Introduction

The Kingdom of Spain (as of 1987) and Chile (as of 1984) are both signatories of the Hague Convention 1980 of the Civil Aspect of International Child Abduction (HC 1980). In this case, the Applicant’s father sought the summary return of the child of the parties (“J.M.”) to the jurisdiction of Spain under the HC 1980 from the Courts in Chile. J.M. is a dual national of Chile and Spain. The application was dismissed in first instance but was upheld by the Appeal Court. A return order of J.M. was made by the Supreme Court in Chile.

The Appellant’s mother sought justice from the United Nations Committee on the Rights of the Child (CRC Committee). In her view, the decision from the Supreme Court of Chile was in breach of articles 3,9, 11 and 23 of the HC 1980, articles 3, 9, 11 and 23 of the United Nations Convention on the Rights of the Child (CRC) and in breach of articles 6, 7 (c) and (f) of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC) which had entered into force in Chile.

This case note will provide a comment in respect of the Views adopted by the CRC Committee and will outline the balance that has to be struck between the aims of the HC 1980 and the challenges that domestic courts can face when applying HC 1980 cases.

Summary of the application

On 26 July 2018, the father filed his application seeking the immediate return of the child to Spain under the HC 1980. He sought the return of J.M. to Avila, Spain, to live with his paternal grandparents. On 10 January 2019, the Court in Vina del Mar, Chile, dismissed the father’s application stating that the mother had the father’s consent for J.M. to remain in Chile, especially because it was J.M.’s place of residence since birth.

The Court was satisfied that the conditions contained within article 13(a) of the HC 1980 were fulfilled (i.e. the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention).

On 5 March 2019, the Court of Appeal of Valparaiso upheld the Court’s ruling; the father subsequently filed a remedy of complaint. On 26 March 2019, the Court of Appeal submitted a report to the Supreme Court of Chile, pointing out key elements:

• there was no proof that J.M. had continuously resided in Spain, thereby his place of residence should be considered to be his country of origin;
• J.M. had travelled to Chile with his father’s authorization, and once that had lapsed, consent remained;
• J.M. had fully integrated into his new life, and moving to Spain would severely affect him;
• article 3 of HC 1980 (retention or removal is wrongful) was not committed whilst article 13(a) applied (there is a grave risk that the return would expose J.M to physical or psychological harm or otherwise place him in an intolerable situation)
• the court had to anticipate the effects of J.M.’s return and account for his interests.

On 3 September 2019, the Supreme Court of Chile upheld the father’s request, reversing the rulings at first instance, in the Court of Appeal, and ordering J.M.’s immediate return to Spain. It is very important to highlight that the Supreme Court did not make protective measures to secure a safe return and this is what J.M.’s mother alleges. She did not comply with the return order and consequently was declared in contempt of court.

Proceedings before the CRC Committee

The matter then reached the CRC Committee for consideration. As part of this case, the complainant argued that the State Party Chile violated the child’s rights under articles 3, 9, 11 and 23 of the CRC. Taking each in turn, the argument in respect of article 3 was that the concept of the best interests of the child is a substantive right, an interpretative legal principle and a rule of procedure. It was submitted that the assessment of such interests should be undertaken in each individual case and in light of the specific circumstances of each child. It was argued that in this present case, the Supreme Court of Chile did not consider or give due weight to the circumstances of the child’s best interests given that it based its decision solely on the HC 1980, as stated in its ruling. In regard to article 9 of the CRC, the complainant argued that separating J.M. from her would have serious and potentially irreversible effects on his mental health as J.M was autistic. She argued that the separation of a child from his or her parents should be a last resort and that the Supreme Court of Chile did not take this into account.

In respect of article 11 of the CRC, it was submitted that the State Party should not remove a child to a country where there are reasonable grounds to believe that he or she would be at a real risk of irreparable harm. The complainant reiterated that the child is particularly vulnerable as he was autistic, that she is his primary caregiver, that his father has had limited involvement in his life and treatment, that child was born in the State Party and is receiving medical support there and that he was not subjected to wrongful removal or retention.

Lastly, the violation of article 23 of the CRC was argued on the basis that, the Supreme Court of Chile did not adequately consider the condition of the child who was diagnosed with autism at a very young age and is receiving medical support in Chile. She adds that his transfer to Spain would lead, in practice, to his separation from his mother, who is his primary caregiver and the person with whom he feels safe and has created the strongest emotional bonds. She claims that this would seriously undermine his physical and emotional integrity, since J.M. has not developed the necessary bond of affection and trust with his father that would allow him, at his young age and in his condition, to be fully happy (The full arguments in respect of the relevant articles appears at para 3.1 – 3.5 of the Views).

In contrast to the above, the State Party argued that the author’s claims concerning the custody of the child are based on a false assumption regarding the content of the dispute that is the subject of the communication. It notes that the author repeatedly stated that she would be separated from J.M. if he were returned to Spain. On this particular issue in respect of separation, the State submitted that child custody is not determined based on the application of the HC 1980. The purpose of which HC 1980 is not to protect factual situations altered by the wrongful removal of a child or adolescent to another State or by their failure to return to their State of habitual residence. In essence, it was argued that any issue about what would happen in Spain, such as separation, was a matter for the Spanish Courts to consider rather than the Courts dealing with the HC 1980 application.

With regard to the child’s best interests, the State Party claimed that it is fully aware of and complies with its obligation under article 3 (1) of the CRC. It claimed that the domestic courts, including the Supreme Court of Chile, took the child’s best interests into account throughout the proceedings. In response to the submission that the Supreme Court of Chile did not consider the principle of the best interests of the child but rather based its decision solely on the HC 1980, the State Party explains that the application of the HC 1980 is directly intended to ensure compliance with the obligation under the CRC to take the best interests of the child into account.

Analysis of the Views adopted by the CRC Committee.

In order to analyse the decision of the CRC Committee, it is necessary to consider if there is any conflict between article 3 of the CRC and the HC 1980.

The Committee’s View on the purpose of the HC 1980

Turning to the arguments, it is important to note from the outset that central to the CRC Committee’s Views was the purpose of the HC 1980 and the approach national courts must adopt. For example, as set out in the Views at para 8.5: ‘… the Committee is of the view that, when deciding on international child abduction cases, national courts must, first, effectively assess the factors that may constitute an exception to the duty to immediately return the child (under articles 12, 13 and 20 of the Hague Convention on the Civil Aspects of International Child Abduction).’

Further, as acknowledged at para 8.4: '…the Committee recognises the complexity and diversity of circumstances that may arise in each specific case, and the objectives of the Hague Convention on the Civil Aspects of International Child Abduction – prevention and immediate return – seek to protect the best interests of the child'.

In light of the above and the CRC Committee’s comments at paras 8.5 and 8.6 of the Views it is right to point out that HC 1980 cases are complex in nature. This is because, whilst there are clear exceptions to the requirement of summary return of a child, there are limited defences available. In order to advance a defence, the Court where the child has been wrongfully removed to or retained will be dealing with fact-specific cases and will have to interpret the provisions of the HC 1980 in addition to their own national case law in a way which is consistent with the aims of the HC 1980. For example, in a high-profile case in England, Baroness Hale of Richmond observed (Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, para 48): "The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

The Committee’s view as expressed at para 8.6: ‘the Committee is aware that the objective of the Hague Convention on the Civil Aspects of International Child Abduction is the return of children to their countries of habitual residence so that custody and child protection issues can be resolved, if necessary, in that jurisdiction’. This means, that issues such as ‘custody’ and ‘child protection issues’ are not ones that are normally aired in HC 1980 proceedings. The CRC Committee thus work on the premise that these issues are dealt with by the country where the child is habitually resident in (if the court orders a return to that country).

We conclude therefore that the CRC Committee’s views on this issue are correct.

The best interests of the child in child abduction cases

The CRC Committee acknowledged that in line with the aims of the CRC: ‘it is therefore of the view that, in line with the principle of the best interests of the child, the exceptions to the duty to return the child established in the Hague Convention must be interpreted strictly’. It does have to be acknowledged that within the HC 1980, there is no provision expressly requiring the Court to make the best interests of the child its primary consideration: In contrast, the clear objects of the present HC 1980 are:

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Accordingly, when looking at the HC 1980 in isolation, it is apparent there the focus is on achieving a prompt return. In contrast to the aims of Article 1 of the HC 1980, the CRC Committee emphasises for the purposes of their focus, it is as outlined in Article 3.1 which provides that:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (emphasis added).

Turning to the Views of the CRC Committee, para 8.9 provided the Committee’s findings which focused primarily on the Article 13b considerations. This paragraph states:

‘The Committee finds, however, that the Supreme Court’s decision ordered the immediate return of J.M. to Spain without any indication of the conditions under which his return should take place (see para. 2.6 above). Furthermore, the Committee observes that the interlocutory hearing held on 6 November 2020 was limited to the enforcement of the return order and could not therefore remedy the Supreme Court’s failure to effectively assess the factors that may constitute an exception to the duty to immediately return the child. In this regard, the Committee considers that the court ordering the return of a child must be satisfied, at the time of issuing the return order, that all necessary steps will be taken for the safe return of the child’.

In order to analyse and comment on such thinking, the key consideration is that in respect of the defence contained in Article 13b and the concept of protective measures, the Committee makes reference to steps to be taken ‘for the safe return of the child’. It is worth noting, that in this present case, the Supreme Court found this defence to be unproven.

a. Article 13b exception

A useful starting point is the Guide to Good Practice under the HC 1980– Part IV. Article 13(b) provides the following guidance which is quoted with emphasis added where appropriate:

• Article 13(b) contains the following three different types of risk - the return would expose the child to;

- physical harm;

- psychological harm; or

- otherwise, place the child in an intolerable situation;

• each category of risk can be raised independently.
• harm to a parent, whether physical or psychological, could, in some exceptional circumstances, create a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(b) exception does not require, for example, that the child be the direct or primary victim of physical harm if there is sufficient evidence that, because of a risk of harm directed to a taking parent, there is a grave risk to the child;
• the wording of Article 13(b) also indicates that the exception is “forward-looking” in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk.
• the analysis should not be confined to an analysis of the circumstances that existed prior to or at the time of the wrongful removal or retention. It instead requires a look to the future, i.e., at the circumstances as they would be if the child were to be returned forthwith. The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence;
• However, forward-looking does not mean that past behaviours and incidents cannot be relevant to the assessment of a grave risk upon the return of the child to the State of habitual residence. For example, past incidents of domestic or family violence may, depending on the particular circumstances, be probative on the issue of whether such a grave risk exists. That said, past behaviours and incidents are not per se determinative of the fact that effective protective measures are not available to protect the child from the grave risk;
• As a first step, the court should consider whether the assertions are of such a nature, and of sufficient detail and substance that they could constitute a grave risk. Broad or general assertions are very unlikely to be sufficient;
• if it proceeds to the second step, the court determines whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return/information gathered and by taking into account the evidence/information pertaining to protective measures available in the State of habitual residence. This means that even where the court determines that there is sufficient evidence or information demonstrating elements of potential harm or of an intolerable situation, it must nevertheless duly consider the circumstances as a whole, including whether adequate measures of protection are available or might need to be put in place to protect the child from the grave risk of such harm or an intolerable situation when evaluating whether the grave risk exception has been established.

As can be seen from the above, Article 13(b) is a comprehensive defence where the national courts have to take a step-by-step approach. In general terms, it is often argued¹ that the Art 13(b) exception is generally difficult to establish². Interestingly, there are different approaches adopted in different countries when it comes to establishing the defence. For example, in England and Wales, the person seeking to rely on Article 13(b) holds the burden to prove the defence on the ‘balance of probabilities’ and the court will weigh up the evidence to reach a decision. There has in contrast been authority in Australia in respect of the need for evidence to be ‘clear and compelling’³. Different countries may have different approaches in respect of how evidence is dealt with. The writers have from their own experience been made aware of cases in other countries where there is sometimes ‘oral evidence’ to assist the court in formulating a factual background for the purposes of Article 13(b), whereas in jurisdictions such as England and Wales it is very rare for there to be any oral evidence. How each domestic courts deal with evidential points is something that is for them to decide, the HC 1980 does not specifically set out or interfere with how domestic courts should regard evidence.

Since the implementation of the HC 1980, complexity has arisen in respect of Article 13(b) in particular. It was not the function of the Committee to consider the detail of this defence. The Committee acknowledged at paragraph 8.5 of their decision that it is for national courts to firstly and effectively assess factors which may constitute an exception (or a defence) to return a child. This can only be right, because, as the Committee acknowledged at para 8.5:

‘the Committee also notes that, given that the Hague Convention is designed to strike a fair balance between the standard establishing a presumption in favour of the international return of the child and the factors that may make such a return contrary to the child’s best interests in certain cases, it seems unlikely that adequate respect for the procedural safeguards mentioned above would result in a substantive violation of article 3 of the Convention’.

National courts have a particular advantage in embarking upon this factual enquiry. This is because they are hearing the evidence and legal submissions first-hand and will be applying their own principles developed through case law to any specific case.

We reiterate that the Supreme Court did not find this defence applicable in the mother’s case. The Committee, by requesting the need for protective measures, is contradicting the assessment made by the Supreme Court.

¹ Statistical analysis has been undertaken in respect of the 1980 Hague Convention, for example: N Lowe and V Stephens, ’A Statistical Analysis of Applications made in 2008 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’, Preliminary Document No 8A-C (Revised Version, November 2011) and N Lowe, E Atkinson and K Horosova, ’A Statistical Analysis of Applications made in 2003 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’, Prel Doc No 3 (Revised Version, 2007). For recent case law analysis, see ‘Article 13b – where are we now’ – by Mani Singh Basi Family Law Journal May [2002] Fam Law: https://www.familylaw.co.uk/news_and_comment/article-13-(b)-of-the-1980-hague-convention-where-are-we-now

² Lowe, N. V. (Nigel V.), and Michael Nicholls. International Movement of Children : Law, Practice and Procedure. Second edition. Bristol: LexisNexis, 2016 Available at https://lexisweb.co.uk/sources...

³ Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011, at pp 87, 227–8 and a point further observed in International Movement of Children: Law, Practice and Procedure.

b. Safe return

In this present case, the Committee commented at para 8.9: ‘in this regard, the Committee considers that the court ordering the return of a child must be satisfied, at the time of issuing the return order, that all necessary steps will be taken for the safe return of the child’. Accordingly, there is a focus on the future, for example – what will be the situation upon a return.

This is consistent with the guide to Article 13(b) set out above. When the Committee refers to ‘all necessary steps will be taken for the safe return of the child’ – the focus is on the steps taken in the country where the child is from. When considering whether such steps are sufficient for Article 13(b) purposes, consideration is placed on ‘protective measures’ and whether or not they are sufficient. In summary and in practice, in cases where the applicant is seeking a return to the home country, a list of undertakings / protective measures would normally be set out in a witness statement for the court to consider at a final hearing. The purpose of this is to provide a focus on the circumstances of the child upon a return order being made, and to ensure the circumstances are sufficiently clearly elaborated when the child is returned. Of course, as this present case demonstrates, – the necessity of protective measures and on what scale will differ on a case-by-case basis. Much will depend on the particular facts which are relied upon for the purposes of proving Article 13(b). We know in this present case, the Committee was concerned with the impact upon separating the child from the mother in line with the child’s particular vulnerabilities.

However, it is our view that the Committee cannot assess the defences found by the State party otherwise they would be considered erroneously as a further appealable Court.

c. Sufficiency of protective measures

The ultimate question that the domestic Court must address in article 13b cases is how adequate protective measures are. This is something the CRC Committee was concerned with.

For example, at both paras 2.6 and 8.9 of the View, the CRC Committee raised the concern that ‘the Supreme Court’s decision ordered the immediate return of J.M. to Spain without any indication of the conditions under which his return should take place without any indication of the conditions under which his return should take place’. Signatories of the HC 1980 often term this as ‘undertakings’ or ‘protective measures’.

Around the world, it has been commented on. For example in the Australian case, De L v Director General, NSW Department of Community Services (1996) 139 ALR 417; (1996) 20 Fam LR 390 that the undertakings must be ‘within the spirit of the convention.’ Further in the Canadian Supreme Court case, Thompson v Thompson (1994) 6 RFL (4th) 290, at 318, Sup Ct of Canada, it was held that the use of undertakings facilitates the objectives of Article 12 to return a child forthwith. In terms of undertakings being ‘adequate’ the court who is deciding the HC 1980 case will be looking at the state to which the child will be returned, see Anderson v. Central Authority for New Zealand [1996] 2 NZFLR 517 . There are sometimes arguments advanced about undertakings being inadequate and at times, there may need to be expert evidence in this respect. However, a decision in Ireland (P v B [1995] ILRM 201) relating to Scotland, ‘consider[ed] that the Scottish courts, both in implementing the Hague Convention and in exercise of the comity of nations, would take the same view of undertakings as do other Convention countries’.

As indicated earlier, in the present case, the CRC Committee had regard to the particular vulnerabilities of the child and the effect of his return on the basis of two matters: 1) the child’s autism, 2) the separation from his mother (para 8.7 and 8.8 of the Views).

In our view, a child’s vulnerabilities will be taken into account but it will also have to be evidenced. However, it would not necessarily be true that separation ‘should be a last resort’ and this is something the CRC Committee acknowledges at para 8.8, relying upon : European Court of Human Rights, K.J. v. Poland para. 67 and G.S. v. Georgia. In practice, if a return is ordered, then there may be no option when weighing up the considerations that the child may still be returned. The focus will be on the protective measures offered in light of the child’s particular vulnerabilities that are evidenced in the proceedings.

Upon considering the approach to the issue of protective measures in article 13(b) cases, it is of interest to refer to the most recent HC 1980 case that reached the Supreme Court in the United States of America, Golan v. Saada (June 2022) on the issue of ameliorative measures. In this case, the Court of First Instance ordered the return of a child to Italy, despite a finding having been made that returning the child would expose the child to a grave risk of harm. The decision was based on the obligation on the Court before refusing the return to “examine the full range of options that might make possible the safe return of a child to the home country.”

The Supreme Court of the United States of America issued their unanimous opinion in this case. The Court held that “The Second Circuit’s categorical requirement to consider all ameliorative measures is inconsistent with the text and other express requirements of the Hague Convention”. The Court said “The question whether there is a grave risk… is separate from the question whether there are ameliorative measures that could mitigate that risk. That said, the question whether ameliorative measures would be appropriate or effective will often overlap considerably with the enquiry into whether a grave risk exists”.

The conclusion from the Supreme Court of the United States was that the consideration of ameliorative protective measures should be left to the discretion of the Court; however on the contrary it is against the text of the HC 1980. The Court issued guidance for courts in the exercise of their discretion when considering protective or ameliorative measures:

“While a district Court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case, such as in the example of the localised epidemic”.

“First, any consideration of ameliorative measures must prioritise the child’s physical and psychological safety. The Convention explicitly recognises that the child’s interest in avoiding physical or psychological harm, in addition to other interest.”

“Second, consideration of ameliorative measures should abide by the Convention’s requirements that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute.”

“Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act “expeditiously in proceedings for the return of children””.

The CRC Committee comments at various times in their decision about the aims of the 1980 HC, but when considering defences such as article 13(b), where there is a risk of harm, undertakings can ‘negate’ such exposure. Consequently, the CRC Committee comments ‘that the court ordering the return of a child must be satisfied, at the time of issuing the return order, that all necessary steps will be taken for the safe return of the child’ (para 8.9 of the View).

It is the authors view that what is meant by ‘all necessary steps’ can be interpreted widely as each case is fact specific and each signatory to HC 1980 will have to approach matters differently in each given case. Notwithstanding this, the CRC Committee is looking at this case through the best interests of the child and they were concerned with the particular vulnerabilities of this particular child (as set out in paragraph 8.8 of the Views) and as a consequence, the decision to return the child to Spain ‘did not meet the condition entailed by his right to have his best interests be a primary consideration, in violation of article 3 (1) of the Convention’.

Conclusion

1. There is no dispute that the CRC Committee’s decision is a landmark decision in that they have considered the HC 1980 from the viewpoint of the CRC.
2. Undertaking an evaluation of the CRC Committee’s decision must be based on the caveat that they themselves emphasised at paragraph 7.4 of their report that: ‘it is not the Committee’s role to decide whether the Hague Convention on the Civil Aspects of International Child Abduction was correctly interpreted or applied by national courts…’. In domestic appeals, there will of course be analysis provided in respect of the specific facts of the case and their interplay with the legal issues raised.
3. We find the CRC Committee decision to be one that intervenes with the factual analysis of the case by implying that this particular case met the defence of art 13 b of the HC 1980. We consider that it does and that the Supreme Court of Chile erred but it is not the Committee’s role to establish or review questions of facts determined by the domestic courts.
4. Therefore the CRC Committee’s request (para 9 of the Views)for the State Party to conduct a new assessment of the request to return J.M to Spain, taking into account the time that has elapsed and the extent of J.M.’s integration in the State Party is wrong. The CRC Committee is acting as an appellate court by requesting a re-hearing.
5. We believe a key aspect of the decision of the CRC Committee is that it has raised awareness for all signatures to the HC 1980 to consider the issue of ‘protective measures’, i.e. adequate steps that can be taken upon a child/children being returned to the country of their habitual residence. Whilst awareness of this point has been raised, the problem is likely to be that most signatories to the HC 1980 have decades of case law and well established principles that are applied to HC cases. In this case note, we have quotes from various cases, not only from England, but also the Supreme Court decision in the US. This is only to display how there are already developed principles in HC 1980 cases, particularly in respect of protective measures, which the CRC Committee does not seem to acknowledge.
6. As we have shown in this case note, State Parties to the HC 1980 are reliant upon their own case law as authority and through case law, a system would have already been developed to assess the adequacy of protective measures. It is unlikely that Views such as this from the CRC Committee will change a cemented approach that some signatories to the HC 1980 might already have. Further, it must be emphasised that the CRC Committee are looking at the HC 1980 from their perspective, in line with the principles in CRC. For example, this case before the Committee was not an appeal, it was a fresh claim under the CRC. As such, the CRC Committee are at a disadvantage as they are not directly applying the HC 1980 and therefore unable to ascertain and assess the merits of the defences and the aims of the HC 1980.

Notwithstanding all the above, the fact that a HC 1980 case reached the CRC Committee’s doors is a significant one. The fact that they considered the aims of the HC 1980 and how it should operate in practice cannot be underestimated. There is also the potential that floodgates could be opened in this regard, especially if someone has exhausted all domestic appeals, they may seek to bring their case before the CRC Committee. The problem we envisage is each domestic court will have their own approaches and each approach is likely to be understandably different and this tension can be difficult for the CRC Committee to balance, particularly if they are faced with more cases. It may be a simple exercise to ascertain the objectives of the HC 1980 because they are set out clearly; however, as to how different State Parties apply the relevant defences and principles in line with the objectives will differ at varying scales.

Further, the Committee was concerned with the ‘best interests’ principle when weighing up their considerations with the 1980 HC. It is worth emphasising that some states may have the view that the 1980 HC is designed with the best interests of the child (see UK decision, Re E [2011] UKSC 27, para 12 – 27 which specifically explored the term ‘best interests’ and the Article 3.1 UNCRC). This is relevant because the CRC Committee's comments that the SC decision in this present case did not make reference to the ‘best interests’ of the child (para 8.8 of the View).

In terms of how domestic courts may react when considering the CRC Committee’s View, we believe an option may be to refer to the CRC specifically but ultimately – time will tell what the impact is, especially if more HC 1980 cases reach the doors of the Committee.