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Determination of a child’s habitual residence in international child abduction cases: charting the way towards harmonization

Hamid, Abdul Ghafur@Khin Maung Sein and Seine, Khin Maung (2020) Determination of a child’s habitual residence in international child abduction cases: charting the way towards harmonization. IIUM Law Journal, 28 (2). pp. 481-501. ISSN 0128-2530 E-ISSN 2289-7852

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The 1980 Child Abduction Convention is aimed at addressing the increasingly disturbing problem of trans-border parental child abduction, its key mechanism being to promptly return an abducted child to his or her country of ‘habitual residence.’ In essence, habitual residence is established as the chosen personal connecting factor in international child abduction cases. However, in view of the failure of the Convention to define the term, it has become the responsibility of the courts around the world to improvise their own standards for the determination. The objectives of the present paper, therefore, are to assess the deplorable situation of fragmented approaches and standards used by the courts in determining habitual residence of a child and to explore the recent developments in judicial pronouncements in order to be able to demonstrate the changing trend in the jurisprudence of the courts. To achieve these, the paper looks into and appraises the decisions of the courts of the United States of America, Canada, the European Union, the United Kingdom and other common law countries. The paper concludes that the changing trend is clearly discernible and a number of courts of States parties are increasingly applying a hybrid or combined approach rather than various subjective and one-sided approaches and thus moving towards the achievement of harmonization in the determination of a child’s habitual residence, the underlying principle of the Convention.

Item Type: Article (Journal)
Additional Information: 3163/87258
Uncontrolled Keywords: Parental child abduction, Hague Abduction Convention, habitual residence, harmonization
Subjects: K Law > K Law (General)
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button): Ahmad Ibrahim Kulliyyah of Laws
Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User: Prof. Dr. Abdul Ghafur Hamid
Date Deposited: 30 Dec 2020 10:10
Last Modified: 11 Feb 2021 14:44
URI: http://irep.iium.edu.my/id/eprint/87258

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