A mother, whose autistic son was ordered returned from Chile to Spain under the Hague Abduction Convention, submitted a “communication” to the UN Committee on the Rights of the Child in 2020, invoking the child’s rights under articles 3, 9, 11 and 23 of the UN Convention on the Rights of the Child, arguing that the child’s return violated those rights. The Committee requested interim measures while it took up the mother’s request, ultimately asking that the child be returned “in such a way as to avoid causing him irreparable harm, to ensure the continuity of his treatment and to allow his mother to accompany him.” The mother requested that the Committee adopt additional interim measures, to permit the child to remain in her custody when returned to Spain, which the committee rejected. Therefore, “the [mother] was in hiding in [Chile] after having not complied with the [Chilean” order to return [the child] to Spain.”

For the reader, the articles invoked by the child’s mother are: article 3 – making the child’s best interests the primary consideration of any proceeding; article 9 – making sure the child is not separated from his parents against his will, unless it is in his best interests; article 11 – states should take measures to combat the illicit transfer of children abroad; and, article 23 – disabled children have the right to a full life and have a right to special care

In summary, the mother argued that, in each proceeding, the body should assess the child’s interests, “in light of the specific circumstances of each child, especially the different kinds and degrees of vulnerability of each child.” She further argues that if the solution chosen is not in the child’s best interests, then the body must set out grounds for why the decision was made and how the child’s best interests were a primary consideration, despite the result. In this case, the mother argued that her son is autistic, and his best interests were not considered (art. 3), that separating the child from his mother would have irreversible effects on his mental health because of his autism (art. 9), that he would suffer harm if transferred to Spain to his father who has had limited involvement in his life (art. 11), and his bond with his mother is necessary to his physical and emotional integrity (art. 23). She asks the committee to set aside the Supreme Court of Chile’s order to return the child to Spain. Chile argues that the committee has no jurisdiction to act as a super-appellate court to its Supreme Court, and grant the relief requested by the mother. Furthermore, the mother consistently argued that she would be separated from the child if the child is returned to Spain, however, the Hague Abduction Convention does not resolve custody – that is left to the court with jurisdiction over the child’s custody (presumably here, Spain). It argued that the entire proceedings were designed to protect the child’s best interests, including by having trained professionals participate extensively in the proceedings at the invitation of both parents and the court, by making expedited decisions, and providing mechanisms for appeal.

The committee stated that it has the authority to examine whether the UNCRC is implicated. Acknowledging that the Hague Abduction Convention’s objectives of prevention and immediate return seek to protect the best interests of the child, the committee also noted that the exceptions to return would clearly invoke “the best interests of the child.” Simply because a domestic court makes a decision based solely on the Hague Abduction Convention does not mean it has complied with the UNCRC’s art. 3 best interest requirement. If an exception to return is invoked, then a state party to the UNCRC must ensure that the procedural safeguards and interpretive standards of art. 3 of the UNCRC are complied with. The exceptions “must be evaluated in the light of the best interests of the child.” Because of the need for expeditious proceedings, the domestic court judge “cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody… especially when the former does not have access to the same evidence and information as the judge of the country [with custody jurisdiction].”

As an aside, the trial court and intermediate appellate court rejected the father’s request to have the child returned to Spain. The Chilean Supreme Court reversed. When the Supreme Court reversed, the committee noted that the Supreme Court did not provide “sufficient reasoning” in its decision to allow the committee to assess whether the Supreme Court effectively assessed the risk argued by the mother that was created by the child’s autism. Further, the order returning the child did not specify any conditions to provide for a safe return for the child. The committee therefore asks that Chile undertake a new assessment and account for the time that has elapsed and the extent of the child’s integration into Chile. It must consider, as a primary factor, the child’s best interests. The committee has asked Chile to provide, within 180 days, information about the steps it has taken to give effect to the committee’s views.

Thank you to Ron Kauffman for locating the opinion in English so it could be included in this blog.