The Hague Abduction Convention requires courts to return abducted children expeditiously so that the courts in the country of habitual residence can promptly determine what is best for them, unless the respondent meets the burden of proving one of the Convention’s six narrow exceptions.

There has often been strong pushback against that principle, sometimes expressed in the form of applying human rights principles such as respect for family life to override the Convention’s mandate.

The issue came to the fore in in 2010, when the European Court of Human Rights ruled in Neulinger & Shuruk v. Switzerland, 41615/07 [2010] ECHR 1053 that basic norms of human rights, as expressed in the European Convention on Human Rights, required (a) that courts in every case under the Hague Convention must consider the best interests of both the child and the child’s family and (b) must not return a child returned to its habitual residence, even if that is required by the Convention, if it is not in its best interests to do so.

That case elicited a storm of adverse criticism. My own article on that topic at the time, entitled The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case, is now available here on my website.

In 2013, the Grand Camber of the European Court changed course in X v Latvia [GC], 26.11.2013, Application no. 27853/09. It ruled, contrary to Neulinger, that a European court’s obligation to protect a child’s best interests would be satisfied in a Hague Convention case, as distinct from a custody case, by  (a)  examining the allegations of a serious risk to the child in the event of return, and demonstrating such examination through a reasoned decision on this point, and (b) by satisfying themselves that, in the event of a known risk, adequate safeguards were provided in the state of the child’s habitual residence, particularly through tangible protection measures. 

However, the issue is far from being finalized. For example, the Constitutional Court in Colombia recently ruled that provisions in the Colombian Constitution concerning respect for the family and implied mandates concerning non-discrimination against woman, override the requirements of the Hague Convention. My article on this is available here.

Also of concern is a recent decision of the European Court in M.P. and Others v. Greece (application no. 2068/24), decided on 9 September 2025. In that case, the Court held that the Greek courts had violated Article 8 of the European Human Rights Convention, which guarantees the right to respect for family life, by ordering the return of young children to their habitual residence in the United States without eliciting the views of the children, aged 4 and 6,  even though the respondent mother had made no request that they should be heard. 

The Court insisted, on its own initiative, that the European Convention requires national authorities in any Hague abduction case, to assess whether it is appropriate to hear from the children who are the subject of such cases, either directly or in a manner appropriate to their age, and, if the national authorities decide not to do so, they must give reasons for that decision. In the pending case, since the Greek authorities had not done so they had failed to adequately assess whether there was a “grave risk” to the children, as required by Article 13(b) of the Hague Convention, and their return to the United States was in violation of Article 8 of the ECHR.

A subsequent ruling of the European Court in M.A. v. France, 19.03.2026 (Application no. 34324/24) raises some further concerns. A court in France had ordered that a 12-year-old child should be returned to her habitual residence in Tunisia and the Versailles Court of Appeal had upheld that order. The child had stated that she did not wish to return, describing adverse behavior by her father, exposure to pornographic content, verbal abuse, intrusive conduct, and bullying at school. The public prosecutor recommended against the return. Nevertheless, the French courts found that a grave risk had not been established and although the child had reached an age and maturity at which it was appropriate to take her views seriously into account, the courts had dismissed her views solely on the basis of a “conflict of loyalty” (conflit de loyauté), without explaining why her emotional situation prevented her from expressing an informed opinion.

The European Court ruled that the French courts had violated Article 8 of the European Convention by applying a decision-making process that did not sufficiently take into account the best interests of the child, her right to be heard and to participate in the decision-making, and the obligation of the domestic authorities to take her views into consideration. The judgment confirms that the European Convention requires courts in Europe  to address every “arguable claim of grave risk” with specific and detailed reasoning in relation to the exceptions under the Hague Convention. And a conflict of loyalty (conflit de loyauté) that occurs when a child feels forced to take sides between the parents, fearing that loving or being faithful to one means betraying the other, is an insufficient basis for setting aside the child’s views. Instead, the French courts should have explained why the child’s emotional situation prevented the expression of an informed opinion, rather than relying on a merely generic reference to the conflict.

One judge in the French case, Judge Elósegui, issued a thoughtful and helpful concurring opinion to emphasize that the judgment is strictly grounded in the Court’s established case-law and does not introduce any doctrinal novelty regarding the Hague Convention in light of Article 8. She explained that the case differed markedly from M.P. and Others v. Greece (2025), in which — in her view — no procedural deficiency should have been inferred from the failure to hear children aged 4 and 6 in the absence of an express request by the mother.

Conclusion

The central tenet of the Hague Convention is that, although 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 and not by the courts of the country to which a child was wrongfully removed or in which the child was wrongfully retained.

The drafters of the Convention acted on the fundamental premise that 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. They determined that the best solution is to return abducted children expeditiously to their country of habitual residence, whose courts are the most appropriate to determine the best interests of children.

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 (Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. 19494 (1984)) 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.”

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 interests of children in general in not being 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, the exceptions are carefully delineated, they are to be narrowly interpreted and even if they are established the courts nonetheless retain a discretion to order the child’s return.

Courts in the United States have adhered to this philosophy consistently. They have upheld the fundamental principle that the Convention is clear that a court considering a Hague petition should not consider matters relevant to the merits of the underlying custody dispute, such as the best interests of the child, as these considerations are reserved for the courts that have child custody jurisdiction. For example, the Seventh Circuit has explained that, “The Convention seeks to promote the best interests of the child by entrusting custody proceedings to the country where the child is at home.” Baz v. Patterson, 100 F.4th 854, 871 (7th Cir. 2024).

The drafters of the Hague Convention recognized that the Convention would become a dead letter if the defense of grave risk of harm were to lead to a full analysis in the courts in the country to which a child was abducted of the best interests of the child, instead of leaving that issue to the courts in the child’s habitual residence. 

The ongoing efforts to broaden the defense by subordinating the Convention to generalized and ambiguous human rights norms may serve children poorly, since international child abduction is child abuse and should be deterred, not encouraged.