edition No. 27
WEBSITE: www.law.gov.au/childabduction — FREECALL NUMBER: 1800
100 480
The United Kingdom non government organisation, reunite has published a report
on what happens when a child is returned following abduction. The report also
comments on the circumstances surrounding parental child abduction. The full
report which was prepared byMarilyn Freeman is available on the reunite website
which is at www.reunite.org.
The report presents the findings of the second stage of a three stage project
being undertaken by reunite. The first stage was a pilot study and was based
on the distribution and analysis of 23 questionnaires. The second stage, which
is the subject of the current report, is based on 30 interviews of between 3
to 6 hours each with parents of children who had been abducted and had ended
up in a European jurisdiction. The third stage, for which reunite is seeking
financial support, will involve similar interviews without the jurisdictional
restriction.
Summary of Stage 1
The findings of the pilot study
... support the already widely held view that mothers are more often the
abductors of their children than fathers, and that, in most cases, it is
the primary carer who will abduct their child [Report p 5].
The pilot study also found that undertakings given in the context of a return
were frequently not honoured and that mirroring the undertakings in the
jurisdiction to which the child is returned does not appear to provide a guarantee that they will be adhered
to [Report p 6].
Summary of Stage 2
The report explains the difficulties experienced by the writer in finding
enough suitable subjects to participate in the research. The response rate
from organisations, Central Authorities and lawyers contacted was disappointingly
low. The sample size was therefore small but the results are valuable nonetheless
because of the lack of data on this subject. The methodology of the second
stage of the project involved in depth interviews with 30 people including both abducting and left behind parents.
In 8 cases both the abducting and left behind parents were interviewed so
that in total 22 cases were examined involving 33 children. In 14 of the 22 cases
in the study the mother was the abducting parent. This result is consistent
with existing research. The findings of the report suggest that In most cases,
therefore, children were abducted from a situation where they had been living
with both parents, emphasising the acknowledged change from the ‘classic’ early
abduction where the non custodial parentabducted the child from the care, and
the home,of the custodial parent... [Report p19].
In 16 of the cases examined the abduction was to the home country of the
abducting parent [Report p20]. As the majority of abductors were mothers
this lends some support to the view that abductors are returning home to escape
from difficult or abusive domestic situations. In 13 of the cases no orders
were in place in the country from which the child was abducted. In 6 of the
9 cases in which there were orders in existence in the home country, those orders included an order restraining
the removal of the child from the home jurisdiction. The average time between
the abduction and the return to the home jurisdiction in children 0 to 5 years
was 18.8 weeks. The shortest period being one week and the longest 19 months.
For children between 5 and 10 years the average duration of the abduction
is 21.9 weeks and for children over 10 years the average period is 10 weeks.
The author notes that older children (over 10 years) are abducted less often
and are returned to the home jurisdiction more quickly than younger children [Report p 26].
The report notes that in 19 of the 22 cases the return occurred as a result
of proceedings under the Hague Convention on the Civil Aspects of International
Child Abduction (the Abduction Convention). Many parents commented that the legal
representatives whom they first approached were not aware of the ‘legal
machinery’ of the Abduction Convention and the parents had initially been
steered towards custody issues rather than the ‘non welfare based abduction
process’ [Report p28]. In one case the left behind parent was advised
by a lawyer to go to the country to which the child had been abducted to seek
the return of the child even though the country abducted from and the country
abducted to were both Convention countries.
The report looked at the efficacy of undertakings given in the jurisdiction
to which the child is abducted and mirror undertakings made in the home jurisdiction.
Undertakings were given in 12 of the cases and broken in 8 cases. The author
concludes
It would appear that it has proven extremely difficult to enforce the undertakings
in the home jurisdiction. A new order of the local jurisdiction has been required
which often means that the parent seeking to rely on the undertaking must
finance and pursue that aim...When that undertaking relates to financial support, this
places the parent seeking to rely on the undertaking in an impossible position
where the home state does not provide financial legal aid [Report p34].
This problem is exacerbated by the finding that most mothers return to the
home jurisdiction with the child notwithstanding the concerns and defences raised
during proceedings and that it may take some time for the local jurisdiction
to deal with the substantive issues between the parties. In 9 of the 22 cases
the first mention of the dispute in the court of the home jurisdiction took
between 1 and 6 months and in only 3 cases did not require further judicial
determination in the home jurisdiction Report p36].
The report comments that the fact of the abduction does not seem to impact
negatively on the abductor in the subsequent custody proceedings and that
the abducting parent was granted leave to remove the child from the jurisdiction
in 6 of the 11 cases in which this application was made in custody proceedings
following the return [Report p 37].
The report also found that in almost half the cases studied contact is taking
place satisfactorily
between the child and the non custodial parent after the child has been returned
to the
home jurisdiction [Report p48].
In addition to the 22 cases for which interviews
were conducted, the report looks also at 11 cases
involving a return to South Australia. These cases
were accessed from Family Court records made
available to the author. In 3 of the 9 South Australian
cases in which leave to remove the child
from the jurisdiction was sought, leave was
granted. In the other 6 cases it was not granted
although the child remained in the primary care
of the applicant mother. The author hypothesises
that Australian courts take a ‘harder line against
the wishes of primary carer’ [Report p45].
The author concludes that the Abduction Convention
while generally working well is not a panacea
for the resolution of problems following the
breakdown of a relationship involving children.
While the Abduction Convention facilitates the
return of a child, the problems that precipitated
the abduction still remained to be resolved. In the sample studied some parents
have managed to get
on with their lives while a small number found
the home state had failed to ameliorate the fears
and concerns of the returning parent and child.
Ms Freeman comments that ‘the outcome for returning
children appears to be less traumatic than
they have foreseen’ [Report p47].
New Convention Countries
TABLE GOES HERE
Recent Australian Decision
Director-General, Department of Families
and RSP [2003] Fam CA 623
Appeal from a decision of His Honour Justice Warnick to the Full Court
heard by Their Honours Justices Ellis, Finn and May (26 August 2003).
This case concerned the return of a child of less than 3 years to the United
States of America. The respondent, the mother, raised a defence under Regulation
16(3) (b) on the basis of unchallenged evidence from her treating psychiatrist
that she was ‘..a real suicide risk if her young child is forced to
return to the United States of America’ [Judgement paragraph 24] and
the similarly unchallenged evidence of a psychologist who prepared a report
for the mother. The psychologist’s evidence was that if the mother suicided ‘the
ramifications of this would obviously be devastating long term for [the child],
in that she would grow up without any access to her biological mother’ [Judgement paragraph 51].
The appellant’s case was based on
• the dissenting judgements of Justices Kirby and Gleeson in DP v Australian
Central Authority and JLM v Director-General, New South Wales Department of
Community Services (2001) 206 CLR 401 (JLM) which distinguished between the
risk of the mother suiciding created by a return to country of habitual residence
and the risk of losing custody in proceedings in that country (the two stage
process) and• whether if a grave risk were found that risk could be
ameliorated by the imposition of conditions on the return.
In relation to the first point the Full Court found that the two stage process
could not be applied in this case because the affidavit of the psychiatrist and
the mother when taken together established that the risk would arise if the
return were ordered. With respect to the second point the Court said at paragraph 44 of the Judgement
We accept that there may well be cases where the imposition of conditions
upon which the return is to occur will be a proper exercise of the discretion, notwithstanding
that a case of grave risk might otherwise have been established. However we
do not see this as being such case.
N J and Director-General of Community Services (18 September 2003)
Appeal from a decision of His Honour Justice Rowland heard by Their Honours
Justices Finn, Holden and Mushin.
This case concerned the return to the United States of a seven year old child.
The case turned on whether the father had rights of custody under the Convention
and the process to be adopted when there is a conflict of evidence by legal
experts as to the effect of foreign law.
The relevant order of the Georgia court provided for joint legal custody,
for sole physical custody to the mother and for defined access to the father.
In addition a further order provided
If the Parties are unable to agree on
issues regarding child rearing, the Plaintiff, as primary physical custodian, shall have the right to make the decision.
The Full Court preferred the evidence of the mother’s expert. That evidence
was that ‘...the father’s rights in relation to the child were,
in addition to visitation rights otherwise limited to a right to be consulted’ [Judgement
paragraph 55].
The court relied on an English decision S v H (Abduction: Access Rights) [1998]
Fam49 which said in relation to conflict of expert legal evidence‘ where
that evidence is in conflict we have to dothe best we can’ (p.52).In
this case the decisive factors were that the father’s expert expressed
his views in a partisan fashion and had not provided details of his qualifications. The
court went on to consider whether a right to be consulted could constitute
a right of custody.
The court looked at various English decisions and found that the right
to be consulted did not amount to a right of custody under the convention. The
court also commented in passing that the father’s rights of visitation
also did not amount to a right of custody.
Director-General, Department of Families and BW [2003] FamCA 335 (11
April 2003).
This was an application brought by the Director- General, Department of Families
for the return of a child to New Zealand, following a wrongful retention
of the child by the respondent mother. The application was filed on 15 January 2003.
Prior to 20 January 2002, the agreed date for return the mother informed the
father that she would not return the child. The precise date for this telephone
call was contested, but fell somewhere between 16 December 2001 and 1 January
2002. The child was not returned on 20 January 2002.
The issue raised was whether, for the purposes of regulation 3(2) Family
Law (Child Abduction Convention) Regulations ‘retention of a child’ occurred on
the date that the mother notified the father that she would not return the
child, or from the date when the child should have been returned to the father.
If retention was held to have occurred from the date of notification, the
application would have been made more than twelve months after the child
had come to reside in Australia. The mother could then argue under reg 16(1) (b) that the child was settled
in its new environment
in Australia.
Regulation (3)(2) defines ‘retention of a child’ by
reference to a breach of the rights of custody of a
person, actually exercised at the time of the retention,
or which would have been exercised but for the retention’ [Judgement
Para 31]. Consequently, there can be no retention until there is an actual breach
of another’s rights of custody [Judgement Para 32]. The court also noted that reg 3(2) is
directed towards actual retention rather than
threatened retention [Judgement Para 32].
The court observed that ‘[w]here a child is taken
to another country for an agreed period of time,
there can be no retention until the expiry of that
period of time’ [Judgement 33] The court cited
Murray v Director, Family Services ACT (1993)
FLC 92-416 as authority, but acknowledged that Murray did not consider whether
retention could arise as a result of action other than a failure to
return a child upon expiry of an agreed period.
It is possible that where there is no fixed or agreed
date of return, the date of refusal to permit return
may be the date of retention [Judgement
Para 36, citing Mushin J In the marriage of Artso
and Artso (1995) FLC 92-566]. However, this
was not such a case. The child was not due to be
returned until 20 January 2002. Therefore since
the mother was entitled to retain the child until
that date, there could be no wrongful retention
until 21 January 2002.
Recent Foreign Decisions
P and the Secretary for Justice as the New
Zealand Central Authority ex Parte AP
Judgement of New Zealand court of appeal (19/
12/03) heard by Their Honours Gault, P,
Blanchard, and Glazebrook JJ.
This case concerned an application for the return of two children aged 7 and 5 to Australia. The parents had, while residing in Australia, entered into an agreement that the children would reside with each parent for a period of two years until they turned 18. The mother and the children then moved to New Zealand. Five months into the two year period the mother made an application to the New Zealand Family Court for sole custody. The father applied for a return to Australia under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).
At the initial hearing a return was ordered on the ground that the mother’s application to the New Zealand Family Court ‘has brought the parties agreement to an end and the retention had become actual rather than potential’. There was no argument on the issue of habitual residence.
The mother appealed to the High Court on the basis that there was no retention as the period agreed had not yet expired. She also sought successfully to raise the issue of habitual residence. The return decision was confirmed on the basis that the breach was made actual by the mother acting contrary to the father’s agreed parental rights by bringing the application for custody in New Zealand. The mother appealed again to the Court of Appeal. The Court of Appeal overturned the decision. The court was split two to one. Gault J dissenting found that the finding of fact that the habitual residence was Australia was not an issue about which there is a right of appeal. He commented also that to hold that there is no retention until the expiry date of the agreement is to allow the mother to both rely on the agreement for the purpose of the Convention and repudiate it for the purpose of the custody proceedings.
Justice Blanchard looked at the issue of habitual
residence suggesting strongly but not deciding that
the authorities supported the habitual residence
having changed to New Zealand. Both Justice
Blanchard and Justice Glazebrook were in agreement that there was no retention
because the
agreed period had not expired. Justice Glazebrook
takes a very detailed look at all the authorities on
the issue of habitual residence and particularly in
these shuttle custody cases.
Articles and Papers
GRAY, Jodi Anne: Respecting human rights in the drafting and interpretative stages of the Hague Convention on the Civil Aspects of International Child Abduction. Australian Journal of Family Law 17 (3) November 2003: 270-296.
SCHUZ, Rhona: Returning abducted children to Israel and the intifada. Australian Journal of Family Law 17 (3) November 2003: 297-305.
BATES, Frank: Grave Risk, Physical or Psychological Harm or Intolerable Situation: The High Court of Australia’s View Asia Pacific Law Review 11(1), 2003: 43-56.
MOSKOWITZ, Galit: The Hague Convention on International Child Abduction and the grave risk of harm exception recent decisions and their implications on children from nations in political turmoil Family Court Review - special issue: Child protection in the 21st century, October 2003: 580.
PERMANENT BUREAU OF THE HAGUE CONFERENCE: The Hague Conference and its Training Activities International Family Law Journal November 2003: 213.
MCFARLANE, Andrew: Delay: A Cause of Significant Harm Family Law Journal 33 July 2003: 453.
The International Child Abduction News is a newsheet, which aims to provide coverage of recent developments in international parental child abduction. The News is produced in the International Family Law Section of the Commonwealth Attorney General's Department. The purpose of the News is to provide general information and not legal advice. Every care is taken in the preparation of the News but readers are advised to check the details of any legislation, cases, or other material in it. All inquiries about the International Child Abduction News should be directed to the Principal Legal Officer, International Family Law Section, Family Law Branch, Family Law and Legal Assistance Division, Attorney-General's Department, National Circuit, Barton, ACT 2600.
Editor: Rosa Saladino Email: rosa.saladino@ag.gov.au