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 New Swiss Federal Act on International Child Abduction
Switzerland has always been, and still is, fully supportive of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. More recently, however, cases in which Swiss courts have applied the Convention have revealed that the operation of the Convention requires careful scrutiny and softer application when the abduction has been carried out by the primary carer, usually the mother, and when the return of the child entails a high risk that upon return, he or she may be separated from both parents or that there will be no reasonable outcome for mother and child upon their return to the country in which they were formerly habitually resident.
The Cosmopolitan Imagination: The Renewal of Critical Social Theory
Gerard Delanty provides a comprehensive assessment of the idea of cosmopolitanism in social and political thought which links cosmopolitan theory with critical social theory. He argues that cosmopolitanism has a critical dimension which offers a solution to one of the weaknesses in the critical theory tradition: failure to respond to the challenges of globalization and intercultural communication. Critical cosmopolitanism, he proposes, is an approach that is not only relevant to social scientific analysis but also normatively grounded in a critical attitude. Delanty's argument for a critical, sociologically oriented cosmopolitanism aims to avoid, on the one hand, purely normative conceptions of cosmopolitanism and, on the other, approaches that reduce cosmopolitanism to the empirical expression of diversity. He attempts to take cosmopolitan theory beyond the largely Western context with which it has generally been associated, claiming that cosmopolitan analysis must now take into account non-Western expressions of cosmopolitanism.