PROTECTING CHILDREN FROM UNINTENDED EFFECTS OF RETURN ORDERS UNDER THE 1980 HAGUE CONVENTION.

• Author: Saladino, Rosa

I INTRODUCTION

The 1980 Hague Convention on the Civil Aspects of International Child Abduction ('1980 Convention') is based on the premise that the sudden removal of a child from her home and country is a traumatic experience. It attempts to discourage such abductions by removing the forensic and practical advantages which a parent seeks to gain by taking the child from the country of their habitual residence and thereby preventing the other parent from legally and practically asserting their rights with respect to the child. (4)

The 1980 Convention aims to level the playing field and deal with the reality of the breakup of families in a way that preserves the rights of both parents. It is based on the assumption that to preserve the legal rights of both parents is in the best interests of children. (5)

Australia has been a party to the 1980 Convention since 1986. The legislative instruments giving effect to the 1980 Convention, section 111B of the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth), came into effect in May 1986.

The importance of returning a child to her home country has been acknowledged by the Australian Government through its continuing provision resources to implement the Convention including the funding of a dedicated unit within the Attorney General's Department. The Australian Government has sought to improve its implementation of the Convention and has funded several enquiries, which have looked at ways in which the implementation of the Convention could be improved in Australia. For example, in September 1996 the Commonwealth Attorney General referred a number of questions relating to the Implementation of the Convention to the Family Law Council ('FLO), a statutory body set up to advise the government on matters of family law. In January 1998 the FLC produced a report entitled Parental Child Abduction. (6) In May 2011 the Australian Senate set up a Senate Committee to enquire into the implementation of the Convention. A further report entitled International Parental Child Abduction was produced by the Committee in October 2011. (7)

The Australian Government assists parents whose children have been abducted from a Hague Convention (8) country and brought to Australia. (9) The Australian Government effectively steps into the shoes of the parent in the country from which the child has been abducted and brings fully publicly funded legal proceedings in the Family Court of Australia, seeking the return of the child to the country of her alleged habitual residence.

The Australian Government also assists parents whose children have been abducted from Australia to a Hague Convention country. (10) A free legal service is provided Australia-wide to advise left behind parents in this country and to prepare documents for those parents seeking the return of their children to Australia. This service is currently provided through a non-government organisation, International Social Service Australia (TSS Australia'). (11) The Australian Government also provides limited financial assistance to those parents whose children have been taken to non-Hague Convention countries under the Commonwealth Legal Assistance (Child Abduction) Scheme. (12)

However, the Australian Government provides no assistance to a parent who has allegedly abducted their child to Australia (13) and, in the author's experience, that parent is very rarely able to obtain legal assistance through the State or Territory Legal Aid Commissions. Similarly, no government assistance is provided to children who are the subject of an international parental abduction. In special circumstances the court may appoint a lawyer for the child and the relevant State or Territory Legal Aid Commission generally funds that lawyer.

Once the legal proceedings are completed the 1980 Convention does not require the States Parties to take any further measures. In Australia the government ends its involvement with the case once it has facilitated the return of the child or once the legal proceedings have been completed if the court does not make an order to return the child.

The process of returning a child from Australia varies from case to case but generally the child is not offered counselling or otherwise prepared for a return to the country of habitual residence. The returning parent upon her return to the country of habitual residence is offered no assistance for accommodation, financial support or legal advice. Similarly when the abducting parent and the children are returned to Australia there is no provision for special counselling or assistance. Information about general services available in the relevant State or Territory is available to the returning parent in the form of a factsheet on the Australian Central Authority's website. (14)

This article contends that this situation where the left behind parent enjoys extensive assistance from the Australian government, while the parent who may have wrongfully removed the child and the child herself are not eligible for any assistance is both inequitable and a false economy. More importantly this situation risks undermining the 1980 Convention by producing children traumatised not only by their initial abduction but re-traumatised by the legal process and often by a dramatic and ad hoc return to their country of habitual residence. The returning parent may have few links to this country other than a failed relationship or marriage, thus creating for the returning parent the very situation the 1980 Convention was designed to avoid. For the returning children there is an uncertain immediate and long-term future that may be no less traumatic than the initial abduction.

II LEGAL BASIS FORA DUTYTO PROTECTTHE INDIVIDUAL CHILD

The mandate for the States Parties implementing the 1980 Convention to act to protect the individual child who has been abducted is to be found in the Preamble to the 1980 Convention:

The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions... The Preamble makes clear that the aim of the 1980 Convention is to prevent harm to children and the means by which it seeks to do this is by enforcing parental rights. The protection of parental rights is therefore not the objective but the means to prevent harm to the children.

The Explanatory Report for the 1980 Convention reinforces the harm minimisation approach. Paragraph 23 states:

... right from the start the signatory States declare themselves to be 'firmly convinced that the interests of children are of paramount importance in matters relating to their custody'; it is precisely because of this conviction that they drew up the Convention, 'desiring to protect children internationally from the harmful effects of their wrongful removal or retention.' (15) The abducted children who have the misfortune of having uninformed, ignorant, frightened or poorly advised parents who take them from their homes are sometimes considered as sacrificial lambs who may in practice suffer from being returned but whose return achieves what is considered the greater good of preventing subsequent abductions. (16)

The Preamble is often read down and interpreted as an expression of the Convention's role to deter future abductions. There is, however, nothing in the words of the Preamble which confine its meaning to future abductions. The duty to protect the particular child as well as to prevent child abduction generally should be the basis of the interpretation of all of the subsequent articles of the Convention. Such an interpretation would ensure that returning a child includes an obligation to do so in a manner that prevents further harm to the individual child who is the subject of the particular application.

The duty to prevent further harm is specifically cast on Central Authorities who are charged by Article 7(b) and (c) of the Convention to:

... take all appropriate measures--...

(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;...

There are 4 injunctions in these provisions:

--prevention of further harm;

--taking no provisional measures which will prejudice the interested parties;

--securing a voluntary return; or

--amicably resolving the issues.

The first duty in Article 7(a) is the duty to prevent further harm. The premise here is that the abduction has already caused harm to the individual child and the Central Authority has the duty to prevent 'further harm' to that child. Article 7(b) focuses on the parents and offers alternative ways for the Central Authority to assist. It does not mandate returning the child although of course that is the most common result.

Typically, Central Authorities focus on securing the return of the child. Little attempt is made to do so on a voluntary basis while the prevention of further harm is generally interpreted as a duty to prevent any re-abduction. Little attempt is made to find out the underlying issues between the parents and to resolve those issues. Provisional measures such as arranging access are rarely taken even if such measures would not prejudice interested parties. (17)

The obligation to prevent further harm is required by the 1980 Convention but is also required by other international instruments such as the United Nations Convention on the Rights of the Child ('UNCRC'). That Convention has been...