The case concerning two sisters who had to be removed from a plane due to leave Brisbane airport for Italy has attracted much attention in the legal press.
The sisters had travelled to Australia with their mother and two sisters in 2010. When she refused to take them back to Italy their father applied to the Australian court for their return.
Despite the court's decision that all the children should be returned to Italy the mother took them into hiding and refused to comply with the order. There were further proceedings where the mother's lawyers argued that the court should exercise its discretion not to order a return on the basis that the children had now become settled in Australia and were expressing a clear wish to stay there. That argument was rejected by the judge who found that the children had been significantly influenced by their mother and that there were no grounds for not honouring Australia's obligation to return the children to Italy.
For most UK family lawyers this is an uncomfortable outcome for these children. In our jurisdiction the welfare of the child is the paramount consideration. After two years it would be hard to say that the children had not become settled in their schools and in their communities. After such a period a return to Italy would undoubtedly be detrimental. Their education would be disrupted and, in this case, they would be separated from their mother who had decided not to return to Italy for fear of prosecution.
The Hague Convention
The answer to the question why did the judge act in the way he did is provided by the Hague Convention. This is the treaty that regulates arrangements between member states for the return of abducted children.
The treaty has been with us since 1980 and there are now more than 80 signatories.
How does it work?
Each member state must establish a specialist team, the Central Authority, whose task is to process outgoing cases, where the child has been taken from the home jurisdiction and incoming cases where the child has been brought in from another Hague country.
In most jurisdictions consent from both parents is required if a child is to be taken abroad. If one parent acts unilaterally, that removal will be considered abduction. In that situation the parent left behind must notify the Central Authority who will then submit a request for return to the other member state. Proceedings will be issued, the child must be located and the application brought before the court.
Applications under the Hague Convention are summary proceedings. The objective in most cases will be to bring about the swift return of the child to the requesting state. The defences to the application are limited. The parent resisting the application must show that the other parent consented to the removal or that a return to the home jurisdiction would expose the child to the risk of grave psychological harm or an intolerable situation. The court also has discretion to refuse a return if the children have remained in the foreign jurisdiction for more than 12 months or if, having regard to their age and maturity, they are expressing a clear view that they do not wish to return to their home country.
The Australian decision
The decision in the Australian case highlights the tension between the summary nature of the Hague proceedings, which are designed to ensure that disputes between the parents are resolved in the home jurisdiction, and the need to make decisions which promote the welfare of the abducted child who is, of course, the innocent party.
This is a problem that has exercised professionals working in the field of international child abduction for some time. Should the court adopt a more welfare-based approach to return applications? Or, should judges focus on ensuring that children are returned swiftly so that the welfare investigation can take place in the home jurisdiction?
In the recent case of Re E (Children) 2011 UKSC 27 the Supreme Court considered an appeal against an order to return two abducted children to Norway. It was argued that the judge deciding the case had not given sufficient consideration to the arrangements for the mother and children's return. The Supreme Court rejected that argument clarifying that it was not the function of the court dealing with the return application to conduct a detailed welfare investigation in every case. That would defeat the objective of the Convention which was to ensure the prompt return of abducted children. It was however clarified that there will be cases where the judge will be entitled to refuse a return if the individual circumstances of the case justify that decision, but such cases will be the exception.
The stakes are high in international abduction cases. If the abducting parent is unable to resist the return application they will have to go back to the home jurisdiction. Having returned they will have to re-establish themselves and the children with accommodation, education and finance. They may also face criminal proceedings. So, even though the prospect of applying to the court for permission to relocate with your children can seem daunting it will always be advisable to do that if the other parent will not agree. The risks for the abducting parent and the distress to the children make the alternative far from attractive as the Australian case illustrates so effectively.