Much attention gets directed to the various articles of the Hague Convention on International Child Abduction but in theory all of the articles of the Convention should be interpreted through the focus of the Preamble to the Convention. The Preamble states that “the interests of children are of paramount importance in matters relating to their custody.” This focus on the interests of the children would suggest that courts interpreting the various articles of the Convention should place concerns for the interests of the child above all other considerations.
However, in many cases the interests of the children do not seem to be held in “paramount importance” when considering a return order. Indeed, some cases involve children being returned to difficult or even dangerous situations with only very little, if any, consideration for the well being of the child.
This disregard for the Preamble is also shown in the way judges rarely will interview children who are at the center of the return proceedings. If the focus really is on the “interests of the children” then it only seems natural that more judges would take the time to interview them to determine their wishes.
Essentially, courts considering the Hague Convention on International Child Abduction almost always consider a quick return of the child as in the best interest of the child. Therefore it can be very hard to make an argument that the child’s interests would be better served by having the child remain with the abducting parent in the new country. Absent very clear cases of abuse or other serious problem, judges will be unwilling to rule that a return is not in the child’s best interests.