ПРЕКОГРАНИЧНО ОДВОЂЕЊЕ ДЕЦЕ У СЛУЧАЈУ ПОРОДИЧНОГ НАСИЉА
The international child abduction in cases of domestic violence

Summary/Abstract: Separated or divorced parents in some extreme situations, resort to the child abduction which violates the rights of the custodial or visitation parent, not to mention the child’s right to maintain contacts with both parents. According to some research, it has been concluded that most of the cases of unlawful child taking, that is abduction, occurs in the context of family violence. Thus, the international child abduction can be viewed at the same time as a response to the partner’s violence and the partner’s violence itself. In this work the authors analyze the issue of family violence in the context of the Convention on the Civil Aspects of International Child Abduction (The Hague Convention). The adopted principles of territorial jurisdiction, that is the obligation to return the child to the place of residence, should discourage all those who consider taking the child abroad without the consent of the other parent. Special attention is given to the exception stated in Art. 13 (1) b of this Convention: “ there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. The relevant court will refuse to order the child’s return if the parent can prove that such circumstances exist. This poses a difficult task before court since it is usually located far away from the place where the act of violence in the family allegedly occurred, as well as to establish whether it actually was the act of family violence, and not just the parent’s claim used as an excuse to abduct the child. Also, the court procedure should respect all other rights guaranteed to the child by the Convention of the Rights of the Child, before all the child’s right to express his opinion in order to determine the best interest of the child. Also, special difficulty lies in the fact that this exception should be interpreted in a very narrow context in order not to jeopardize the principles of the Hague Convention , while the concept of family violence is very broadly defined in the Republic of Serbia legislation. This underlines the need that the content of the provision from Art. 13 (1) b should not be identified with the term family violence.

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