When deciding whether to return your child to the state of their previous residence, the court in the state of your child’s current residence must take the best interests of the child and the interests of both parents into account.
The return decision can only be made by the court in the state of your child’s current residence. You can submit this to that court directly or request that the Estonian or the other state’s authorities (in Estonia: the Ministry of Justice) assist you in the procedure.
When deciding whether to return your child, the court must observe several aspects related to human rights throughout the return proceedings.
Child's best interests
A child’s parents, the state authorities and the courts must always take into account the best interests of a child in all decisions which may affect them, including the return decision. In each particular case, the best interests of the child may vary depending on their age, maturity, wishes, past experiences and other factors.
example If a child has successfully settled into the new environment after several years of residence, returning to the state of their previous residence may not be in their best interests.
Additionally, in the case of a removal to another country, it may also be in the child’s best interests:
- to maintain their ties with family members, unless it is proven that such ties are undesirable for a child
- to develop in a safe and sound environment
example It may be in the child’s best interests to return to the state of their previous residence, if almost all of their family members, such as siblings or the parent who cared for the child until their removal, are living there.
Interests of the parents
Although the best interests of the child are the primary consideration for the court, it must also make a balanced and reasonable assessment of the respective interests of both parents, and in particular, the interest of having regular contact with their child.
example If a psychologist assesses the child and concludes that the child could return to their initial state of residence, but their mother must accompany them, the court should also examine the child’s ability to move to another state, for example, whether they know the state language and the child’s ability to gain income there etc.
Duty to hear both parents and the child
The court hearing must be conducted orally and both parents (or the legal guardians) must be heard. The court must also hear the child, if possible, taking into account their age and maturity. The court must take these opinions into consideration, especially the one expressed by the child in order to ascertain the child’s best interests in the particular case.
The court must hear the child, but it may refuse to follow their opinion if the court has well-grounded reasons to do so, such as a potential threat to the child’s life or health.
important The court cannot refuse to return a child, if the parent who has requested the return has not been given an opportunity to be heard by the court.
Refusal to return a child
In principle, if less than one year has passed since the child was wrongfully removed to another state, the competent authority or court should order the return of the child to the state of their previous residence.
The court can decide not to order the return of a child, only if one or several of the following criteria are fulfilled:
- the parent requesting the return was not exercising their custody rights at the time of the child’s wrongful removal
example The parent who was left behind has not shown any interest about the upbringing of the child or in maintaining contact with them and has not taken part in making decisions about the child
- there is a grave risk that the return of the child would expose them to physical or psychological harm or otherwise place the child in an intolerable situation
example There is reason to believe that the parent who was left behind has sexually abused the child
- at least one year has elapsed from the date of the child’s wrongful removal, and the child is now settled in the new environment
example The child has become accustomed to the kindergarten or school and education system, has learned the language, made new friends, etc.
- the child, who is able to properly formulate their opinion due to their age and maturity, objects to the return
note If the court has persuasive reasons to conclude that staying in the state of current residence is undesirable for the child and does not serve their best interests, it may nevertheless order the return of the child
- if the return of the child to the state of their previous residence would put them in a situation that would contradict the basic human rights standards of the state of the child’s current residence.
important The court can only decide whether the child should return to the state where they have lived before. The court will not decide upon custody and access rights and will not determine the parent with whom the child should live. Those issues are a matter for custody proceedings and can be decided by the national court after the child is returned. In such case, parental custody proceedings should be initiated in a court by the interested parent.
Read more about parental custody rights.