INTRODUCTION: THE CHALLENGES OF CROSS-BORDER FAMILY RELATIONSHIPS

Globalisation in the 21st century has expanded international trade in goods and services and led to increased movement by families and children across frontiers. As people cross borders, oft en for work, they meet others, fall in love, and have children – though not necessarily in that order – and as a result, there have been marked increases in the number of marriages and family relationships that touch on more than one culture, nationality or religion. When these relationships break down, children in particular are caught in the turmoil: they can be the focus of disputes on custody, visitation, and terms of upbringing. Oft en they are the victims of child abduction, and as a result are denied access to one of their parents. The resolution of these issues is complicated by disparate legal systems, diverse cultural and religious customs and rules, and opposing ideas of how these differences should influence the outcome of a dispute.

The Hague Conference on Private International Law (HCCH) is well known for its seminal work in the area of cross-border family law, especially in creating structures for international legal cooperation in addressing international child abduction and child protection. These frameworks are exemplified by the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which both create binding international legal instruments for the contracting states. While 93 countries are contracting states to the 1980 Convention, and 41 are contracting states to the 1996 Convention, many countries, referred to herein as non-contracting states, still remain outside of the Conventions’ framework. Where no such binding structure exists, non-binding legal mechanisms are increasingly important tools in protecting the rights of the child in a multi-faith and multi-cultural society.