scholarly journals International adoption: lex adoptio and the plurality of connecting factors

2021 ◽  
pp. 10-21
Author(s):  
Kseniya Olegovna Trinchenko
Keyword(s):  
Human Rights ◽  
International Adoption ◽  
Single Case ◽  
Hague Convention ◽  
Best Interests ◽  
Intercountry Adoption ◽  
Conflict Of Laws ◽  
Rights Of The Child ◽  
European Court ◽  
Substantive Law

This article analyzes the substantive law and conflict of laws law of such countries as Austria, Venezuela, Germany, Dominican Republic, Iceland, Spain, Canada (Quebec), Norway, Poland, Portugal, Switzerland, as well as bilateral agreements on legal aid, case law of the European Court of Human Rights, which demonstrates the presence general principles of law, as well as the principle of protecting the weaker party to the legal relationship, the principle of observance of best interests of a child established by the universal multilateral international agreements: Convention on Human Rights of 1950, Convention on the Rights of the Child of 1989, Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The author examines the relevant issues of the conflict of laws regarding the manifestation of the conflict of jurisdictions, plurality of connecting factors in regulation of a set of private law relations associated with international adoption. The result of the conducted research consists in formulation of a special statute of adoption (lex adoptio), analysis of its legal nature and scope. In the context of examination of the procedure for establishing international adoption, the author identifies the problem of dépeçage (different issues within a single case are governed by the laws of different jurisdictions). A classification is provided to the combinations of plurality of connecting factors established by the legislation of foreign countries, as well as multilateral international agreement – the Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors of 1984).

The Best Interests of the Child

2020 ◽  
pp. 203-221
Author(s):  
Wouter Vandenhole ◽  
Gamze Erdem Türkelli
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Elusive Concept

The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.

Huseini v. Ministry of Justice and Public Security

2019 ◽  
Vol 181 ◽  
pp. 419-435
Keyword(s):  
Human Rights ◽  
Migrant Children ◽  
Best Interests ◽  
European Convention ◽  
Detention Centre ◽  
Rights Of The Child ◽  
Societal Needs ◽  
European Court ◽  
Degrading Treatment ◽  
Article 5

Aliens — Asylum seekers — Detention of migrant children — Family detained in detention centre — Conditions in detention centre — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Jurisprudence of European Court of Human Rights — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Whether detention of migrant children and their parents illegal — Whether Norway violating international obligations and Constitution of Norway — Whether damages appropriateHuman rights — Prohibition of torture and inhuman or degrading treatment or punishment — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Age of children — Length and conditions of detention — Whether violation of Article 3 of European Convention on Human Rights, 1950Human rights — Right to freedom and security — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention of family measure of last resort with no possible alternative — Whether violation of Article 5(1) of European Convention on Human Rights, 1950Human rights — Right to respect for private and family life — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention justified — Whether compelling societal needs — Whether proportionate — Whether violation of Article 8 of European Convention on Human Rights, 1950Human rights — Rights of the child — Whether detention of children illegal — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Interpretation of Article 3 — Best interests of the child — Prohibition of torture and inhuman or degrading treatment or punishment — Whether measure strictly necessary — Whether violation of Articles 3 and 37 of Convention on the Rights of the Child, 1989Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Constitution of Norway — Jurisprudence of European Court of Human Rights — 2015 report by UN Special Rapporteur on Torture — Whether detention of migrant children and their parents illegal — Whether damages appropriate — The law of Norway

Protecting the Best Interests of the Child: International Child Abduction and the European Court of Human Rights

2015 ◽  
Vol 84 (2) ◽  
pp. 270-296 ◽  
Author(s):  
Helen Keller ◽  
Corina Heri
Keyword(s):  
Human Rights ◽  
Hague Convention ◽  
Best Interests ◽  
European Convention ◽  
Child Abduction ◽  
European Court ◽  
International Child ◽  
The Hague ◽  
Viable Approach ◽  
The Hague Convention

In its case law on international child abduction, the European Court of Human Rights (ecthr) seeks to interpret the European Convention on Human Rights (echr) in conformity with the Hague Convention on the Civil Aspects of International Child Abduction. Both instruments safeguard the best interests of abducted children, but in different ways. This article explores the progress made by the ecthr in harmonising the conflict between the Hague Convention and Article 8 echr. While the ecthr’s approach to the abducted child’s best interests in Neulinger and Shuruk v. Switzerland was met with strong criticism, the Court seems to have found a viable approach in X. v. Latvia. The ecthr’s current tactic allows it to continue its dialogue with national authorities and international bodies by imposing procedural requirements, thereby contributing to a harmonised approach appropriate to the best interests of abducted children without negatively impacting the functioning of the Hague Convention.

The Best Interests of the Child in the Expulsion and First-entry Jurisprudence of the European Court of Human Rights: How Principled is the Court’s Use of the Principle?

2015 ◽  
Vol 17 (1) ◽  
pp. 70-103
Author(s):  
Ciara Smyth
Keyword(s):  
Human Rights ◽  
The State ◽  
Best Interests ◽  
European Convention ◽  
Rights Of The Child ◽  
European Court ◽  
The Individual

The principle of the best interests of the child is regularly referred to by the European Court of Human Rights in its jurisprudence involving children. However, the principle is notoriously problematic, and nowhere more so than in the immigration context where the state’s sovereign interests are keenly at stake. This article critically examines the expulsion and first-entry jurisprudence of the European Court of Human Rights under Article 8 of the European Convention on Human Rights, interrogating whether a ‘principled’ approach is adopted to the best interests principle. It is argued that a principled approach is one which sees the best interests principle interpreted in the light of its parent document, the un Convention on the Rights of the Child, as interpreted by the un Committee on the Rights of the Child. It is demonstrated that despite widespread recourse to the best interests principle, the European Court of Human Rights fails to adopt a rights-based approach when identifying the best interests of the child and does not always give sufficient weight to the best interests of the child when balancing the interests of the state against those of the individual. The analysis also reveals a way for the Court to develop a more principled approach to the best interests principle.

Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights

2020 ◽  
Vol 20 (4) ◽  
pp. 745-768
Author(s):  
Milka Sormunen
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Procedural Approach ◽  
Rights Of The Child ◽  
European Court ◽  
Significant Strength ◽  
United Nations Convention ◽  
The United Nations

Abstract According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.

Child Protection through Intercountry Adoption with Special Reference to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993

2015 ◽  
Vol 3 (2) ◽  
pp. 78-86
Author(s):  
Nadhilah A. Kadir ◽  
Azizah Mohd ◽  
Roslina Che Soh@ Yusoff ◽  
Najibah Mohd Zin
Keyword(s):  
Child Protection ◽  
Hague Convention ◽  
Best Interests ◽  
Institutional Setting ◽  
Intercountry Adoption ◽  
Alternative Care ◽  
Rights Of The Child ◽  
The Hague ◽  
Family Setting ◽  
The Hague Convention

Objective - This paper seeks to examine the practice of intercountry adoption as prescribed in the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 (the Hague Convention 1993) particularly relating to its requirements and procedures. This is in order to describe the minimum safeguards provided by The Hague Convention 1993 to ensure that such adoption takes place in the child's best interests. This paper also discusses the relationship between the Hague Convention 1993 and the United Nations Convention on the Rights of the Child 1989 (CRC) relating to the position of intercountry adoption as one of the available means of child care. Methodology/Technique - This paper adopts qualitative research method. Analysis focuses on international policies provided by International Legal Frameworks that include The Hague Convention 1993 and the CRC. Findings - The Hague Convention 1993 recognizes intercountry adoption as one of the alternative care options that provides the advantage of a permanent family setting to a child whom, a suitable family is unavailable for him or her in the birth country. Accordingly, this paper suggests that family setting should be preferred over institutional setting in deciding a child's placement. Novelty - The paper deliberates on the position of intercountry adoption at the international level as one of the alternative care options. Type of Paper - Conceptual Keywords: Alternative Care; Child Protection; Hague Convention 1993; Intercountry Adoption; Permanent Family Care.

Towards a Uniform and Informed Interpretation of the Best Interests of the Child by the Judiciary: Inter-American and European Jurisprudence

2021 ◽  
pp. 1-24
Author(s):  
Susana Sanz-Caballero
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Critical Form ◽  
The United Nations ◽  
The Right ◽  
Judicial Remedies

This article analyses the interpretations made by two regional human rights courts regarding the best interests of the child. In cases of controversy, it is for the judges to decide how, or whether, the best interests of the child should be applied. Due to the dependence and vulnerability of children, judicial remedies are a critical form of redress when children’s rights are violated. This article analyses case law from two regional courts (the Inter-American Court of Human Rights (ICtHR) and the European Court of Human Rights (ECtHR)). The purpose of this analysis is twofold: first of all to see how the two courts interpret and apply the concept; and secondly, to ascertain whether there are similarities of interpretation or common grounds of understanding between the two courts, with particular regard to General Comment No. 14 (GC 14) of the United Nations Committee on the Rights of the Child on the right of the child to have their best interests taken as a primary consideration.

Working Toward Recognition of the Rights of Migrant and Refugee Children

2020 ◽  
pp. 674-695
Author(s):  
Sarah Paoletti
Keyword(s):  
Human Rights ◽  
Civil War ◽  
Best Interests ◽  
Refugee Children ◽  
Next Generation ◽  
Rights Of The Child

This chapter addresses the rights of migrant and refugee children who increasingly are forced into migration, either alone or with members of their family, due to violence, civil war, poverty, economic degradation, and other often-intersecting factors. While addressing the rights and obligations set forth in the Convention on the Rights of the Child and other international and regional human rights instruments, the chapter further seeks to bring attention to the complexity and fluidity of migration and the motives that spurn migration; the role of family in serving the child’s best interests; and the scope of considerations that must be accounted for in seeking to ensure that the next generation of immigrants is positioned to thrive.

Unaccompanied migrant youth in the Nordic countries

2019 ◽  
pp. 235-256
Author(s):  
Hilde Lidén
Keyword(s):  
Human Rights ◽  
Quantitative Data ◽  
Nordic Countries ◽  
Best Interests ◽  
Court Cases ◽  
Unaccompanied Minors ◽  
Rights Of The Child ◽  
Migrant Youth ◽  
New Policies ◽  
Human Rights Standards

This chapter explores the ambiguities and changes in regulations concerning unaccompanied asylum-seeking minors within, as well across, the Nordic countries, with regard to the gap between restrictions, new policies and practices on one hand, and the human rights standards set out in the UN Convention on the Rights of the Child and in immigrant-related legislation on the other. The chapter focuses on Sweden, Denmark and Norway. The chapter draws on research combining studies on documents and legal analyses (human rights conventions, national laws, regulations and court cases); an analysis of quantitative data from immigration authorities to identify particular areas of concern; and qualitative research, including fieldwork and interviews with unaccompanied minors, staff in reception centres, legal guardians and immigration authorities. The chapter highlights the growth in the discourse and policy of stricter immigration regulations over the best interests of the child.

scholarly journals A very long engagement: The Children's Act 38 of 2005 and the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption

2017 ◽  
Vol 12 (1) ◽  
pp. 53
Author(s):  
Ed Couzens
Keyword(s):  
South African ◽  
Hague Convention ◽  
Best Interests ◽  
Dramatic Improvement ◽  
Intercountry Adoption ◽  
Current Regime ◽  
The Hague ◽  
The Hague Convention

This article analyses the intercountry adoptions provisions contained in Chapter 16 of the Children’s Act 38 of 2005, against the standards of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoptions, 1993. After a brief overview of the two leading South African cases on intercountry adoption, which stress the importance of having this institution statutorily regulated, the author proceeds to analyse the most significant clauses pertaining to intercountry adoptions contained in the Act, in order to identify the strengths and weaknesses in this new statutory framework. The author concludes that the Children’s Act is a dramatic improvement on the current regime of intercountry adoptions and that it has the potential to make this institution work in the best interests of children.

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