International Child Abduction Cases Research Articles

Trust and the law in international child abduction cases

This article seeks to grasp the legal category of international child abduction through the conceptual lens of trust, from the standpoint of judges. In a more ambitious way, we delve into the relationship between law and trust in the context of the transnationalisation of family law. Going beyond the legal principle of mutual trust, we propose a solid conceptualisation of the notion of trust drawn from sociological theory and we analyse the issues that arises for judges both at the institutional and interactional levels. At the institutional level, we show how trust operates as a procedural mechanism that allows cooperation in the absence of explicit moral consensus, whilst at the interactional level, we demonstrate that trust is imbued with ethical value and pushes judges to be more open to foreign laws and culture.

Cases of cross-border child abduction in times of populism: a Polish perspective

This article analyses the case law in Poland on matters of the return of children wrongfully removed or retained within the framework of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction during the period of the “populist” government (2020–2022). It takes account of the legislative and judicial developments in the EU and the European Court of Human Rights and of the aims of the Hague Convention. It seeks to ascertain whether the influence of populist reforms and politicisation of the courts has become apparent in the case law of the Polish Supreme Court on international child abduction cases.

The Brussels IIb Regulation – Most significant changes compared to its predecessor and enhancement of the 1980 Hague Convention on International Child Abduction

The Brussels IIb Regulation, dealing with proceedings in matrimonial matters, those of parental responsibility and international child abduction cases, is the newest instrument of the European Union in international family law. The article critically evaluates its most significant changes compared to its predecessor, the Brussels IIa Regulation, in the fields of jurisdiction and of recognition and enforcement. In addition, it analyses how the Brussels IIb Regulation optimises the provisions of the 1980 Hague Convention on International Child Abduction between the member states of the European Union. The article argues that the regulation is overall a helpful and welcome addition to international family law because it strengthens the welfare of the child and enhances the practical functionality and normative structure of its predecessor. Nevertheless, scope for further improvements in another recast regulation is identified.

Consideration of Ameliorative Measures in International Child Abduction Cases Post-Golan

Consideration of Ameliorative Measures in International Child Abduction Cases Post-Golan

“I didn’t have a chance”: perceptions of the attitudes and roles of legal professionals for women involved in Hague international child abduction cases

ABSTRACT Studies of lawyers and clients tend to be lawyer centric. How clients see lawyers—their own or those of other parties—is less emphasised. In this article we report the perspective of ten women who had been subject to a Hague Convention on the Civil Aspects of International Child Abduction process. The Convention was created to address removal of children from custodial mothers by non-custodial fathers and aims to ensure the safe return of children to their country of “habitual residence”. However, the Hague Convention process, and the lawyers and courts that administer it, do not adequately respond to situations where mothers are fleeing domestic and family violence with their children. The women we spoke with had all fled domestic and family violence and sought safety by returning to their own country. They had been subject to a Hague Convention process for the return of their child(ren) to the country and custody of their perpetrator and experienced an accusatory, uncaring, hostile legal profession. The women felt that the lawyers were motivated by moral assessments of them and their behaviour. The lawyers were seen as participating and continuing the violence as an agent of the perpetrator and the state.

Consideration of Ameliorative Measures in International Child Abduction Cases Post-Golan

Consideration of Ameliorative Measures in International Child Abduction Cases Post-Golan

Introduction and Analysis of Guide to Good Practice Part Ⅳ on Article 13(1)(b) under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction(2020)

In order to ensure the prompt return of a wrongful removal or retention, International Child Abduction Cases, Hague Convention on the Civil Aspects of International Child Abduction(here in after, ｢Hague Convention｣) is adopted in 1980 by the Hague conference on Private International Law. In principle, the object of the Hague Convention is to secure the prompt return of Children wrongfuly removed or retained in any contracting State. Therefore the exceptions to return (including Article 13(1)(b)) of the Hague Convention must be interpreted restrctively. By the way, in the beginning of adopting the Conveniton, The type of International child abduction on which this Convention’s legislator is premised, is changed. A Classic type of Internatioal Child Abduction is conducted by one of the parents, father, taking from the primary caretaker(mother). But, the recent type of that is conducted by primary caretaker for escaping the Domestic Violence by father. This change of situation has on influence on the judgement of Court of contracting State and the analysis of “Grave Risks”, exceptions to return provied for under Article 13(1)(b) of Hague Convention. In this situation, the Hague Conference on Private International Law, in order to prevent a serious situation in which confusion in the application of this Convention in certain cases continues to be neglected, in 2020, Guide to Good Practice of Article 13(1)(b) are being made to rectify contradictions in the contracting countries’ practice. Guide to Good Practice of Article 13(1)(b) has the following main contents. First, it is confirmed that the principle of prompt return under the Convention and the restricted interpretation of the exception of return should still be maintained. Second, in special cases such as domestic violence, the importance of an empirical approach based on the dynamics of domestic violence is emphasized. Third, Guide to Good Practice of Article 13(1)(b) recommend and emphasize the return order conditional on protective measures by the courts. Fourth, Guide to Good Practice of Article 13(1)(b) provide guidelines for the roles of judges for effective case management. In this paper, it is needed to study or analyze the cause of the judgement and process of the decision of contracting State and contents of Guide to Good Practice of Article 13(1)(b) for providing a appropriate standards to our Court which will deal with the Hague Abduction cases.

DETERMINATION OF A CHILD’S HABITUAL RESIDENCE IN INTERNATIONAL CHILD ABDUCTION CASES: CHARTING THE WAY TOWARDS HARMONIZATION

The 1980 Child Abduction Convention is aimed at addressing the increasingly disturbing problem of trans-border parental child abduction, its key mechanism being to promptly return an abducted child to his or her country of ‘habitual residence.’ In essence, habitual residence is established as the chosen personal connecting factor in international child abduction cases. However, in view of the failure of the Convention to define the term, it has become the responsibility of the courts around the world to improvise their own standards for the determination. The objectives of the present paper, therefore, are to assess the deplorable situation of fragmented approaches and standards used by the courts in determining habitual residence of a child and to explore the recent developments in judicial pronouncements in order to be able to demonstrate the changing trend in the jurisprudence of the courts. To achieve these, the paper looks into and appraises the decisions of the courts of the United States of America, Canada, the European Union, the United Kingdom and other common law countries. The paper concludes that the changing trend is clearly discernible and a number of courts of States parties are increasingly applying a hybrid or combined approach rather than various subjective and one-sided approaches and thus moving towards the achievement of harmonization in the determination of a child’s habitual residence, the underlying principle of the Convention.

Particularidades acerca de la autoridad judicial competente en supuestos de sustracción ilícita de menores en aras del Reglamento (CE) 2201/ 2003

La mayor parte del conjunto de casos de sustracción internacional de menores son una manifestación trágica y dolorosa de una crisis matrimonial o de pareja. En este marco de actuación, la retención transfronteriza, frente a las situaciones estrictamente internas, posee como elemento distintivo el desplazamiento o traslado del menor a cargo del sustractor con el fin de encontrar un sistema legal de cobertura distinto y más favorable a sus intereses. Para evitar múltiples perjuicios y, con miras a preservar el interés superior del menor, el Reglamento (CE) 2201/2003 blinda la competencia en esta materia a favor de los tribunales de la residencia habitual del menor. Si bien, la gran diversidad de causas que subyacen en el secuestro de menores no deben ser ignoradas a la hora de proponer la solución más adecuada.

Family mediation in international child abduction cases in Ireland: One size will not fit all

This paper explores how mediation can support the legal process in international cross-border child abduction cases in Ireland. It draws on research carried out as part of requirements for a Master’s degree in mediation and conflict intervention and reports on qualitative interviews with nine professionals with experience in international child abduction cases or extensive training in this field. It explores the role of the Irish Legal Aid Board‘s family mediation service in Hague cases and concludes that a ‘one size fits all’ model is unlikely to meet the need for flexibility in such cases.

Mediation in matters concerning parental responsability and international child abduction. Recognition and enforcement of agreements concluded during return proceedings.

Mediation, as an alternative means of dispute settlement, is an assisted decision-making process which typically takes the form of facilitated negotiation. The mediator assists the parties in making decisions concerning the issues of their dispute and about the appropriate norms for the regulation of future relationships. This article examines the implications of in international child abduction cases. It begins with the analysis of mediation,as a means of dispute settlement, in general (2). Then, it reviews the RomanianLaw no 192/2006 on mediation and the organisation of the mediator's profession (3). We then address the importance of in family matters (4); we define the concepts (5),present the advantages (6) and disadvantages (7) of in the international and national context. Afterwards, we discuss the implication of internal mediation, in the national context, in relationship with settlements of family-related disputes (8). We address the law applicable to settlements and the choice of law in related cases especially in cross-border cases, pointing out the difference between the law applicable to the agreement and the one applicable to the parental agreement (9). Lastly, we present the practices considered to be effective in child abduction cases, taken into account the Malta process and Declarations, and discuss the recognition and enforcement of the agreement concluded during return proceedings (10).

A child-friendly area of freedom, security and justice: work in progress in international child abduction cases

The protection of children’s rights constitutes the subject matter of various private international law instruments within both the international and the EU frameworks. The paper focuses on their relevant provisions regarding child abduction, which pose a number of problematic issues as to their interpretation and practical application. Against the existing background, future legislative developments are assessed with a view to proposing a provisional evaluation as to their effectiveness and actual improvement.

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

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.

The Applicability of the 1980 Hague Abduction Convention in Muslim Countries: Particular Reference to the Malaysian Position

Abstract In response to the increasing number of traumatic international child abduction cases, the Hague Abduction Convention (the Convention) has been adopted to secure the return of abducted children to their home country. Most Muslim countries are, however, not yet parties to the Convention. This article seeks to investigate the reason for this phenomenon, focusing in particular on the Convention’s compatibility with basic tenets of Islamic law. The article also evaluates Malaysian domestic legislation and case law in order to assess whether Malaysia is in a position to be a party to the Convention. The article finds that although there are a few areas of concern, no serious incompatibility between Shari’ah and the Convention exist, and that more dissemination is required to quash misconceptions about the Convention among Muslim countries. The article concludes with recommendations for Muslim countries in this crucial area of protecting the best interests of our children.

International Parental Child Abduction: An Explorative Analysis of Legal Standards and Judicial Interpretation in India

This article gives an explorative analysis of legal landscapes of international child abduction by parents in India. The international child abduction cases typically involve couples in failed matrimonial relationships, where one parent unilaterally takes the child back to his or her native country. The article examines the principles propounded by the Indian judiciary in these cases and the latest Indian legislative initiative to tackle the problem, the draft Civil Aspects of International Parental Abduction Bill, 2016, which was open for public comments. The article considers whether the Bill is in conformity with Hague Convention on the Civil Aspects of International Child Abduction 1980 and whether it provides a strong mechanism to tackle international parental child abduction.

Between Tort Law, Contract Law, and Child Law: How to Compensate the Left-Behind Parent in International Child Abduction Cases

III. The Contract Action Model (The Contract Model) A. Presenting the Model Where there is an agreement between the parties concerning the custody of the child and visitation arrangements, there may well be a breach of that agreement, which gives rise to an action for breach of contract and to the award of remedies, including compensation for financial and non-financial damages and the cancellation of the contract. The issues involved in awarding compensation to the left-behind parent for breach of contract are largely the same as those involved in awarding compensation in tort. An example for this model is the case of Dr. Z.M. v. R.M.P., which was discussed above in relation to the tort model. (142) In this case, the parties agreed in their divorce settlement, which was approved by the court, that the mother would have the sole custody of the child and the father would have visitation rights, but neither of them was allowed to take the child outside the jurisdiction without the written consent of the other party or of the court. The mother deceitfully took the child to Australia with no intention to return. Thus, the contract is in fact the divorce settlement, which settles matters such as custody and visitation. Often such a contract is approved by the court, which means that it also has the force of a judicial decision. This will also be the case in relation to a separation agreement or other custody agreement made in cases where the parents were not married from the outset. It seems that even an oral consent as to visitation and the conditions for leaving the country will be considered as a contract in these cases. Abduction can clearly be a breach of such contracts, even if the left-behind parent is not the custodian, where the contract clearly forbids a unilateral decision to take the child outside the jurisdiction and also where the removal prevents the realization of visitation rights. (143) B. Advantages The main advantage of the contract action compared to the tort action may be that the left-behind parent need not prove breach of duty of care or statutory duty, but only the existence of a contract and the breach of it. In addition to the right to claim compensation, the left-behind parent can ask the court to change the terms of the contract in light of the breach and the change in circumstances. This is true whether or not the contract was approved by a court. A contract action clearly promotes the major objective of contract law, which is to ensure that agreements are respected and, where they have been violated, to put the parties in the position that they would have been in if the contract had been performed, so far as possible. In the current context, this means compensating the left-behind parent for all the losses and expenses he has incurred as a result of the breach of the contract. Furthermore, a contract action is compatible with most of the goals of tort law and some of the goals of the AC in the same way as a tort action, as discussed above. (144) C. Disadvantages A contract action, like a tort action, is separate and independent from the proceedings for return of the child under the AC with the attendant disadvantages, outlined above. (145) Here too, the limited relevance of the abductor's lack of moral blameworthiness discussed above in relation to the tort model is equally relevant. In fact, there may be less scope for taking into account the left-behind parent's contributory fault because it is not clear that such a defense exists in contract law. (146) In addition, the left-behind parent can claim that if the abductor had complaints against him, he could have gone to court to seek appropriate remedies, such as changing the contract or even voiding it entirely. The rest of the procedural problems, such as res judicata, the splitting of damages, and the uncertainty in relation to heads of damage and quantification of compensation exist in this model too. …

The Hague Abduction Convention and its implications for multicultural families in Korea

Based on the 2010 case of a Vietnamese marriage migrant woman who was accused of abducting her child, this paper explores the implementation of The Hague Convention to which South Korea is a state party. The case highlights the role of women in the care of children and how international law treats family care in the raising of children. This paper concludes that Korea should take legislative and administrative measures to tackle the problem of international child abduction. It also highlights the need to work with the home countries of the foreign spouses of Korean nationals to resolve international child abduction cases. Furthermore, it maintains that The Hague Convention needs to reflect on the reproductive rights of women and how such rights can be duly considered in the Convention.

Non-traditional Family Forms & the International Dimension of Family Life: A Report on the ERA Seminar, ‘Recent Case Law of the European Court of Human Rights in Family Law Matters’

This report discusses the interesting remarks and conclusions made by the speakers at the ERA seminar, ‘Recent Case Law of the European Court of Human Rights in Family Law Matters’, which took place in Strasbourg on 11-12 February 2016. The report starts with a brief discussion on the shifting notion of ‘family life’ in the case law of the ECtHR, then turns to best interests of the child in international child abduction cases, the Court’s recognition of LGBT rights and finally the spectrum of challenges regarding reproductive rights in the Court’s case law. The overarching general trend is that the Court is increasingly faced with issues concerning non-traditional forms of family and with issues caused by the internationalisation of families. How this is seen in the Court’s recent case law and how it effects the various areas of family law is discussed in this report.

International child abduction cases in Hungary

This article summarizes the background of child abduction cases related to Hungary, giving a comprehensive analysis of such cases between the period of 2000 and 2014. In the first section, the reader finds a statistical analysis and the second part deals with the legal and practical background. The final conclusions give some recommendations for the European and domestic legislators. The essay was created as part of a report published by the European Parliament, collected by the Swiss Institute of Comparative Law on the actual situation of child abduction in Europe.

From a State-Centered Approach to Transnational Openness: Adapting the Hague Convention with Contemporary Human Rights Standards as Codified in the Convention on the Rights of the Child

Parental kidnapping is an increasing problem throughout the world and the social consequences of globalization have made international child abductions more frequent. In the United States alone, the Department of Justice states that 354,100 children are reported to have been abducted by a family member in a single year. Estimates indicate that one in five parental kidnappings involves a child being taken across international borders. The United Kingdom states that in the last three years there has been a “58 percent increase in the number of international parental child abductions.” In 2000, the National Center for Missing and Exploited Children, which handles all U.S. international child abduction cases, reported 1,697 international abductions, up 66.7 percent over 1999. The increase of international child abductions has been attributed to the increasing access of international travel and rising divorce rates. International ab-