Abducted Child’s Best Interests versus the Theoretical Child’s Best Interests: Australia, New Zealand and the Pacific

Abstract

A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions’ approaches with the lens of whether the courts are preferring the particular child over the ‘theoretical’ child.

Keywords

• child settled exception
• grave risk exception
• child objection exception
• human rights exception