: Return Orders, The Hague Convention and The Rights of Children

Return Orders, The Hague Convention and The Rights of Children

Ross Vernon Bowler

As a result of an Italian father invoking The Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) to have his children returned to Italy from Australia the High Court of Australia has been asked to consider the rights of the children. The Family Court found nothing sufficient in the matters prescribed in r 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to prevent ordering the return of the children to Italy.

Such a dispute is sought to be resolved by the Court acting on what is in the best interests of the children. However, it is resolved as between the parties, not as to the whole world.

The interesting point that representatives of the children seek to agitate is the child’s right to have individual input into any return order hearing, not just via a family report or two from one or both of the parents or the Court.

The Court may well be convinced that children in such a situation should have the articulated right and return order hearings may enjoy a wider breadth of evidence in future. However that may not be the end of the matter. The utility of sending the matter back to the Family Court may also be discussed.

Parents who overstay in such circumstances invite allegations that they have:

  • denied a proper relationship to occur between the children and the remaining parent for the duration of the overstay;
  • alienated the children against the remaining parent;
  • not obeyed a Court Order.

All of these issues could be seen to be significantly detrimental to the case of the parent resisting the return order.

If that view is taken by the High Court, the mother may not embrace the rights won by the children in the same way subsequent litigants may embrace it.

ROSS VERNON BOWLER is a Brisbane barrister.

(2012) 37(3) AltLJ 204
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