Shifting the Balance Achieved by the Abduction Convention: The Contrasting Approaches of the European Court of Human Rights and the European Court of Justice
Authors: Walker, Lara; Beaumont, Paul
Source: Journal of Private International Law, Volume 7, Number 2, August 2011 , pp. 231-249(19)
Publisher: Hart Publishing
Abstract:This article discusses the diverging case law of the European Court of Human Rights and the European Court of Justice on the Hague Convention on the Civil Aspects of International Child Abduction and the child abduction aspects of the EU Brussels IIa Regulation. It does this by analysing the two latest decisions from these courts, Raban and Aguirre Zarraga. It is considered that the European Court of Human Rights is placing too much emphasis on the best interests of the child, while the European Court of Justice is relying too much on the principle of mutual trust and neglecting human rights. The inconsistency between these two major courts needs to be rectified in order to protect the uniform interpretation of the Convention and an appropriate application of the Regulation.
Keywords: AGUIRRE ZARRAGA; BEST INTERESTS OF THE CHILD; CERTIFICATE; CHILD ABDUCTION; CONSENT; EU BRUSSELS IIA REGULATION; EUROPEAN COURT OF HUMAN RIGHTS; EUROPEAN COURT OF JUSTICE; GENERAL PRINCIPLES OF EU LAW; GRAVE RISK OF HARM; HABITUAL RESIDENCE; HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION; INTERPRETATION OF TREATIES AND EU REGULATIONS; RABAN; RIGHT TO BE HEARD
Document Type: Research Article
Publication date: August 1, 2011
- Hart Publishing launched the Journal of Private International Law (J. Priv. Int. L.) in spring 2005. The journal covers all aspects of private international law, reflecting the role of the European Union and the Hague Conference on Private International Law in the making of private international law, in addition to the traditional role of domestic legal orders.
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