The Hague Child Abduction Convention: A Critical Analysis

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A&C Black, Jul 4, 2014 - Law - 530 pages
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International child abduction is one of the most emotionally charged and fascinating areas of family law practice. The 1980 Hague Convention on the Civil Aspects of International Child Abduction was the response of the international community to the increase in the phenomenon of parental child abduction. However, behind the widely acclaimed success of this Convention - which has now been ratified by more than 90 states - lie personal tragedies, academic controversy and diplomatic tensions.

The continuing steady flow of case-law from the various Member States has resulted in the emergence of different approaches to the interpretation of key concepts in the Convention. In addition, over the years other global and regional legal instruments and the recommendations of the Special Commissions have had an impact on the implementation of the Convention.

This book brings together all these strands and provides an up-to-date, clear and highly readable discussion of the international operation of the Abduction Convention together with in-depth critical academic analysis in light of the objectives of the Convention and other relevant legal norms, such as the 1989 UN Convention on the Rights of the Child. Throughout the book, examples are brought from case law in many jurisdictions and reference is made to relevant legal and social science literature and empirical research.

Over the past decade, increasing focus has been placed on what might be seen as procedural issues, such as separate representation for children, undertakings, judicial liaison and mediation. The book analyses the significance of these developments and the extent to which they can help resolve the continuing tension between some of the objectives of the Convention and the interests of individual children.

This book will be essential reading for judges, practitioners, researchers, students, policy-makers and others who are seeking a critical and informed analysis of the latest developments in international abduction law and practice.








From the Foreword by Brenda Hale, Justice of the Supreme Court of the United Kingdom
'This book is, as far as I am aware, the first scholarly monograph to study the interpretation and application of the Convention across the whole legal space which it occupies and to critically assess these in light of the object and purposes of the Convention and other relevant legal norms. Cases are drawn from many jurisdictions to discuss how different countries interpret the Convention and links are made with relevant statistical, social and psychological research in a thoughtful discussion of the significance of such material both to judicial decision-making and to policy development...a study which deserves to be read by anyone with an interest in the modern phenomenon of international child abduction, whether judge, practitioner, policy-maker, parent, researcher or scholar. There is plenty for us all to think about.'
 

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Contents

Table of Cases
xxiii
Table of Legislation
xlv
Table of Conventions Treaties etc
li
Introduction
1
Part I Overview
5
1 The Birth of the Abduction Convention and its InterRelationship with other Legal Instruments
7
II InterRelationship with Other Legal Instruments
14
2 The Operation of the Abduction Convention
35
IV Exercise of Discretion
257
V Analysis
261
VI Conclusions
268
11 Grave Risk of Harm
270
II Interpretation and Application of the Grave Risk Defence
273
III Protective Measures
289
IV Analysis
298
V Conclusions
315

II Institutions and other Actors Involved in the Operation of the Convention
38
III The Abduction Convention Process
43
IV After Return
50
3 InterDisciplinary Aspects of International Child Abduction
54
II Psychological Aspects of Abduction
61
4 International Relocation and its InterRelationship with International Child Abduction
71
II Relocation Law
72
III InterRelationship between Child Abduction and Relocation
84
Part II Parameters for Analysis
91
5 Parameters Relating to Text and Objectives
93
II Explanation of the Parameters
94
6 Consistency with General Legal Doctrines
108
II Rights and Interests of Children
109
III Rights of Parents
121
IV Private International Law Principles
126
V Certainty versus Flexibility
136
Part III Conditions for Application of Mandatory Return Mechanism
139
7 Wrongful Removal or Retention
141
II Removal or Retention
142
III Rights of Custody
146
IV Analysis in Relation to Breach and Exercise of Custody Rights
157
V Conclusions
173
8 Habitual Residence
175
II Role of Habitual Residence in the Abduction Convention
180
III The Different Models
186
IV Illustrating the Different Models
195
V Analysis
204
VI Conclusions
220
Part IV Defences to Mandatory Return
223
9 Article 122
225
II The Case Law
226
III Analysis
236
IV Conclusions
244
10 Consent and Acquiescence
245
II Normative Framework
247
III Specific Situations
252
12 Childs Objection
317
II Interpretation and Application of Article 132
323
III Analysis
343
IV Conclusions
351
13 Violation of Fundamental Human Rights and Freedoms
354
II The Case Law
355
III Analysis
361
IV Conclusion
369
Part V The Voice of the Child
371
14 Ascertaining the Childs Views
373
II Methods of Ascertaining the Childs Views in Abduction Convention Cases
375
III Analysis
380
IV Conclusions
387
15 Status of the Child in Abduction Convention Proceedings
389
II The Childs Right to Separate Representation
391
III Separate Representation in Abduction Convention Cases
396
IV Application by the Child
403
V Conclusions
405
Part VI Related Proceedings and Processes
407
16 Mediation
409
II Advantages of Mediation
410
III Problems and Solutions
412
IV Conclusions
416
17 Compensating the LeftBehind Parent
417
III Analysis of the Various Models
419
IV Conclusion
422
18 Enforcing Rights of Access
423
II Article 21 of the Abduction Convention
424
III Other International Instruments
430
IV Conclusions
432
Part VII The Way Ahead
435
19 Conclusions and Recommendations
437
III Conclusions
442
Appendix
451
Index
461
Copyright

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About the author (2014)

Rhona Schuz is Professor of Law and Co-Director of the Center for the Rights of the Child and the Family at Sha'arei Mishpat Law School, Israel (formerly lecturer at the London School of Economics and Political Science). She has published many articles on the topic of International Child Abduction as well as a book and numerous articles on other aspects of Family Law, Children's Rights and Private International Law.

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