The increase in cases in which one parent takes or retains the child in a foreign country is not due solely to the growing number of marriages between Bulgarian citizens and foreigners. Very often both parents are Bulgarian, but after a separation or divorce one of them leaves or remains to live in another country and wishes the child to live with him, even though parental rights have been granted to the other parent.

Not infrequently, the child is initially taken abroad entirely lawfully – with the consent of the other parent. Usually this is done by means of a power of attorney or a declaration of consent for travel abroad with only one parent, always specifying a fixed period of time. There may also be a court decision granting substitute consent for the travel. When the period under the declaration, the power of attorney or the court decision expires and the child is not returned, there is unlawful retention of the child.

In order to protect children from the harm that their unlawful transfer or retention may cause them, and also to protect the parent who is deprived of the possibility of seeing his child in accordance with the arrangements determined by the court after the separation or divorce, the Hague Convention on the Civil Aspects of International Child Abduction applies. It lays down procedures aimed at the prompt return of children to the State of their habitual residence. Each State party to the Convention designates a central authority that assists parents who have become victims of abduction by the other parent. In Bulgaria, this central authority is the Ministry of Justice.

What is the procedure for the return of a child abducted by a parent?

Most often, parents resort to abduction in the hope that the court in their own country will grant them the exercise of parental rights. In order to prevent such a "pre-emptive" action, the Convention provides that the court competent to rule on the dispute is the court of the State in which the child had its habitual residence immediately before the abduction. "Habitual residence" is taken to mean the State and place where the child has lived permanently during the past year.

The return procedure begins with the filing of an application with the relevant central authority. If, at the time before the removal, the child had its habitual residence in Bulgaria, the application is filed with the Ministry of Justice.

The right to file an application belongs not only to the parent from whom the child was taken against his will. Such an application may also be filed by other relatives of the child, as well as by competent institutions.

The application must contain:
information about the identity of the applicant, of the child and of the person alleged to have transferred or to be retaining the child;
where possible – the child's date of birth;
the grounds on which the request for the return of the child is based;
all available information about the presumed whereabouts of the child and about the identity of the person with whom the child is thought to be.

The following may be attached to the application:
a certified copy of any court decision or agreement relating to the case (e.g. a decision on divorce, on the exercise of parental rights, etc.);
a certificate or certified declaration issued by the central authority or by another competent authority of the State of the child's habitual residence, or by another competent person, concerning the law in force in that State;
other documents relevant to the case.

If the Ministry of Justice establishes that the child is in another State party to the Hague Convention, it immediately sends the application directly to the central authority of that State and notifies the applicant. The central authority takes, or assists in taking, all necessary measures for the voluntary return of the child. These authorities are obliged to act without delay and to conclude the procedure within 6 months of receipt of the application.

Where voluntary return is not achieved, the dispute is decided by a designated administrative authority or by the court. In Bulgaria, the court competent to hear such cases is the Sofia City Court.

When is a child considered to have been transferred or retained unlawfully?

The parent or the relatives who filed the application must prove that the child was taken or retained by the other parent without legal grounds.

Unlawful transfer or retention exists:
when it is carried out in breach of the right to exercise parental rights, granted jointly or separately to a person, institution or other body under the laws of the State in which the child had its habitual residence immediately before the transfer or retention;
when, at the time of the transfer or retention, the right to exercise parental rights was actually being exercised – jointly or separately – or would have been so exercised had the transfer or retention not occurred.

It is necessary that the exercise of parental rights was regulated by a prior judicial act or was in fact being carried out up to the child's removal from the country.

Within what period after the removal or retention of the child may its return be requested?

Where, at the date of filing the application with the judicial or administrative authority of the State in which the child is located, a period of less than one year has elapsed from the date of the unlawful transfer or retention, that authority shall order the immediate return of the child. In such cases, its margin of assessment is very limited.

Can the request for the return of the child be refused?

It is possible for the judicial or administrative authority of the State in which the child is located to refuse to grant the application. This may occur where:

it is established that more than one year has elapsed since the unlawful transfer or retention and the child has already adapted to its new environment;
the parent entrusted with the care of the child was not effectively exercising the parental rights at the time of the transfer or retention, or gave express consent, or subsequently acquiesced in what happened;
there is a grave risk that the return would expose the child to psychological or physical harm or otherwise place it in an unfavourable, threatening situation.

The existence of these grounds is assessed by the authority of the State where the child is located. It gathers the necessary evidence, including by requesting a social report. The decision must be issued within one month of the receipt of the application.

Within this procedure, the question of to whom parental rights should be granted is not examined on the merits, but only whether the child should be returned. For this reason, it is not relevant to prove better living conditions, higher income of one parent or other facts that are material in determining who is to exercise parental rights.

The decision rendered is subject to appeal. Where the application has been examined by the Sofia City Court, its decision is appealed before the Sofia Court of Appeal, which rules within one month of the receipt of the appeal.

In cases relating to child abduction abroad, settled case law has developed which takes into account the specific features of each individual case. Despite the active role of the Ministry of Justice in these procedures, it is strongly recommended that the applicant be represented by his own attorney in the case.

If you need legal advice or protection in a case of child abduction abroad, contact us on tel.: 0887 550 706 or by e-mail: [email protected]