International Parental Child Abduction Research Articles

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).

Legislation as a Social Process: Japanese Family Law and the Drafting of the Bill on the Hague Child Abduction Convention

AbstractWhen Japan signed the Hague Convention on the Civil Aspects of International Child Abduction, the government enacted a new act to deal with international parental child abduction according to the Convention in the same year. The Ministries of Justice and Foreign Affairs were immediately in charge of making a draft Bill. Once the government and respective ministries had instantly set up the legal and administrative procedure for dealing with international family issue under the Convention, as some studies argue, simultaneous issues of the family in separation in Japan were underdeveloped. Employing a method of content analysis of the record of policy debates by authorities, observing both diplomatic and domestic frames referred in the debate in contrast, this paper highlights this law-making process delivered and elucidated continuous consecutive inquiries about radical questions of the current Japanese family law regarding the wellbeing of the changing families and their children in contemporary Japan.

Izvršenje presuda Europskog suda za ljudska prava u građanskopravnim međunarodnim otmicama djece u Republici Hrvatskoj – nova otvorena pitanja

The European Court of Human Rights (ECtHR) established a violation of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in several cases of international parental child abduction before Croatian courts. The length and the manner in which the proceedings concerning the return of the child were conducted constituted grounds for establishment of a violation of the right to a fair trial and the right to respect for private and family life. The execution of these judgments is still pending before the Committee of Ministers, despite the fact that the measures ordered resulted with a modified Croatian legal regime introduced through the Act on the Application of the Convention on the Civil Aspects of International Child Abduction. The Act includes a number of procedural improvements which align the practice of Croatian courts with international and European standards. However, the judgment of the ECtHR in Adžić v Croatia (no. 2) reveals that there is still no unambiguous answer to the question whether extraordinary appellate proceedings should be permitted in child abduction cases. Hence, the authors critically analyse the possibility of initiating an extraordinary appellate proceedings in these cases from a civil procedure and private international law aspect. The conclusion takes into account the specific circumstances of the case at hand as well as the case law of the ECtHR in relevant cases concerning other contracting states.

Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings

Abstract The focus of the article is on the intersection between domestic violence and parental child abduction, in particular, the interpretation of the Article 13(1)(b) ‘grave risk of harm’ defence in cases involving allegations of domestic violence by the abducting mother against the left-behind father, and on the protection of such abducting mothers in return proceedings. The content of the article is divided into two substantive parts. The first part explores the courts' approach to the grave risk of harm exception to return in circumstances where allegations of domestic violence have been raised. The second part of the article examines the courts' approach to protective measures, including undertakings, in child abduction cases involving allegations of domestic violence. The article engages extensively with the work of the Hague Conference on Private International Law and the EU in the area of international parental child abduction, as inter alia, it explores the problem of effectiveness of protective measures with reference to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and the Regulation 606/2013 on mutual recognition of protection measures in civil matters.

Corrigendum to: Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings

Corrigendum to: Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings

The Hague Convention and Transnational Custody Disputes

Adopted on October 24, 1980, the Hague Convention on the Civil Aspects of International Child Abduction was designed to address the problem of international parental child abduction. More than 90 States are contracting parties to the Convention, making it one of the most important and successful family law instruments completed under the auspices of the Hague Convention on private international law. The Convention places a premium on prompt return in circumstances where a child was removed from one jurisdiction by a parent – the jurisdiction of “habitual residence” – in breach of the custody rights of the “left behind” parent. Once returned, custody can be determined by the relevant authorities in the jurisdiction of habitual residence. Habitual residence is central to the operation of the Convention, since the return mechanism in art. Twelve will only be triggered when a child is wrongfully removed from their State of habitual residence. The Supreme Court of Canada applies the “hybrid approach” to determining habitual residence, which treats the circumstances of the children and the intentions of the parties as factors to be considered in achieving a just result which fulfills the objectives of the Hague Convention. Under the hybrid approach, the court has the task of determining the focal point of the child's life immediately prior to the removal or retention. The child's perspective is thereby put squarely at the centre of Convention applications. Canada's approach represents an evolution from the formalism of early cases to a recognition that the best interests of children generally is not a substitute for the best interests of the particular children before the court.

Book review: Cross-Border Family Mediation –International Parental Child Abduction -Custody and Access Cases (Second and updated edition)In co-operation with MiKK, 2014 Wolfgang Metzner Verlag, Frankfurt am Main Edited by: Christopher C Paul and Sybille Kiesesewetter. Contributors: Eberhard Carl, Mary Carroll, Martina Erb-Klunemann, Mohamed M Keshavjee, Krya Nehls, Hansjorg Schwartz, Jamie Walker and Felix Wendenburgh

People have always relocated across borders in order to explore different cultures and lands. People also depart their own country for many other reasons, such as conflict, war or lack of work opportunities and their emotional journey is a key factor in how they adapt.

International Parental Child Abduction In United States Of America And India

Intentional community concerns the issue of child parental abduction through its conventions. Total 100 countries across the world have recognized the Hague abduction convention in 2019. India is not a part of Hague Abduction Convention although Indian judiciary applying domestic personal laws and best interest principle in wrongful removal dispute in custody cases. This article gives analytical and explorative view on the issue of child abduction by parents from their habitual residence. Child abduction involves where one parent unilaterally takes the child back to his or her country in disturbed marital relationship. This article examines legal issue and problems in international parental child abduction and also throws light on International Abduction Bill. The Bill has been studied critically and analytically to suggest the recommendation. This article attempts to explain the existing statutory and judicial laws in India regarding parental abduction.

International Parental Child Abduction in the Malaysian Legal Context: Addressing Issues and the Way Forward

The number of international parental child abduction cases is gradually increasing and the problem has now become a global phenomenon. The worrying situation is that the problem in question is extremely difficult to resolve due to conflicting substantive and procedural laws in various countries. The 1980 Child Abduction Convention is an attempt to address the problem by means of an automatic return mechanism of the abducted child to his country of habitual residence. However, a Malaysian parent would not have that privilege as Malaysia is not a party to the Convention. The primary focus of the present work is to examine whether Malaysia has adequate legal and procedural framework to address the issue of cross-border parental child abduction. The present work makes a thorough analysis of the dual legal system of Malaysia, namely both the civil law and Islamic law streams when dealing with child custody and parental child abduction and assesses in-coming and out-going international parental child abduction cases decided by the Malaysian courts. The article finds that although in the long run, Malaysia should accede to the Child Abduction Convention, there are legitimate concerns on the part of stakeholders and on the fact that the opinion on the ground is against the accession. The article concludes that in the meantime, section 52 of the Child Act 2001 should be amended to strengthen the legal regime regulating parental child abduction in Malaysia.

The limitations of the hague convention to solve conflicts arising out of international child kidnapping

Abstract: The present article aims to promote an analysis on the major Conventions concerning the removal and retention of children in different countries than theirs of habitual residence by one of the guardians, in particular the Hague Convention on the Civil Aspects of International Child Abduction, to discuss about the effectiveness on the application of its precepts. The study purposes to identify limitations and omissions in its text susceptible to undermine its applicability in practical cases. Key words: International parental child abduction. Private International Law. Principle of the best interests of the child. Hague Convention. Inter-American Convention.

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.

Disrupt, Support and Document: The Role of Social Media in International Parental Child Abduction Cases Involving Japan

Disrupt, Support and Document: The Role of Social Media in International Parental Child Abduction Cases Involving Japan

International Parental Child Abduction and Mediation

The goal of this article is, first, to analyze the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction in the context of its Guide to Good Practice on Mediation to determine whether such guide will promote Mediation as a useful method for family conflict resolution in cases of international child abduction by one of the parents. Secondly we aim to explore current efforts to ensure that parents have the opportunity to choose mediation voluntarily with a skilled international family mediator to resolve issues between the left-behind parent and the taking parent and, why not, the child or children. The use of advanced technological tools in these cases is evaluated.

The 1980 Hague Convention: The Need for an Advocacy Response to Protect Children in the Context of International Parental Child Abduction

This paper will focus on the practice of social work within the context of an international Hague Convention concerning children: the 1980 Hague Convention on The Civil Aspects of International Parental Child Abduction. After describing the programmes of International Social Service (ISS) Australia, this organisation's existing approaches to working with families affected by international parental child abduction will be specifically discussed as an example of practice within the context of that Convention. The paper highlights the benefits of social work practice and mediation-based services for families. Dilemmas of practice within a legal framework will then be considered, with particular reference to the trap of uncritical implementation of social work practice as a social control agent of the judicial system. Potential social work contributions in the area of analysis and critique through the perspectives offered by gendered analysis, human rights and children's rights, and the tradition of advocacy as an integral sphere of practice will be discussed, with the paper arguing that for social work to best meet the needs of children affected by this legislation, it must perform its vital functions of social and political critique, and individual and systemic advocacy.

JURISDICTION FRICTION AND THE FRUSTRATION OF THE HAGUE CONVENTION: WHY INTERNATIONAL CHILD ABDUCTION CASES SHOULD BE HEARD EXCLUSIVELY BY FEDERAL COURTS

The Hague Convention on the Civil Aspects of International Child Abduction confronts the growing problem of international parental child abduction by providing for the prompt return of the child to their home country. However, the legislation that implements the Hague Convention in the United States confers concurrent state and federal court jurisdiction for cases brought under the Treaty. This vast jurisdictional grant has contributed to delay in case resolution, inconsistent interpretation, and unresolved cases and has frustrated the original intent of the Hague Convention which seeks to expedite the child's return. At their core, Hague Convention proceedings are choice of forum cases in an international context and the Convention depends on reciprocity and respect for the rule of law among Contracting States. Consolidating Hague Convention proceedings within the federal system would encourage uniform interpretation of Treaty provisions and allow expertise to develop among judges. This will promote the interests of parent and child victims by facilitating the prompt return and eventual resolution of the underlying custody controversy while strengthening the effectiveness of performance under the Hague Convention.

The clash of legal cultures over the ‘best interests of the child’ principle in cases of international parental child abduction

The Utrecht Law Review is an open-access peer-reviewed journal which aims to offer an international academic platform for cross-border legal research. In the first place, this concerns research in which the boundaries of the classic branches of the law (private law, criminal law, constitutional and administrative law, European and public international law) are crossed and connections are made between these areas of the law, amongst others from a comparative law perspective. In addition, the journal welcomes research in which classic law is brought face to face with not strictly legal disciplines such as philosophy, economics, political sciences and public administration science.The journal was established in 2005 and is affiliated to the Utrecht University School of Law. If you wish to receive e-mail alerts please join the mailing list.

Parental Child Abduction in Singapore: The Experience of a Non-Convention Country

This article gives an exploratory picture of the landscape on international parental child abduction cases in a non-Hague Convention country, Singapore. It presents data and analyses on unpublished cases and materials in the past five years from the Singapore Family Court Registry (SFCR) and discusses the ways in which the disputes are resolved (or unresolved) without the machinery of the Hague Convention. It also examines the welfare principle in the context of cross-border child abduction as well as how a non-Convention country can cooperate in the elimination of child abduction while applying the welfare principle.

Adult Domestic Violence in Cases of International Parental Child Abduction

This article discusses the Hague Convention on the Civil Aspects of International Child Abduction and its impact on battered mothers and their children seeking safety in the United States. We discuss relevant articles of the convention, the extent to which adult domestic violence is present in cases of international parental abduction, and cases in which battered mothers have contested the forced return of their children to an abusive partner. We conclude with recommended steps needed in research, training, and legislation that may increase the likelihood of safe outcomes for battered mothers and their children.

International Parental Child Abduction: the Case of Egypt

International Parental Child Abduction: the Case of Egypt