at risk until the dispute on merits has been resolved, and to ensure the practical effects of the decision eventually
adopted.”179 It has further held that “the passage of time would inevitably constitute a defining element of ties of
affection that would be hard to revert without causing damage to the child.”180
140.
Lastly, the IACHR has requested that “the State adopt the necessary measures to ensure that
international restitution procedures are resolved with exceptional diligence and as soon as possible.”181
141.
Likewise, according to the Guide to Good Practice under the Hague Convention on Civil Aspects of
International Child Abduction, “[a]t all stages of the proceedings, the court should consider whether a need for
protective measures exists to prevent the concealment or removal of the child from the jurisdiction of the court.”
“Rapid and effective mechanisms should be available for protecting an abducted child while return proceedings
are pending, in particular with a view to preventing the abducting parent from taking the child into hiding.. (…)
Once a return order has been made, it is important to be able to quickly protect the child against any further
danger, including the risk of being taken into hiding.” 182 According to said Guide, “[r]apid and effective
mechanisms should be available for enforcing a return order, including a range of effective coercive measures.”
Such protective measures might include “[t]he imposition of a requirement that the abducting parent report
regularly to a particular authority perhaps coupled with a restriction on the abducting parent’s freedom of
movement such as an obligation to reside in a certain place” or “the temporary placement of the child under the
protection of the child protection authorities, e.g., in an institution or a foster family, with the applicant or with a
relative of one of the parents”, among others.183
142.
According to said Guide, “[a] court, when making a return order, should carefully choose the appropriate
option for returning the child. In all but exceptional circumstances the order should require the immediate return
of the child as delays can further harm and cause confusion for the child and can provide an opportunity for the
abducting parent to re-abduct the child.”184
4. Analysis of the instant case
143.
To analyze the instant case, the Commission recapitulates that, as indicated above regarding Articles
11 (family life), 17 (protection of the family), 19 (rights of the child), 8 (judicial guarantees), and 25 (judicial
protection), when a boy or girl has been wrongfully removed in the terms recognized by international law, States,
to protect the rights of the child, and of the parent from whom the child was wrongfully removed, have an
obligation to proceed to the child’s return within a reasonable time and with the due celerity, taking into account
the roots or uprooting that the greater distancing or closeness with one of his or her parents may produce, and
the integration of the boy or girl in the country to which he or she was abducted. As indicated above, when
determining the best interests of the child in accordance with the Hague Convention, there is a presumption that
he or she is to be returned so that the substantive aspects related to, for example, his or her guardianship or
custody can be analyzed in the forum of his or her habitual residence. States may proceed not to return a boy or
girl only when it is noted, in analyzing their rights at stake, that there would disproportionate impact on their
rights, as reflected in the very exceptions for which the Hague Convention provides. Nonetheless, if it is decided
to return the child, the Commission reiterates that, to that end and to safeguard the aforesaid rights, States should
proceed to adopt measures of a positive nature with a reinforced duty to effect the return.
144.
In fact, the Commission notes that, in resolving these types of case, the European Court has held that
States have a number of positive measures to adopt regarding the reunification of parents with their children
that should be interpreted in the light of the Hague Convention. Thus, it has determined that it must be analyzed
whether national authorities have taken all steps necessary to facilitate reunification and that may reasonably be
required in the special circumstances of each case.185
Ibid, par. 16.
Ibid., par. 18.
181 IACHR, PM 314/13- X, Y and Z, Mexico. Resoluton of March 6, 2015.
182 Guide to Good Practice under the Hague Convention on the Civil Aspects of International Child Abduction – Part IV - Enforcement, p. 4.
183 Ibid, pp. 5 and 7.
184 Ibid, p. 24.
185 European Court of Human Rights, Case of Adžić v. Croatia (Application No. 22643/14), 12 March 2015.
179
180