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The Hague Convention – Order Or Chaos?

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The Hague Convention – Order Or Chaos? THE HAGUE CONVENTION – ORDER OR CHAOS? An update on a paper first delivered to a Family Law Conference in Adelaide in 1994 Updated for the Canadian National Judicial Institute International Judicial Conference on The Hague Convention on the Civil Aspects of International Child Abduction July 2004 La Malbaie (Québec) (Canada) Sub nom "The Special Commission recognises that the Convention in general continues to work well in the interests of children and broadly meets the needs for which it was drafted." Are they kidding themselves? By the Honourable Justice Kay A Judge of the Appeal Division Family Court of Australia Melbourne1 1 A significant debt of gratitude is owed to my research associates Alice Carter, Tracy Smith, Kristen Abery, Genevieve Hall, Rob O’Neill, Waleed Aly and Mai Lin Yong for their invaluable assistance in the preparation of this paper over its many years of development. "Unless Australian courts, including this Court, uphold the spirit and the letter of the Convention as it is rendered part of Australian law by the Regulations, a large international enterprise of great importance for the welfare of children generally will be frustrated in the case of this country. Because Australia, more than most other countries, is a land with many immigrants, derived from virtually every country on earth, well served by international air transport, it is a major user of the Convention scheme. Many mothers, fathers and children are dependent upon the effective implementation of the Convention for protection when children are the victims of international child abduction and retention. To the extent that Australian courts, including this Court, do not fulfil the expectations expressed in the rigorous language of the Convention and the Regulations, but effectively reserve custody (and residence) decisions to themselves, we should not be surprised if other countries, noting what we do, decline to extend to our courts the kind of reciprocity and mutual respect which the Convention scheme puts in place. And that, most definitely, would not, in aggregate, be in the best interests of children generally and of Australian children in particular.” Kirby J, Justice of the High Court of Australia, in DP v Commonwealth Central Authority; JLM v Director- General NSW Department of Community Services2 2(2001) FLC 93-081 INDEX INTRODUCTION.......................................................................................................................................... 1 THE SCHEME OF THE CONVENTION ..................................................................................................... 4 THE CONVENTION, THE REGULATIONS AND THE BEST INTERESTS OF THE CHILD................ 5 CASES TO WHICH THE HAGUE CONVENTION APPLIES ................................................................... 7 HABITUAL RESIDENCE............................................................................................................................. 7 Habitual residence of babies......................................................................................................................... 14 Dual and serial habitual residence................................................................................................................ 16 Habitual residence in the context of military personnel ............................................................................... 18 WRONGFUL REMOVAL OR RETENTION............................................................................................. 22 Mens Rea? .................................................................................................................................................... 24 Rights of Custody......................................................................................................................................... 25 Is a right to determine the child's place of residence enough?...................................................................... 25 Rights removed by statutory limits on powers granted to each parent ......................................................... 32 Can a Court have a right of custody? ........................................................................................................... 33 Rights of unmarried fathers .......................................................................................................................... 34 WHERE THE APPLICATION IS MADE AFTER THE EXPIRATION OF ONE YEAR......................... 39 Does the Convention apply once a finding is made that the child is settled? ............................................... 42 THE EXCEPTIONS TO THE MANDATORY RETURN OF THE CHILDREN ...................................... 47 Actual Exercise and Acquiescence............................................................................................................... 49 Grave Risk.................................................................................................................................................... 55 a. Domestic Violence as “grave risk of harm”.............................................................................................. 59 Undertakings ................................................................................................................................................ 70 b. Separation of Child from Primary Caregiver as “grave risk of harm”...................................................... 71 c. Wishes and Behaviour of the Child as an element of grave risk............................................................... 75 d. Child has Special Needs ........................................................................................................................... 77 Wishes of the Child ...................................................................................................................................... 81 How old? ...................................................................................................................................................... 85 ARTICLE 20 – PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ............... 89 Caveat: Judicial Discretion........................................................................................................................... 91 The role of Central Authorities after the child is returned............................................................................ 94 THE IMPOSITION OF CONDITIONS IN ORDERS FOR RETURN ....................................................... 96 CONTACT ISSUES RE CHILD TO BE RETURNED ............................................................................. 102 OTHER PROBLEMS................................................................................................................................. 102 CONCLUSION .......................................................................................................................................... 104 CASE SUMMARY .................................................................................................................................... 106 Argentina.................................................................................................................................................... 106 Australia ..................................................................................................................................................... 106 Canada........................................................................................................................................................ 107 European Court of Human Rights .............................................................................................................. 108 Germany..................................................................................................................................................... 108 Ireland......................................................................................................................................................... 109 Israel........................................................................................................................................................... 109 Netherlands................................................................................................................................................. 109 New Zealand............................................................................................................................................... 109 Romania (see also European Court of Human Rights)............................................................................... 109 Spain........................................................................................................................................................... 110 Sweden ....................................................................................................................................................... 110 Switzerland................................................................................................................................................. 110 United States............................................................................................................................................... 112 Implementing Measures taken at the domestic level to give effect to the 1980 Hague Convention .......... 114 Australia ....................................................................................................................................................
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