THE RELEVANCE OF RELIGIOUS LAW AND CULTURAL CONSIDERATIONS IN INTERNATIONAL CHILD ABDUCTION DISPUTES

Abstract

Two main categories of cases in which religious law and cultural considerations might be relevant in international child abduction disputes can be identified. The first category involves situations where the law in the country of origin in relation to custody of children is based on religious law or cultural norms and conceptions which are not consistent with basic human rights or with the principle of the welfare of the child as understood in the country of refuge ("the religious law and cultural norms cases"). The second category of cases involves situations where the parents belong to different religious or cultural communities, and the abducting parent claims that a return to the lifestyle of the left-behind parent will cause harm to the child or in some other way violate his own or the child's rights ("the Mixed Marriage Cases"). There are clear differences between the considerations relevant in the two types of case identified above and in their implications thereof. The first category involves macro issues such as comity between states, and the wider implications of a policy of returning or not returning children to a particular country. In contrast, the second category focuses more on delineating the scope of the exceptions to the presumption of immediate return (in Hague Convention cases) and on balancing the harm caused by a return against that caused by non-return (in non-Convention cases). However, there are wider concerns that are common to both categories of cases. In particular, the tension between a euro-centric approach to human rights norms, and the need to take into account cultural perspectives and contexts in determining the scope of such norms, arises in both categories of cases. Accordingly, after a brief description of the normative legal framework applicable in abduction cases in the next section, a theoretical framework for this inquiry is provided, in which the relevant human rights norms and the different approaches to the relationship between culture and human rights in the context of child welfare are considered briefly. The two categories of cases will then be analyzed separately.