1. Objectifs

Intentions :
« The present study looks [...] at transfrontier access cases. However, due to the close connection between access and custody, transfrontier access and child abduction, the latter issue has to be addressed as well. [...] This study examines the protection of access rights under the existing international legal frameworks and future instruments that are established but not yet in force. Only after assessing the present state of the law, the question concerning the need for an additional protocol can be answered. » (pp. 3-4)

2. Méthode

Échantillon/Matériau :
Conventions de droit international

Type de traitement des données :
Analyse de contenu

3. Résumé

« Internal globalization has become a common phenomenon which, among other things, has increased the number of mixed-national couples due to the greater mobility of people and the globalization of trade and commerce. Unanticipated difficulties can follow from the breakdown of such relationships for both children and parents if the custodial parent leaves the family’s former habitual residence with the child. This is especially true for the left-behind parent. The international element in transfrontier access cases adds practical and legal problems to an already tense situation following divorce. If two or more states are involved in the same case, questions of procedural as well as of a substantive nature arise, namely the determination of the appropriate forum, recognition and enforcement of foreign orders or their modification according to the new circumstances. As well, the understanding of relevant notions in family law, most importantly ’the best interest of the child’, are neither uniformly recognized as key criterion to decide such disputes nor do they enjoy consistent interpretation. Despite the same patterns insofar as the facts are concerned, the outcome of a case might vary enormously from one jurisdiction to another. The starting point for this study was the discussion among experts as to whether an additional protocol to the 1980 Child Abduction Convention might resolve the inherent weak protection of access rights. To answer this question concerning the necessity of such an Additional Protocol, this thesis provides an overview of the relevant existing and future international legal frameworks that address child protection and parental responsibilities and shows the evolution in child law from a formerly neglected issue to a high-profile topic. The author concludes that an additional protocol despite the existing instruments, will not necessarily lead to more clarity for the protection of access rights or add significant value to the present situation. The multiplicity of instruments already makes for confusion on the correct application of the respective instruments resulting in long procedures and litigation. Apart from legal mechanisms, the issue should be backed-up by ’informal measures’ such as mediation. » (p. i)