The Grave Risk Exception to the International Restitution of Children and the Guide to Practices Vl

Abstract

The International Restitution of Children arose as a response by the States to face the lacerating situations of those most vulnerable subjects. As a protection mechanism, a process was established to guarantee respect for their fundamental human rights, which implies the return in a fast and safe way. But as in all areas of law, principles always have exceptions. Seeking a balance point, the conventional texts have a limited range of assumptions that, if they occur, allow the administrative or judicial authorities to reject the restitution. The problem is found in the interpretation given to each of them, especially in that of “serious risk”. Although there is a universal consensus regarding its restrictive interpretation, there is not a consensus regarding its scope and content. In the present work, through the use of the analytical - descriptive - comparative method, we analyze the various guidelines set forth in the Guide to Good Practice, which comes to shed light on so much confusion.To comply with this, we repeatedly refer to the interpretations that doctrine and jurisprudence provided for years on this exception, comparing them with the provisions of the Guide seeking to reach a point of balance. From all this analysis, we conclude, in accordance with the Guide, in favor of a restrictive interpretation of this exception in each specific case, in order to guarantee the fundamental rights of children.