Between Return and Protection: The Judicial Dilemma in the International Parental Abduction

Abstract

The aim of the Convention on the Civil Aspects of International Child Abduction is to protect the welfare of the child and to make sure that the proceedings under the Convention are promptly carried out. At the heart of this issue lies the conflict between the wish to protect the welfare of the child and the legal, cultural and religious differences between the states involved in the dispute. The starting point for the discussion herein is the institution of parental responsibility and the right to a happy childhood. Both these components determine the proper understanding of the child’s welfare, which generally entails a return to the situation prior to the abduction. The criterion of the child’s welfare is an element of the principle of law and the general referring clause. It is a paramount value in family-law relations and takes precedence when resolving a conflict between the child’s interests and those of the parent. The parents are obliged to act in the interest of their child, and parental abduction contradicts this principle. A parent who acts contrary to a judicial decision or without the other parent’s consent is merely pursuing their own interests, which need not necessarily be regarded as consistent with the child’s welfare. It is certainly not an appropriate solution to suddenly change the place of residence or school of the minor, or to deprive them of contact with their peers or other family members. The person responsible for the harm caused to the child is the one who has a duty of care towards the child.