Opinion
Hague Convention on the Civil Aspects of International Child Abduction
8th Mar 2018
When the Hague Convention on the Civil Aspects of International Child Abduction [1] (Hague Abduction Convention) was ratified, it was no doubt envisaged that it would assist in protecting children from harm. However, in practice it is often having the effect of preventing women and children from escaping violent fathers. Like many protective measures introduced by the legal system, these provisions are now being used as a weapon against women and are infringing their human rights.[2]
Since August 2016, Ms Arthur, a dual Australian and New Zealand citizen, has been fighting to keep her now six-year-old daughter Lucy with her in Australia. In November 2017, Ms Arthur’s legal avenues of defence were finally exhausted when the Australian High Court refused her leave to appeal with a single sentence, saying that her appeal would be 'futile'.[3] Ms Arthur’s only consolation was that no costs were awarded against her.
Ms Arthur left New Zealand early in 2016 in an effort to finally end her relationship with her daughter’s father, Mr Bates, who she claimed had subjected her and Lucy to regular and escalating violence, death threats and abuse. However, with assistance from the Central Authority of New Zealand and its Australian counterpart, Mr Bates successfully brought an application under child abduction provisions[4] to compel Lucy’s return.
The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed from the country of their habitual residence (or wrongfully retained overseas). The provisions have been enacted into Australian law through s111B of the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986 (the Regulations). Under these laws, the applicant’s legal costs[5] are covered by the state but the defendant’s costs are not. Ms Arthur was also unsuccessful in securing a grant of Legal Aid in defending the claim made by Mr Bates, despite having a learning disability and receiving welfare payments.
To bring an application, a petitioner must establish that they have custody rights in respect of the child and that they have been exercising those rights. The New Zealand Family Court had made orders in August 2011, which were not appealed, that Ms Arthur was to have ‘exclusive responsibility for the child’s day to day living arrangements.’ Mr Bates was granted only unspecified ‘supervised contact at a Court approved supervised contact facility.’ Unfortunately, Mr Bates’ severely limited rights of access under New Zealand law were considered by Australian courts sufficient ‘rights of custody’ for the purposes of a return application.[6] This is despite there being provision for a separate application process for international access under the Convention – which is effectively rendered redundant by this reasoning.[7]
The New Zealand courts had also provided Ms Arthur with Final Protection Orders against Mr Bates for herself and Lucy, for an indefinite duration.[8] One of the few defences available under the Regulations is set out in reg16(3)(b), which is available when there is a grave risk that the child will be exposed to physical or psychological harm if returned.[9] However, neither the existence of these protection orders nor the accounts of two unrelated women, indicating that Mr Bates was in fact a serial domestic violence offender, were given weight by the trial judge. Facebook messages from Mr Bates’ earlier partner describing physical abuse during and after her pregnancy, for example, were disregarded. Subpoenaed police statements showing that yet another previous partner of Mr Bates, unknown to Ms Arthur, had also experienced violence and death threats of a similar nature, were found to have no probative value since the matter had not proceeded to conviction.
In reply to the evidence of violence, Lucy’s father responded: ‘I have never been involved in a physical altercation with any person…in my entire life’. Despite the inherent improbability of this blanket denial and the strong indications that Mr Bates was in fact a serial perpetrator of domestic violence, neither the trial judge nor the appeal court[10] found a grave risk that the child would be exposed to harm.
Instead, the trial judge determined that the child should be returned to New Zealand where their courts were equipped to deal with the matter. This failed to take account of the fact that orders had already been made in Ms Arthur’s favour by New Zealand courts, and had proved ineffective. It disregarded her evidence that the police were often unresponsive to her complaints and that on the one occasion when Mr Bates was charged with assault, the charge was dismissed following a hearing due to the lack of corroborative evidence. Ms Arthur was clear that she never wanted to undergo cross-examination again, because she believed that the court system would be unable to protect her from Mr Bates in the circumstances.[11]
Lucy, who is settled in Australia having completed her first year of school, must now be returned to New Zealand. Ms Arthur has been advised to apply to New Zealand courts for the necessary relocation orders, but limited access to Legal Aid in New Zealand restricts her ability to commence such proceedings. Although Legal Aid may be available to defend an application brought by the father, from his perspective this is unlikely to be necessary. This application of the Hague Abduction Convention has effectively subverted the existing orders of New Zealand courts as Ms Arthur is now too afraid to accompany her child, believing that Mr Bates is likely to exact violent revenge for her actions.
This case raises many issues in relation to access to justice, which is a major obstacle for vulnerable women like Ms Arthur who are not equipped to defend these cases either financially, intellectually or emotionally. Despite the waiver of court fees and the provision of pro bono legal representation, the cost of photocopying and printing appeal books in this case alone amounted to in excess of $3,000. It was only the assistance of the NSW Bar Association’s Legal Assistance Referral Scheme that enabled these expenses to be met, and this assistance is available only to a limited few.
With the refusal to grant leave for this appeal, the Australian High Court has missed an opportunity to correct an imbalance and to strengthen the rights of women to secure their children’s safety and well-being. On the current operation of the law, once a woman conceives a child, regardless of the father’s subsequent level of involvement or conduct, she has unwittingly traded her right to liberty of movement and the freedom to choose her own place of residence if she wants to retain custody of her child.[12] The Australian High Court has reaffirmed that, within this patriarchal legal system, resistance is futile.
Anna Kerr is the Founder and Principal of the Feminist Legal Clinic, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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[1] The Convention came into force in Australia on 1 January 1987.
[2] J S Goldberg and S Shetty, ‘Representing battered respondents under the Hague Convention on the civil aspects of international child abduction: A practice guide for attorneys and domestic violence victim advocates’ (Berkeley Goldman School of Public Policy, 2015).
[3] [2017] HCASL 301.
[4] Family Law Act 1975 (Cth) s111B; Family Law (Child Abduction Convention) Regulations 1986.
[5] International Social Service Australia (ISS) or the Australian Central Authority, advises on costs for individual countries during the application process in relation to costs. Article 26 of the Hague Abduction Convention stipulates that each Central Authority shall bear its own costs in applying the Hague Abduction Convention. Australia has not made any reservation under Article 42 to declare that it is not bound to assume any costs resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice: Family Law (Child Abduction Convention) Regulations 1986, reg30.
[6] See s111B(4) of the Family Law Act 1975 (Cth) and <https://www.foleys.com.au/resources/The%20Hague%20Abduction%20Convention_Renwick.pdf> for a more detailed discussion on rights of custody under the Convention.
[7] Family Law (Child Abduction Convention) Regulations 1986, reg25.
[8] s45 of the Domestic Violence Act 1995 (NZ) provides that a final protection order continues in force until it is discharged pursuant to s47.
[9] The High Court decision of DP v Commonwealth Central Authority [2001] HCA 39 remains the leading Australian authority on the ‘grave risk’ defence.
[10] Arthur & Secretary, Department of Family & Community Services and Anor [2017] FamCAFC 111 (29 June 2017).
[11] Department of Community Services v Hadzic (2007) FamCA 1703 and Bassi and Director-General, Department of Community Services [1994] FLC 92-465 were cases where Australian courts failed to balance protecting the objectives of the Hague Convention and dealing with grave risk and domestic violence as an exception to protect mothers and children.
[12] Australian Human Rights Commission, Freedom of Movement <https://www.humanrights.gov.au/freedom-movement>.
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