CRC Committee landmark decision on child abduction case

In a case involving Chile and Spain, a child J.M born in Spain was moved to Chile at aged 15 months to receive medical treatment by his Chilean mother, approved by the Spanish father. A year later the Spanish father made an application for unlawful retention of the child, relying on the general principle of prompt return to the country of habitual residence. The Committee noted that the HCCH 1980 Child Abduction Convention does not entail that a return of the child should be automatically ordered, “Courts still have to effectively assess the applicability of the exceptions to the rule of return in the specific case, namely, whether the return would expose him/her to physical or psychological harm, taking the child’s best interests as a primary consideration,” said Committee member Ann Skelton. “The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court failed to apply the necessary procedural safeguards to ensure that the return would not expose the child to harm or any situation contrary to his best interests,” she added. While the CRC Committee did not directly rely on the child’s right to identity, it focused among others, on Art.9 CRC and the child’s right to “maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests … ” which contributes to the preservation of the child’s family relations. Child Identity Protection (CHIP) welcomes this decision, as it notes the importance of procedural safeguards, which opens the door for measuring potential physical and psychological harm related to identity preservation.

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