Urgensi Hague Convention 1980 atas hak asuh anak lintas yurisdiksi di Indonesia dan Malaysia perspektif Maqashid Syariah

Arifah, Risma Nur, Pitaloka, Hersila Astari, Umam, Khairul and Al Maknuni, Silahuddin Urgensi Hague Convention 1980 atas hak asuh anak lintas yurisdiksi di Indonesia dan Malaysia perspektif Maqashid Syariah. Research Report. LP2M UIN Malang. (Unpublished)

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Abstract

This study analyses the urgency of Indonesia’s ratification of the 1980 Hague
Convention on the Civil Aspects of International Child Abduction in cross-border
child custody disputes and explores its implications through the lens of maqāṣid
al-sharīʿah as developed by Jamaluddin al-ʿAtiyyah. Using an empirical socio-
legal approach, it combines conceptual and statute analysis with official data,
expert interviews and documentary research on relevant legislation and case law.
The findings show that, although Indonesian law recognises the child’s right to
protection, it lacks effective mechanisms for cross-jurisdiction enforcement.
Recent high-profile cases reveal gaps in the application of Article 330 of the
Criminal Code, the absence of a central authority and reliance on slow diplomatic
channels, which create prolonged legal uncertainty and psychosocial harm for
children and caregivers. Constitutional Court Decision No. 140/PUU-XXI/2023,
which confirms that biological parents may be prosecuted for abducting their own
children, is an important step but remains confined to the domestic sphere.
Comparative analysis with European and North American jurisdictions, as well as
Singapore and Vietnam, shows that ratification of the Hague Convention
accelerates return and access procedures, curbs forum shopping and strengthens
the executability of domestic custody decisions abroad. From the maqāṣid al-
sharīʿah perspective, ratification realises the protection of life (ḥifẓ al-nafs) and
lineage (ḥifẓ al-nasl) within al-ʿAtiyyah’s multi-level maqāṣid al-usrah and public
maqāṣid framework. The study concludes that ratification is a constitutional
obligation and religious-ethical imperative, and recommends institutional reforms
to align Indonesia’s child protection regime with international standards while
remaining faithful to Islamic legal values.

Item Type:	Research (Research Report)
Keywords:	Hague Convention 1980; Maqashid Syariah; Child Abduction
Subjects:	18 LAW AND LEGAL STUDIES > 1801 Law > 180113 Family Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180114 Human Rights Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180128 Islamic Family Law > 18012813 Hadhanah (Child Custody, Guardianship)
Divisions:	Faculty of Sharia and Law > Department al-Ahwal al-Syakhshiyyah
Depositing User:	Risma Nur Arifah
Date Deposited:	05 Dec 2025 18:22

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