| The estimating of exceptions of return of the child in child abduction cases among EU Member States,is mainly based on articles 12 and 13 of the Hague Convention,Article 11 of the Brussels II bis,and conventions about human rights.The Brussels II bis refines the rules concerning the return of the child in the Hague Convention.Paragraphs 2 to 5 of Article 11 are supplements to Articles 12 and 13 of the Hague Convention.The Brussels II bis tightens the criteria for the exceptions of the child’s return.Specifically,on the one hand,when refusing to return a child according to Article 13(1)(b)of the Hague Convention,the Brussels II bis adds that no arrangement has be made to secure the protection of the child after his or her return.On the other hand,the Brussels II bis requires that the child and others should be given the opportunity to be heard.However,in judicial practice,there are some conflicts and disputes in these rules of the return of the child.The first problem of rules concerning exceptions of return of the child among EU Member States is how to evaluate the best interests of the child.To estimating the best interests of the child,the first step is to define the standard of reviewing the interests of the child.The mutual trust standard does not ensure the effective protection of the best interests of the child because of too strict adherence to the principle of the mutual trust.The comprehensive standard brings heavy and unnecessary burden to the court,which is contrary to the value of returning the child quickly.The standard of effective asks for reviewing the situation of the child effectively and it fits in the requirement of interpreting the exceptions limitedly.When determining the best interests of the child,the conflicts between parents’ rights and the best interests of the child should be balanced.The theory of right rank can not solve these conflicts,and the way of balance seems to be an effective way for the EU to solve these conflicts under the European Court of Human Rights(ECHR).In addition,when estimating the best interests of the child,a reasonable time needs to be obeyed.On the one hand,time delay will change the current interests of the child,so that return is not the best interests of him or her.On the other hand,time delay will damage rights of the parties.Although the Brussels II bis refines the rules of exceptions of the child’s return,and it strengthens judicial and administrative cooperation among EU Member States,there are still many uncertainties.Another major issue in the exceptions of the child’s return in the EU is the procedure of hearing the child.The Brussels II bis does not unify the way of children’s hearing.And the procedure may affect the efficiency of the child’s return.Therefore,the conditions and ways are different when the procedure is applied in different countries.So it is difficult to prove whether they protects the child’s right to be heard.There are disputes among countries.In addition,the Article 42 provides an automatic implementation system.On the one hand,it is likely to lead to the lack of human rights even if the Member States comply with the procedural rules of the Brussels II bis.On the other hand,the procedure of hearing the child is regarded as a rule adjusted independently by domestic laws,resulting in legal conflicts,which makes it difficult to prove whether the opportunity of hearing the child is effectively guaranteed.It even becomes the reason for refusing to return the child in some cases.There are disputes among countries.The European Union’s solution to the problems caused by rules of refusing the return of the child can be divided into two ways: on the one hand,the ECHR coordinates the principle of mutual trust and weighs the relevant rights.On the other hand,the Brussel II bis Recast helps to clarify the children’s hearing and improve the efficiency of the procedure about return the child. |
