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n Stellenbosch Law Review = Stellenbosch Regstydskrif - The interpretation and application of article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction
This article examines how courts in the UK, the USA and South Africa apply and interpret article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction.
Courts in the UK have always adopted a very narrow interpretation and application of this defence. Even domestic violence victims who flee with their children to escape domestic violence have had difficulty invoking this defence successfully. This very narrow interpretation is due to the fact that English courts are primarily concerned with protecting and adhering to the principles of the Convention and they usually only consider the best interests of children in general. Additionally, English courts assume that imposing undertakings will sufficiently protect children from exposure to grave risk of harm. In the USA courts have moved away from the very strict application of this defence and have very fittingly applied and interpreted this defence much more widely, because courts consider the safety of the individual child to be paramount. This new direction seems to be in accordance with the modern challenges of increased domestic abuse that are faced worldwide. It seems that South African courts are similarly following a wider approach to the defence due to the fact that the best interests of a child will be of paramount importance. This approach is firmly entrenched in the South African Constitution, the Children's Act as well as the Convention.
It is submitted that courts hearing a matter under the Convention should give consideration to the circumstances of each case concerning each individual child and a mechanical approach towards parental child abduction matters should be avoided, especially in instances where domestic violence is raised as the basis of the article 13(b) defence. Additionally, in certain circumstances undertakings will not sufficiently protect victims of domestic violence against harm and article 13(b) as defence should succeed in those instances.
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