This thesis examines some flaws in the interpretation and application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Hague Convention) and how this has led to the inadequate protection of children against the impact of domestic and family violence. These inadequacies have been identified in the inconsistent interpretation and application of Article 13(1) b) amongst Contracting States. This thesis seeks to address the disparity through a comprehensive analysis of the issues and its root causes, whilst conducting an empirical study with the aim of proposing policy recommendations. The demographics of taking parents shows that the majority of them are primary carer mothers as opposed to non-resident fathers. Added to this, UN global statistics reveal that 30% of women have experienced intimate partner violence and 38% of all murders of women are committed by intimate partners. It is also now recognised that violence and abuse between parents may expose a child to the grave risk of harm. Therefore, domestic violence does not have to be perpetrated on the child directly to suffer harm. The thesis derives its purpose from the conclusions of the Sixth Meeting of the Special Commission that allegations of domestic violence and the risks to the child are not always adequately and promptly examined. The thesis analyses the inconsistencies in the approach by Contracting States towards Article 13 (1) b) in cases involving domestic violence, with a particular focus on case law and the empirical survey that was carried out as a part of this doctoral research. The thesis aims to identify best practices and provide recommendations which it is hoped has influenced the Working Group in the preparation of the draft Guide to Good Practice at the Hague Conference. It is anticipated that the Guide to Good Practice on Article 13 (1) b) will greatly assist judges on measures to improve upon its interpretation and application in cases involving allegations of domestic violence. The underlying rationale is that it is possible to achieve real consistency. Judges need to be aided with a roadmap of the correct approach to analysing the grave risk of harm, whilst addressing evidential and resource issues. It is suggested that the starting point should always be an 'effective examination' of the allegations of domestic violence, rather than first considering protective measure on the basis of an assumption that the allegations are true. An “effective examination” should take place by means of a 'thorough, limited and expeditious' investigation, in line with X v Latvia (Application no. 27853/09) Grand Chamber [2013]. The recommendations put forward in this thesis combine the principle of 'effective examination' and a stronger recognition of the role of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The objective is to help unify the interpretation and application of Article 13(1) b) in cases concerning domestic violence across Contracting States.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:760027 |
| Date | January 2018 |
| Creators | Momoh, Onyója |
| Contributors | Trimmings, Katarina ; Beaumont, Paul R. |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=239355 |
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