scholarly journals The child right to be heard in court (using the 1980 Hague Convention in Ukraine as an example)

2020 ◽  
pp. 426-434
Author(s):  
Protsenko Iryna
Keyword(s):  
Hague Convention ◽  
Child Abduction ◽  
Judicial Practice ◽  
Rights Of The Child ◽  
International Child ◽  
Psychological Examination ◽  
General Order ◽  
The Subject ◽  
The Right ◽  
The Hague Convention

The Hague Convention on Civil Law Aspects of International Child Abduction in 1980 introduced a mechanism for resolving issues related to the illegal export or maintenance of children by persons closely related to them. According to this mechanism, executive and judicial authorities must take measures to quickly return the child to the state of his usual place of residence. However, such a return may be refused if there are circumstances specified in the 1980 Convention. One of these is the court's identification of the child’s objections to his return, however, provided that the child has reached an age and level of maturity at which his opinion should be taken into account. Therefore, the court of Ukraine finds out the opinion of the child only if he considers that he has reached the required age and level of maturity. However, the abstractness of the wording of this circumstance leads to the fact that when considering return cases in Ukrainian courts, the child’s opinion is often not heard unreasonably (for example, if the court considers the child’s age insufficient to clarify his opinion, or because the defendant does not insist on hearing the views of the child, or because the parties fail to provide evidence that the child has reached the required age and level of maturity). In our opinion, the courts, in order to avoid such errors, should more actively implement the stipulated in Art. 13 of the Civil Procedure Code of Ukraine the right, on its own initiative, to collect evidence regarding the subject of the dispute, in particular, by appointing a psychological examination aimed at determining the level of development of the child. Clarification of the views of the child should also be carried out with mandatory consideration of the provisions of Article 12 of the 1989 UN Convention on the Rights of the Child, which governs the right of a child to be heard. At the same time, it is worth introducing into the judicial practice of Ukraine the approaches enshrined in the Comments of the UN Committee on the Rights of the Child of General Order № 12 (2009) “The Right of the Child to be Heard”, in particular, related to assessing the child’s ability to express his thoughts

scholarly journals Access Rights as a Way to Communicate with a Child

2020 ◽  
Vol 16 (1) ◽  
pp. 11-16
Author(s):  
Maria V. Gromozdina
Keyword(s):  
Hague Convention ◽  
Legal Analysis ◽  
Child Abduction ◽  
European Court ◽  
International Child ◽  
Access Rights ◽  
Broad Interpretation ◽  
The Right ◽  
The Hague Convention ◽  
Right Of Access

The article deals with issues related to the exercise of parental access rights as a way of communicating with the child. A parent who claims to exercise the right of access is a separately residing parent and, as a rule, a foreign citizen. The implementation of the right of access is related to the application of the Hague Convention on Civil Aspects of International Child Abduction, 1980. In this connection, the author investigates the problems of application of the right of access by the Russian courts in solving family disputes related to upbringing of children. The situation is analyzed as to the possibility of a broad interpretation of the concept of "access rights", taking into account established international practice. The problem of a misunderstanding of the essence of access rights and the related limited application of the Convention's provisions are identified. The author is of the view that the rights of access and the procedure for communication with the child (in case of separation of parents) are independent legal institutions and do not replace each other. Comparative legal analysis confirms the author's conclusions, which are justified by examples of court practice. The choice of the method of protection of parental rights is determined by the person applying for protection and cannot be changed by the court in violation of the plaintiff's rights. Thus, the conclusion is made that it is necessary to analyze the jurisprudence of the European Court of Human Rights in order to properly apply the Convention.

scholarly journals Sustracción internacional de menores. Asunto vinculado con Suiza y España. Comentario de la sentencia de la Audiencia Provincial de Pontevedra (Sección 1ª) núm. 52/2018, de 17 de abril = International child abduction. Case related with Switzerland and Spain. Comment on the judgment of the Spanish Court of Appeal of Pontevedra (Section 1) number 52/2018 of 17th April

2019 ◽  
Vol 11 (1) ◽  
pp. 671
Author(s):  
Carmen Azcárraga Monzonís
Keyword(s):  
Hague Convention ◽  
Parental Responsibility ◽  
Habitual Residence ◽  
Child Abduction ◽  
International Child ◽  
The Hague ◽  
A Minor ◽  
The Hague Convention ◽  
Court Of Appeal

Resumen: Sustracción internacional a España de menor residente en Suiza en aplicación del Con­venio de La Haya de 1980 sobre los aspectos civiles de la sustracción internacional de menores. Discre­pancia sobre la residencia habitual del menor. No se aprecian motivos de no retorno.Palabras clave: sustracción internacional de menores, Convenio de La Haya sobre sustracción, Convenio de La Haya sobre responsabilidad parental y protección de menores, residencia habitualAbstract: International abduction to Spain of a minor residing in Switzerland under the Hague Convention on the Civil Aspects of International Child Abduction of 1980. Discrepancy about the habi­tual residence of the minor. No grounds for return denial are appreciated.Keywords: international child abduction, Hague Convention on Child Abduction, Hague Conven­tion on Parental Responsibility and Measures of the Protection of Children, habitual residence

Substantive and Procedural Legal Issues in Dispute Resolution Under the 1980 Hague Convention on the Civil Aspects of International Child Abduction

2021 ◽  
Author(s):  
Yu.A. Marks ◽  
Keyword(s):  
Russian Federation ◽  
Hague Convention ◽  
Best Interests ◽  
Theoretical Development ◽  
Child Abduction ◽  
Procedural Law ◽  
International Child ◽  
The Subject ◽  
The Russian Federation ◽  
Access Rights

The article is devoted to considering cases on the return of a child or on the exercising access rights in relation to a child on the basis of the Hague Convention on Civil Aspects of International Child Abduction of 1980. The importance of cases concerning the return of a child or the exercise of access rights in respect of a child necessitates theoretical development not only of the procedural institutions, which norms regulate the examination of this category of cases by the courts, but also an analysis of the substantive aspects of disputes concerning the return of a child or the exercise of access rights in respect of a child on the basis of the 1980 Convention. According to the author, the relationship between substantive and procedural law is reflected in the principle of the best interests of the child, the subject of judicial protection, the specifics of the protection means and the subject of proof, as well as the specifics of the composition and procedural position of the persons involved in the trial of the category under study. Particular attention is paid to the tasks and powers of the central authorities established to ensure the unhindered and effective application of the 1980 Convention. It is proposed to transfer the powers of the central body in this sphere from the Ministry of Education of the Russian Federation to the Ministry of Justice of the Russian Federation. The development of the institution of mediation, including the active promotion of the expansion of mediation cooperation within the framework of interstate contacts aimed at resolving cases of the category under consideration, seems promising.

10. International Relocation and Child Abduction

2018 ◽  
Author(s):  
Ruth Gaffney-Rhys
Keyword(s):  
Hague Convention ◽  
International Relocation ◽  
Child Abduction ◽  
International Child ◽  
Questions And Answers ◽  
Essay Question ◽  
The Hague ◽  
The Law ◽  
The Hague Convention ◽  
The Eu

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter focuses on international relocation and child abduction. The first question is an essay question that considers the law relating to international relocation, ie how the English courts have dealt with applications to relocate out of the jurisdiction (eg Payne v Payne). The second is a problem question that requires the application of the Hague Convention on the Civil Aspects on International Child Abduction 1980 and the EU Regulations (BIIR), but also considers the law that applies if a child is taken to England and Wales from a country that has not ratified the Hague Convention.

Deciding to Defer: The Importance of Fairness in Resolving Transnational Jurisdictional Conflicts

2016 ◽  
Vol 70 (2) ◽  
pp. 409-441 ◽  
Author(s):  
Asif Efrat ◽  
Abraham L. Newman
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Original Data ◽  
Domestic Institutions ◽  
Data Set ◽  
Child Abduction ◽  
International Child ◽  
The Hague ◽  
The Hague Convention ◽  
Considerable Support

AbstractThe cross-border movement of people, goods, and information frequently results in legal disputes that come under the jurisdiction of multiple states. The principle of deference—acceptance of another state's exercise of legal authority—is one mechanism to manage such jurisdictional conflicts. Despite the importance of deference in international law and cooperation, little is known about the causes of variation in its use. In this article, we develop a theory of deference that focuses on the role that domestic institutions and norms play in ensuring procedural and substantive fairness. We test this theory in an original data set concerning accession practices in the Hague Convention on International Child Abduction. Our findings offer considerable support for the idea that states evaluate partners on the likelihood that they can offer a fair legal process. Exploring empirically the efforts against parental child abduction, we offer a nuanced account of the link between domestic institutions and norms and international cooperation. This account suggests that greater attention should be paid to the use of deference as a mechanism to manage the conflicts posed by globalization.

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