The Hague Child Abduction
Convention: Practical Issues
Public International Law: Alternative Seminar
Zdeněk Nový
Hague Child Abduction Convention (HCAC)
• One of the most frequently used international treaties in the Czech
Republic
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How to approach the issue of child abduction?
• An academic viewpoint
• A legal practioner´s viewpoint
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Academic approach
• Academic writing aims to present as far as possible an objective reality×
->To find harmony among various perspectives
• If this turns out to be futile, then it is necessary to find the principles for
the resolution of the conflict between the perspective
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Advocacy
• The role of an advocate is to represent a client and pursue his interest (not
only) in writing which may entail to present reality in a rather subjective
way
• Advocacy may require to present the case, e.g. only from privateinternational-law perspective
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The Outline of your Arguments in the Letter as an Advocate
• The structure:
– Use the opening
– Use the middle
– Summarize the facts
• The language:
– Use simple language
– Use short sentences as well as rather short paras
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The content of the letter
• Sources to be used
• Colliding Interests
• Concurring perspectives
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Various sources
• International law:
– The HCAC
– Convention on the Rights of Child
– European Convention on Human Rights
• EU law:
– Brussels Iibis Regulation (expedited return)
• National law (to ascertain habitual residence of the child before removal)
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Various (colliding interests)
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Child- of primary importance
Left-behind parent
Abducting parent
Public interest of a state
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Perspectives on Child Abduction
• Civil-law perspective
• Private-international-law perspective
• Public-international-law perspective
• Conflicting perspectives
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Private-international-law approach
• Traditional
• This entails, inter alia, that little regard is paid to the substantive
considerations (like human rights)
• The HCAC as a technique
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The conflict between Private-Int.-Law and Public-Int.-Law
Perspectives
• Any idea how this might help in situations like Ṥneerosne and Kampanella?
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Public int. law
• Child rights are human rights
• Child rights are laid down in international treaties as sources of
internationla law:
– Interpretation
– Conflict of treaties
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Magic formula: Best interest of the child
• Different concepts under different treaties (The Convention on Rights of
Child vs. the HCAC)
• Substantive vs. “technical approach”
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Conflict among treaties
• Conflict-resolving clauses
• Lex posterior (Art. 30 Vienna Convention)
• Lex specialis (general principle of law)
• The problem: the reality is more colourful than these three analytical tools
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The resolution of a “conflict” via interpretation
• Various treaties applicable to child abduction, but pursuing different aims > conflict
• It is to be preferred to resolve the conflict via harmonious interpretation?
• What are the methods for interpreation of int. Treaties?
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Systemic interpretation or „integration“ (?)
• International treaty must be interpreted in context of other sources of
international law
(art. 31 (3) (c) Vienna Convention)
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How to work with the HCAC?
• It is of absolute necessity to analyze the case law to the HCAC
at:http://www.incadat.com/
• The courts (should) pay regard to the cases decided by their counterparts
in the states that are a party to the HCAC
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The practical problems (not only) in Czech courts
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Court did not know how to apply the convention
Judges often do not have sufficient command of English or/and French
Delays in deciding in return proceedings
Dilatory tactics by parents
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Useful links
• http://www.incadat.com/
• http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx
• http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcoll
ectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22]}
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