Which requirements must be satisfied in order to seek the prompt return of an abducted child in international child abduction proceedings?

Abstract

Child abduction has become a topical matter especially in this day and age where individuals move freely between various countries. The Covid-19 pandemic has been one of the factors which has led to an increase in such cases whereby the abducting parent might have tried to justify his or her action of keeping the child in a country other than the child’s place of habitual residence on the basis that they could not go back to the said country because of the measures which were in place. Moreover, for child abduction to ensue, there must be the wrongful removal or retention of a child from the latter’s place of habitual residence. These requisites are to be viewed in light of custody rights, ne exeat and inchoate rights. With regard to custody rights, it is essential for the Court to determine who of the child’s parents was legally exercising these rights since it would then decipher whether or not the abduction has taken place. Furthermore, Courts namely the European Court of Human Rights (ECtHR), put a particular emphasis on the child’s place of habitual residence. There are no clear cut criteria to determine this but it has become clearer through the interpretations given by the Courts in their judgments. Surrounding circumstances of each case as well as the abducted child’s background, whether personal or social, are also taken into account. Central authorities also play an important role in ensuring that the left-behind parent is reunited with the abducted child in a timely manner. Thus, it is essential for Central Authorities to work together so that both the rights of the left-behind parent and those of the child are adequately safeguarded.