La opinión del niño en el marco de la restitución internacional de niños, niñas y adolescentes

Abstract

This paper consists of three development axes. The first, fulfilling an introductory function of the subject that summons us, briefly explains the two historical paradigms in relation to children. From a conception of the child as an object of protection to a different reality where the child is a subject of rights. On the other hand, local and international regulations are mentioned, with special emphasis on the process of constitutionalization of Private Law that inspired the reform of the Civil Code and implied reformulating its rules according to the principles of Human Rights present in our Constitution and in the International Treaties with constitutional hierarchy. The second part focuses precisely on the participation of children in the proceedings, their right to be heard, the relevance of their speech and the close link with concepts such as progressive autonomy, legal capacity and the best interests of the child. Although the issue seems to be settled, in international child restitution proceedings, the question is not so elucidated or resolved, even the doctrine is usually divided when we talk about the child's opinion in this kind of proceedings. Finally, a series of rulings on this subject are developed, giving rise to different judicial interpretations with respect to Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, since from the grammatical reading of the same, it is understood that the magistrates can deny the return in those cases in which it is proven that the child or adolescent is opposed to returning to the country from which he/she has been abducted, but that this only functions as an exception to the obligation to return. Therefore, this is a restrictive interpretation on the part of the judge that can harm the rights of the child if a global interpretation is not made with the remaining International Human Rights Treaties.