Family Law: Children return to Italy under the Hague Convention

Family Law: Children return to Italy under the Hague Convention

So what is the Hague Convention

We all saw distressing scenes on the recent news reports regarding the four girls ordered to return to Italy by the Family Court of Australia under the Hague Convention.

 

Although an uncommon occurrence with children on the Central Coast, the number of children from Australia abducted overseas is rising.

 

Although ultimately distressing for the children and their mother, the Hague Convention is an important part of our Family Law legal system to protect children against abduction to another country.

 

It is also important to note that with Australia as a signatory to the Convention our government can seek assistance from other signatory governments to order the return of Australian children should they be unlawfully taken overseas. Statistics show that for every 2 children unlawfully brought to our country, 5 Australian children are taken out of Australia.

 

So what is the Hague Convention?

 

The Hague Convention on the Civil Aspects of Child Abduction (1980) is an International Convention to protect the unlawful abduction of children overseas.

 

The Australian Government has declared that it will uphold the tenets of the Convention and is what we call “a signatory”.

 

The signatories agree to the following:

 

“Firmly convinced that the interests of children are of paramount importance in matters relating to their custody…

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention, and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”

One of the most important Articles of the Convention is…

Article 3 …The removal or the retention of a child is to be considered wrongful where

a)   it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and


b)   at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

This means that if a Court of a country has made orders in relation to the custody of a child then it is considered wrong to remove that child from that country without permission of the other parent.

Although distressing to see the images of the children being returned to Italy, it is also important to note that the court was critical of the mother for engaging the media and unduly influencing her children against their father. An object of the Family Law Act is to protect children from harm and to make decisions that are in their best interests.

There are a high number of countries that are signatories, but notable exclusions are Japan and Indonesia. Should a parent wish to take a child overseas it is wise to seek legal advice in relation to whether that country is a signatory to the Convention.

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