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The Hague Convention on Child Abduction

The Hague Convention on Child Abduction. how about the best interests of the child?. Th.M. de Boer Nederlandse Vereniging voor Internationaal Recht June 5, 2007. Hoge Raad decisions on child abduction. 1. HR 14 April 2000 NJ 2001, 450* U.S.A. 2. HR 14 July 2000 NJ 2001, 451* U.S.A.

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The Hague Convention on Child Abduction

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  1. The Hague Convention on Child Abduction how about the best interests of the child? Th.M. de Boer Nederlandse Vereniging voor Internationaal Recht June 5, 2007

  2. Hoge Raad decisions on child abduction 1. HR 14 April 2000 NJ 2001, 450* U.S.A. 2. HR 14 July 2000 NJ 2001, 451* U.S.A. 3. HR 14 April 2000 NJ 2001, 452* Denmark 4. HR 18 October 2002 NJ 2003, 345* Canada 5. HR 18 March 2005 NJ 2005, 563* Israel 6. HR 31 March 2006 NJ 2006, 232 France 7. HR 20 January 2006 NJ 2006, 545* Italy 8. HR 20 October 2006 NJ 2007, June* Germany 9. HR 20 October 2006 NJ 2007, June* Hawai 10. HR 1 December 2006 NJ 2007, June* Australia * = annot. NVIR June 5, 2007 1

  3. Hague Convention: objectives background – increasing number of marriages between spouses of different nationalities – frustration over custody and access rights objectives in general ‘to deprive the actions of the abducting parent from practical and juridical consequences’ in particular 1. to restore the status quo ante 2. to ensure respect for existing rights of custody and access 3. thereby: to prevent child abduction NVIR June 5, 20072

  4. Interest of the child under the Convention preamble ‘ the interests of children are of paramount importance in matters relating to their custody’ explanatory report ‘objective standard’ vs. ‘national value judgment’ prompt return is best for the child unless settled in new environment – 12(2) risk of physical or psychological harm – 13(1b) child’s own objections – 13(2) protection of human rights – 20 plus effective exercise of access rights – 21 NVIR June 5, 2007 3

  5. Validity of the Convention’s premisses 1. return is in the child’s best interest what if the child has settled into its new environment? 2. authorities in the child’s home country are best placed to assess the interests of the child NVIR June 5, 2007 4

  6. Time between abduction and return date of abduction – filing petition 4 months date of filing – decision in first instance 2 months decision in first instance – appellate decision 2 months appellate decision – decision by Hoge Raad 8 months total time 4 + 12 = 16 months not included: enforcement proceedings, remand etc. NVIR June 5, 2007 5

  7. Italian abduction (NJ 2006, 545) date of abduction 22-08-04 • date of filing 06-12-04 decision in first instance (no return) 02-02-05 appellate decision (affirmed) 19-05-05 decision by Hoge Raad (remanded) 20-01-06 interlocutory decision (hearing of the child) 06-09-06 final decision (return) 17-01-07 total time: 878 days = 2 years and 5 months NVIR June 5, 2007 6

  8. Validity of the Convention’s premisses 1. return is in the child’s best interest what if the child has settled into its new environment? 2. authorities in the child’s home country are best placed to assess the interests of the child what if custody is granted while the child is still abroad? NVIR June 5, 2007 4

  9. Suggestions for improvement no decision on custody until the child is returned [reconsideration of custody jurisdiction if – more than one year has passed since abduction – abductor and child are likely to be permanently separated] reduction of procedural opportunities • – [no appeal] • – no review by Supreme Court • – no suspension of enforcement NVIR June 5, 2007 7

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