헤이그 국제아동탈취협약 제13조(1)(b) ‘중대한 위험’의 해석 지침 ―헤이그 국제아동탈취협약 제13조(1)(b)에 관한 모범실무지침(2020)으로부터의 시사―
Introduction and Analysis of Guide to Good Practice Part Ⅳ on Article 13(1)(b) under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction(2020)
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In order to ensure the prompt return of a wrongful removal or retention, International Child Abduction Cases, Hague Convention on the Civil Aspects of International Child Abduction(here in after, 「Hague Convention」) is adopted in 1980 by the Hague conference on Private International Law. In principle, the object of the Hague Convention is to secure the prompt return of Children wrongfuly removed or retained in any contracting State. Therefore the exceptions to return (including Article 13(1)(b)) of the Hague Convention must be interpreted restrctively. By the way, in the beginning of adopting the Conveniton, The type of International child abduction on which this Convention’s legislator is premised, is changed. A Classic type of Internatioal Child Abduction is conducted by one of the parents, father, taking from the primary caretaker(mother). But, the recent type of that is conducted by primary caretaker for escaping the Domestic Violence by father. This change of situation has on influence on the judgement of Court of contracting State and the analysis of “Grave Risks”, exceptions to return provied for under Article 13(1)(b) of Hague Convention. In this situation, the Hague Conference on Private International Law, in order to prevent a serious situation in which confusion in the application of this Convention in certain cases continues to be neglected, in 2020, Guide to Good Practice of Article 13(1)(b) are being made to rectify contradictions in the contracting countries’ practice. Guide to Good Practice of Article 13(1)(b) has the following main contents. First, it is confirmed that the principle of prompt return under the Convention and the restricted interpretation of the exception of return should still be maintained. Second, in special cases such as domestic violence, the importance of an empirical approach based on the dynamics of domestic violence is emphasized. Third, Guide to Good Practice of Article 13(1)(b) recommend and emphasize the return order conditional on protective measures by the courts. Fourth, Guide to Good Practice of Article 13(1)(b) provide guidelines for the roles of judges for effective case management. In this paper, it is needed to study or analyze the cause of the judgement and process of the decision of contracting State and contents of Guide to Good Practice of Article 13(1)(b) for providing a appropriate standards to our Court which will deal with the Hague Abduction cases.
Abstract
In order to ensure the prompt return of a wrongful removal or retention, International Child Abduction Cases, Hague Convention on the Civil Aspects of International Child Abduction(here in after, 「Hague Convention」) is adopted in 1980 by the Hague conference on Private International Law. In principle, the object of the Hague Convention is to secure the prompt return of Children wrongfuly removed or retained in any contracting State. Therefore the exceptions to return (including Article 13(1)(b)) of the Hague Convention must be interpreted restrctively. By the way, in the beginning of adopting the Conveniton, The type of International child abduction on which this Convention’s legislator is premised, is changed. A Classic type of Internatioal Child Abduction is conducted by one of the parents, father, taking from the primary caretaker(mother). But, the recent type of that is conducted by primary caretaker for escaping the Domestic Violence by father. This change of situation has on influence on the judgement of Court of contracting State and the analysis of “Grave Risks”, exceptions to return provied for under Article 13(1)(b) of Hague Convention. In this situation, the Hague Conference on Private International Law, in order to prevent a serious situation in which confusion in the application of this Convention in certain cases continues to be neglected, in 2020, Guide to Good Practice of Article 13(1)(b) are being made to rectify contradictions in the contracting countries’ practice. Guide to Good Practice of Article 13(1)(b) has the following main contents. First, it is confirmed that the principle of prompt return under the Convention and the restricted interpretation of the exception of return should still be maintained. Second, in special cases such as domestic violence, the importance of an empirical approach based on the dynamics of domestic violence is emphasized. Third, Guide to Good Practice of Article 13(1)(b) recommend and emphasize the return order conditional on protective measures by the courts. Fourth, Guide to Good Practice of Article 13(1)(b) provide guidelines for the roles of judges for effective case management. In this paper, it is needed to study or analyze the cause of the judgement and process of the decision of contracting State and contents of Guide to Good Practice of Article 13(1)(b) for providing a appropriate standards to our Court which will deal with the Hague Abduction cases.
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