Human Rights NATIONAL

United Nations intervenes in Chilean child abduction case

The United Nation Child Rights Committee has intervened in a Supreme Court case it claims is violating the rights of a six-year-old boy with autism. The court had ruled that the child should be returned to his habitual residence in Spain. The Committee has asked the Court to reassess the child’s case while considering the psychological effects on the child as he undergoes treatment.

The United Nations Child Rights Committee claims that the rights of a six-year-old boy have been violated because the Supreme Court of Chile has ordered his return to Spain without properly assessing his needs. The Committee intervened after the child’s mother received the Court’s decision and filed a complaint against the Court.

J.M. was born in Chile in January 2016 to a Chilean mother and Spanish father. When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism. Shortly after this diagnosis, the mother brought J.M. back to Chile where she arranged his treatment and support plan. The mother planned to stay in Chile for at least two years and had the father’s written approval to travel. 

In 2018, one year after authorizing the travel, the father filed a complaint with the Ministry of Justice of Spain for abduction and unlawful retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction. According to its official outline, the convention has two primary aims: 

  • To secure the prompt return of children wrongfully removed to or retained in any country 
  • To ensure that rights of custody and of access to children across international borders. 

The mother defended her decision to stay in Chile with J.M. because she felt her child was vulnerable as he was under treatment. She alleged that returning to Spain would cause irreparable harm to J.M.’s mental health.  

The UN Committee acknowledged the aims of the Hague Convention but argued that the purpose and objective of the convention do not require an automatic return order. 

No “best interests” assessment

“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. 

With this in mind, the Committee argued that the Supreme Court’s decision to immediately send J.M. back to Spain did not conduct a “best interests” assessment. This assessment is required for all cases dealing with children, and failure to comply with this assessment violated J.M’s procedural guarantees under the Convention on the Rights of the Child. 

The Committee has asked the Chilean Supreme Court to reassess the request for J.M. to return to his father in Spain and to take into account the time that has elapsed and the extent of J.M’s integration in Chile.

  

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