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The Hague Convention: Who is Protecting the Child?

Published online by Cambridge University Press:  06 November 2012

Carmen Tetley
Carmen Tetley*
Affiliation:
University of South Australia, Adelaide, Australia
*
address for correspondence: Carmen Tetley, Yew Chung International School, Houbalizhuang No.5 Honglingjin Park, Chaoyang District, Beijing 100025, People's Republic of China. Email: [email protected]
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Abstract

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The ‘Child Abduction Section’ provides information about the operation of the Convention and the work of the Hague Conference in monitoring its implementation and promoting international co-operation in the area of child abduction. There are currently 58 member countries and 22 non-member countries. Australia signed the Convention five years after its introduction. The Family Law (Child Abduction) Regulations 1986 enshrined in Australian law the principles espoused in the Convention which came into force in 1987. The Regulations are to:

  1. (a) secure the prompt return of children wrongfully removed to or retained in any contracting state, and

  2. (b) ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.

This paper shows that the failure of Family Courts to take account of the effects of their actions on the development and best interests of children whose return is secured can add to the psychological abuse of those who were removed from their home countries to avoid sexual abuse and violence. It suggests that the exceptions in the regulations that allow a child to remain in the new country with the primary caregiver are being ignored.

Keywords

Hague Conventionchild protectionparental child abductioninternational custody lawsbrain developmentchildhood trauma
Type
Articles
Information
Children Australia , Volume 37 , Issue 4 , December 2012 , pp. 135 - 141
Copyright
Copyright © The Authors 2012

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References

Akerman, P. (2008). ‘Children in heartfelt plea to stay in Australia’, Australian, 19 May, p. 7.Google Scholar
Anda, R.F., Felitti, V.J., Bremner, J.D., Walker, J.D., Whitfield, C., Perry, B.D.et al. (2006). The enduring effects of abuse and related adverse experiences in childhood. European Archives of Psychiatry and Clinical Neuroscience, 256 (3), 174–186.CrossRefGoogle ScholarPubMed
Attorney General's Department (2007). The Hague Convention on the Civil Aspects of International Child Abduction. Retrieved from http://www.ag.gov.au/www/agd/agd.nsf/Page/Internationalchildabduction_TheHagueConventionontheCivilAspectsofInternationalChildAbductionGoogle Scholar
Attorney General's Department (2008). Publications and statistics. Retrieved from http://www.ag.gov.au/www/agd/agd.nsf/Page/Internationalchildabduction_Publicationsandst-atistics.Google Scholar
Barron-Sullivan, D., & Templeman, D. (2006). Extract from Hansard of The Legislative Council WA Assembly. Thursday 24 August.Google Scholar
Berk, L. (2005). Infants, children and adolescents, 5th ed.Boston, MA: Allyn & Bacon.Google Scholar
Berk, L. (2006). Child development, 7th ed.Boston, MA: Allyn & Bacon.Google Scholar
Briggs, F. (2008). Risk of jail for trying to save a child from abuse. Advertiser, 18 May, p. 79.Google Scholar
Bruch, C. (2004). The unmet needs of domestic violence victims and their children in child abduction convention cases. Family Law Quarterly, 3 (38)529–540.Google Scholar
Bryant, D. (2006). Family law reforms. Proceedings of the 12th National Family Law Conference, Perth, pp. 1–15. Retrieved from http://www.familycourt.gov.au/wps/wcm/resources/file/ebc79747936496f/CJ_speech_Oct_2006.pdf.Google Scholar
Caldwell, J. (2008). Child abduction cases: evaluating risks to the child and the Convention. New Zealand Universities Law Review, 23, 161–190.Google Scholar
Chiancone, J., Girdner, L., & Hoff, P. (2001). US Department of Justice, Juvenile Justice Bulletin: Issues in resolving cases of international child abduction by parents. Retrieved from www.ncjrs.gov/pdffiles1/ojjdp/190105.pdfGoogle Scholar
Darragh, D. (2006). Swiss mum gets back WA kids, West Australian, 3 July. Retrieved from http://www.highbeam.com/doc/1G1-147744441.htmlGoogle Scholar
Doherty, B. (2006). After 14 years, reunion joy for kidnap family. Age, 6 April, p. 2.Google Scholar
Gill, H. (2006). Four lives changed forever. Herald Sun, 5 April, p. 14.Google Scholar
Gleeson, C.J., Gummow, J., Kirby, J., Heydon, J., & Crennan, J. (2008). M.W. v Director-General, Department of Community Services, HCA12’ High Court of Australia.Google Scholar
Gowrie Adelaide (n.d.). Children's programs: Attachment and primary caregiving. Retrieved from http://www.gowrie-adelaide.com.au/cms/?q=node/5Google Scholar
Hague Conference on Private International Law (n.d.). HccH, The Hague, Netherlands. Retrieved from http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24Google Scholar
High Court of Australia. (2008). MW v Director- General, Department of Community Services. Retrieved from http://www.austlii.edu.au/au/cases/cth/HCA/2008/12.htmlGoogle Scholar
High Court of Justice Family Divison (1992). In the matter of W. Retrieved from http://www.hcch.net/incadat/fullcase/0052.htmGoogle Scholar
Hoare, D. (2006). PM [transcript], ABC Radio, 23 August 2006. Retrieved from http://www.abc.net.au/pm/content/2006/s1722382.htmGoogle Scholar
Keris, E. (2007). The interests of children or the interests of the child? Discretionary non-return of a child under Art. 13 of the Hague Convention on the Civil Aspects of International Child Abduction, Australian Journal of Human Rights, 12 (2)139–169.Google Scholar
Louw, A. (1998). Human development. Cape Town. ABC Press.Google Scholar
Middlebrooks, J.S., & Audage, N.C. (2008). The effects of childhood stress on health across the lifespan. Atlanta, GA: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control. Retrieved from http://www.cdc.gov/ncipc/pub-res/pdf/childhood_stress.pdfGoogle Scholar
Nicholson, A. (2010). Family law does not put children first, Sydney Morning Herald, 2 March 2010. Retrieved from http://www.smh.com.au/opinion/society-and-culture/family-law-does-not-put-children-first-20100301-pdi1.htmlGoogle Scholar
Palmer, E. (2004). Hague Convention on International Child Abduction, Law Library Congress Switzerland. Retrieved from http://www.kinder-nach-hause.de/docs/switzerland.pdfGoogle Scholar
Rice, A.M. (2005). International child abduction: overview and update. Premium News, 6 October 2005.Google Scholar
Salter-Ainsworth, M.D. & Bowlby, J. (1991). An ethological approach to personality pevelopment. American Psychologist, 46 (4), 333–341.CrossRefGoogle Scholar
Shetty, S., & Edleson, J.L. (2005). Adult domestic violence in cases of international parental child abduction. Violence Against Women, 11 (1), 115–138.CrossRefGoogle ScholarPubMed
State of Queensland Department of Communities (2007). 15.5 Responding to Hague Convention (Child Abduction) Matters (Child Safety Practice Manual). Retrieved from http://www.communities.qld.gov.au/childsafety/child-safety-practice-manual/chapters/10-general/10-22-international-child-protection-matters-and-the-hague-convention.Google Scholar
Wills, M. (2006). Interpreting the Hague Convention on International Child Abduction: Why American courts need to reconcile the rights of non-custodial parents, the best interests of abducted children, and the underlying objectives of the Hague Convention. Review of Litigation, 25 (423), 1–27.Google Scholar