Return or refusal to return abducted children under the Child Abduction and Custody Act, 1999

Abstract

The implementation of the Hague Convention on the Civil Aspects of International Child Abduction 1980, through the Child Abduction and Custody Act 1999, has enabled Malta to become part of a global commitment against international child abduction. The scope of this thesis is therefore that of examining the policy of the Hague Convention of returning abducted children, together with those exceptional circumstances in which a Court of the State to which the child has been taken is allowed to retain the child within its jurisdiction. The first Chapter of this thesis shall be limited to the domestic implementation of the Hague Convention and to the evolution which this has brought about in the field of child abduction legislation. There shall follow an explanation of the 'wrongful removal or retention' required for the application of the Hague Convention to be triggered off. The crux of this thesis will be reached in the subsequent Chapters which shall treat the Convention's policy of returning abducted children as well as the relative exceptions which have been interpreted very restrictively by the Courts of the various contracting States. The thesis shall therefore explain the time brackets involved in determining whether an abducted child should be returned. It shall also examine the situations where the Court is not bound to order the return of the child namely where the person, institution or other body having the care of the person of the child was not actually exercising custodial rights at time of removal or retention, or where the aggrieved parent has consented to or subsequently acquiesced to the removal or retention. The Court may also refuse to return the child where there is a grave risk that the return would expose the child to physical or psychological harm or would place him or her in an intolerable situation. The other ground for refusing to return a child is where a child of requisite age and maturity objects to the return. The closing Chapter will evaluate whether the policy of returning abducted children and the relative exceptions, coincide with the principle of best interests of the child which is the paramount consideration in child-related issues in modern societies. The Child Abduction and Custody Act is a relatively new piece of legislation here in Malta and to date, it has only been applied once by the Maltese Courts. This explains why throughout the thesis, continuous reference will be made to the body of cases which has evolved in the other States parties to the Convention, since the date of its coming into force.