Chile: UN Child Rights Committee decides first-ever international child abduction case

GENEVA (16 June 2022) – Chile violated the rights of a six-year-old boy with autism when its Supreme Court decided to return him to Spain without assessing his best interests, the UN Child Rights Committee has found.

The Committee issued its landmark decision today after considering a complaint filed by a Chilean mother who had travelled from Spain to Chile with her child and alleged that the child was particularly vulnerable because he was under treatment for his autism with her support. She alleged that the Supreme Court’s decision to return him to Spain would cause severe and irreparable harm to his mental health.

The 6-year-old J.M. was born in Chile to a Chilean mother and a Spanish father in January 2016. When J.M. was 15 months old and living in Spain, his paediatrician suspected that he had a language delay and a form of autism. In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother arranged treatment and support for J.M.’s autism and they decided to stay in the country for at least two years.

In July 2018, however, the father filed a complaint with the Ministry of Justice of Spain against the mother for the abduction and unlawful retention of J.M., under the procedure established by the Hague Convention on the Civil Aspects of International Child Abduction. The Convention establishes that, as a general principle, a child who has been wrongfully removed or retained shall be promptly returned to the country of his or her habitual residence.

Two lower courts of Chile in early 2019 rejected the father’s claims, citing that he had given his tacit and almost explicit consent for J. M. to reside in Chile and that it had not been proven that Spain was J.M.’s country of habitual residence. Later that year, the Supreme Court overturned the lower courts’ decisions and ordered J. M.’s return to Spain.

J. M.’s mother thereafter filed a complaint on his behalf before the Committee in 2020.

The Committee held that the Supreme Court’s order for the immediate restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children and thus violated his procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken especially promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered, “Courts still have to effectively assess the applicability of the exceptions to the rule of return in the specific case, namely, whether the return would expose him/her to physical or psychological harm, taking the child’s best interests as a primary consideration,” said Committee member Ann Skelton.

“This is an important decision by the Committee that will hopefully guide domestic courts on how to decide cases of international abduction of children in accordance with their obligations under the Convention on the Rights of the Child,” said Skelton.

“The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court failed to apply the necessary procedural safeguards to ensure that the return would not expose the child to harm or any situation contrary to his best interests,” she added.

The Committee considered that Chile should reassess the request for J. M.’s return to Spain, taking into account the time that had elapsed and the extent of his integration in Chile. It also held that Chile should grant J.M. effective reparation and prevent the recurrence of such violations in the future.

ENDS