IT 2026.07.15 The Hague Convention Betrayed

Sanaa Rezk | Independent Governance Researcher

How Malta and Italy Replaced International Child-Abduction Law with Domestic Custody Proceedings

ABSTRACT: The Hague Convention Betrayed

This article examines whether the documentary record concerning the case of the minor David Ose Isidohamen raises serious questions regarding the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction by the competent authorities of Malta and Italy. It argues that an international child-abduction dispute was allegedly recharacterized and managed through ordinary domestic custody proceedings, thereby circumventing the jurisdictional safeguards and prompt-return mechanism established by the Hague Convention.

The article further examines the implications of this approach under the United Nations Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR), the Charter of Fundamental Rights of the European Union, and the judicial cooperation framework established by the Brussels II-ter Regulation.

According to the documentary record, the child, an Italian national, was separated from his mother and retained in Malta pursuant to a custody order issued by the Maltese Family Court. The dossier indicates that the decision was implemented without prior notice sufficient to enable the mother to participate effectively in the proceedings or to exercise her procedural rights. If established, these circumstances raise concerns that domestic custody proceedings were permitted to produce the practical effect of an international retention without first applying the legal framework specifically designed to resolve cross-border child-abduction disputes.

Such an approach risks undermining one of the Hague Convention’s central objectives: preventing unilateral changes to a child’s habitual residence through domestic judicial proceedings.

Building upon the accompanying dossier, the article argues that judicial decisions affecting children should be preceded by a comprehensive, evidence-based assessment of foreseeable risks. Where judicial measures fundamentally alter a child’s family life, continuity of care, emotional and psychological stability, or relationships with primary caregivers, the child’s best interests require an explicit, reasoned and documented evaluation before measures capable of producing irreversible consequences are implemented.

The documentary record further raises questions concerning the apparent absence of a documented risk assessment prior to the child’s separation from his mother, the lack of demonstrated implementation of court-ordered monitoring by child protection services, and unresolved documentary inconsistencies relating to the identification of the parties across civil and criminal proceedings. While these elements do not, in themselves, establish legal wrongdoing, they raise legitimate questions as to whether the procedural safeguards required in cross-border child-protection proceedings were fully observed.

The article further argues that Italy, as the child’s State of nationality and a Contracting State to the Hague Convention, bears a corresponding responsibility to ensure that jurisdictional issues and the child’s fundamental rights are addressed within the Convention’s framework rather than through the substitution of domestic custody proceedings for the international return mechanism established by treaty.

Finally, the article proposes the Principle of Non-Reversibility of Risk as a methodological safeguard requiring courts to undertake an explicit, reasoned and documented assessment before adopting measures capable of producing irreversible consequences for a child. Rather than creating new legal obligations, the proposed principle reinforces existing obligations under international and European law by strengthening transparency, procedural accountability, judicial reasoning, and evidence-based decision-making.

The case illustrates a broader systemic concern. When international child-abduction disputes are effectively transformed into domestic custody proceedings, the effectiveness of the Hague Convention is diminished, jurisdictional safeguards risk being displaced, factual situations become progressively entrenched through the passage of time, and children may suffer irreversible harm before the Convention’s protective mechanisms are meaningfully engaged.

The documentary record therefore raises important questions concerning the implementation of international obligations by both Malta and Italy and highlights the need for stronger methodological safeguards to ensure that cross-border decisions affecting children remain fully consistent with the principles, objectives, and protective framework of international child-protection law.

#Protection fails when activation comes after effect
#Protection delayed is protection denied

«When international child-abduction disputes are effectively transformed into domestic custody proceedings, the effectiveness of the Hague Convention is diminished»

Sanaa Rezk

Independent Governance Researcher|AI Governance
Governability | Institutional Capacity | ΔT Principle
Governance Integrity Architecture (GIA) | SPSF