Child abduction and non-convention countries: a comparative analysis -England and Australia
Author | Frank Bates |
Position | LL.M., Professor of Law, Universiry of Newcastle (NSW) |
Pages | 189-223 |
CHILD ABDUCTION AND
NON-CONVENTION
COUNTRIES:
A COMPARATIVE ANALYSIS -
ENGLAND AND AUSTRALIA
FRANK
BATES*
INTRODUCTION
The purpose behind the Hague Convention on Civil Aspects of International
Child Abducrion has been clearly articulated in various jurisdictions. Thus, in
England, in Re A (A Minor)(Abduction)1 Nourse, L.J., in the Court of Appeal
stated that the various provisions of the Convention " . . demonstrate that its
primary purpose is to provide for the summary return to the country of their
habitual residence of children who are wrongfully removed to or retained in
another country in breach of subsisting rights of custody or access. Except in
certain specified circumstances, the judicial authorities in the country to or in
which the child is wrongfully removed or retained cannot refuse to order the
return of the child, whether on grounds of choice of forum or on a considera-
tion of what is in the best interescs of the child."2 In Canada, for instance,
Goodman, J., of the Manitoba Queen's Bench Court said, in Chalkley v
Chalktey,3 that
"'The
test to be applied on an application to return a child to
LL.M., Professor of
Law,
Universiry
of
Newcastle
(NSW).
[1988]
l FLR 365
at
368.
2
That statement had been adopted in later cases - see, for
example.
Re
E
(A
Minor)(Abduction)
[1933]
1
FLR 135 at 139, per
Balcombe
LJ.
3
[
1994]
10
WWR 114 at 125. Despite chat
dictum,
it
is
worth
noting that
Chalkley
v.
Chalkiey
is one
of
the
very
few
decisions
where
Art 13(b) of
the
Convention was used to
justify
not returning a child.
another country pursuant to the Hague Convention is not what is in the best
interests of the child. The best interests of the child will be determined after
the proper jurisdiction has been determined and, if appropriate, the child has
been returned to the proper jurisdiction." In
Australia,
Nygh, J., in the Family
Court of Australia, in Director, Family and Community
Services
v Davis put
the matter still more severely when he stated that ". . . the question of welfare
of the child as the paramount consideration does not apply. For the Conven-
tion is not directed to that issue. It is directed to, in my view, two main issues:
firstly, to discourage, if not eliminate, the harmful practice of unilateral
removal or retention of children internationally; and secondly, to ensure that
the question of what the welfare of children requires is determined by the
jurisdiction in which they were habitually resident at the time of removal."
However, not every country
is
a party to the Convention and, in some cases,
Convention countries will have considerable dealings with countries which are
not parties. Thus, for example, Australia has considerable dealings with Ma-
laysia, which is not, and almost certainly never will be, a party. It follows that
jurisdictions which are parties to the Convention will be required to adopt
different approaches to dealings with non-Convention countries from those
in dealing with other countries which are parties to the Convention. It is the
purpose of this article to examine the approach taken by the courts of England
and Australia towards child abduction or retention involving non-convention
countries; noting, first, that the speedy return of a child to his or her country
of habitual residence may not be the primary consideration.
THE
ENGLISH CASES
There is a very considerable body of recent case law in England which deals
with the issue of dealings with non-convention countries. Although an obvious
starting point is 1985, when the Child Abduction and Custody Act, which
gave effect to the Convention, was passed, a significant pointer to the way in
which the courts were to proceed can be found in an earlier decision. In
4
(1990) FLC 92-182 at
78,
226.
5
For comment on aspects
of this
situation , see F
Bates,
"The Story of
B:
Australian Family
Law
and Policy in an Asian Context." (1994) 3 (2)
Asia Pacific
LR 33.
6
For comment on the operation
of the
legislation,
see P M North and JJ Fawcett,
Cheshire
and North's Private International Law
(12th
edn.
1992) at 733 ff.
Chamberlain v de la Mare,7 the panics had married in 1972 and the marriage
was dissolved some five years later. Custody and care and control of the two
children of the marriage, born in 1973 and 1974, was granted to the mother.
The mother remarried in 1978 and gave birth to another child in early 1979.
There were difficulties between the parties over access and, in April 1980, after
the mother had made an application to the court, overnight access was
suspended, though the father continued to visit the children on a regular basis,
Further problems then came about as the step-father, a partner in
a
professional
firm, was faced with circumstances which made it important for him to live
and work in the United States for the foreseeable future. The mother's
application to take the children of her prior marriage to the United States was
opposed by the father, even though he did not propose to take over care and
control of them. At first instance, the mother's application was refused on the
basis that it was in the best interests of the children, that they should remain
within the jurisdiction with the mother and maintain contact with the father.
The mother appealed successfully to the Court of Appeal.
Although Chamberlain is obviously not an abduction case per se, as the
mother had applied to the court, the reasoning of the Court of Appeal has been
applied in later cases involving
abduction.8
First of
all,
Ormrod, LJ., did point
out that the objection by the husband was based on a rather strange
premise.9
The basis of Ormrod, LJ's., judgment was that the Court ought not to
interfere with the reasonable decision of the custodial parent, the reason being
that" . . . assuming, as this case does, that the custodial parent is still going to
be responsible for the children, [there
is]
the almost inevitable bitterness which
such an interference by the court is likely to produce. Consequently, in
ordinary sensible human terms the court should not do something which is,
prima facie, unreasonable unless there is some compelling reason to the
7 (1983) 4 FLR
434.
8 See below text at n 59.
9 (1983) 4 FLR 434 at 440. In Ormrod LJ's., own words: "It is, I must
say,
a proposition
which strikes me with some surprise, that a father should seek to hold
his
former wile in this
country in order that she should continue to look after these children here unless it is plainly
very important to these children that they should remain here, It seems to me, looking at this
situation not only
as a
judge but
as
a human being, that he who puts forward such a proposal
has
a very
heavy burden to discharge. In ordinary human terms, it might be thought
reasonable to consider the interests of the little boys in a broad sense and with rather more
detachment from his own feelings."
10 Ibid at 443.
To continue reading
Request your trial