Case law Developments in PIL

UN Child Rights Committee on the 1980 Hague Convention

In a decision (“views”) adopted on 1 June 2022 (CRC/C/90/D/121/2020), the UN Child Rights Committee (CRC) held that the best interest of a child must be taken into consideration before a child is returned after an unlawful retention.

The CRC primarily monitors compliance with the Convention on the Rights of the Child (Child Convention). In a decision regarding a Chilean child abduction case pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention), the committee made a statement on the interplay of the Child Convention and the 1980 Hague Convention. It is the first time ever that the CRC makes a statement regarding the 1980 Hague Convention.

The background to the case was that a mother and her child had not returned to the father in Spain from a stay in Chile. The father initiated a restitution request in Chile for unlawful retention according to the 1980 Hague Convention. A family court of first instance rejected the father’s request with reference to, among other things, the best interest of the child and the fact that the father had consented to the child being in Chile. The case was overturned by the Chilean Supreme Court, that held that the child should return to the father in Spain.

In the CRC decision, the Chilean Supreme Court judgment is criticized for not considering the best interest of the child. The critique in the CRC decision does not question the conclusion that the child should be returned to Spain. Instead, the essence of the critique was that the Supreme Court did not take the best interest of the child into consideration in the right way.

First, the CRC held that the Supreme Court decision did not indicate how the return of the child should be made. Second, the CRC criticized the Supreme Court procedure. Before the Supreme Court, there was an interlocutory hearing which was limited to the enforcement of the return of order. According to the CRC, this limitation did not give enough remedy for the possible exceptions to immediate return set out in the 1980 Hague Convention.