Chairs and contact
- Costanza Honorati (costanza.honorati@unimib.it)
Type of Group
Working Group with a limited number of participants.
Current members
- Sabine Corneloup
- Mónica Herranz Ballesteros
- Costanza Honorati (chair)
- Katarina Trimmings
- Mirela Zupan
Mission statement
The Secretary General of the Hague Conference on Private International Law (HCCH) formally invited EAPIL to participate as an Observer in the Eighth Meeting of the Special Commission (SC) on the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention, scheduled to take place between 10 and 17 October 2022.
The Working Group decided to draft a position paper representing the contribution of EAPIL to the works of the Special Commission.
Developments
The Working Group was established in September 2022. A draft position paper, prepared by the Group, was endorsed by the Scientific Council of the Association on 10 October 2022.
Outcome
The conclusions reached by the Working Group in its position paper are as follows:
I. Protective measures amount to a fundamental tool to achieve compliance with the Convention’s obligation, while guaranteeing physical and psychological safety of the child and thus ensuring respect of the child’s fundamental rights.
II. The Treaty’s main obligation to return the child is only discharged when such court is convinced that the return is safe and that the return shall not cause any harm, either physical or psychological, to the child.
III. Ensuring the child’s safe return must be construed as a treaty obligation set on all Contracting States. This requires that all States, i.e. the State of the child’s habitual residence and the State of refuge, shall cooperate one with each other to ensure the physical and psychological safety of the child when implementing the main obligation of returning the child.
IV. In the context of abduction proceedings the best interests of the child implies that, when pursuing the aim of returning the abducted child to the place of his/her habitual residence, the court in the State of refuge should pay particular attention to safeguarding the overall physical and psychological safety of the child.
V. A protection measure in the light of the above is only a court order which is capable of being enforced in the State of habitual residence. The requirement of enforceability in the State where protection is sought, i.e. in the State of habitual residence, thus becomes a constitutive element of any measure which aims to effectively protect the child’s on his or her return.
VI. Even where protective measures are enforceable in the State of habitual residence, caution is needed when determining whether a civil protection order would be appropriate in an individual child abduction case. In the light of concerns over the effectiveness of protective measures, protective measures should not be employed where credible allegations of severe violence have been made and there is a future risk of violence of such severity.
VII. There are several ways which can guarantee the enforceability of a protective measure. It is for the court in the State of refuge, in cooperation with the court in the State of habitual residence, to choose and implement the most appropriate measures.
VIII. Protective measures, if not triggered ex parte, should be considered by the court on its own motion, ex officio.
IX. A genuine consideration of adopting or requiring protective measures should be strongly encouraged every time the court is satisfied there is a grave risk of harm, and provide an explanation on facts, risks and measures that were considered should be provided.