Samenvatting

This research report describes which legal instruments play a role in cases concerning international child abduction with a focus on, the most important legal text, the Hague Convention on the Civil Aspects of International Child Abduction, hereinafter the Hague Convention or HCCA. The purpose of this report is to examine what needs to change in the legal approach towards child abduction cases in order to improve the protection of children.
In the first chapter definitions and context of international child abduction are provided. Chapter two covers an analysis of several important legal documents in relation to child abduction cases such as; the Hague Convention, the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, the United Nations Convention on the Rights of the Child, Brussels II bis (Council Regulation (EC) No 2201/2003) and bilateral agreements. The main aim of the Hague Convention is to protect children from the harmful effects of parental abductions by securing the prompt return of those children to the country of their habitual residence (Article 1). The Convention contains two provisions on which the immediate return of a child can be refused. The most important ground on which refusal of the return of the child is justified is if there is a grave risk that the child could be exposed to physical or psychological harm (Article 13). The Convention's procedural nature, does not allow a court in the State of refuge to enter into an analysis of the merits of the case. The issue of custody and access should take place in the court in the country of the child's habitual residence.
Over the years there has been a shift from abducting fathers to abducting mothers. This has led to criticism of the Convention's return principle for not being in the best interest of the child Additional bottlenecks of the Hague Convention concern slow procedures, lack of necessary knowledge and the role of domestic violence in child abduction cases. These obstacles are discussed in chapter 3. Long proceedings are initially caused by the lodgement of appeal in cassation. Therefore, restricting the right of appeal could be an approach to speed up proceedings. The problem of lacking knowledge could be addressed by the concentration of jurisdiction, since at the moment the Netherlands do not concentrate jurisdiction to one or a number of courts. The aspiration of courts to closely follow the spirit and purpose of the Convention has led to a rigorous approach to domestic violence when interpreting Article 13 defences. However, courts should pay more attention to the unique circumstances of domestic violence in child abduction cases and deal adequately with the specific context of violence and its impact in individual cases. Besides, a more
pro-active approach is suggested in order to ensure that a child is safe and protected when he or she returns to the country of habitual residence.
This research report includes a case studies in the fourth chapter, which shows that The Hague Convention is correctly applied by Dutch courts. Generally, courts in the Netherlands do not experience any difficulties in determining whether an abduction is wrongful or not under the Hague Convention. The grounds to refuse the return of the child are correctly applied as well.