SPACE FOR THE CHILD'S BEST INTERESTS INSIDE THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

Abstract

This paper analyses the relation between the Hague Convention on the Civil Aspects of International Child Abduction from 1980 and 'the best interests of the child' as a fundamental principle of family law. Intention is to show the space that aforementioned Convention leaves for applying 'the best interests of the child' inside its own mechanism of application. Although it has been enacted almost decade earlier then Convention on the rights of the child, the Hague Convention recognised the need to protect 'the best interests of the child' in certain way. In that sense, the Hague Convention has established the legal assumption that it is in 'the best interests of the child' to be returned promptly in country of her/his habitual residence. Individualisation of 'the best interests of the child' is achieved through enumeration of exemptions from the duty of child's prompt return in the form of grounds for challenging the mentioned assumption. The authors show that national authorities that decide on the child's return interpret these exemptions mostly in a narrow and restrictive fashion to avoid the disintegration of the basic mechanism of the Hague Convention. However, since the time when the Hague Convention has been enacted, the strength of 'the best interests of the child' formidably increased so the space has been given to national authorities to interpret the exemptions more flexibly and widely which can jeopardize procedural goals of the Hague Convention.