and the Inter-American Court of Human Rights (hereinafter "the Court" or "the I/A Court of H.R”)94, that body of
law should serve to define the content and scope of the obligations taken on by the State in the American
Convention, whenever children's rights are being analyzed. The Commission highlights the fact that, specifically
in cases relating to the international return of children, the European Court of Human Rights has considered
applying instruments that form part of the corpus juris on the rights of the child when making decisions based
on its competence vis-à-vis the European Convention on the Human Rights, pointing out that "in the area of
international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted
in the light of the requirements of the Hague Convention (...) and of the relevant rules and principles of
international law applicable in relations between the Contracting Parties."95
88.
In light of the above, in analyzing the facts of this case particular mention will be made of the Convention
on the Rights of the Child; the Convention on the Civil Aspects of International Child Abduction; the InterAmerican Convention on the International Return of Children; General Comment No. 14 on the right of the child
to have his or her best interests taken as a primary consideration (art. 3, para. 1); and General Comment No. 12
on the right of the child to be heard, these last two being documents of the United Nations Committee on the
Rights of the Child.
89.
In addition, the Commission issues a reminder that it is not up to it to replace national courts and
authorities that are better positioned to determine matters relating to care and custody and civil aspects
regarding children. That said, the Commission observes that, when hearing cases relating to the international
return of children, the European Court of Human Rights has referred to the need to make a "combined and
harmonious application of ... the Convention and the Hague Convention." 96 To that end, and bearing in mind that
the Hague Convention regulates the obligations of the Contracting States with respect to the international return
procedure, the Commission deems it necessary to examine its provisions and, in particular, to verify whether the
state authorities and the decisions they took were sufficiently substantiated, taking into account the obligations
established in the American Convention with regard to the best interests of the child.97
a) Relevant provisions regarding international return procedures
90.
Having established the above, the Commission observes that Article 1 of the Convention of October 25,
1980 on the Civil Aspects of International Child Abduction98 states that its objects are: "a) to secure the prompt
return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of
custody and of access under the law of one Contracting State are effectively respected in the other Contracting
States."
91.
As the Convention establishes in Article 3, the removal or retention of a child shall be considered
wrongful:
a) it is in breach of rights of custody attributed to a person, an institution or any other
body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular
by operation of law or by reason of a judicial or administrative decision, or by reason
of an agreement having legal effect under the law of that State.
I/A Court H.R. Case of Ramírez Escobar et al. v. Guatemala. Merits, Reparation, and Costs Judgment of March 9, 2018. Series C No. 351,
par. 149; The “Street Children” Case (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999, paras. 149 and
195; Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 63, par. 194;
Case of Rochac Hernández et al. v. El Salvador. Merits, Reparation, and Costs Judgment of October 14, 2014. Series C No. 285, par. 106; I/A
Court H.R. Case of Fornerón and daughter v. Argentina. Merits, Reparation, and Costs Judgment of April 27, 2012. Series C No. 242, par. 44.
95 European Court of Human Rights. Case of X v. Latvia (Application no. 27853/09). Judgment of November 26, 2013, par. 93.
96 European Court of Human Rights. Case of X v. Latvia (Application no. 27853/09). Judgment of November 26, 2013, par. 94-95.
97 On that, see: European Court of Human Rights. Case of X v. Latvia (Application no. 27853/09). Judgment of November 26, 2013, par.
106.
98 Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980.
94