A recent ruling of the Constitutional Court of Colombia effectively prevents the courts in Colombia from fulfilling their duty under the Hague Convention on the Civil Aspects of International Child Abduction to return children who are wrongfully removed to or retained in Colombia unless the abducting parent clearly proves one of the very limited exceptions contained in the language of the treaty.

The Constitutional Court has ruled that the Hague Convention must give way to the fundamental provisions of the 1991 Constitution of Colombia that protect the family and children. These include provisions that, “Every individual has the right to personal and family privacy” (Article 15), that “The family is the basic nucleus of society…. The state and society guarantee the integral protection of the family… Family relations are based on the equality of rights and duties of the couple and on the mutual respect of all its members. Any form of violence in the family is considered destructive of its harmony and unity, and will be sanctioned according to law. The children born of a matrimony or outside it, adopted or conceived naturally or with scientific assistance, have equal rights and duties.” (Article 42).

In its recent case, identified as T-275-23, the Constitutional Court ruled in a case concerning a child who was habitually resident in Spain and was retained in Colombia by his Colombian mother after a family visit. The father in Spain applied for the child’s return to Spain under the Convention. In her defense, the mother alleged that the father had been violent and abusive to her in the presence of the child, but she had minimal evidence to support her claims, and an appeal court in Colombia ultimately ordered that the child should be returned. The mother then filed a tutela case in the Constitutional Court as authorized by Article 86 of the Colombian Constitution, which allows any person to demand immediate protection of their fundamental constitutional rights whenever threatened by public authority or private actors.

The Constitutional Court ruled that the return of the child violated the mother and child’s fundamental rights as a woman and a child to have a family life and to have due process.

The Court repeatedly invoked the best interests of the child as a key factor in any determination to be made in Colombia under the Convention because the Constitution requires the protection of the family.

The Court then held that protection of the best interests of the child required the court in any Hague Convention case to include a full consideration of the impact of gender-based violence and, in deciding cases under the Convention, to adopt a “gender perspective.” In that regard, it held that the Superior Court of Bogotá had failed to consider the mother’s evidence of alleged violence in the context of institutional discrimination against women, which (the Court stated) subjects women to manifestly disproportionate procedural and evidentiary burdens, while their safety and that of their child are at risk. It ruled that courts in Colombia must therefore provide special protection to women and to the best interests of the child and fully observe both the gender perspective and the pro infans principle (which is a legal and human rights doctrine mandating that all decisions, laws, and judicial processes involving minors prioritize the best interests of the child). This obligated the Court to use its discretionary and evidentiary powers to establish the impact of violence against women on the well-being of the minor.

For example, the mother had failed to appear at a judicial proceeding in Spain, to which the court there had taken exception and had not accepted the mother’s excuse that she had instead taken the child for a COVID-19 vaccination. The Constitutional Court declared that this demonstrates that the court did not apply a gender perspective, by disregarding the mother’s obligations as a mother and caregiver to her son.

The Constitutional Court declared that the Superior Court of Bogotá committed a substantive error because it failed to consider the best interests of the child, did not apply a gender perspective to resolve the situation in order to guarantee the pro infans principle, validated and justified the gender-based violence perpetrated against the mother, and failed to recognize the particular importance of the judicial function to eradicate violence against women.

In its conclusion, the Court emphasized the existence of a clear and settled constitutional precedent that develops the overarching principles of the best interests of the child and the protection of women against gender-based violence. From this perspective, decisions made with a gender perspective are not discretionary for judges in Colombia, but rather constitute mandatory constitutional obligations in judicial proceedings, including in cases brought under the Hague Convention.

The decision of the Constitutional Court is in plain derogation of the Hague Convention. The central tenet of the Hague Convention has always been that, while any custody determination must be based on an analysis of the child’s best interests, that issue should be decided by the courts of the country in the habitual residence from which the child was taken (or, in the United States, by the courts of the child’s “home state”) and not by the courts of the country to which a child was wrongfully removed or in which the child was wrongfully retained.

The purposes of the Convention are well known. The best way to deter international child abduction is to ensure that international child abduction is not rewarded. In particular, forum shopping in such cases should be discouraged. The best solution is to return abducted children promptly to the country of their habitual residence, whose courts are the most appropriate to determine the best interests of children.

Undoubtedly, the Hague Convention adopted a “greater good” premise, meaning that it is intended to discourage international child abduction in general even if in any specific case it might perhaps be best for that particular child not to be returned. However, the drafters of the Convention recognized that a balance must be struck between the interest of children in general not to be wrongfully taken from their habitual residence and the need to protect individual children in specific, extreme and unusual cases. For this reason, while the Convention contains certain exceptions to the rule requiring a child’s prompt return to the habitual residence, they are carefully delineated, they are to be narrowly interpreted and even if they are established the courts nonetheless retain discretion to order the child’s return.

States adopted the Convention because they agreed with this philosophy and they expected that their treaty partners would adhere to it. When the United States was considering whether to adopt the Hague Convention, the U.S. State Department explained to Congress that, “The Convention is premised upon the notion that the child should be promptly restored to his or her country of habitual residence so that a court there can examine the merits of the custody dispute and award custody in the child’s best interests.” It specifically explained that the grave risk exception “was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests.” Courts around the world have consistently applied the Hague Convention in accordance with these fundamental precepts.

Unfortunately, the Constitutional Court of Colombia has ruled that the courts in Colombia are constitutionally mandated to subordinate the provisions of the Hague Convention to the provisions of the Colombian Constitution. To make matters even worse, they are now apparently required to apply principles that expressly discriminate in favor of mothers and against fathers.

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Jeremy D. Morley is a New York attorney who has long concentrated on international family law. His website, www.international-divorce.com, contains a wealth of information concerning international family law. He works collegially with family lawyers throughout the United States and around the world. He may be reached at jmorley@international-divorce.com.