The clash of legal cultures over the ‘best interests of the child’ principle in cases of international parental child abduction

Abstract

Because of the increase in international love traffic, transnational problems in divorce, maintenance issues, visitation rights, custody over children, and cases of child abduction are here to stay. A clash of cultures is obvious in international child abduction cases in which Islamic legal cultures are involved, because ‘the best interests of the child’ principle as mentioned in several treaties functions as a site of struggle. This paper shows, firstly, in what ways the clash manifests itself by describing abduction cases in which Dutch legal professionals become involved, and how they act in such cases. The second part of the paper takes a look underneath the surface of legal practice in order to better understand it and to trace possible future developments. I describe the developments in the Dutch legal profession, such as how legal professionals keep their ‘cultural knowledge’ up to date, and whether they develop alternative ways to deal with culture clashes in child abduction cases. Developments seem to be haphazard and piecemeal in the form of knowledge and network development, court-annexed mediation, and specialized liaison judges. These developments do lead to a broadening of horizons, but not necessarily to a consensus handshake between legal cultures. A solid ‘stalemate’ in actual abduction cases can usually be prevented because Dutch legal professionals search for pragmatic solutions in individual cases.