Page 467 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

ฉบับพิเศษ ประจำ�ปี 2564

Introduction and Background Information

As the world has been globalized and as international communication has been
expanded, there has been an increase in marriage between people from different

countries. However, when the days go rough and these couples get divorced, sometimes
1
one parent takes the child away from the country. The Hague Convention on the Civil
Aspects of International Child Abduction 1980 (Hague Convention) has been enacted

to govern this type of situation and to ensure that the child is returned to his or her
habitual residence promptly. With the perception that either wrongful retention or child
2
abduction to the new environment unfamiliar to the child is not in the child’s best

interests and may have harmful effect towards the child, the Hague Convention structured
a procedure where the left-behind parent could petition for a return order from
the judicial or administrative authorities. After the return, both parents are to deal with
3
custody hearings according to domestic law. 4

As mediation has been increasingly accepted as an appropriate means of dispute
resolution in family matters in many countries, the Hague Conference has recognized
the importance of mediation in facilitating amicable solutions between parents and,

therefore, published the Guide to Good Practice under the Hague Convention on
Mediation (Guide to Good Practice) in 2012. The mediation under the Hague Convention
5
does not focus only on resolving the conflict at the ‘return’ stage, but can also reach

1 Jennifer Zawid, Practical and Ethical Implications of Mediating International Child Abduction Cases:
A New Frontier for Mediators, 40 U. Miami Inter-Am. L. Rev. 1, 4 (2008).
2 Hague Convention on the Civil Aspects of International Child Abduction, Dec. 1, 1983, 11 T.I.A.S. 670,
1343 U.N.T.S. 89 [hereinafter Hague Convention].
3 See id. art. 8. See also Hague Conference on Private International Law, Outline Hague Child Abduction
Convention, available at http://www.hcch.net/upload/outline28e.pdf.
4 Hague Conference on Private International Law, id.
5 GUIDE TO GOOD PRACTICE UNDER THE HAGUE CONVENTION OF 25 OCTOBER 1980
ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION, Mediation (2012), intro and para. 31,
available at http://www.hcch.net/upload/guide28mediation_en.pdf [hereinafter GUIDE TO GOOD PRACTICE].

465