Chapter 9 Outline answers to essay questions

International parent - child abduction

Does the case law in England and Wales indicate that the courts have found a proper balance between the interests of the child and the Hague Convention objective to 'secure the prompt return of children wrongfully removed or retained in any contracting state'?

Consider the reasons for the Hague convention objective to return children. For example, this approach might help discourage abductions. It preserves the existing status quo - courts place a great deal of weight on this in contact cases. Note that the Convention itself provides that the signatories to it believe that the "the interests of children are of paramount importance". Therefore the Convention sees the interests of the child and objective to return as being compatible.

Consider Agopian's article ‘The impact on Children of Abduction by Parents’ (1984) Child Welfare, 63(6), p 511-519 about the reasons for child abduction.

- Is abduction ever in the interests of the child? If so, under what circumstances?

When will a child be returned/? Will return be refused?

- Article 12 defence - the court must return the child unless it is demonstrated that the child has settled in their new environment. Even if the child is settled the court has discretion to return them. Consider how this fits with the interests of the child.

- Consider the article 13 defences and how each of these sit with the interests of the child. In particular you should consider the defence in article 13b (grave risk of physical or psychological harm). Consider the case law and when a return has been allowed/refused. Do these cases give due regard to the best interests of the child? What do you think of the emphasis on protective measures in Re E (Children) [2011] UKSC 27? Consider also the approach taken in Re S (Children) [2012] UKSC 10.

You may find it useful to consider Eran Sthoeger’s article (’International Child Abduction and Children’s Rights: Two Means to the Same End’ (2011) Michigan Journal of International Law, vol 32(3), pp 511–552) on whether the Hague Convention is consistent with the UN Convention on the Rights of the Child.

Conclude with your view of the balance struck by the courts. Are children promptly returned? Does the approach of the courts take the interests of the child into account? Do you think the approach of the courts is correct?