Stifled Voices: Hearing Children’s Objections in Hague Child Abduction Convention Cases in Australia

Abstract

In 2012, four Italian children unlawfully retained in Australia by their mother were sent back to Italy, even though they had been in Australia for over two years, all four objected to being returned and the two elder children were aged 12 and 14 at the time of the first hearing. The High Court of Australia ruled that the children had been afforded natural justice and that their views had been appropriately heard and considered, despite the children not having had legal representation or the opportunity to express their views directly. This article examines the meaning and operation of the "children's objection" exception to a mandatory return order made in Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. While the general rule is that children unlawfully taken from their home country by a parent must be returned, Article 13 gives a court discretion to refuse to return a child if the child objects and is of sufficient age and maturity. In Australia, the child's objection must also show a "strength of feeling" beyond a mere preference or ordinary wishes. The authors discuss the limitations of the current procedures for hearing children's objections in light of the child's right to be heard pursuant to Article 12 of the United Nations Convention on the Rights of the Child, and advocate greater use of Independent Children's Lawyers and meetings between children and judges in Hague Convention cases.

The lived experiences of children/young people in the Aotearoa‐New Zealand family court system

“…Since the end of the twentieth century a number of authors both internationally and in Aotearoa‐New Zealand have assisted our understanding of how we might enable children and young people to speak cogently about issues that matter to them. (Atkin, Caldwell, Henaghan, & Tapp, 2013; Bala, Birnbaum, Cyr, & McColley, 2013; Birnbaum, 2009; Birnbaum & Bala, 2009; Birnbaum, Bala, & Cyr, 2011; Birnbaum & Saini, 2012; Boshier, 2005, 2006, 2008; Fernando & Ross, 2018; Fitzmaurice, 2017; Parkinson & Cashmore, 2007, 2008, 2020; Parkinson, Cashmore, & Single, 2007; Taylor & Gollop, 2015; Taylor, Gollop, & Smith, 1999a; Taylor, Gollop, Smith, & Tapp, 1999b; Taylor, Smith, Gollop, & Tapp, 2001; Tisdall, Baker, et al, 2002a; Tisdall, Bray, Marshall, & Cleland, 2004; Tisdall, Davis, & Gallagher, 2008; Tisdall, Marshall, Cleland, & Plumtree, 2002b; Tisdall & Morrison, 2012; Young et al, 2020).…”

Children’s Objections in Hague Child Abduction Convention Proceedings in Australia and the “Strength of Feeling” Requirement

“…In Australia, evidence of children's views is most often presented through an expert report. I have discussed the advantages and limitations of the methods of hearing from children in Convention matters elsewhere and argued that greater use of judicial meetings with children and independent legal representation may lead to better evidence of children's views and objections, and greater compliance with the uncrc (Fernando and Ross, 2018).…”

“…Numerous authors have discussed the importance of upholding the principles of the uncrc in Hague Convention matters (eg, Elrod, 2011;Boezaart, 2013;Schuz, 2013;Fenton-Glynn, 2014, Fernando, 2020. A tension emerges between the requirements of the "children's objection" exception in the Convention and Article 12 of the uncrc, which gives children a right to be heard, and have those views be given 'due weight' in all proceedings affecting them (Schuz, 2013;Fernando and Ross, 2018). However, even if one subscribes to a narrow view that children's views in Convention proceedings should only be heard if they constitute a relevant "objection", a refusal to take children's views into account on the basis that their objection does not show the requisite "strength of feeling" is a denial of their rights (Fenton-Glynn, 2014).…”

“…While much has been written about the operation of the Convention in Australia (eg, Kirby, 2010;Kay, 2005;Nygh, 2002;Fernando and Ross, 2018), this is the first analysis focussing on Australia's unique 'strength of feeling' requirement and how it has been applied in the cases. The analysis is restricted to how the Family Court1 has treated evidence of children's views in considering whether a child has 'objected' in the sense required by the Australian regulations.…”

Hearing Children’s Objections in Hague Child Abduction Proceedings in England and Wales, Australia, and the USA

“…The Hague Convention on the Civil Aspects of International Child Abduction ('Convention') aims to ensure that children who are wrongfully removed to or retained in a Contracting State are returned promptly and that parental rights of custody and access in a Contracting State are respected in other Contracting States (Article 1). The Convention is designed to protect children from the harmful effects of unilateral removal or retention (Schuz 2013), and it is generally presumed that it is in children's best interests to be returned to their country of habitual residence, where issues of care and parenting can be decided (Fernando and Ross 2018).…”