Court/Judicial body: Supreme Court of Argentina
Date: May 19, 2010 CRC
Provisions: Article 18: Parental responsibilities
Domestic provisions: Law 23,857 (legislation implementing the 1980 Hague Convention)
Background: A father residing in Spain initiated a legal proceeding to seek a court order for the return of his children pursuant to the 1980 Hague Convention (Convention on the Civil Aspects of International Child Abduction). The Supreme Court of Buenos Aires Province denied the petition and the father appealed to the Argentine Supreme Court.
Issue and resolution: International child custody; best interests of the child. The children should be returned to live with their father in Spain in line with the Hague Convention and their best interests.
Court reasoning: The Hague Convention complements the Convention on the Rights of the Child in promoting children’s best interests. Because parents have the primary responsibility for the upbringing of their children and the right to be reunited with their children as provided by the Hague Convention is a right that furthers the best interests of the child, the father’s two minor children should be returned to Spain. However, both the father and the family court should strive to accomplish the relocation of the children in a manner that avoids conflict and always seeks to further the best interest of the children.
Excerpt citing CRC and other relevant human rights instruments as translated by CRIN: “The Convention on the Rights of the Child establishes that parents have the primary responsibility for their children’s upbringing ( Article 18, paragraph 1). It is evident that the international rights provided for under the Convention on the Civil Aspects of International Child Abduction harmonise and complement the Convention on the Rights of the Child.”
CRIN comments: CRIN believes this decision is consistent with the CRC in that, as recognised by the court, the Hague Convention on Civil Aspects of International Child Abduction was drafted with the best interests of the child in mind and to help parents meet their responsibilities to bring up their children. Much like the CRC itself, the Hague Convention must be accepted as a binding obligation on ratifying countries, and should be directly enforceable in the courts as here. As further noted by the court, any court decision involving children should be executed in a child-sensitive manner to avoid unnecessarily traumatising the children involved.
Citation: B. 389. XLV.
Link to full judgement: http://www.csjn.gov.ar/cfal/fallos/cfal3/ver_fallos.jsp