Child Abduction : Bringing Together The Ecthr And The Ecj For The Best Interests Of The Child

7299 WordsJul 28, 201530 Pages
Child Abduction: Bringing together the ECtHR and the ECJ for the Best Interests of the Child The 1980 Hague Child Abduction Convention provided the method of securing the prompt return of children to the State of their habitual residence in cases of abduction. The Convention assumes that return of the children to the State of their habitual residence immediately prior to their abduction is in their best interests. However, it also provides a few exceptions for the non-return of the child. In case of an establishment of the exception, ‘the courts of place where the child is present after abduction generally have a discretion as to whether to return the child to the State of the habitual residence of the child.’ The Brussels II bis…show more content…
For a certain period of time, ‘the intervention of the ECtHR in relation to the Abduction Convention had on the whole been positive. However, the Grand Chamber decision in Neulinger altered this pattern and left the future of the Abduction Convention in jeopardy.’ Misunderstandings of the Abduction Convention by the ECtHR and the ECJ ‘The misinterpretation of the Abduction Convention started with the domestic proceedings in Raban v Romania, where consent was treated as an issue under Article 3 and Article 13(b) was applied under dubious circumstances’. The ECtHR simply ‘agreed with the analysis of the Romanian Court instead of correcting these decisions based on its own interpretation of the Convention’. As a result of this, the ECtHR held that there was ‘no violation of Article 8, the right to family life. The ECtHR said that it “cannot question the assessment of the domestic authorities, unless there is clear evidence of arbitrariness”’. Background of Raban v Romania In Raban, there were two children (two and three years old) who were living at the family home with their parents in Israel. It was agreed that the mother and the two children would visit their maternal family in Romania for a period of six months because the family were facing financial problems in Israel. They left for Romania on 27 April 2006 and were due to return on 24 October 2006. The mother informed the father on 3 November 2006 that they would remain in Romania. Therefore, on 8
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