Wrongful removal of a child

Wrongful removal of a child from the country of residence to a foreign country for the purpose of permanent residence

Wrongful removal or retention of a child is a situation when one of the parents of the child takes the child from the country of the usual habitual residence of the child to another country without a consent of another parent of the child (wrongful removal) or stays in a foreign country for a period of time exceeding the period for which a consent has been given by another parent (illegal retention).

In such case, the parent without whose consent the child has been taken abroad shall have the right, in accordance with the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, of seeking the return of the child who has been potentially wrongfully taken to a foreign country to Lithuania. It is worth noting that the 1980 Hague Convention on the Civil Aspects of International Child Abduction shall not apply when a child turns 16.

The Article 1 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction governs the objectives of this Convention: 1) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; 2) to secure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. It means that the 1980 Hague Convention on the Civil Aspects of International Child Abduction is aimed at protecting children internationally from the harmful consequences of the illegal removal or retention of children in foreign countries, to secure the prompt return of children to the country of habitual residence, also to secure the right of access to the child of one of the parents of a child who resides in another Contracting State.

In accordance with the Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the removal or retention of a child is considered to be unlawful if:

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Thus, in accordance with the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, any person who says that his or her minor child has been illegally removed to a foreign country or is being illegally kept in a foreign country in breach of rights of custody attributed to a person provided for in the Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction shall have the right to approach the central authority of the state from which the child has been removed, or the central authority of the state to which the child has been removed on mediation for the return of the child, or to appeal directly to the competent court of the country to which the child has been removed on the return of the potentially illegally removed child.

The State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour performs the tasks of the Central Authority of the Republic of Lithuania as per the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The contacts of the central authorities of other states that joined the 1980 Hague Convention on the Civil Aspects of International Child Abduction can be found at the following link: https://www.hcch.net/en/instruments/conventions/authorities1/?cid=24.

What is the procedure leaving to the countries of the Shengen area?

After Lithuania joined the Shengen area eliminating internal borders, the procedure of temporary leave of a child to foreign countries was changed by the act No. 724 of 16 July 2008 of the Government of the Republic of Lithuania. The procedure establishes that when children temporary leave to the countries belonging to the Shengen area with their parents or alone, written consent of one of their parents is not required.

Which countries are in the Shengen area?

At the moment there are 26 countries in the Shengen area:

- 22 members of the European Union: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Malta, Netherlands, Latvia, Lithuania, Luxemburg, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden.

- 4 non-members of the European Union: Iceland, Liechtenstein, Norway and Switzerland.

Pay your attention that Ireland, United Kingdom, Bulgaria, Romania and Cyprus are not in the Shengen area.

What type of permission is needed when a child leaves to the countries not in the Shengen area?

- If a child is leaving with one of his parents, a written consent of the other of the parents is not required. In the case when child’s surname is different than surname of one of the parents with whom child is leaving to the country not in the Shengen area, child’s birth certificate is presented if requested by State Border Guard Service officers.

- If a child is not accompanied by parents or guardians (custodians), there is required a written consent of one of the parents or guardian (custodian) that the child could leave alone or with accompanying person. Authenticity of the signature in the consent should be either notarized, either confirmed by an officer of diplomatic mission or consular office of the Republic of Lithuania, or by an elder. If the outer border of Shengen area is crossed in another state (not Lithuania), a written consent of one of the parents or guardian (custodian) is presented if required by state border protection officer. In the case of a child leaving with accompanying person, of one of the parents or guardian should include data of accompanying person in a written consent.

What is the procedure when a child goes with a group to excursions, touristic trips or other organised trips to the non-Shengen area countries?

Children groups leaving to excursions, touristic trips or other organized trips (with sport, science, art, or other associations), there is required a paper confirmed by trip organizer’s signature and stamp. The paper should include precise list of leaving children and their accompanying persons, as well as copy of this paper. To be noted that child‘s data to this list can be included only after the permission of one of the parents or guardian (custodian) is obtained (the consents during the trip should be kept my trip organizer).

What is the procedure if a child who is in guardianship (custody) is leaving to non-Shengen area countries?

A guardian (custodian), remaining not less than 3 days till foreseen leave of the child in guardianship (custody) to a country not in the Shengen area, should inform municipality‘s child rights protection service in writing about the foreseen temporary leave of a child abroad and indicate trip’s purpose, duration and country, to which a child is leaving.