In Search of a Settled Interpretation of Article 12(2) of the Hague Child Abduction Convention

17 Pages Posted: 25 Oct 2011

See all articles by Rhona Schuz

Rhona Schuz

Sha'arei Mishpat College - Law School; Bar-Ilan University - Faculty of Law

Date Written: October 25, 2011

Abstract

One of the exceptions to mandatory return of an abducted child under the Hague Convention on the Civil of Aspects of International Child Abduction 1980 is that the proceedings are commenced after the expiration of the period of 12 months from the wrongful removal or retention and that the child is now settled in its environment (provided for in Art 12(2) of the Convention). This article discusses critically the Court of Appeal decision in the case of Cannon v Cannon in relation to the interpretation of the concept of ‘settlement’ in this exception and the scope of the discretion conferred by the provision. It is argued that courts should take a more child-centred approach in construing and applying the Convention in general and this provision in particular. In a postscript, the article analyses the later House of Lords decision in Re M (Abduction: Zimbabwe) which, while agreeing with the Cannon decision in relation to the scope of the discretion conferred by Art 12(2), takes a more child-centred approach to the exercise of discretion under the Convention.

Keywords: family law, Hague Convention on the Civil of Aspects of International Child Abduction 1980, wrongful removal, wrongful retention, Cannon v Cannon, Re M (Abduction: Zimbabwe), settlement

Suggested Citation

Schuz, Rhona, In Search of a Settled Interpretation of Article 12(2) of the Hague Child Abduction Convention (October 25, 2011). Child and Family Law Quarterly, Vol. 20, No. 1, pp. 64-80, 2008, Available at SSRN: https://ssrn.com/abstract=1949055

Rhona Schuz (Contact Author)

Sha'arei Mishpat College - Law School ( email )

Margo Street
Hod Hasharon
Israel
+972 524474159 (Phone)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel
+972 3 5318814 (Phone)
+972 35351856 (Fax)

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