Developments in PIL Reports, recommendations, studies etc.

The Child Perspective in the Context of the 1980 Hague Convention

Marilyn Freeman (University of Westminster, London) has written an in-depth analysis on the Child Perspective in the Context of the 1980 Hague Convention at the request of the Committee on Legal Affairs (JURI Committee) of the European Parliament.

The abstract reads as follows:

This in-depth analysis, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs in the context of the Workshop to mark the 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction, examines the way in which subject children feature within Convention proceedings. It considers the aims of the Convention, and the lack of supranational control of its application. It draws on empirical research relating to the effects and consequences of child abduction to discuss the opportunities for children and young people to participate within Convention proceedings, and highlights the international obligations for such participation within the United Nations Convention on the Rights of the Child, The Charter of Fundamental Rights of the European Union, and other regional instruments. Different jurisdictional approaches are explained, and the role of culture in this context is probed. The impact of COVID-19 on abducted children is also explored.

Here’s an overview of the analysis.

The 1980 Hague Convention considers as paramount children’s interest in matters relating to their custody as well as their protection from the harmful effects of their wrongful removal or retention, and the procedures to secure their prompt return to the State of habitual residence. According to Article 12(1) of the Convention an abducted child under the age of 16 should be returned in less than one year since his/her wrongful removal or retention unless one of the limited exceptions to return under the Convention is established (see Articles 12(2), 13 and 20), and there are opportunities for children’s involvement in the far-reaching decisions which are taken in those proceedings.

The way in which these relevant provisions are interpreted and applied within the 101 Contracting States determine both the extent to which children’s rights are recognised and upheld under the Convention, as well as the success of the Convention in its aim of protecting children from the harmful effects of child abduction.

The present in-depth analysis relies on a small-scale qualitative study based on 34 interviews carried out by Professor Freeman (more about this can be read here). The empirical research sought to reveal more about ‘the lived experiences of those who had been through an abduction many years earlier’ and ascertain ‘whether, and how, the participants felt that the abduction had affected their lives, and if those effects had continued long-term’.

The results indicate that there is often still a lack of awareness by children and young people, and their families, about the opportunities to participate in the proceedings, as well as on how to ensure that their rights are recognised and protected. Furthermore, to observe the right of the children to benefit from meaningful opportunities to participate in the proceedings and prevent harm, it appears that a closer integration of children’s rights’ principles in the application of the Convention is desirable.

The impact of COVID-19 on children subject to abduction proceedings is also discussed. The international nature of these cases and the difficulties and limitations created by the pandemic meant that children had to spend an undesirable period after the decision waiting for return to be carried out. Additionally, a procedure of return can involve periods of quarantine, a situation that can exacerbate the child’s distress due to the separation from the abducting parent who may be a primary or joint primary carer and who may choose not to return with the child or be unable to do so. According to the analysis, the emotional effect of a return ordered in these circumstances may be very difficult for the child to manage. The remote conduct of return hearings can also create challenges for subject children and reflect on their decision about participating in a hearing that concerns them. According to Professor Freeman ‘children should have opportunities to express their views within abduction proceedings whether or not an objection to return has been raised, and regardless of whether or not the jurisdiction involved is governed by a regulatory regime, like Brussels IIa and the upcoming Recast, which specifically address the rights of children to be heard within a specific jurisdictional area’. Thus, to protect children from the harmful effects of child abduction, it is paramount to give children who wish to participate in the proceedings about their abduction the opportunity to be heard when the decision has the potential to impact significantly on their lives.

The analysis concludes that further discussions are necessary in this area as well as a ‘closer incorporation of children’s rights’ principles in the 1980 Convention framework’.

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