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The Hague Convention

By November 19, 2018October 28th, 2021No Comments

What is this “Hague Convention” I keep hearing about?

An old international treaty called the Hague Convention on the Civil Aspects of International Child Abduction was established about 40 years ago now. 99 countries including Australia signed up to it. It was intended to protect kids from being wrongfully removed from their home country, or retained overseas without the permission of their custodial parent. Some countries haven’t signed it, these are known as ‘non-Hague countries’. If a parent takes a child from a Hague convention country to a non-Hague country, it can be extremely difficult or impossible to make legal arrangements to get the child back.

You may have read the case about ‘the Italian sisters’. This was an Australian mum who took her 4 girls back to Australia after many years living in Italy with their Italian dad. An Italian court had made some orders initially, and after the mum moved the girls back to Queensland in breach of those Italian orders, the Hague Convention kicked in and the judge and lawyers relied on that to sort it all back out. You may recall the girls were then sent back to Italy in the first instance.

You may also recall a 60 Minutes program in which two children were effectively abducted on the streets of Lebanon by private operators and attempted to be returned to an Australian parent by stealth. In that case, the ‘abduction’ failed and the children remain in Lebanon with their father, and their mother now lives without them in Australia.

Italy is a signatory to the Hague Convention, but Lebanon is not, hence the very different outcomes in those cases. For a full list of countries published by the Australian Government, go to this link:

https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionOnTheCivilAspectsOfInternationalChildAbduction.aspx

So what does the treaty do?

-It aims to ensure the fast return of children abducted by a parent and taken across international borders without the consent of the left-behind parent.

– the courts in the new country (where the child was taken to or held) are unable to make welfare decisions about the child except to make urgent interim arrangements for the child’s short term protection.

–  the courts in the new country need to make a quick decision about whether a child needs to be summarily returned.

Are there any problems with the treaty?

Yes, including these:

-The treaty doesn’t provide procedures to implement return orders

-Many of the signatory countries fail to ensure the enforcement of their own orders for the return of kids, making such orders potentially meaningless in those instances where there is no actual mechanism to enforce it.

– It’s also not a level playing field –  some countries do pursue enforcement while others make no effort to ensure enforcement at all.

There’s no procedure to ensure compliance by Contracting States

– No ultimate international “appeals court” exists which could ensure the universal application of the treaty, and remove the inconsistencies across countries which currently cause uncertainty for families.

– There’s no mechanism for enforcing undertakings given by the left-behind parent

Left-behind parents often give undertakings (ie. solemn promises to the court) to provide a so-called ‘soft landing’ for the returning child. But there’s no uniform mechanism for enforcing such undertakings.

-There’s often no consideration of the child’s situation on returning home

For example, many countries don’t require the abducting parent to travel with the child back to the original home country to deliver them back to the left-behind parent, but instead simply expect the children to be collected by the left-behind parent. It’s argued this could cause problems for the child, such as trauma over the sudden loss of the abducting parent (whom they often love dearly), and there could be serious issues if the abducting parent was actually fleeing family violence and is now required to hand the child back to an alleged perpetrator without any certainty over how the child is to be protected going forward.

In some countries now, including England and Wales, it is now routine for left-behind parents to first give undertakings and provide arrangements for protective measures for the child, to ensure their welfare when they return ‘home’ and before local courts are able to be involved. But such undertakings are certainly not common to all countrires, and there’s no mechanism for the enforcement of those undertakings if they are breached once a child is returned.

You can read our earlier blog on the Hague Convention here.

https://www.familylawincanberra.com.au/parental-international-child-abduction-subtleties-of-the-hague-convention/

If you need assistance with a child recovery order, having your child’s name placed on the airport watchlist, or any other parenting matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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