a foster parent (guardian) moves with the foster child (child under guardianship) for the purpose of permanent residence to a foreign country that acceded the Hague Convention and the territorial division of the Service has reasonable doubts concerning proper performance of the duties of the foster parent (guardian) and safeguarding the interests of the foster child (child under guardianship), the territorial division of the Service may approach the Service with the request to pass to the competent authorities of a foreign state the duty to supervise custody (guardianship) of the child who has moved abroad. The Service, upon receipt of such request, in accordance with the provisions of the Hague Convention shall approach the competent authorities of a foreign country and notify them on a foster parent who has arrived to a foreign country with the foster child for the purpose of permanent residence and shall ask them to take over the supervision of the child‘s custody (guardianship).

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

The basic principle of the HCCH is to return the child to the State of his or her habitual residence, unless a ground for refusal exists.

Legal framework of International child abduction:

1. Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents;

2. Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;

3. Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children;

4. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000;

5. Multilateral and bilateral international agreements.

Rights of custody

With reference to Article 5 of the HCCH:

a) „rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

Pursuant to the Article 3.156 of the Civil Code of the Republic of Lithuania (hereinafter – CC), parents have equal rights and duties in respect of their children irrespective of whether the child was born to a married or unmarried couple, after divorce or judicial nullity of marriage or separation.

The Article 3.159 of the CC establishes that parents are jointly and severally responsible for the care and education of their children. The Article 3.165 of the CC provides that parents decide all questions concerning children by their mutual agreement. In the event of lack of an agreement, the dispute matter shall be resolved by the court. This means that one of the parents may act alone only in respect of matters of daily nature and only as long as the other parent does not make any objections.

The concept of „habitual residence“

With reference to the European Court of Justice case No. C-497/10 PPU, Barbara Mercredi v Richard Chaffe (22 December 2010), the concept of 'habitual residence', for the purposes of Articles 8 and 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State - other than that of her habitual residence - to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.

If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child's habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child's presence, under Article 13 of the Regulation.

With reference to the European Court of Justice case No. C-523/07 (02 April 2009), the concept of ‘habitual residence’ under Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.

The procedure of submitting an application for return

1. A left-behind parent with custody may apply to the central authority of the State in which the child was habitually resident if he is of the opinion that his child has been taken to foreign country without consent, or he may apply directly to the foreign central authority.

2. Central authority assesses the application for completeness and correctness, checks whether the child is younger than 16 years o fage, assesses the custodial relationship, ascertains whether consent has been granted, request additional information/documents.

3. Central authority submit an application to secure the return of the child to the foreign central authority.

4. Once the central authority has received an application, accompanied by the documents required, from the foreign central authority, the CA will take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.

5. If the abducted parent decides not to return the child voluntary, the lawyer of a left-behind parent with custody will submit an application to the Vilnius Regional Court.

The CA explicitly does not deal with the assessment of whether a possible ground for refusal exists, as referred to in the Articles 12, 13 and 20 of the HCCH. This assessment is up to the court to make, just as only the court will decide whther or not the child must be returned.

Judicial process

Lithuania made a reservation under Article 26 of the Hague Convention and it is not bound to assume any costs resulting from the participation of legal counsel or advisers of from court proceedings, except insofar as those costs may be covered by its system of legal aid and advise. Therefore under Lithuanian law the State Child Rights Protection and Adoption Service could not apply directly to the competent court in Lithuania, we only faciliate the institution of proceedings.

An applicant may retain a lawyer by himself or he may apply for free legal aid by filling a form for legal aid application in another Member State of the European Union. More about the issues related with the legal aid in Lithuania can be found at Representation in Court (Secondary Legal Aid).

The application should be send to the Ministry of Justice (Gedimino ave. 30/1, LT-01104 Vilnius, Lithuania, tel. +370 5 266 2937, fax. +370 5 262 5940, email [email protected], internet site www.tm.lt).

Grounds for refusal to return the child

Article 13 (b) of the 1980 Hague Convention on the civil aspects of international child abduction stipulates that the court is not obliged to order the return if it would expose the child to physical or psychological harm or put in an intolerable situation. The Article 11(4) of the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 extends the obligation to order the return could expose the child to such harm, but it is nevertheless established that the authorities in the Member State of origin have made or are prepared to make adequate arrangements to secure the protection of the child after the return.