헤이그 아동탈취협약과 가족생활에 관한 기본권― 유럽인권재판소 판례를 중심으로 ―

Up to recently it has been widely admitted that the purpose of the 1980 Hague Convention is the prompt return of children to their State of habitual residence. But a series of case law of the European Court of Human Rights has cast a fundamental question about the purpose of the 1980 Hague Convention. The Background of this problem is the situation that is contrary to the premise of the Convention, that is the international removal of the child is often carried out by primary carers, especially mothers exposed to domestic violence. Moreover the prompt return doctrine has come under increasing scrutiny of the European Court of Human Rights because it may be at odds with the human right of privacy and family right guaranteed by the Article 8 of the European Convention on Human Rights. The case law can be summarized as such: the factors capable of constituting an exception to the child’s immediate return in application of [the Hague] Convention … must genuinely be taken into account by the requested court. … In consequence, … Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a ‘grave risk’ for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. This article analyses the Grand Chamber judgments of the European Court of Human Rights, espciallly the case of Neulinger and X v. Latvia and considers how compliance with Article 8 ECHR should be achieved in the application of the 1980 Hague Convention. This research can provide a framework for resolution of the Convention cases to harmonize conflicting claims of the prompt return doctrine and the grave risk defence. To accomplish this purpose the meaning of the best interest of the child should be deeply explored because both the conflicting doctrines are based on it.