Cases before the European Court of Human Rights involving the Hague Convention on the Civil Aspects of International Child Abduction (1980) are numerous and reveal recurring factual and legal patterns that often remain unaddressed. Statistics indicate that the majority of so-called ‘abductors’ are mothers. This analysis, based on approximately 80 cases from the European Court of Human Rights, examines several key factors: the profile of the taking parent (‘abductor’), including primary caregiver status, nationality, and gender; the custody rights at the time of the abduction and any subsequent changes; the availability of options for the taking parent to return with the child; and the vulnerability of the foreign mother, both as an individual and as a parent. The findings show that foreign national mothers, often primary caregivers, face precarious situations abroad. When they leave a foreign country with their child, authorities frequently interpret this as a violation of the Hague Convention. In Strasbourg, such cases are typically framed as breaches of the left-behind parent’s Article 8 rights under the European Convention on Human Rights. While the Court generally upholds these claims, it offers limited consideration of the vulnerable position of the mothers involved. The aim of this contribution is to demonstrate that adopting a gender-sensitive approach, combined with the concept of vulnerability, is both justified and essential in Hague Convention cases before the Court. The Court is well-positioned to implement these frameworks, having developed them in other contexts. Such a shift would address existing blind spots regarding gender and vulnerability, ensure equitable human rights protection, harmonize the application of the Hague Convention with human rights standards, and adequately reflect evolving social and family dynamics in an increasingly globalized world.

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The Hague Child Abduction Convention Through the Lenses of Gender and Vulnerability: A Road Less Travelled in Strasbourg

  • Sanja Djajić

摘要

Cases before the European Court of Human Rights involving the Hague Convention on the Civil Aspects of International Child Abduction (1980) are numerous and reveal recurring factual and legal patterns that often remain unaddressed. Statistics indicate that the majority of so-called ‘abductors’ are mothers. This analysis, based on approximately 80 cases from the European Court of Human Rights, examines several key factors: the profile of the taking parent (‘abductor’), including primary caregiver status, nationality, and gender; the custody rights at the time of the abduction and any subsequent changes; the availability of options for the taking parent to return with the child; and the vulnerability of the foreign mother, both as an individual and as a parent. The findings show that foreign national mothers, often primary caregivers, face precarious situations abroad. When they leave a foreign country with their child, authorities frequently interpret this as a violation of the Hague Convention. In Strasbourg, such cases are typically framed as breaches of the left-behind parent’s Article 8 rights under the European Convention on Human Rights. While the Court generally upholds these claims, it offers limited consideration of the vulnerable position of the mothers involved. The aim of this contribution is to demonstrate that adopting a gender-sensitive approach, combined with the concept of vulnerability, is both justified and essential in Hague Convention cases before the Court. The Court is well-positioned to implement these frameworks, having developed them in other contexts. Such a shift would address existing blind spots regarding gender and vulnerability, ensure equitable human rights protection, harmonize the application of the Hague Convention with human rights standards, and adequately reflect evolving social and family dynamics in an increasingly globalized world.