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Dokumentvorschau
iFamZ 4, August 2019, Seite 275

Original Aporiae in the 1980 Child Abduction Convention and in the Brussels II System

Consequences in Their Present Implementation

Ilaria Pretelli

The Hague Convention on the Civil Aspects of Parental Child Abduction suffers from an original aporia which is the deep imbalance between the protection of rights of custody and rights of access. This caused a series of adjustments that blurred the distinctive position of the parent taking effective care of the child, in order to equalise its position to that of the other parent. Although non-custodial parents deserved a better protection than provided by the text of the Convention, the abductions carried out by them are not comparable to those carried out by a referential figure. The principle of equality, when taken in a non-purely formal significance, commands to treat differently situations that are truly different. It is thus important to distinguish the characterisation of an illicit transfer of the child’s residence, not perceived by the child as an abrupt rapt, from that of “child abduction”. This stigmatizing hendiadys should be kept for abductions in the true sense, in order to keep the focus on the best interests of children when treating illicit removals. This is particularly important in the EU context, since the pursuit of deterrence risks to receive primary considera...

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