To Hear or Not to Hear: Reasoning of Judges Regarding the Hearing of the Child in International Child Abduction Proceedings

• Author: Tine Van Hof, Sara Lembrechts, Francesca Maoli, Giovanni Sciaccaluga, Thalia Kruger, Wouter Vandenhole, Laura Carpaneto
• Pages: 327-351

327

To Hear or Not to Hear: Reasoning of

Judges Regarding the Hearing of the

Child in International Child Abduction

Proceedings

TINE VAN HOF, SARA LEMBRECHTS,

FRANCESCA MAOLI, GIOVANNI SCIACCALUGA,

THALIA KRUGER, WOUTER VANDENHOLE, &

LAURA CARPANETO*

Introduction

The UN Convention on the Rights of the Child (UNCRC) guarantees

the right of the child to be given the opportunity to be heard in Article

12.1 The legal instruments applicable in cases of international child

abduction, namely the Hague Convention on Child Abduction (HCCA)

and the EU’s Regulation concerning jurisdiction and the recognition and

enforcement of judgments in matrimonial matters and the matters of

1. United Nations Convention on the Rights of the Child, art. 12, Nov. 30, 1989, 1577

U.N.T.S. 3 [hereinafter UNCRC].

* Tine Van Hof is a Ph.D. researcher at the University of Antwerp. Sara Lembrechts is

a researcher at the University of Antwerp. Francesca Maoli is a contract research fellow at

the University of Genoa. Giovanni Sciaccaluga is a Ph.D. in Law from the University of

Genoa. Thalia Kruger is a professor at the University of Antwerp. Wouter Vandenhole is a full

professor at the University of Antwerp. Laura Carpaneto is an associate professor of European

Union Law at the University of Genoa.

This article is the result of joint work of the authors. However, the Introduction is to be

attributed to Giovanni Sciaccaluga and Part I. Legal Framework and the Right to Hear the Child

is to be attributed to Francesca Maoli. The remaining paragraphs are to be attributed to all authors.

Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

328 Family Law Quarterly, Volume 53, Number 4, Winter 2020

parental responsibility (Brussels IIbis), also foresee hearing the child.2

In Brussels IIbis, this right is guaranteed under Article 11(2), whereas

the HCCA provides for hearing the child under Article 13(2).

Due to the sensitive family context in which child abductions occur, the

hearing of the child in these proceedings often generates tensions. Judges

as well as children may experience dilemmas related to the technical nature

        

challenges related to hearing young children, or lack of information and

transparency, to name a few. Some of these tensions have been described

in earlier research, among others on the well-being of abducted children,3

the hearing of abducted children in local jurisdictions,4 and more broadly

the private international law context.5

The objective of the present Article is to analyze whether there is a

tension between the legal framework on the right of the child to be heard

and the arguments judges employ in their judgments against the hearing

of the child in (non)return proceedings. Thus, the reasoning of judges

is critically assessed against what is expected from them based on the

applicable legal framework.

Even though authoritative legal and academic sources have provided

guidance on the legal obligations of States, considerable discretion is left

to judges to interpret the legal concepts.6

“with notable skill,” others’ decision making is led by “poor tendencies,”

such as the tendency to ignore the child’s views and wishes, “often with

damaging consequences for the individual child in any particular case

2. Hague Convention on the Civil Aspects of International Child Abduction, art. 13(2),

Oct. 25, 1980, 1343 U.N.T.S. 89 [hereinafter HCCA]; see also Council Regulation (EC) No.

2201/2003, art. 11(2), Nov. 27, 2003 [hereinafter Brussels IIbis].

3. RHONA SCHUZ, THE HAGUE CHILD ABDUCTION CONVENTION: A CRITICAL ANALYSIS (Hart

Publishing 2013); Michael Freeman, The Best Interests of the Child? Is the Best Interest of the

Child in the Best Interests of Children?, 11 INT’L J. LAW POL’Y & FAM. 360 (1997); Marilyn

Freeman, Parental Child Abduction: The Long-Term Effects, INT’L CTR. FOR FAM. L., POL’Y

& PRAC. (2014), www.famlawandpractice.com/researchers/longtermeffects.pdf; Geoffrey L.

Greif, The Long-Term Aftermath of Child Abduction: Two Case Studies and Implications for

Family Therapy, 37 AM. J. FAM. THERAPY 273 (2009); KIM VAN HOORDE ET AL., ENHANCING

THE WELL-BEING OF CHILDREN IN CASES OF INTERNATIONAL CHILD ABDUCTION, BOUNCING

BACK: THE WELLBEING OF CHILDREN IN INTERNATIONAL CHILD ABDUCTION CASES (2017), http://



4. Sara Lembrechts et al., Conversations Between Children and Judges in Child Abduction

Cases in Belgium and The Netherlands, TIJDSCHRIFT VOOR FAMILIE EN RECHT – J. FAM. L., Feb.

2019.

5. THALIA KRUGER, INTERNATIONAL CHILD ABDUCTION: THE INADEQUACIES OF THE LAW (Hart

Publishing 2011).

6. HELEN STALFORD, KATHRYN HOLLINGSWORTH & STEPHAN GILMORE, REWRITING CHILDREN’S

RIGHTS JUDGMENTS—FROM ACADEMIC VISION TO NEW PRACTICE 41 (Hart Publishing 2017).

Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.