When a child is wrongfully removed to or wrongfully retained in a country other than that of his or her habitual residence, that child shall be speedily returned. The custody dispute the substantive issue of the dispute must be resolved in the courts of the country of the habitual residence of the child. The Convention and Regulation acknowledge that there may be exceptional circumstances that make the return undesirable such as when there is a risk that the child will be exposed to harm.
In this lecture I will discuss two elements of the return obligation that can cause difficulties: the short time frame and the question of the habitual residence of a child. I will then turn to the exceptions: their restricted nature and the best interests of the child.
The purpose of the established system of the treatment in cases of international child abduction, as set out in the Hague Convention on Child Abduction, which has been strengthened, in relation to the EU Member States, by the provisions of the Brussels II bis Regulation, is to secure the prompt return of the child that has been wrongfully removed or retained to her or his Member State of origin.
The return of the child must provide full protection of the child both in the state where the child was unlawfully resident and in the state where the child has to return to. In these circumstances, the competent authorities have at their disposal legal mechanisms for provisional and protective measures provided for by the Brussels II bis Regulation and the Hague Convention on Measures for the Protection of Children.
The possibility of taking such measures will depend on the national law of the state in question and on the specific circumstances of the case. In this paper, a legal framework will be presented for the imposition of provisional measures in cases of cross-border child abduction, which will be supported by the case law of the European Court of Justice.
