PhD Defense N.L. Swinkels LLM

The interpretation of articles 3 (habitual residence, rights of custody of the left-behind parent and actual exercise of custody rights) and 13 (actual exercise of custody rights, acquiescence, consent, grave risk and the child’s opinion) of the Hague Child Abduction Convention (HCAC) can differ on national, European and UN-level, which, in turn, can become problematic for parents, the child, and courts (and committees), since it creates legal uncertainty.

In this dissertation, the objective is to assess whether articles 3 and 13 HCAC should be revised in the interest of legal certainty in order to better reflect practice and to stand the test of time. A comparison has been made between American and Dutch case-law from 6 July 2010 until 2 December 2020 and on whether these courts have decided in line with the available means as recommended by the Permanent Bureau of the Hague Conference on Private International Law (Permanent Bureau) such as the Pérez-Vera Report, the Guide to Good Practice about article 13(1)b HCAC, and literature.

The Permanent Bureau is a relevant authority which ensures a consistent interpretation and application of the HCAC. However, questions can be asked about the International Child Abduction Database (INCADAT) since, amongst others, there is no authority, such as a court or committee, which can assess whether the submitted case-law is in accordance with the convention prior to including the case in the database. Additionally, it is unclear how it should respond to, amongst others, the below mentioned drawbacks. A recommendation is that it should be examined how the Permanent Bureau can be facilitated in better fulfilling its role.

Despite that there are some differences between how Dutch and American courts decide, e.g. about the defense of the child’s opinion, there are no indications that one or both articles of the HCAC should be altered.

However, the Netherlands is also a member of the United Nations Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR), and the European Union (EU), which can have an influence on how Dutch courts interpret cases regarding articles 3 and 13 HCAC. Nevertheless, until present, no Dutch court has been brought into a position in which it had to interpret article(s) 3 and/or 13 HCAC contrary to the convention due to a decision or judgment of a UN committee, the European Court of Human Rights (ECtHR), and/or the Court of Justice of the EU (CJEU). Yet, more research is necessary to ascertain that such a situation cannot take place in the (near) future, and if so, how to ensure that a Dutch court will decide in line with the prevailing interpretation of the HCAC. An example is that, in literature, there is a debate if the HCAC is in accordance with the UNCRC, yet because of the low number of communications, the CRC’s point of view could not be determined. Furthermore, more research has to be conducted on the implications of involving several committees and/or a court. In particular, on whether chances are higher that a decision will be made which (indirectly) contradicts the interpretation of article(s) 3 and/or 13 HCAC.

Since the Permanent Bureau also recommends other means to circumvent the use of the convention, attention has been paid to mediation (especially of importance in the Netherlands), the recognition and enforcement of foreign custody orders (not regularly occurring in the United States and in the Netherlands), the Dutch International Child Abduction Center, and the American Sean and David Goldman International Child Abduction Prevention and Return Act of 2014. Although each of them is a way forward, more research should take place if they are constructive replacements or aids to solve international child abduction cases.

As has emerged in this dissertation, there are many entities directly and indirectly involved in the interpretation and application of the HCAC, amongst which judges, Central Authorities and researchers but also expertise centers. According to their degree of responsibility, the best approach for the correct interpretation of articles 3 and 13 HCAC is therefore not to revise them but to remain vigilant.