The provisions of the 1980 Hague Convention cover cases of children under 16 years of age who are moved from their regular domicile to another state, or are retained in this second state. The movement or retention is made in breach of a parent who has custody. Per the Hague Convention, the right to parental authority includes the right to decide where the child will have its residence.

Even when parents exercise their parental authority together, they have common rights and obligations regarding the underage child, which means that one of the parents cannot decide unilaterally regarding the residence of the child. Therefore, withholding, for example, a child by one of the parents in a state against the will of the other parent violates the provisions of the Convention.

The child abduction procedure must be initiated within one year from the date the child was illegally retained in the non-resident state of the applicant. The time limit of one year is crucial, since the return of the child should be always ordered in its interest. It is evident that after a child has become settled in a new environment, it would not usually be in its interest for a return order to be issued by the court.

More complicated are the situations when the left-behind parent has initiated the judicial proceedings under the Convention immediately after the return deadline, as the child has not been returned, but the case has been pending for a long time due to the fact that the enforcement procedure was not successful. This is a possibility due to the applicable Romanian enforcement procedure.

It concluded the failure of the authorities to make adequate and effective efforts to secure the return of the child to be a violation of article 8 (right to respect for private and family life) of the European Convention of Human Rights (Ignaccolo-Zenide v. Romania, Bianchi v. Switzerland, Karrer v. Romania, Blaga v. Romania).

A decision given in a child abduction procedure is enforceable once it becomes definitive. This means that if the decision is issued in favor of the left behind parent (who initiated the proceedings), he can start the enforcement proceedings if the other parent does not accept and comply with the provisions of the decision.

Because the Romanian legislator wanted to protect the children’s rights and for them to be less traumatized during these proceedings, taking the child by force is no longer an option, as it often happened under the previous legal proceedings of the Romanian Civil Procedure Code.

Thus, these new procedural provisions (which entered into force in 2013) do not allow the enforcing authorities to frighten or act with duress against the children to ensure the enforcement; therefore, only monetary sanctions are available as a first step against the parent, which doesn’t comply with the decision.

In the enforcement procedure under the provisions of the New Romanian Civil Procedure Code, in the cases where the decision is not complied with by the abducting parent, the bailiff who conducts the procedure will ask the Court to establish financial penalties per day of delay against the person who must comply with the decision.

If this is unsuccessful and the child still refuses to go to the parent in favor of whom the decision was given, the child will undergo psychological counselling for a period of no longer than three months.

The bailiff can also notify the prosecutor’s office to initiate a criminal investigation for the offence of failure to comply with a court order.

Romanian legal proceedings on the enforcement of child abduction decisions take a long time compared with other legal systems. The Report prepared by the U.S. State Department entitled ‘’Annual Report on International Parental Child Abduction’’ speaks about a pattern of noncompliance when referring to Romania in a very general way, without indicating specific decisions in this regard, and comparing the Romanian legal system to the American legal system in respect of proceedings (legal provisions, framework, length of trials).

The legislator tried by the new enforcement proceedings concerning children to diminish their trauma as much as possible, but failed on the actual enforcement of the decisions.

The changes in the Romanian enforcement proceedings are that the bailiff can no longer apprehend by force the children who have been wrongfully detained. The penalty for the breach of a decision on child abduction is limited to a monetary fine, and eventually, jail time.

Given the fact that the Romanian authorities are not able to physically apprehend and deliver the children to the left-behind parent, a court decision on this matter is of little comfort. Such parent will incur significant time and expense to give effect to the provisions of such decision.

Delay is extremely prejudicial to the claims of the left-behind parent, and ultimately not in the best interest of the children. Although the Romanian courts rule upon child abduction cases on a timely manner, the enforcement proceedings take very long when the children refuse to go with the left-behind parent, and when the other parent refuses to comply with the decision.

As per the above, the potential risks outweigh a consent for a foreign travel in Romania if there are suspicions of a future child abduction case.

The fact that the Romanian authorities are not allowed to physically apprehend the children emasculates the power of a court decision on this matter and The Hague application. There is no tangible or significant risk for a parent withholding the children, except the sanctions mentioned above.

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