헤이그아동탈취협약과 유럽연합의 입법적 대응 —브뤼셀 II bis 규칙․로마 수정안을 소재로—

Abstract

The Hague International Child Abduction Convention, adopted in 1980 at the Fourteenth Session of the Hague Conference, is now in force in 84 countries, including the United States, its immediate neighbors of Mexico and Canada and most European nations. Korea has to decided to sign the Convention in this year. The Convention offers the opportunity for the international community both to deter and to remedy the wrongful taking of children across transnational boundaries. My focus in this article is to provide a brief overview of the structure of the Convention, to highlight a number of issues that have surfaced in the interpretation of the Convention in the courts, both in the United States and abroad, and to offer some observations about the use of the Convention.

Perhaps the most striking feature of the Hague Convention is its “procedural” and “jurisdictional” focus. The objective is to protect children from wrongful international removals or retentions from their lawful custodians by requiring that children be returned to their country of habitual residence for resolution of any custody dispute. The Convention remedy is simple: The child is ordered returned, and any dispute over custody is litigated at the place of habitual residence. The Convention does not offer uniform international standards for determining custody rights, nor does it provide for enforcement of custody decrees rendered by another foreign state. Notwithstanding the reference to “Abduction” in the title to the Convention, the Convention applies more generally to children who have been taken to another country in violation of another's custody rights or have been wrongfully retained in violation of such rights. The premise of the Convention is that the country in which the child is “habitually resident” should be the decision maker in any custody dispute. The State of habitual residence has the most significant interest in resolving the dispute and will usually be best situated with information to determine the ultimate merits of any custody controversy. In addition, parents will be deterred from unilaterally taking or removing children from their habitual residences. To that end, countries adhering to the Convention agree to return children to have all issues of custody decided in the jurisdiction where the child was habitually resident.