The 1980 Hague Convention is an agreement designed to address international child abduction cases. With the increase in international marriages and the potential for these marriages to end in divorce, one parent may tend to take the child to another country. This situation can be carried out unlawfully for various reasons. For example, disputes between parents, using the child as a tool against the other parent, or believing it to be in the child’s best interest can trigger this situation.
The convention is based on cooperation between member states and provides for a rapid procedure among central authorities. Thus, it ensures an effective fight against child abduction cases carried out by parents. The convention obliges the authorities of the country where the child is located to promptly return the child to their habitual residence country, but it allows for a limited number of exceptional cases.
GROUNDS FOR REJECTING A RETURN REQUEST UNDER THE HAGUE CONVENTION
The 1980 Hague Convention aims to ensure the return of the abducted child who has been wrongfully removed or retained to their habitual residence. However, in some cases, returning the child may not be in their best interest. Consequently, exceptions to return have been included in the Convention. These exceptions grant judges discretion to refuse the return under specific conditions, considering that the best interest of the child may vary in each case.
The exceptional grounds for rejecting a return request are outlined in Articles 12, 13(a), 13(b), and 20 of the Convention:
- Article 12: If the request for return is made more than one year after the child’s abduction or retention, and the child has adapted to their new environment, the return request may be refused.
- Article 13(a): If the return of the child has not been approved by the person who actually cares for the child and this person is not authorized to make decisions regarding the child’s habitual residence, the return may be refused.
- Article 13(b): If returning the child would expose them to physical or psychological harm or put them in an adverse situation, the return request may be refused.
- Article 20: If the return of the child would be contrary to the fundamental human rights and freedoms of the state where the return is to be made, the return may be refused.
THE IMPORTANCE OF INTERNATIONAL COOPERATION UNDER THE HAGUE CONVENTION IN CASES OF CHANGING A CHILD’S HABITUAL RESIDENCE
International child abduction cases have serious impacts on both children and parents, depriving children of contact with the other parent, love, affection, and protection, and removing them from their familiar home environment. In these situations, the child must adapt to a new culture, a different legal system, a new language, and often a different social structure. These differences make international child abduction cases complex and challenging to resolve.
Within the framework of the 1980 Hague Convention, the return of children to their habitual residence is crucial. However, for this process to be effective, international cooperation is of great importance. Central authorities in each country should play an active role in resolving child abduction cases and ensuring the safe return of children under the Hague Convention. Cooperation among central authorities is critical for the swift and accurate exchange of information, expediting return procedures, and safeguarding the best interests of the child. Additionally, it is of great importance for child abduction lawyers representing the parties in the case to work in coordination with local authorities.
CONCLUSION:
The key findings of the study highlight that in cases of child abduction by a parent who does not have custody, the most crucial factor to consider in return proceedings is the child’s best interests. If the child’s best interests necessitate that they should not be returned and remaining in the country where they were taken provides a more suitable outcome, the return request should be denied. The 1980 Hague Convention focuses on the risk of physical or psychological harm to the child, and it stipulates that if such risks are present, the return request should be denied. The Constitutional Court (AYM) and the European Court of Human Rights (ECHR) also discuss these types of situations in their rulings.
Other circumstances that might lead to the denial of a return request include the child’s adaptation to the country where they were taken, the establishment of a social environment there, and the weakening or absence of social, psychological, and emotional bonds with their habitual residence. If these conditions are supported by expert reports, the return of the child should be denied.
Guest post written by Orbay Cokgor
