The European Court of Human Rights and the Best Interests of the Child in the Recent Case Law on International Child Abduction
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is an effective instrument for protecting the rights of families in the case of child abduction. It creates a jurisdictional mechanism in order to promote the swift return of a child wrongfully removed from his place of habitual residence, on the general presumption that the prompt return of a removed child objectively corresponds to the best interests of the child. Although the case law of the European Court of Human Rights has generally encouraged national courts to maintain a strict application of the Hague Convention in ascertaining the contrast with the prohibition of interference in private and family life contained in Art. 8 of the ECHR, in the Neulinger case the Grand Chamber gave a different interpretation, on the basis of the prominence of the principle of the best interests of the child. This case and other more recent judgments by the European Court, for some authors, could potentially harm the functionning of the Hague Convention. A protocol to the Hague Convention, as has already been envisaged, could probably be beneficial to ensure that the Hague Convention can still continue to function effectively in the future, as long as it is based on the prominence of the principle of the best interests of the child over all other considerations.
The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?
Over the last four decades the 1980 Hague Convention has provided for the prompt return of children to their State of habitual residence. But now that wrongful removals and retentions are most often carried out by primary carers, the majority of whom will be mothers, the instrument has come under increasing scrutiny, not least from the European Court of Human Rights. This article analyses the Grand Chamber judgments in Neulinger and X v. Latvia and considers how compliance with Article 8 ECHR should be achieved in the application of the Hague Convention; prioritising return or reflection? In so doing it also reflects on whether a summary return mechanism can continue to accord with twenty-first century expectations and norms.
The Hague convention and the flight from domestic violence: how women and children are being returned by coach and four
This paper considers how violence against women and children influences and impacts upon child removals. The article then looks at how courts have interpreted the Hague Convention on Child Abduction in circumstances where there has been such violence. It is suggested that an overriding concern by courts and researchers not to undermine the Convention has led to a lack of recognition of the fact that the circumstances surrounding abductions are inevitably gendered. Certain themes run through the cases which are unrealistic given what we know about violence and its impact upon child removals. These are the depiction of the mother as hostile and manipulative; an unrealistic faith in the ability of the legal system to protect women and children from violence; an underestimation or dismissal of the harm caused to children by experiencing domestic violence; and the irony that now that the presence of violence in relationships is recognized as so common any 'special' consideration to the victims of violence would undermine the Convention. Through these themes the courts are in danger of colluding with the perpetrator of violence. Language: en