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Eran Sthoeger

Abstract

The Hague Convention aims to deter future abductors and demonstrate mutual respect for the laws of its member states, while presumably serving the best interests of the child. It operates as a jurisdictional mechanism by reinstating the status quo prior to the removal through the prompt return of the child to his or her place of habitual residence. This return, as clearly stated in the Hague Convention itself, bears no effect on the merits of any existing or future custody dispute between the parents. The Hague Convention demands that contracting states respect past or future decisions pertaining to custody decided in the place of habitual residence. Though the Hague Convention essentially solves matters of private international law (i.e., questions of proper forum and choice of law), domestic courts retain discretion to deny return on several technical and substantive grounds. These exceptions to return, provided for in the Hague Convention, necessitate a limited examination by courts of the relationships among both parents and the abducted child. In recent years, however, courts-and the majority of scholars writing on the issue-have questioned the narrow framework in which they are obliged to operate when deciding whether to return a child. They have looked at how adjudication proceedings under the Hague Convention coincide with human rights regimes, with a particular focus on the Convention on the Rights of the Child (CRC). As will be discussed, more and more writers have opined that in order to satisfy the obligations of the CRC, courts must expand the narrowly construed exceptions to an order of return. This Article will examine whether these assertions have merit and whether an adjustment of the Hague Convention and the courts' application of it is required in order for states to comply with their human rights obligations. The starting point for this assessment will be an explanation of the basic premises and content of the Hague Convention and the CRC.

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