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.