Research

Jump to: Review

14 pages, 293 KiB

Open AccessArticle

Continuity of Parental Responsibility in Child Abduction Cases: Lesson Learned from the Case of Z. v. Croatia

by Mirela Župan and Martina Drventić Barišin

Laws 2023, 12(5), 82; https://doi.org/10.3390/laws12050082 - 29 Sep 2023

Viewed by 1176

The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or [...] Read more.

The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the ex lege right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of Z. v. Croatia raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

20 pages, 304 KiB

Open AccessArticle

Protecting Mothers against Domestic Violence in the Context of International Child Abduction: Between Golan v Saada and Brussels II-ter EU Regulation

by Costanza Honorati

Laws 2023, 12(5), 79; https://doi.org/10.3390/laws12050079 - 19 Sep 2023

Viewed by 1099

Abstract

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at [...] Read more.

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

19 pages, 355 KiB

Open AccessArticle

The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence

by Katarina Trimmings, Onyója Momoh and Konstantina Kalaitsoglou

Laws 2023, 12(5), 78; https://doi.org/10.3390/laws12050078 - 12 Sep 2023

Viewed by 1475

Abstract

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the [...] Read more.

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

15 pages, 285 KiB

Open AccessArticle

Brazil’s Experience with Recognition and Enforcement of Family Agreements in International Child Disputes

by Lalisa Froeder Dittrich

Laws 2023, 12(5), 77; https://doi.org/10.3390/laws12050077 - 04 Sep 2023

Viewed by 1888

Abstract

Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s [...] Read more.

Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child’s return. However, enforcing these agreements can be challenging. This article examines Brazil’s experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

10 pages, 234 KiB

Open AccessArticle

The Interaction of the 1980 Child Abduction Convention with the Brussels II-ter Regulation: A Focus on the Regime of Recognition and Enforcement

by Maria Caterina Baruffi

Laws 2023, 12(5), 76; https://doi.org/10.3390/laws12050076 - 28 Aug 2023

Viewed by 927

Abstract

The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime [...] Read more.

The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime of recognition and enforcement of decisions on this subject matter. Final considerations are drawn with a view to determining whether the Regulation is able to streamline the most critical issues arising from the practical application of the predecessor Regulation (EC) No 2201/2003 and, more broadly, to cope with evolving and challenging cases of child abduction. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

14 pages, 224 KiB

Open AccessArticle

Concurrent Convention and Non-Convention Cases: Child Abduction in England and Wales

by Rob George and James Netto

Laws 2023, 12(4), 70; https://doi.org/10.3390/laws12040070 - 07 Aug 2023

Viewed by 1369

Abstract

The courts of England and Wales permit applicants in 1980 Hague Convention child abduction proceedings also to bring concurrent applications for the return of the child to their state of habitual residence based on a summary welfare assessment, which can be issued and [...] Read more.

The courts of England and Wales permit applicants in 1980 Hague Convention child abduction proceedings also to bring concurrent applications for the return of the child to their state of habitual residence based on a summary welfare assessment, which can be issued and heard alongside the Hague application. Given the different nature of these two applications, having them heard concurrently raises a number of challenges for the parties in terms of the evidence required and for the court in terms of the analytical process being undertaken. This article explores the nature of the two applications, the reasons why they might be brought concurrently, and the challenges that can arise in such cases. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

21 pages, 309 KiB

Open AccessArticle

Hearing Children’s Objections in Hague Child Abduction Proceedings in England and Wales, Australia, and the USA

by Michelle Fernando and Jessica Mant

Laws 2023, 12(4), 69; https://doi.org/10.3390/laws12040069 - 05 Aug 2023

Viewed by 1682

Abstract

In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views [...] Read more.

In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

12 pages, 273 KiB

Open AccessArticle

Contemporary Nurturing of the 1980 Hague Convention

by Marilyn Freeman and Nicola Taylor

Laws 2023, 12(4), 65; https://doi.org/10.3390/laws12040065 - 25 Jul 2023

Cited by 1 | Viewed by 1114

Abstract

A key impetus for the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction was the protection of children from the harmful effects of their wrongful removal or retention. This article considers how well the Convention is achieving [...] Read more.

A key impetus for the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction was the protection of children from the harmful effects of their wrongful removal or retention. This article considers how well the Convention is achieving this aim in light of the challenges it faces in a global society that has changed significantly since its introduction. Two key aspects of the Convention’s operation are addressed in this regard: (i) The intersection between domestic violence and the exception to return in Article 13(1)(b); and (ii) the adoption of practices to enable abducted children to receive information about, and be given effective opportunities to express their views and be heard in, Convention cases. The article discusses why, how, and to what extent the Convention needs to be nurtured to best position it to meet current and future challenges and demands, including the current differences in interpretation and implementation globally. Suggestions are made to help future-proof the Convention so that children can be best protected in the way envisioned by the Convention. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

13 pages, 225 KiB

Open AccessArticle

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

by Mark Henaghan, Christian Poland and Clement Kong

Laws 2023, 12(4), 63; https://doi.org/10.3390/laws12040063 - 18 Jul 2023

Viewed by 1425

Abstract

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 [...] Read more.

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. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

16 pages, 275 KiB

Open AccessArticle

Habitual Residence: Review of Developments and Proposed Guidelines

by Rhona Schuz

Laws 2023, 12(4), 62; https://doi.org/10.3390/laws12040062 - 11 Jul 2023

Viewed by 1684

Abstract

Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent [...] Read more.

Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent years, there has been increasing doctrinal uniformity as a result of wide adoption of the hybrid approach. However, there are real disparities in the way in which this approach is applied by different judges and the question of habitual residence remains one of the most litigated issues under the Convention. This article reviews recent case law developments and explains the disparities. It then proceeds to propose guidelines that might assist in increasing uniformity and ensuring that findings of habitual residence promote the objectives of the Convention. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

12 pages, 212 KiB

Open AccessArticle

The U.S. Experience in Drafting Guidelines for Judicial Interviews of Children and Its Translation to Hague Abduction Convention Return Proceedings Globally

by Melissa Ann Kucinski

Laws 2023, 12(3), 54; https://doi.org/10.3390/laws12030054 - 09 Jun 2023

Viewed by 1176

Abstract

This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a [...] Read more.

This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a soft law instrument on this important information-gathering tool. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

Review

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15 pages, 255 KiB

Open AccessReview

International Child Abduction in South Africa

by Zenobia Du Toit and Bia Van Heerden

Laws 2023, 12(4), 74; https://doi.org/10.3390/laws12040074 - 21 Aug 2023

Viewed by 1598

Abstract

This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians [...] Read more.

This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

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