International Child Abduction: An Examination of the Application of the Hague Convention’s ‘Grave Risk of Harm’ Exception in Australia

Abstract

The rise in international parental child abductions can be attributed to the growing rate of inter-cultural marriages and divorces, the increasing ease of international travel, and cross-border communication via the use of technology. This has prompted the development of the Hague Convention on the Civil Aspects of International Child Abduction to provide a procedure for the prompt return of an abducted child to their ‘habitual residence’. The Convention aims to protect children from harm as well as to deter parents from crossing borders to find a more favourable court. This dissertation provides a discussion as to how effectively and consistently the ‘grave risk of harm’ exception per Article 13(1)(b) of the Hague Convention on the Civil Aspects of International Child Abduction is applied by Australia’s family courts. Three main areas of: international comity, domestic violence and Non-Convention countries guide this discussion. Firstly, it explores how in recent times Australian courts have been broadly interpreting the exception. It then makes comparisons with the stricter approaches taken by the USA and the UK. The preliminary chapter concludes that Australian courts need to balance protecting comity and upholding the interests of children when making decisions. The second chapter focuses on the difficulty with applying the exception in Hague Convention cases concerning victims of domestic violence. A line of Australian cases and comparisons made with the USA and UK court’s approaches reveals the tension courts face between promoting the quick return of an abducted child and adequately assessing evidence of domestic violence claims to protect the children concerned. This section also deals with suggestions from the recent Draft Guide to Good Practice, which has a significant focus on domestic violence cases. Overall, it advocates that there must be a balance between considering the wellbeing of the child but not too far so as to undermine the return mechanism of the Convention. The final chapter concentrates on Non-Convention countries as a barrier for Convention countries to uphold the objectives of the Convention. It discusses ways in which Australia deals with these countries by comparing Australia’s bilateral agreements with Lebanon and Egypt with the UK-Pakistan Protocol. It also stresses the difficulty with remedying child abductions to Islamic countries due to the influence of Shari’a law, and proposes that the ‘Malta Process’ is a beneficial international approach to assist Australia in dealing with Muslim Non-Convention countries. This dissertation provides an analysis of how the Article 13(1)(b) exception is interpreted by Australian courts including in cases concerning domestic violence victims and Non-Convention countries. Overall, it suggests ways to make the domestic application of the Article 13(b) exception more coherent and in uniformity with international approaches to better fulfil the Convention’s objectives.