CHILD ABDUCTION:
The 1980 Hague Convention on the Civil Aspects of International Law is an agreement between particular states that an abducted child should be returned to his/her habitual residence in order for the issues of custody and access to be decided by the domestic court. The UK central authorities are charged with the responsibility of handling all cases which come under the Hague Convention.The order under the Hague Abduction Convention does not apply in a situation where the child would be exposed to physical or psychological harm if he/she is returned to the habitual residence (Edwards Family Lawyers, 2010).
The ruling in the case of Neulinger v Shuruk[1] elicited consternations from different groups. In this case, a child was born to a Swiss mother and an Israelifather upon their relocation to Israel in 2001. The father got involved in an extremist cult which led to the breakdown of the marriage. A custody dispute ensued between the two which filled the mother with anxiety that she ended up abducting the child to Switzerland in 2005 upon refusal by the Central authority to grant her the permission to travel with the child.The father filed a suit to the Central Authority claiming an order for the child to be returned to Israel which was the child’s habitual residence pursuant to The Hague Abduction Convention. The court of Israel gave a declaration in May 2006 and sent an order to Switzerland for the child to be returned to Israel with regards to the Hague Convention on the Civil Aspects of International Law. The mother filed an application in the European Convention of Human Rights seeking custody of the child. The European Convention on Human Rights ruled that Article 8 which provides for the integrity of family life is superior to the Hague Abduction Convention.The European court further asserted that the applicability of Article 8 of the European Convention on Human Rights by a domestic court was subject to the conformity of the interests of the child in the course of application and interpretation of the Hague Convention. The court stated that consideration should be based on the current child interests but not the interests that were violated at the abduction time or the Swiss court orders to return the child. According to the European Convention on Human Rights, the time component was very important in terms of safeguarding the child’s interests. The Court questioned the pertinence of The Hague Convention decision with regards to circumstances where the child has remained in the country ordered for a considerable period of time after the order to return the child has been sent. In respect to this, the Court declared that forcing the child to return to Israel to relocate to England was not in line with the child’s interests.
The European Court has the responsibility of reviewing the decisions of the domestic courts to ensure conformity with Article 8 (Anon., 2010). The court considers the developments that have occurred from the time the order is returned and looks at the prevailing circumstances at the time the order is enforced (Anon., 2010).In the case of Neulinger and Shuruk v Switzerland, the European court ruled in favor of the mother because there were reasonable doubts on the father’s capability to provide adequate parental care for the child on top of fear that the mother could have faced criminal prosecution if she returned to Israel (Edwards Family Lawyers, 2010).
The European ruling has received different reactions from different countries, lawyers and legal systems. (Hodson, 2010; Morley, 2010; Edwards Family Lawyers, n.d). The European court’s ruling has been criticized in the internet chartroom as permitting abduction. According to Hodson (2010), the Swiss legal system could not have dealt expeditiously with the case and the controversy over the court decision will definitely persist. Most countries even those within the European Union are associated with extreme delays in handling child abduction litigation. Consequently, the child’s life is genuinely moved to another state (Hosdon, 2010).
Hosdon sees it inappropriate to criticize the European convention on human Rights because it was aimed at protecting the child’s integrity (2010). The best approach to European Courts ruling is to establish proper legal systems which implement penalties against those countries that deliberately delay in returning abducted children because the child is deprived of his best interests (Hosdon, 2010). According to Morley (2010), the European Convention on Human Rights has significantly influenced the application and interpretation of the Hague Abduction Convention in the European Union and it might cause a great disparity between the application and interpretation of the Convention in the European countries and the non-European countries. Edwards Family Lawyers (2010) perceive the Hague Convention provisions as contrary to the custodial rights that are applicable to children.