Cross-Border Parental Child Abduction In The EU. Is there Room for a Human Rights Exception?,

Article 20 of the 1980 Hague Convention on international abduction of children provides for an exceptional ground for refusing the return of an abducted child, namely when returning the child would violate the principles of the requested State relating to the protection of human rights and fundamental freedoms. The rule was meant to replace the more traditional public policy exception, which was considered at risk of undermining the rationale of the 1980 Hague Convention. National courts have generally upheld a strict interpretation of this provision and allowed little room for such an exception. However, this situation might change in the future. While public policy exceptions have lost much of their strength in recent times, the impact of human rights has risen dramatically. The present essay investigates the pattern of cases where this exception has and could be applied in the future, supporting the idea that its rationale and scope of application should receive a different understanding depending on the legal environment in which it is called to operate. It is suggested that a different approach should be developed when dealing with purely ‘conventional’ (i.e. international) cases , or to EU cases (i.e. cases falling under the Brussels IIa Regulation, where the abduction results in the removal of a child from one EU Member State to another).