International child abduction parental child abduction to non-Hague countries: where the law is incomplete

Moerat, Nadia

International child abduction parental child abduction to non-Hague countries: where the law is incomplete

Thesis / Dissertation

2024

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

At the forefront of human rights atrocities in recent years is the subject of the abduction of women and children, most commonly and distressingly encountered in cases of human trafficking and in more recent years increasingly found in the abduction of youngsters in war-time conflict. A surprising number of abductions are however perpetrated by parents or family members, an area seemingly sufficiently governed by the United Nations Convention on the Civil Aspects of International Child Abduction wherein the Convention offers a quick result in the immediate return of a child to the country of habitual residence. However, little to no similar efficient legal remedy is currently available to parents or legal guardians in the instance where their child is taken to a non-Hague country. This paper endeavours to analyse and compare the legal mechanisms employed in South Africa to retrieve children abducted to non-Hague countries by relating South African laws and legal process to legal practices applied in other States in similar situations and further assessing what, if any, effective enforcement mechanisms can be found in international and regional legal instruments. In particular custody laws of Islamic States are considered in relation to western concepts of custody and rights. In doing so, the comparative analysis seeks to examine which areas within the national and global legal system may require further attention and possible improvement whilst acknowledging the significance and role of the child’s best interest and the duty of care owed by the State to protect those interests.

Keywords

public law

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