1. Case Overview

a. Party Represented by Barun Law

We represented a French national married to a Korean woman, with children born in 2018 and 2022.

b. Background of the Case

The client and his wife lived together in France for over seven years. During the summer vacation of 2022, they visited the wife’s family in Korea. However, during the vacation, the wife unilaterally expelled her husband from the house without any reasonable cause and completely cut off all contact between him and their children, thus unlawfully retaining the children.

c. Lawsuit

We filed a petition for the return of the children under Article 12(1) of the Act on the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Child Abduction Act") against the wife. Just one year and four months after filing the petition, we succeeded in obtaining a preliminary order regarding visitation rights and a final decision on the return of the children.

However, the wife continued to refuse visitation and instilled a negative perception of the client in the children, thus not complying with the return order. According to the "Regulation on the Execution Procedure for the Delivery of Infants", enacted and implemented in 1982, execution could not be carried out if the child expressed refusal, making enforcement virtually impossible.

As similar cases accumulated and Korea was designated as a “Non-Implementing Country of the Hague Convention on the Civil Aspects of International Child Abduction” in the international community, the "Regulation on the Execution Procedure for the Delivery of Children Under the Hague Convention on the Civil Aspects of International Child Abduction" was enacted and came into effect on April 1, 2024. Under this new regulation, the child's refusal is no longer a reason for non-execution, but practical difficulties still remain.

On July 9, 2024, we attempted and succeeded in forced execution in accordance with this new regulation, eventually allowing the children to return to France with the client.

2. Our Arguments and Role

We formed a dedicated response team with attorneys proficient in English communication to directly communicate with the French client. They conducted in-depth interviews to confirm the history of the marriage and abduction, and thoroughly researched the legal meaning of habitual residence under the convention, as well as the custody regulations under French civil law, based on official reports of the convention and domestic and international literature. Based on the information collected in this manner, we managed to obtain a final decision on the obligation of the wife to return the children in an exceptionally short period.

Although the new regulation was recently enacted, many parts of the enforcement are still left to the discretion of the executing officer. Thus, under the new regulation, cases are emerging where the debtor disappears with the children, leading to enforcement failures.

In this context, we thoroughly prepared various enforcement plans in anticipation of various situations, closely communicated with the enforcement office, the court-appointed child psychology expert, and a specialized security team, leading to successful cooperation. Furthermore, even after the enforcement, we actively assisted in ensuring the children, who did not hold Korean passports, could return to France.

3. Significance of the Judgment

Children have the right to grow up with interaction with both parents. However, until now, most child return orders under the Hague Child Abduction Act have remained unenforced. In this context, the case is highly significant as an early successful case of forced execution attempted under the new regulation enacted on April 1, 2024.

□ Attorneys in charge: Kim Mi-Yeon, Chae Na-Ye