Understanding the best interests of the child in EU Child Abduction Proceedings : perspectives from the case law

Abstract

In cases of international child abduction, human rights law and private international law are in constant interaction. Private international law seeks to prevent and discourage international child abduction, hence its prioritization of the immediate return of the child whenever an abduction takes place. Children's rights law, as part of human rights law, emphasizes that the best interests of the child must be a primary consideration in all matters affecting the child. At the same time, the principle of the child's best interests has acquired importance within the application of the Hague Convention of 1980 and of the Brussels II-bis Regulation. This paper draws on the empirical data obtained during the VOICE project, which analyzed over one thousand European cases on international child abduction, with the aim of understanding if and how judges across Europe give substance to the notion of the child's best interests in their case law. The analysis shows that judges do not always see the immediate return of an abducted child necessarily in his or her best interests. Instead, national courts use the principle of the child's best interests in a multi-faceted way, which leads to many different outcomes in the application of international legal instruments in child abduction cases.