Separation from the Abducting Parent and the Best Interests of the Child: A Comparative Analysis of Case Law in Belgium, France and Switzerland

Abstract

In international child abduction cases, two international legal frameworks interact with each other. On the one hand, the Hague Child Abduction Convention provides that the abducted child must be speedily taken back (unless an exception applies); which is seen as being in the best interests of the child in general. On the other hand, the UN Convention on the Rights of the Child provides that the best interests of the individual child must be a paramount consideration in all actions concerning him or her. The aim of this article is to examine how the case law of Belgium, France and Switzerland integrates the obligation of a speedy return and the obligation of safeguarding the individual child’s best interests. The article focuses on how judges determine the child’s best interests when assessing whether the separation between the child and the taking parent poses a grave risk for the child in the sense of Article 13.1.b Hague Child Abduction Convention. Looking at the analysed case law, we see an integrated approach: the courts of the chosen countries manage to take the best interests of the individual child into account during their consideration of the return proceedings and the grounds for refusal.