BECAREFUL: BEst interests interpretation in Child Abduction cases: an exploration into REsolving Fragmentation Under different international Legal regimes. 01/10/2018 - 30/09/2022

Abstract

According to children's rights law, as a subsection of human rights law, the best interests of the individual child must be a paramount consideration in all matters involving a child. According to private international law, when a parent wrongfully takes a child from one country to another, the general approach to the best interests of the child is that that child must be speedily taken back (unless exceptional circumstances can be proved). The individual versus general approach to the best interests of the child has caused debate among scholars and confusion among judges and civil servants. The question arises how these two international legal frameworks (in particular the UN Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction) interact and should interact with each other. This question is not limited to the issue of international child abduction. The difficult interaction, sometimes even conflict, between international legal regimes is a known problem. It can be addressed by seeking a hierarchy between the legal regimes, i.e. that human rights law must prevail over other areas of law or that human rights law must be seen as supportive rather than dominant. However, the hypothesis of this research is that reconciliation should be sought rather than hierarchy. The research envisaged by BECAREFUL will focus on seeking such reconciliation in the issue area of international child abduction. The researcher will investigate case law of two supranational courts, representing the different fields of law (the European Court of Human Rights and the Court of Justice of the EU) as well as national courts of six countries. The investigation will seek to establish how these courts combine the strict return rules of the Hague Convention with the best interests of the individual child as formulated by the Children's Rights Convention. This will be done through content analysis with the aid of NVIVO software. The outcome of the research will be used to draw conclusions not only for the issue area but also for the bigger debate of the interaction between international legal frameworks.

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Project type(s)

  • Research Project