According to Article 1 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, "The object of this Convention is to enable States Parties to ensure the prompt return of children who have been unlawfully abducted or detained". Therefore, unless there are exceptional circumstances, the abducted or detained child must be returned to the State of habitual residence. The 1980 Convention on the Civil Aspects of International Child Abduction provides that the Judge hearing the return of the child has the authority to refuse the return of the child in certain circumstances. In the presence of one or more of the following obstacles to return, the competent Court Judge may refuse the return request.
The provisions giving the court discretion to refuse return are based on Articles 12, 13 and 20 of the 1980 Convention on the Civil Aspects of International Child Abduction.
The circumstances in which a return request may be refused are limited and are set out below in accordance with the Convention:
1. Adaptation of the Child to the New Environment;
In order for the child to be returned to child’s habitual residence, a request must be made to the competent authorities designated by the States Parties to the Convention.
Article 12 of the Convention provides that "If a child has been unlawfully abducted or detained as provided for in Article 3 and, at the time of application to the judicial or administrative authority of the State Party in which the child is located, less than one year has elapsed since the removal or detention, the authority to which the application is made shall order the immediate return of the child. If the application is made even after the expiry of the period of one year provided for in the above paragraph, the judicial or administrative authority shall also order the return of the child, unless it is established that the child has adapted to child’s new environment. If the judicial or administrative authority of the requesting State believes that the child has been taken to another State, it may suspend the proceedings or reject the request for the return of the child", thereby imposing an obligation on States Parties to ensure the immediate return of the child if the application to the central authorities is made within 1 year from the date of the unlawful abduction or detention of the child. On the other hand, even if the application is made after the expiry of the one-year period, the judicial or administrative authorities must decide on the return of the child.
The exception here is that the return request may be rejected if the child has established a social environment, an order and adapted to child’s new environment. When the child's social environment and school life are analyzed in terms of whether the child has adapted to child’s new environment, the competent court will analyze and appreciate whether it is in the best interests of the child to stay in the country where the child was abducted or detained.
2. Failure to Actually Exercise the Right of Custody;
According to Article 13 (a) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction ; “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State may declare that the person, institution or organization objecting to the return: a) The person, institution or organization in whose care the child was entrusted did not effectively exercise the child’s right to protection during the period of relocation or detention or consented to or subsequently accepted the relocation or detention; or
The judicial or administrative authority may also refuse to order the return of the child if it observes that the child does not want to return and has reached an age and maturity at which it would be appropriate to consider child’s opinion.'' the court is not obliged to order the return of the child if it is established that the person who, under the provision, has assumed the care of the child did not duly fulfill the parental rights during the period of relocation or detention.
In assessing this provision, the Court shall also take into due consideration information on the child's social situation and information provided by the central or competent authority in the country of habitual residence.
3. Consent of the Right of Custody Owner;
According to Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction of 1980, the court to which the return request is submitted, the judicial-administrative authority of the requesting State or the party objecting to the return of the child are not obliged to decide on the return of the child if it is determined that they consent to the relocation of the child.
4. Subsequent Acceptance by the Right of Custody Owner;
According to Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction of 1980, the court requesting extradition, the judicial-administrative authority of the State requesting return, or the party objecting to the return of the child is not obliged to order the return of the child if it determines that the child subsequently consented to the relocation or detention.
5. The Existence of a Serious Risk for the Child;
Article 13 (b) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction should be mentioned separately.
According to Article 13 (b) of the Convention, "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State, the person, institution or organization objecting to the return: "shall not be obliged to order the return of the child if it determines that there is a serious risk that return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. ‘’ with this provision, the court to which the request is submitted isn’t obliged to order the return of the child if it determines that there is a serious risk if the child is returned to the habitual residence.
Risks that may arise from the return of the child to the habitual residence:
a. Physical Risk
According to Article 13 of the Convention, the court requesting extradition is not obliged to order the return of the child if it finds that there is a serious risk that the child will be exposed to physical harm.
The existence of a serious risk that the child will be exposed to physical harm if returned to the habitual residence is one of the exceptional circumstances requiring the refusal of return, and there must be a strong possibility that the child will be seriously harmed and face an irreparable risk if returned. However, in practice, there are various decisions interpreting this risk concept broadly and more narrowly. In Turkey, this element of risk is interpreted more narrowly in terms of local decisions, and while the age and maturity of the child should be taken into consideration within the framework of reports from experts such as social workers, psychologists or pedagogues at the point of determining the serious risk and the opinion of the child on the subject should be taken, in cases where the return request is evaluated without considering these conditions, the Supreme Court has stated these reasons in detail in the justifications of the reversal decisions.
Under the heading of the existence of a serious risk that the child will be exposed to physical harm, which requires refusal of return to the child's habitual residence, situations where the child will be subjected to sexual abuse if returned also comes into mind. The fact that sexual abuse or harassment has already occurred or is likely to occur if the child is returned is a factor that requires refusal of return. This is an issue on which the child should be heard when considering return. Children often perceive such abusive behavior as a show of affection and describe it to their other parents as activities with the abuser. Therefore, it should be emphasized - especially in domestic decisions - that the child should be heard in cases where there is a serious risk of exposure to such physical harm.
b. Psychological Risk
According to Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the requested court is not obliged to order the return of the child if it finds that there is a serious risk that the return would expose the child to psychological harm.
Since the main purpose of the Convention is the immediate return of the child to the child’s habitual residence, the existence of certain traumatic events is sought for the acceptance of a serious risk of exposure to psychological harm. The existence of a danger of harm to the child's psychology that cannot be seen as ordinary and that cannot be considered normal from a psychological point of view is sought. The reason for considering these criteria is that the grounds for refusal of return should be interpreted narrowly.
In addition, the factor of domestic violence can also be interpreted under this heading. Especially in cases where the mother is subjected to violence, there is a possibility that children whose habitual residence has been changed with their mother will also be subjected to violence by the father in case of return. Damage to one of the parents may also cause damage to the child. If the abused party who unjustly takes the child to a State other than its habitual residence does so with the idea that relocation may be beneficial for the best interests of the child, we cannot say that the return procedure is a very accurate practice.
c. Other Unbearable Risks;
According to Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, "A court shall not be obliged to order the return of a child if it finds that there is a serious risk that child’s return would expose the child to physical or psychological risk or otherwise place the child in an intolerable situation" expression, the intolerable situations include famine, epidemic disease, state of war, or a grave situations such as the child will be employed in an objectionable work, and in case of such situations, the return of the child should be avoided. However, situations that cannot be tolerated must be proven by the claimant.
6. The Child's Request;
According to Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the requesting court may reject the return request if it determines that the child does not wish to return to the habitual residence. The family court should consider the age and maturity of the child when rejecting the return request.
7. Violation of Human Rights and Fundamental Freedoms;
Within the scope of this article, the reasons for refusal of return should be evaluated by taking into consideration the possibility of being subjected to ethnic or religious discrimination in the event of return, the fact that the country of return is in a state of war or that the child has been dragged into crime.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction aims to ensure the return of wrongfully relocated children to their habitual residence following the dissolution of foreign marriages. However, this return does not always ensure the best interests of the child. Therefore, it is appropriate to allow the courts where the return of the child is requested to reject the return request, even if it is limited in the Convention.