Hague Convention

Principle of prompt return

17.295 As noted in Chapter 2, the Convention on the Civil Aspects of International Child Abduction (Hague Convention) is one of the international conventions to which Australia is a signatory. The Hague Conventionis a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The Convention seeks to ensure that any child abducted from one Convention country to another Convention country is promptly returned to the child’s country of residence unless exceptional circumstances apply.

17.296 The basis of the Convention is the best interests of all children for issues of their welfare to be determined by the courts of the country in which they habitually reside, rather than the best interests of an individual child.^[313] As noted by the Australian Government Attorney-General’s Department in a submission to this Inquiry, the Convention ‘is designed to ensure that decisions about the welfare of the child should be made in the jurisdiction in which the child habitually resides’.^[314]

17.297 The Hague Convention sets up a Central Authority in countries party to the Convention. The Central Authority has a number of functions to facilitate the return of children to and from other countries. In Australia, the Central Authority is the Australian Government Attorney–General’s Department. There are also Central Authorities in each state and territory.

Exceptions

17.298 There are several exceptions to the requirement for the immediate return of a child under the Hague Convention. One exception is where there is a grave risk that return ‘would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’.^[315] Another exception is where the return of the child would violate ‘fundamental principles of Australia in relation to human rights and fundamental freedoms’.^[316]

Conditions on orders

17.299 One approach that courts have used to attempt to alleviate concerns about the risk of physical or psychological harm to a child is to request ‘non-molestation’ and other undertakings from the ‘left-behind’ parent, or place conditions on the return of the child.^[317] However, under the Convention there is no power to make such conditions nor for them to be enforced in Australia.^[318] The Guide to Good Practice under the Hague Convention, produced by the Hague Conference on Private and International Law states that the obligation of the Central Authority as follows:

If conditions were imposed or undertakings given with the return order, take whatever steps are appropriate within the limits of the Central Authority’s powers, to ensure that the conditions are met or the undertakings are fulfilled.^[319]

17.300 However, the practical use and effect of conditions and undertakings has been questioned, as there is no provision in the Convention for automatic enforcement of conditions and undertakings made in the returning state. A 2003 report by the United Kingdom Reunite Research Unit reported that, of the six non-molestation orders given in abduction cases which the Unit considered, all six were broken.^[320] Where a parent sought to enforce the undertakings through police complaints, the outcome generally was unsuccessful.^[321]

In one case the mother called the police in relation to the constant pestering and harassment by the father in the home State in contravention of an undertaking given to an English Court. These undertakings had been registered in the local Court in the home State. Nevertheless, the mother states that the police advised her that she would have to obtain a protection Order as the undertaking had ‘no real effect’. The mother states that she has heard this story time and again from women who have been sent home subject to undertakings. She states her view that undertakings are ‘completely ineffective’.^[322]

17.301 The difficulty of enforcement of undertakings in Hague Convention cases was noted by the ALRC in Equality Before the Law, and that there is ‘potential for it to be misused by mean as a means of exercising continuing powers over their partners’:

A man may commence custody proceedings in Australia to bring the woman and children back from overseas and then may discontinue proceedings. The woman is then in an invidious position, usually in a refuge, without income, and unable to leave. It was suggested that in such cases the Contracting Authority Representatives should accept responsibility to continue proceedings.^[323]

17.302 The ALRC recommended that reg 16 of the Family Law (Child Abduction Convention) Regulations be amended to provide that in deciding whether there is a grave risk that the child’s return would expose the child to physical or psychological harm or an intolerable situation, regard may be had to the harmful effects on the child of past violence, or of violence likely to occur in the future, towards the abductor by the other parent if the child is returned. It was also recommended that the regulations should provide that the child should not be returned if there is a reasonable risk that to do so will endanger the safety of the parent who has the care of the child.^[324] This recommendation has not been implemented.

Submissions and consultations

17.303 In the Consultation Paper, the Commissions sought stakeholder feedback on whether there should be a formal legal or practical connection between undertakings sought as a condition of returning a child pursuant to the Hague Convention and protection orders under family violence legislation. This could involve, for example, a formalised process through which entry into non-molestation undertakings in a Convention country outside Australia, pursuant to a Hague Convention recovery order, trigger proceedings for a protection order in favour of the child under state and territory family violence legislation, bringing all this information to the attention of magistrates.^[325]

17.304 Further, in Chapter 30, the Commissions consider the development of a national protection order register. One of the issues raised by such an initiative is which orders should be included and whether, for example, undertakings or conditions entered into as a condition of returning a child pursuant to the Hague Convention should be included.^[326]

17.305 A particular concern of most stakeholders who responded to these issues was insufficient consideration given to matters of family violence in considering the return of a child pursuant to the Hague Convention.^[327] The Australian Government Attorney-General’s Departmentemphasised, however, that the role of the Convention was not primarily to resolve disputes between parents, which is the case in relocation and recovery matters within Australia. The Department noted that ‘under the Hague Convention the child is returned to the jurisdiction, not necessarily the left behind parent’.^[328]

17.306 Because of this focus, however, the Queensland Law Society submitted that ‘there is concern that the presumption for return is so strong that the issue of domestic violence may be inadequately dealt with’.^[329]

17.307 In considering how to provide a better focus on safety in Hague Convention returns, the Australian Government Attorney-General’s Department suggested that:

while one option courts have to alleviate concerns about the risk of harm is to request undertakings from the left behind parent to not approach the other parent, there is also the option of keeping the return location secret from the left behind parent.^[330]

17.308 With respect to the making of undertakings, the Chief Justice of the Family Court and the Chief Federal Magistrate noted the problem of enforceability:

Historically, there have been considerable difficulties in relying on protective undertakings in Hague Child Abduction Convention proceedings because of their lack of enforceability. In fact, undertakings can give a misleading impression of safety and protection.^[331]

17.309 In view of such difficulties, the Chief Justice and Chief Federal Magistrate considered that it would be beneficial for the Family Court to monitor any proceedings commenced after a child is returned to Australia pursuant to the Hague Convention:

This would not be in the form of judicial management per se but could, for example, be undertaken by the Chief Justice’s chambers or Principal Registrar’s chambers if sufficient resources were made available to enable monitoring to occur.

With very few exceptions, a returning child will already have come to the attention of the Commonwealth Central Authority (‘CCA’). The CCA should be able to send a copy of whatever orders or agreements were obtained in the returning jurisdiction. Whoever is notified within the court could refer the matter to a case manager or the listing judge in that state for the re-listing of any associated proceedings pending in the Family Court and for the appointment of an independent children’s lawyer. An amendment to Family Law (Child Abduction Convention) Regulations should provide appropriate authority to notify the court of returning cases. Section 111B enables regulations to be made for ‘such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction’.

17.310 The Chief Justice and Chief Federal Magistrate also pointed out that it is not necessarily the case that conditions and undertakings can be obtained in the returning country:

For instance, the Family Court of Australia understands that, in New Zealand, it is not possible for someone to get an apprehended family violence order against themselves (as left behind parents may be called upon to do), because of the difficulties in proving immediate apprehension of harm if you are in another country. Likewise, a child usually has to be within a jurisdiction before an order can be made about that child.^[332]

17.311 Their Honours opposed any implication that family violence protection orders should be made automatically following non-molestation undertakings or conditions:

Any suggestion that family violence orders be automatically made is not supported. Family violence orders should only be imposed where warranted and after due process. To facilitate arrangements where a family violence order is consented to, consideration may be given to amending the relevant legislation to make such a consent order possible. It is important to ensure that mutual family violence orders being made in relation to the requesting parent and the returning parent are scrutinised, to ensure that they are able to operate effectively.^[333]

17.312 Other stakeholders expressed supported for the suggestion that non-molestation undertakings should trigger protection order proceedings.^[334]

Commissions’ views

17.313 While the issue of escaping family violence may well have been a precipitating factor in a parent taking a child out of Australia, the Hague Convention provides limited opportunity for the previous occurrence of violence and a fear of future violence to be considered, given the emphasis on securing the child’s return to the jurisdiction. The concern in this Inquiry is on the relationship between the return of a child pursuant to the Hague Convention and, in particular, state and territory family violence legislation. The focus is therefore on cases of children who are returned to Australia, not the reverse situation of children being returned to another Convention country pursuant to the Hague Convention. Concerns of a different nature may arise where a victim flees with his or her children to Australia to escape family violence in another country. However, the issues arising from these circumstances do not relate to interaction of state and territory laws and the Family Law Act, and so are beyond the scope of this Inquiry.

17.314 The Commissions note the observations of the Chief Justice of the Family Court and the Chief Federal Magistrate concerning any automatic triggering of protection orders by conditions or undertakings made in another Convention country.

17.315 The Commissions also acknowledge the suggestion for reform proposed in their submission that the Family Law (Child Abduction Convention) Regulations should be amended to provide appropriate authority to notify the Family Court of returning cases. The Commissions agree that this would be a sensible amendment and consistent with the principles of reform in this Inquiry—namely to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it, and to facilitate effective interventions and support in circumstances of family violence. The Commissions also affirm the recommendation in relation to reg 16 made in the ALRC’s report Equality Before the Law, to give greater prominence to considerations of family violence. Although neither amendment pertains to issues of interaction—and therefore the Commissions make no recommendations with respect to them in this Inquiry—they highlight the importance of family violence in the assessment of risk, as well as improving the interconnectedness of the Family Court and the Central Authority when children are returned to Australia.

17.316 The issue of including conditions or undertakings made to another Convention country on a national protection order register in Australia is relevant to this Inquiry. Registration would not affect the enforceability of Hague Conventionconditions and undertakings, but may be a useful information-sharing measure, in particular to ensure federal family courts, state and territory courts and police are aware of conditions and undertakings relevant to the safety and protection of parties. This is discussed further in Chapter 30.