Aspects of parental child abduction

WHEN PARENTS are separated, it is difficult to make arrangements for the custodial parent to have access to the children. That situation is made worse when the parents live in different countries. What underlies the problem is usually the fact that the custodial parent does not trust that the non-custodial parent will return the children after a period of access. In these circumstances, the Hague Convention on the Civil Aspects of International Child Abduction (‘the convention’) provides some comfort. It is a multilateral treaty among a number of other countries that establishes a lawful procedure for seeking the return of abducted children to their home country. It also provides assistance to parents to obtain contact or access to children overseas.

To enjoy the protection of this convention, a country must first become a signatory and incorporate the convention into its local law. The next step is for individual countries that are signatories to the convention to recognise each other. For example, Jamaica has taken the first two steps – the convention was entered into force on May 1, 2017 and the Children (Guardianship and Custody) Act was amended to include provisions for its application. However, Jamaica’s treaty partners do not yet include the United States of America. This should occur on April 1, 2019.

In the meantime, countries such as Australia have been relying on this convention for more than 20 years; so there is much to be learnt from the decided cases from that jurisdiction. RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, one of the judges of the Family Court of Australia & Ors [2012] HCA 471 is one such case.

In summary, the Australian mother of four children, who were born in Italy and remained there with their Italian father after their parents separated, travelled to Australia to spend one month with their mother in June 2010 in keeping with the terms of a separation agreement. The mother refused to return the children to their father and said that the children objected to returning to Italy.

OBJECTION FROM MOTHER

In reliance on the convention, an application was filed in court on behalf of the father in February 2011 and, despite the mother’s objections, on June 23, 2011, the judge ordered that the children be returned to Italy. Ultimately, the father prevailed and the children returned to Italy more than two years later on October 5, 2012; but that was only after an appeal and multiple applications to discharge the return order were heard.

One of the applications sought to have the children intervene in the proceedings; and the argument advanced in support of that application was that the children needed to be independently represented in proceedings under the convention in order to ensure that their natural justice (in particular, their right to be heard) is preserved. In response, it was said that there are already mechanisms in place to ensure that the court is made aware of the children’s views and, in exceptional cases, the child can be heard. The High Court accepted the latter argument for the following reasons:

This contention assumes that each child can be equated with a capable adult. It assumes that each child was capable of giving instructions to the ends described in the contention.

These assumptions are factually false in respect of many children. And they are legally incoherent in respect of most children. Contrary to the assumptions, unlike most capable adults, a child is almost invariably under the control of other people who owe the child legal duties. Inevitably, that child is vulnerable to their influence.

The application of the convention presents an interesting challenge to our courts as well as the state agencies that are charged with the responsibility for giving effect to it. No doubt, there will be a learning curve and teething pains, but I anticipate that there will be tremendous benefits from being able to rely on the convention.