Constructing "the best interest of the child" legal standard: Hague Child Abduction Convention return proceedings and beyond
This article examines the social phenomenon of international parental child abduction, by assessing the outcomes produced by two legal processes that families may encounter after international parental child abduction has taken place. The first process is the prompt return of the child under the Hague Child Abduction Convention. An objective of this process is restoring the status quo, so that any decision regarding the child's best interests during the parenting dispute's resolution is informed by, cultural assumptions appropriately suited to the child. The second process is the resolution of the parenting dispute post-return in the child's habitual residence. The parenting dispute may go on to be resolved in accordance with the cultural framework of best interests in this jurisdiction. These two legal processes are procedurally distinct, yet examining the outcomes produced by them provides insight into whether or not the original rationales for the Convention, and domestic family laws operating post-return, are still ideal. Examining post-return outcomes produced by two legal processes, one of which is the operation of a private international law instrument that determines forum, requires the selection of a post-return jurisdiction to study. This article examines the resolution of the parenting dispute as the second legal process in the Australian context. Australia provides an interesting case study examining how a particular Contracting State informs "the best interest of the child" legal standard post-return. In Australia the cultural nuances are possibly more transparent when compared to some other Contracting States, because they are implemented by an official policy manifest in statutory form.
New Zealand Family Law Journal