International Child Abduction Research Articles

Abducted Child’s Best Interests versus the Theoretical Child’s Best Interests: Australia, New Zealand and the Pacific

A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions’ approaches with the lens of whether the courts are preferring the particular child over the ‘theoretical’ child.

A Comparative Legal Review on Execution Legislation of Return of Child under the Hague Convention on the Civil Aspects of International Child Abduction

A Comparative Legal Review on Execution Legislation of Return of Child under the Hague Convention on the Civil Aspects of International Child Abduction

New Aspects in the Regulation of International Divorce: Council Regulation (EU) 2019/1111 of 25th June 2019 on Jurisdiction, Recognition, and Enforcement of Judgments in Matrimonial Matters and Parental Responsibility and on International Child Abduction

A reform that refers to two essential directions in civil matters was required along with the application of the principle of free movement in a modern and flexible manner. The amendment of Regulation (EC) no. 2201/2003 was carried out in the direction of divorce, legal separation, and annulment of marriage. The second direction considers the assignment, exercise, delegation and total or partial withdrawal of parental responsibility. The amending regulation clarifies the right of the child to be given the opportunity to express his opinion in the proceedings of which he is the object and contains provisions that complement the Hague Convention of October 25, 1980 on the civil aspects of international child abduction in relations between states EU member.

Contentious nature of cases concerning international child abduction

This article constitutes a scientific research which examines the content of which the contentious nature of cases concerning international child abduction is examined. The presence of disputes is eminent in cases concerning the return or exercise of the right of access to the child due to the contrary interests of the persons in whose care the child due to the contrary interests of the persons in whose care the child is located. Is this endeavor, it is highlighted the need to ensure a balance between the best interests of the child an the rights of their parents. Through the research carried out, conclusions and recommendations were formulated that can be useful for possible legislative changes.

“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.

헤이그 국제아동탈취협약상 청구요건 검토

The Hague Conference on the Civil Aspects of International Child Abduction was enacted in 1980 to prepare for the so-called “International Parental Child Abduction” caused by the illegal movement or detention of children by parents. In Korea, the Convention took effect on March 1, 2013, and the Hague Act on the Implementation of the International Convention on the Exploitation of Children has been enacted and implemented. The purpose of the Convention is to prevent so-called forum shopping, in which parents move or attract children for the purpose of acquiring legal land favorable to the judgment of the main issue of custody, and to realize child welfare through rapid return of children to their original residence. The Convention presupposes the assumption that rapid return generally or typically contributes to the welfare of children. In this sense, the “Principle of Rapid Return” is identified with the purpose of the Convention itself, which is the best interest of children. The speed of return constitutes the “basic principle of hearing” in the child return trial and serves as the basis for the “limited interpretation” of the reasons for refusal to return. Due to the importance of exceptional reasons to reject rapid returns, not only our practice but also the practice of contracting countries tend to focus on the reason for refusal rather than actively reviewing the requirements of the return request, and seek a balance between the principle of rapid return and the reason.
 Therefore, this article somewhat changed the perspective from the discussion so far, focused on the requirements of the claim, and reviewed the detailed issues arising therefrom. In the recent Hague child return case, the parties’ understanding of the agreement has increased and the practice of the contracting country has accumulated, and the child return trial is often dismissed due to the lack of requirements. In the text, first, the issue of international jurisdiction, which is the premise of the child return trial, was reviewed (II). Next, the requirements for claims regulated by the Convention and specific issues in its interpretation were derived (III), and the practices of the Contracting States were reviewed in detail, including separate case laws formed in the practice of the Contracting States (Ⅳ, Ⅴ). Finally, implications for our law were derived based on the analysis and evaluation of the practice of contracting countries (Ⅵ).

Evasive Manoeuvres: Strasbourg, the Hague Child Abduction Convention and the Absolute Prohibition on Ill-Treatment

Abstract This article identifies a troubling omission on the part of the European Court of Human Rights, when it considers cases involving the Hague Convention on the Civil Aspects of International Child Abduction. Such cases often involve one parent, who has abducted the child, alleging that their actions were necessary to protect themselves or the child from violence by the other parent. The Court has avoided considering arguments based on Article 3 of the European Convention on Human Rights in such cases, despite the now established relevance of that Article to the risks of family violence. A change of course is needed, in order to articulate clear principles for the ECtHR’s own Hague cases, and reinforce the absoluteness of Article 3 protection elsewhere.

Redressing the balance: how Australia’s approach under the Hague Abduction Convention is still endangering victims of domestic violence

Abstract This article explores how Australian courts consider allegations of domestic violence under Article 13(1)(b) of the Hague Convention on Child Abduction. As is now well known, there has been a paradigm shift since the Convention’s introduction, which has seen the circumstances and underlying reasons for international child abduction change. Through an examination of Australian case law from the past 5 years, this article reveals the issues that taking mothers continue to face in Australian return proceedings and the concerning reality that the courts continue to prioritise a prompt return over the safety and well-being of women and children exposed to domestic violence. This is despite feminist legal scholars and activists demonstrating for over 20 years that domestic violence is not being adequately dealt with in return proceedings and calling for change. The article discusses how the huge inequality in legal representation for taking mothers and left-behind fathers adds to the imbalance in these matters. Unfortunately, the recent Hague Conference Guide to Good Practice in such cases is unlikely to affect any substantive change to redress that imbalance. Suggestions for ways to redress the balance between taking mothers and left-behind fathers are suggested.

Protecting the child’s best interest in international parental abduction of children: mediation in the 1980 Hague Convention cases

The 1980 Hague Convention on the Civil Aspects of International Child Abduction was the first binding international instrument to address the phenomenon of cross-border child abduction, which appeared as a side-effect of ongoing globalisation in the second half of the 20th century. The 1980 Hague Convention is undoubtedly the most successful and widespread instrument of direct cross-border cooperation between states to deal with the international child abduction. Nonetheless, the practical significance of this 40-year-old instrument is diminished by the fact that it allows only for a limited consideration of the specific situation of an individual child, whose careful consideration the present-day children’s rights approach, in particular the principle of the best interest of the child, otherwise dictates. International family mediation, carried out by a qualified cross-border family mediator, can nevertheless address some of the major downsides of the mandatory return mechanism. The paper explores how in the 1980 Hague Convention cases the child’s best interest can be secured through international family mediation.

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

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

"Peculiar Finalities": Blurring the Borders between Abduction and Adoption?

ABSTRACT: The Hague Convention on the Civil Aspects of International Child Abduction is not usually associated with the issue of child adoption: its case law is often complex and focused upon such concepts as "habitual residence" and parental consent, neither of which fit comfortably into the various discourses arising out of adoption law jurisprudence. And yet, aspects of Hague's body of case law arguably hold relevance for adoptees and their estranged birth relatives, in the sense that they touch upon difficult features of family life: kin contact, access to accurate information, abusive relationships, and the notion of relinquished parenthood. Judicial interpretations of such principles as best interests, the voice of the child, the extent of parental responsibility, and the need for child identity, can offer convoluted rights analyses which in turn touch upon the consequences of suffering certain losses, not least original kinships and natal or sociocultural identities. These discourses highlight the implications of maintaining or severing genetic connections: mention is often made of the need for speedy family reunification, the importance of preserving the child's ties to their country of origins, and the benefits of having some form of contact with family members. Significant too is the child's ability—or otherwise—to integrate into new cross-border familial or sociocultural settings. The human rights implications of losing or gaining access to one's "roots" via geographic dislocation (or indeed through a court-ordered return to a place of origin) are therefore key.

Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej w sprawie C-644/20 z 12.05.2022 r. – zmiana miejsca zwykłego pobytu małoletniego wierzyciela świadczeń alimentacyjnych w sytuacji wydania wyroku nakazującego jego powrót w trybie Konwencji haskiej z 1980 r. dotyczącej cywilnych aspektów uprowadzenia dziecka za granicę

The gloss endorses the position of the Court of Justice of the European Union presented in the judgment issued in case C-644/20, in which the CJEU recognized – for the purposes of determining the law applicable in a cross-border maintenance case – the habitual residence of the child (pursuant to Article 3 of the Protocol Hague of 23 November 2007 on the Law Applicable to Maintenance Obligations) the country to which the child has been abducted despite a judgment ordering the return of the child under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Court, bearing in mind the best interests of the child, recognized the need to take into account the current environment in which the child currently resides in the context of assessing the real needs of the maintenance creditor. Thus, the CJEU did not adopt the concept contained in Regulation 2201/2003, according to which the jurisdictional connecting factor based on the child’s habitual residence, in principle, cannot be linked to the country to which the child was wrongfully removed or retained.

Some comments related to the international child abduction as regulated by the Council Regulation (EU) no. 1111/2019 and the Romanian Case Law

Considering that the international child abduction has increased nowadays, as it results from the Romanian case law, we have decided to study this part of the new Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (hereinafter referred to as the “Regulation No. 1111/2019”).
 For this purpose, we shall also outline the differences between the Regulation No. 1111/2019 and the Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereinafter referred to as the “Regulation No. 2201/2003”), which shall be repealed by the Regulation No. 1111/2019 from the 1st of August 2022.
 The international child abduction is included in the title of a regulation for the first time. As well, a special chapter related to the international child abduction was inserted – Chapter III, articles 22-29. This amendment included by the Regulation No. 1111/2019 is not only useful, but also natural, given that the issue of the international child abduction is a complete separate issue from the parental responsibility and the exercise of this responsibility.
 The new Regulation No. 1111/2019 provides clarifications in relation to the period when the seised court must give its decision, in article 24, entitled Expeditious court proceedings.
 In accordance with the legal provisions of both the Regulation No. 1111/2019 and the 1980 Hague Convention, for ordering the return of a child the following conditions must be met: (i) there has been a breach of the rights of custody, (ii) the person, institution or other body having the care of the person of the child was actually exercising the custody rights at the time of removal or retention, (iii) the child was habitually resident immediately before the wrongful removal or retention in the state where the return is requested, (iv) the person, institution or other body having the care of the person of the child had not consented to or subsequently acquiesced in the removal or retention, (v) no exception provided by articles 12 and 13 of the 1980 Hague Convention applies.

International Child Abduction and the 1980 Hague Convention in Practice: The Biran Case

Abstract With its Decision of 29 November 2021 (No. 7918/21), the Supreme Court of Tel Aviv has ruled on the case of Eitan Biran, the child who survived the crash disaster of the “Mottarone” cable car in Italy. After the accident, the child was entrusted to his aunt, appointed as legal guardian. However, a few months later, the child was unexpectedly conducted to Israel by his paternal grandfather. The Israeli Family Court and District Court, appointed for the return of the child according to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, have ordered the immediate repatriation in Italy. The decision of the District Court was upheld by the Supreme Court, whose decision represents a good example of correct application of the 1980 Hague Convention. Acknowledging that the guiding principle of the Convention is “zero tolerance for child abductions”, the Court has established that the habitual residence of the child was in Italy and that the transfer to Israel was in breach of the custody rights of the legal guardian according to Articles 3 and 5 of the Convention: in fact, the institute of tutore legale in Italy attributes to a person the responsibility of a child, a circumstance that in this case derived from a judicial decision. Moreover, the Israeli Supreme Court has adhered to a strict interpretation of the exceptions stated in Articles 12(2), 13 and 20, none of which resulted applicable to the case at hand.

Common Application of EU Regulations and Their Effectiveness in the Context of the CJEU Judgment in the Case of SS v. MCP, C-603/20 PPU

Abstract International child abduction is a problem, seen as growing, and increasingly as an activity that should be ruthlessly stigmatized and, if possible, eliminated from practice. The objectives of reducing, stigmatizing and ultimately eliminating international child abduction are served by a variety of measures within the framework of the Hague Conference on Private International Law and the European Union, including the creation of some sort of rapid response system. In the context of the operation of this combined system, in November 2020, the Court of Justice of the European Union received a preliminary question from the UK High Court of Justice (England & Wales), Family Division, in relation to doubts arising in the course of newly instituted court proceedings concerning jurisdiction in parental matters in situations of child abduction to a third, non-EU country. The issue is important as it relates to the possibility of initiating proceedings in the country from which the child has been abducted when the country to which the child has travelled is not in the EU.

Children’s Objections in Hague Child Abduction Convention Proceedings in Australia and the “Strength of Feeling” Requirement

Abstract The Hague Convention on the Civil Aspects of International Child Abduction creates an exception to the mandatory return of abducted children if the child objects to being returned to their country of habitual residence and has attained an age and degree of maturity at which it is appropriate to take account of their views. The Australian regulations also require that the child’s objection demonstrates a ‘strength of feeling beyond the mere expression of a preference or of ordinary wishes.’ This article examines this unique requirement and how it has been approached by the Family Court. It finds that many Australian judges treat the “strength of feeling” requirement as an additional hurdle that children must overcome before their objection can be taken into account. This approach is contrary to Australia’s international obligations under the Convention. A less restrictive approach, which some other judges follow, is recommended to ensure that the Convention’s primary objective of protecting children is met.

Dislocated lives: the experience of women survivors of family and domestic violence after being ‘Hagued’

ABSTRACT This article reports on interviews with ten women who had experienced the legal process of the 1980 Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’ or the ‘Convention’). We refer to that experience as being ‘Hagued’. All the women were subjected to a Hague return order after fleeing family and domestic violence perpetrated by their previous partner, because they fled with their children across international borders. Subsequently, all women were ordered to return their children to the country where their abusive previous partner lived. Nine out of the ten women also returned with their children. On return the women experienced further harms: they were vulnerable to, further intimidation and controlling behaviour from previous partners; they became homeless; and they felt punished in ordered from returning country’s courts through reduced contact and custody arrangements. The article concludes by suggesting if the Convention, the domestic implementation laws and ultimately the courts assessing return applications, placed greater emphasis and understanding on family and domestic violence, then the women interviewed probably would not have been ordered to return their children and they would not have experienced further post-Hague harm.

Current-day international child abduction: does Brussels IIb live up to the challenges?

Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children's rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure.

Civil Aspects of International Child Abduction: Issues Raised by the COVID-19 Pandemic

The COVID-19 pandemic that has spread the whole world and the restrictive measures taken to combat it have had an unprecedented impact on all aspects of modern society, including cross-border family relations, and, in particular, situations of international child abduction. One of the most difficult question is the possibility of justifying the refusal to return a child taken to the territory of another country by one parent without the consent of the other, referring to the existence of a grave risk to his life and health (In the context of subparagraph “b”, paragraph 1 of Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction) — the treat of his infliction with a new coronavirus COVID-19 pandemic in the process of his return to the country of habitual residence or a complex epidemiological situation in this country.In this regard, the author tries to answer this question, taking into account the official interpretation of the provisions of the Convention, as well as judicial acts issued by courts of various states. Based on the analysis, the author comes to the conclusion that it is impossible to justify the refusal to return the child by referring to the COVID-19 pandemic.

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.