engleski

Particularities of Protection of Children's Rights in Child Abduction Proceedings

The study indicated a broad interpretation of the grave risk of harm exception by first instance courts. The analysed case law also suggested that in most cases the courts had conducted a thorough analysis of the child’s situation in order to evaluate the child’s best interests. In the most cases there was actually no consideration of risk in the country of origin, but rather of the fact that a parent would be better suited to a child, in the court’s view, and that due to a close connection between the child and abducting parent the separation would constitute a grave risk of harm. The Draft Guide to Good Practice on Article 13(1)(b) clearly suggest that the court of the State of child’s illegal residence may not use the grave risk exception as to turn the proceeding on the return of the child into the procedure on the merits of the dispute. The court deciding on the return request must avoid dealing with the with questions that are for the State of habitual residence to decide. The national research indicates the operation of the courts which goes beyond these limits. The causes for such actions will be examined.

child abduction, best interest of a child, grave risk exception, Child Abduction Convention, Brussels II bis Regulation, ECtHR, CJEU

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