Children – Do they have to go or can they stay?

How the Hague Convention Works in Australia and how Counsel Family Lawyers Can Assist

I have previously blogged on the fall out of Hague Convention cases and inter country marriages.  There have been two highly publicised cases in Australia in recent years involving families where one parent lived overseas and wanted the children to be with them in Australia.  These situations arise for couples usually after the breakdown of their relationship and where one of them has lived in another country or wishes to return to another country.

For many people what happened in these cases made little sense as it appeared in the Italian case that at first blush the Australian Family Court was making a decision directly contrary to the expressed wishes of the four sisters.  In the Lebanese case, it appeared that a mother took matters into her own hands (assisted by others to retrieve her children) because she had exhausted all other means of legal resolution in the Courts.  There is also the much earlier case of Jacqueline Gillespie and the two children who were taken from Australia by boat to Indonesia and out of the reach of the Hague Convention (Indonesia not being a signatory to the international Convention in relation to the abduction of children).

Public opinion is often divided when these cases are examined in the media.  Emotions run hot and often not all the facts are made known (or indeed should be aired in the media given the restriction in relation to publication of family law cases imposed pursuant to s121 of the Family Law Act).

Some people condemn an inflexible, seemingly uncaring Convention that prevents a parent arguing for children to stay once removed from a country where children were living.  On the flip side of that opinion, others ponder why a parent can flaunt the Convention, break the laws made pursuant to the Convention, and spirit children away from a country where they have grown up and spent their lives.

These issues are complex and rarely black and white hence the Courts are often asked to intervene and make decisions.  So what is it that the Courts take into account when they are deciding whether children have to go back or whether they can stay?  What influences the decision making process? The Hague Convention and cases that have been decided under the Convention gives guidance to the Court but ultimately it is a matter of the facts of a given case that will compel the Court to make a stay or go order.

 Article 13 b of the Convention deals with grave risk of harm.  “That there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”  Courts have been known to assess whether the return of a child would put the child in imminent danger for example the return of a child to a famine or war torn country.  The Court will also take into account if there is any evidence of abuse, physical, psychological or whether a child has been neglected or is emotionally dependent on one parent over the other.  In short, the Court asks itself – what are we returning this child to?  What are the conditions this child will be living in?  Can the country we are going to return this child to offer this child protection?  Each case has to be decided on its own facts if this Article is invoked.

The other issue seems, to many parents who have lost their child to another country, to be unfair.   This is the concept of whether a child is “settled” in the new country or not.

Article 12 deals with when a child has been in a country for over one year and is settled.  It states that if the application is made more than one year after the date of wrongful removal or retention, the authority shall still order the immediate return of the child unless it is shown that the child is now settled in its new environment.  Time starts running from the moment the child is wrongfully removed, or when the left behind parent withdraws his or her consent.

It is important to remember though that the Court has to evaluate, not from the parents’ perspective but from the child’s perspective what is the right thing to do.  It has to also be remembered that 12 months in the life of a child can be an extremely long time and much can happen to a child during that period.  The questions are to what degree and how is a child settled.

For the parent whose child was wrongfully removed this concept leaves a bitter taste.  If the removing parent is able to secrete a child away and avoid the authorities long enough, then this argument can then be raised by this parent.

Either way, for the mother and father and indeed the four girls at the middle of the Italian dispute, no one was left untouched by the issue of the ill managed disintegration of this family.  None of their lives will ever be the same.  What we cannot know is whether there was a better way for this family to separate and was there a moment of emotional truth when the parents – both of them – could have handled things better for the sake of their children.  For Sally Faulkner and those assisting her in her failed attempt to retrieve her children, the question should also be asked about whether there was another or a better way.

All lawyers realise that the legal process can be daunting, exhausting and expensive and therefore the idea of having to apply to yet another Court for orders which will not be complied with by the other party may seem heedlessly cruel and a waste of time, effort and emotion.  Yet we live in a country whereby there the Rule of Law is upheld in our court system and as citizens we are lucky to be the recipients or beneficiaries of a legal system that does adhere to the Rule of Law.  I realise of course that with Hague Convention cases, we often deal with less than ideal countries –those who do not adhere to a Rule of Law or those who are not signatories to the international conventions such as the one dealing with abduction of children.

Imagine though with the benefit of hindsight, if a couple could reach an agreement about how to minimise harm to their children and choose better ways to resolve their dispute about how and where on the planet their children will live.  How powerful would that be for those children – that their parents could overcome the seemingly impossible task of agreeing on what is best for their children and then seeing that through.

Instead of Court and with the consent of both parties, they can opt to attempt to resolve such issues using multidisciplinary Collaborative Practice.  This involves lawyers, psychologists (and if needed, financial planners) who work together in multidisciplinary teams outside the Court system and to try and help parents make critical decisions in a supported manner and thus help families navigate their way through the waters of separation.

There is no easy solution but there are options which a team of experts can assist clients try on, to see how it fits and allows the family to live with those options before any final decisions are made.  One can only wonder whether such a method of dispute resolution may have worked for this family.  The positives about Collaborative Practice is that it transcends international borders as it is skill set that the professionals offer the family they are working with and it is not a proscribed or prescriptive law.

So are there better ways to separate?  Yes.  Are those better ways suitable for everyone?  Not always but families owe it to themselves to explore all avenues before the emotional and financial expense of going to Court. So if you know of someone who is about to separate or is separating badly and wants to change that, ensure that you mention this blog and our firm Counsel Family Lawyers to them.

Caroline Counsel: Collaborative Practitioner, Family Dispute Resolution Practitioner, Accredited Family law Specialist.

Member of the IACP (International Academy of Collaborative Professionals)

Member of the Inaugural Board of the AACP (Australian Association of Collaborative Professionals)


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