The Right of the Parent to Return to its Country of Origin in the Light of the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on the Protection of Human Rights

Abstract

This article examines the right of return to the country of origin of a parent who has been granted the rights of custody over a child in the country in which that parent and the child temporarily reside. A legal obstacle to realization of the right of return of the parent to its country of origin exists in the Hague Convention on the Civil Aspects of International Child Abduction which is often applied mechanically and works to prevent the parent from relocating with the child. Case law of the European Court of Human Rights and the Constitutional Court of Serbia provides guidelines for interpretation of the Hague Abduction Convention in quite frequent situations when a parent who is a primary caregiver acts as an abductor. The standard of the best interest of the child can overcome the tension between the right of parent to return and the Hague Abduction Convention.