engleski

Implementation of Cross-Border Protective Measures in Return Proceedings : Problems of Evidence under National Procedural Law

The primary task of this contribution is to examine the intersection between child abduction rules and protection measures rules, in the context of presenting evidence in support of allegations of domestic violence. In the context of abduction, the presentation of such evidence may find an exception of grave risk, while, in the context of protection measures, the imposition of such measures is justified if violence is properly evidenced. Despite this difference, it is necessary to establish ‘proof of domestic violence’ for both purposes. Grave risk of harm is, in principle, specific to the child, but the evidence of violence may also be specific to the abducting mother, and indirectly to a child that has witnessed violence or suffered from it. The focus of this contribution is on the procedures, and evidence presented, in the course of investigating allegations of domestic violence in child abduction cases, and on ameliorating the risks of such violence. The authors will seek to establish the middle path in proving allegations of domestic violence within strict abduction proceedings time-frames. This contribution is devoted to four aspects of the problem. The authors, first, set out the basic step-by-step approach to assertion of domestic violence in child abductions. Thereafter, the procedures of assessing the grave risk of harm, and of issuing a protection measure, are evaluated. The authors will deal with issues pertaining to standard of proof, types of evidence that should be considered, and collecting evidence in a situation of cross-border child related violence matter as well as burden of proof. The procedure of issuing EU protection measures is, in particular, examined from the standpoint of various domestic procedural rules that may hinder application of the EU protection measures package, in the context of child abductions. The contribution, ultimately, addresses the burden of proof and evidence in relation to ex officio protective measures, to establish the different possible scenarios if protective measures are issued in return proceedings, or in proceedings separate from return proceedings.

protective measures; evidence

nije evidentirano