A Child Is Retained in Romania: Return, Recognition or Romanian Proceedings?

When a child is brought to or retained in Romania and a foreign parental responsibility order already exists, the legal strategy cannot be reduced to a simple choice between enforcing that order and starting a new custody case in Romania.

Three different procedures may need to be considered:

1. an application for the return of the child under the 1980 Hague Convention;

2. recognition and enforcement in Romania of an existing foreign judgment;

3. proceedings on the merits of parental responsibility before a court having international jurisdiction.

These procedures have different purposes. A Hague return application determines the country in which issues concerning the child should ordinarily be decided; it does not determine which parent should have long-term care of the child. Recognition and enforcement seek to give effect in Romania to an existing foreign decision. Proceedings on the merits determine parental authority, the child’s residence and contact arrangements.

The correct route depends on the child’s habitual residence, whether the removal or retention was wrongful, the state in which the foreign order was made, the date and content of that order and the international instruments applicable between the states concerned.

The first question: was the child wrongfully removed or retained?

Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a removal or retention may be wrongful where:

• it breaches rights of custody attributed under the law of the state in which the child was habitually resident immediately before the removal or retention; and

• those rights were actually exercised, jointly or alone, or would have been exercised but for the removal or retention.

A removal may become wrongful at the moment the child is taken abroad without the required consent. A retention may become wrongful later, for example when a child was allowed to travel temporarily but is not returned at the end of the agreed period.

The existence of a foreign custody or parental responsibility order may be important evidence, but a Hague application does not necessarily depend on having obtained such an order beforehand. Rights of custody may also arise directly by operation of law or from an agreement having legal effect.

The child’s habitual residence is a factual legal concept. It is not determined solely by nationality, registration of an address, school enrolment or the number of days spent in a country. The court examines the circumstances showing where the child was integrated into a family and social environment before the alleged wrongful removal or retention.

Route 1: an application for return under the 1980 Hague Convention

The purpose of a Hague return application is to secure the prompt return of a child to the state of habitual residence so that the competent authorities of that state may decide the merits of parental responsibility.

It is not an application to recognise or enforce the foreign custody order, and it is not a new Romanian custody trial.

Romania’s Central Authority for the 1980 Hague Convention is the Ministry of Justice. An application may be transmitted through the Central Authority of another Contracting State or submitted in accordance with the procedure permitted by the Convention and Romanian law. Return applications concerning children present in Romania are determined by the specialised court designated under Law No 369/2004.

What the Romanian court examines

The court will consider, among other matters:

• whether the Convention applies between the states concerned;

• whether the child is under the age of 16;

• the child’s habitual residence immediately before the removal or retention;

• whether the applicant held and exercised rights of custody;

• whether the removal or retention breached those rights;

• whether any of the limited grounds for refusing return has been established.

The exceptions to return are interpreted within the Convention framework. They include, in particular circumstances, consent or subsequent acquiescence, a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, and objections of a child who has attained an appropriate age and degree of maturity.

The existence of an exception does not transform the return case into a determination of parental fitness or long-term residence. The court must preserve the distinction between the summary return inquiry and the merits of parental responsibility.

Urgency and the one-year period

Hague proceedings should be handled expeditiously. The six-week provision in Article 11 of the Convention is not a guaranteed deadline for a final decision; where no decision has been reached within that period, reasons for the delay may be requested.

The period of one year mentioned in Article 12 is also important. An application filed after one year is not automatically inadmissible or destined to fail. Return may still be ordered unless it is demonstrated that the child is now settled in the new environment.

Delay should nevertheless be avoided. It can affect the available evidence, the child’s circumstances and the practical conduct of the case.

Route 2: recognition and enforcement of a foreign parental responsibility order

A parent may need a foreign decision concerning parental authority, the child’s residence or contact to be given effect in Romania. The governing procedure depends on the state of origin, the date proceedings were commenced and the type of decision.

Decisions from EU Member States

For proceedings commenced on or after 1 August 2022, Council Regulation (EU) 2019/1111, often referred to as Brussels IIb, is the principal EU instrument governing jurisdiction, recognition and enforcement in matters of parental responsibility.

It replaced Council Regulation (EC) No 2201/2003, known as Brussels IIa, for proceedings falling within its temporal scope. Brussels IIa may therefore remain relevant to certain older proceedings, but it should not be presented as the current general regime.

Under Brussels IIb, decisions given in one participating Member State are recognised in other Member States without a special recognition procedure. Enforceable decisions on parental responsibility are enforceable in another Member State without a declaration of enforceability being required, subject to the Regulation’s conditions and possible grounds for refusal.

The applicant will ordinarily need:

• a copy of the decision satisfying the conditions necessary to establish authenticity;

• the appropriate certificate issued by the court of origin under Regulation 2019/1111;

• a translation or transliteration where required;

• information necessary for the Romanian enforcement procedure.

The precise certificate depends on the nature of the decision. Access decisions and certain decisions entailing the return of a child are governed by specific provisions of the Regulation.

Decisions from non-EU states

For an order made outside the applicable EU regime, recognition and enforcement may be governed by:

• a bilateral treaty;

• a multilateral convention binding Romania and the state of origin;

• the Romanian Code of Civil Procedure.

The requirements cannot be reduced to a universal checklist. Depending on the governing instrument, relevant documents may include an official copy of the judgment, proof that it is final or enforceable, evidence of proper service, a certified Romanian translation and an apostille or legalisation where required.

Before filing, counsel should verify whether the requested measure requires recognition alone, a declaration of enforceability, enforcement through a judicial enforcement officer or a combination of procedural steps.

Recognition is not a review of the merits

Recognition proceedings do not ordinarily permit the Romanian court to substitute its own assessment of the child’s best interests for that of the court of origin. The foreign decision is not reconsidered merely because a Romanian court might have reached a different result.

However, recognition or enforcement may be refused on the limited grounds permitted by the applicable instrument. Those grounds differ between EU law, international conventions and Romanian domestic law and should not be conflated with the exceptions applicable in Hague return proceedings.

In particular, Article 13 of the 1980 Hague Convention concerns return of an allegedly abducted child. It is not a general ground for refusing recognition of a foreign custody judgment.

Route 3: proceedings on the merits in Romania

Fresh Romanian proceedings are possible only if the Romanian courts have international jurisdiction to decide the merits of parental responsibility. The child’s physical presence in Romania, even for a substantial period, does not by itself establish that jurisdiction.

Under Regulation (EU) 2019/1111, the general rule is jurisdiction in the Member State of the child’s habitual residence at the time the court is seised. Special rules apply in cases of wrongful removal or retention.

Where a child has been wrongfully removed or retained within the EU, the courts of the Member State in which the child was habitually resident immediately beforehand generally retain jurisdiction until the strict conditions for a transfer of jurisdiction under the Regulation are satisfied. The abducting parent cannot normally create jurisdiction in Romania merely by keeping the child there.

Article 16 of the 1980 Hague Convention also provides that, once the authorities of the requested state receive notice of an alleged wrongful removal or retention, they must not decide the merits of custody until it has been determined that the child is not to be returned, or unless no Hague application is filed within a reasonable time.

Accordingly, starting Romanian proceedings as a tactical substitute for a return case may be ineffective and may conflict with the applicable jurisdictional framework.

Romanian proceedings on the merits may nevertheless be appropriate where, for example:

• Romania was already the child’s habitual residence when proceedings were commenced;

• jurisdiction has lawfully shifted to Romania under the applicable EU or international rules;

• the state of origin no longer retains jurisdiction;

• an applicable instrument permits jurisdiction based on another ground;

• urgent provisional or protective measures are necessary and Romanian law and the applicable EU rules permit them.

Any Romanian merits case must be brought before the court designated by the applicable rules of subject-matter and territorial competence. It is inaccurate to state generally that every such action is filed with a tribunal. Depending on the claim, first-instance jurisdiction will usually belong to a judecătorie, while Hague return proceedings follow the special jurisdiction established by Law No 369/2004.

Can the three routes overlap?

Yes. The procedures are distinct, but they may interact.

A parent may pursue a Hague return application while proceedings on the merits continue in the state of the child’s former habitual residence. An existing foreign judgment may support the allegation that rights of custody were breached, without requiring prior recognition for the limited purpose contemplated by the Hague Convention.

Separately, a parent may seek recognition and enforcement in Romania of an existing contact or parental responsibility order. Urgent protective measures may also be available, provided the competent court and legal basis are correctly identified.

What is generally not permissible is to use Romanian merits proceedings to bypass the jurisdiction retained by another state after a wrongful removal or retention.

Interim and protective measures

Where the child faces an immediate and substantiated risk, urgent measures may need to be considered. Their availability and scope depend on the applicable EU instrument, Romanian procedural law and the facts of the case.

Possible measures may concern the child’s temporary care, contact, protection against violence or preservation of the existing situation. It should not be assumed that a Romanian court may automatically impose a travel ban, seize a passport or order police recovery merely because such relief is requested.

Applications affecting a child’s movement or identity documents must have a clear legal basis, be proportionate and fall within the jurisdiction of the authority seised.

Police involvement is not a substitute for the appropriate civil procedure. In practice, a report to the police may be treated differently depending on the circumstances, and the existence of specialised civil remedies does not mean that law-enforcement authorities will themselves decide a parental responsibility dispute or execute a foreign civil order.

Enforcement in Romania

If a decision is enforceable in Romania and is not complied with voluntarily, enforcement is generally pursued through a Romanian judicial enforcement officer under the special provisions governing measures concerning minors.

Enforcement involving a child is not equivalent to ordinary recovery of property or money. Romanian procedural law provides a staged mechanism intended to secure compliance while protecting the child. Depending on the circumstances, it may involve notices, penalties, the participation of child-protection professionals and, where legally authorised, assistance from public authorities.

Penalties designed to compel compliance must be distinguished from damages. Criminal liability should not be presented as an automatic or preferred enforcement tool. Whether particular conduct may have criminal relevance requires a separate assessment of the statutory elements and the evidence; it does not replace civil recognition, return or enforcement proceedings.

Documents to obtain immediately

The required documents vary by procedure, but the parent seeking advice should ordinarily gather:

• the child’s birth certificate;

• all judgments, interim orders and approved agreements concerning parental responsibility or contact;

• the EU certificate relating to the foreign judgment, where applicable;

• documents showing whether and when the foreign judgment became enforceable;

• evidence of the child’s habitual residence before the move;

• written consent for travel and evidence of any agreed return date;

• travel bookings, border or flight records and communications concerning the child’s return;

• evidence showing the applicant’s exercise of parental rights;

• relevant school and medical documents;

• reliable evidence of any alleged safety risk;

• identity documents and accurate information about the child’s present location.

Foreign documents may require certified Romanian translations. Whether an apostille or legalisation is necessary depends on the state of origin, the type of document and the applicable EU, treaty or domestic regime.

How to choose the correct procedure

The following questions should be answered before proceedings are filed:

Timing and costs

No responsible estimate can be given without identifying the procedure.

Hague cases are intended to proceed expeditiously, but the six-week provision is not a promise that every case, including appeal and enforcement, will be completed within six weeks.

Recognition and enforcement timelines depend on the state of origin, the applicable legal instrument, the documents available, any challenge to enforcement and the conduct of the enforcement procedure.

Proceedings on the merits may take longer because they can require a social inquiry, hearing of the child, witness or documentary evidence, expert evidence and appellate review. However, it is misleading to publish universal timeframes or fee ranges for Romanian cross-border child cases.

Costs may include legal fees, translations, interpretation, authentication, judicial enforcement expenses, travel and expert evidence. In Hague return cases handled through Romania’s Central Authority, the special legal-aid regime provided by Law No 369/2004 must also be considered.

When specialist legal advice is essential

Cross-border child cases are highly fact-sensitive and time-critical. Specialist advice should be sought immediately where:

• a child has not been returned at the end of an agreed trip;

• a parent proposes to take the child across a border without the other parent’s consent;

• proceedings are pending in two countries;

• the child’s habitual residence is disputed;

• a Hague application is being considered or defended;

• a foreign parental responsibility order must be recognised or enforced in Romania;

• allegations of violence, abuse or grave risk are raised;

• urgent measures are sought.

The initial legal analysis should identify the objective, the court with jurisdiction, the applicable instrument and the evidence needed. Filing the wrong type of application may cause delay and may weaken the parent’s position in both Romania and the state of origin.

Conclusion

When a child is retained in Romania, enforcing a foreign order and commencing Romanian proceedings are not interchangeable alternatives.

A Hague application concerns the prompt return of a child and does not decide long-term parental responsibility. Recognition and enforcement give effect to an existing foreign decision under the applicable EU, treaty or Romanian rules. A Romanian court may determine the merits only if it has international jurisdiction to do so.

The fact that the child is physically present in Romania, has started school there or has remained for a period of time does not automatically displace the jurisdiction of the state of the child’s former habitual residence, particularly where the move or retention was wrongful.

For advice tailored to a particular case, the chronology, existing orders, residence history and applicable international instruments should be reviewed urgently by a Romanian lawyer experienced in international family law.

Need legal advice?

For specialist advice on international child abduction, recognition and enforcement of parental responsibility orders and cross-border family proceedings in Romania, contact Eniko Fulop at Fulop Lawyers, (emails contact@fuloplawyers.com or eniko@fuloplawyers.com) a member of the Global Law Experts network.

Principal legal sources

1. 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2. Council Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement in matrimonial matters and matters of parental responsibility, and on international child abduction.

3. Council Regulation (EC) No 2201/2003, where it remains applicable under the relevant transitional provisions.

4. Law No 369/2004 on the application of the 1980 Hague Convention in Romania.

5. Romanian Code of Civil Procedure, including the provisions on recognition and enforcement of foreign judgments and enforcement of measures concerning minors.

6. Romanian Civil Code and Law No 272/2004 on the protection and promotion of children’s rights.

This article provides general information and does not constitute legal advice. Jurisdiction, recognition, enforcement and available remedies must be assessed under the law and facts applicable to the individual case.