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Understanding the best interests of the child in EU Child Abduction Proceedings : perspectives from the case law

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Abstract
In cases of international child abduction, human rights law and private international law are in constant interaction. Private international law seeks to prevent and discourage international child abduction, hence its prioritization of the immediate return of the child whenever an abduction takes place. Children's rights law, as part of human rights law, emphasizes that the best interests of the child must be a primary consideration in all matters affecting the child. At the same time, the principle of the child's best interests has acquired importance within the application of the Hague Convention of 1980 and of the Brussels II-bis Regulation. This paper draws on the empirical data obtained during the VOICE project, which analyzed over one thousand European cases on international child abduction, with the aim of understanding if and how judges across Europe give substance to the notion of the child's best interests in their case law. The analysis shows that judges do not always see the immediate return of an abducted child necessarily in his or her best interests. Instead, national courts use the principle of the child's best interests in a multi-faceted way, which leads to many different outcomes in the application of international legal instruments in child abduction cases.
Keywords
children's rights law, family law, child abduction, international child abduction, fundamental rights of the child, best interests of the child, EU private international law, Brussels II Regulation, Hague Convention 25 October 1980, HRC

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MLA
Maoli, Francesca, et al. “Understanding the Best Interests of the Child in EU Child Abduction Proceedings : Perspectives from the Case Law.” DIRITTI UMANI E DIRITTO INTERNAZIONALE, vol. 14, no. 2, 2020, pp. 337–63, doi:10.12829/97958.
APA
Maoli, F., Sciaccaluga, G., Lembrechts, S., Van Hof, T., Carpaneto, L., Kruger, T., & Vandenhole, W. (2020). Understanding the best interests of the child in EU Child Abduction Proceedings : perspectives from the case law. DIRITTI UMANI E DIRITTO INTERNAZIONALE, 14(2), 337–363. https://doi.org/10.12829/97958
Chicago author-date
Maoli, Francesca, Giovanni Sciaccaluga, Sara Lembrechts, Tine Van Hof, Laura Carpaneto, Thalia Kruger, and Wouter Vandenhole. 2020. “Understanding the Best Interests of the Child in EU Child Abduction Proceedings : Perspectives from the Case Law.” DIRITTI UMANI E DIRITTO INTERNAZIONALE 14 (2): 337–63. https://doi.org/10.12829/97958.
Chicago author-date (all authors)
Maoli, Francesca, Giovanni Sciaccaluga, Sara Lembrechts, Tine Van Hof, Laura Carpaneto, Thalia Kruger, and Wouter Vandenhole. 2020. “Understanding the Best Interests of the Child in EU Child Abduction Proceedings : Perspectives from the Case Law.” DIRITTI UMANI E DIRITTO INTERNAZIONALE 14 (2): 337–363. doi:10.12829/97958.
Vancouver
1.
Maoli F, Sciaccaluga G, Lembrechts S, Van Hof T, Carpaneto L, Kruger T, et al. Understanding the best interests of the child in EU Child Abduction Proceedings : perspectives from the case law. DIRITTI UMANI E DIRITTO INTERNAZIONALE. 2020;14(2):337–63.
IEEE
[1]
F. Maoli et al., “Understanding the best interests of the child in EU Child Abduction Proceedings : perspectives from the case law,” DIRITTI UMANI E DIRITTO INTERNAZIONALE, vol. 14, no. 2, pp. 337–363, 2020.
@article{8673161,
  abstract     = {In cases of international child abduction, human rights law and private international law are in constant interaction. Private international law seeks to prevent and discourage international child abduction, hence its prioritization of the immediate return of the child whenever an abduction takes place. Children's rights law, as part of human rights law, emphasizes that the best interests of the child must be a primary consideration in all matters affecting the child. At the same time, the principle of the child's best interests has acquired importance within the application of the Hague Convention of 1980 and of the Brussels II-bis Regulation. This paper draws on the empirical data obtained during the VOICE project, which analyzed over one thousand European cases on international child abduction, with the aim of understanding if and how judges across Europe give substance to the notion of the child's best interests in their case law. The analysis shows that judges do not always see the immediate return of an abducted child necessarily in his or her best interests. Instead, national courts use the principle of the child's best interests in a multi-faceted way, which leads to many different outcomes in the application of international legal instruments in child abduction cases.},
  author       = {Maoli, Francesca and Sciaccaluga, Giovanni and Lembrechts, Sara and Van Hof, Tine and Carpaneto, Laura and Kruger, Thalia and Vandenhole, Wouter},
  issn         = {1971-7105},
  journal      = {DIRITTI UMANI E DIRITTO INTERNAZIONALE},
  keywords     = {children's rights law,family law,child abduction,international child abduction,fundamental rights of the child,best interests of the child,EU private international law,Brussels II Regulation,Hague Convention 25 October 1980,HRC},
  language     = {eng},
  number       = {2},
  pages        = {337--363},
  title        = {Understanding the best interests of the child in EU Child Abduction Proceedings : perspectives from the case law},
  url          = {http://dx.doi.org/10.12829/97958},
  volume       = {14},
  year         = {2020},
}

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