International Child Abduction

Unless you have not been online, seen a TV or read a newspaper this week, you would be aware of the case of the ‘Garning’ family.

The purpose of this post is not to argue the rights or wrongs of either side of the argument, but to explain in simple terms the legal aspects of the case.

Australia is a signatory to the Hague Convention on International Child Abduction (the Hague Convention).  The convention has a mandatory requirement that if a child is removed to or retained in a convention country, without the consent of the other parent, then the child must be returned to the country they were living in before the removal or retention.

Australia does not enter into a convention arrangement with signatories to the Hague Convention until satisfied that the other signatory has appropriate domestic laws to deal with ‘custody’ cases.   Currently there are 8 signatories Australia does not yet have arrangements with – one of those is Singapore.  Here is a list of the countries we have the convention in force with.   Note that Malaysia is not one of them.  Hence Jacqueline Gillespie (now Pascarl) was not able to use the convention to force the return of her children when they were abducted by their Malaysian Prince father.

There are some limited exceptions to the mandatory return requirement.   It is a hard hurdle to overcome.  It is designed to prevent child abduction and ensure that parents use the courts of the country they are living in, to determine ‘custody’ issues.

In the Garning case, it has been said that the Australian Government helped the Mother and 4 children flee from Italy.  The judgment simply does not support that contention.   The Mother tendered hundreds of pages of documents from the Department of Foreign Affairs and Trade (DFAT).   The court was satisfied that the documents show that DFAT assisted the Mother to confirm the children’s Australian citizenship and obtain passports, but made it clear that she needed the Father’s consent to take the children from Italy.   This was no cloak and dagger operation by the government to smuggle them out of the country.

Where the Mother’s case really fell down was here:

She said the Father consented to the children moving permanently to Australia and that he later simply changed his mind.

She said she had a witness who was a very dear friend who would give evidence that she witnessed him sign the passports and say that the children could go.

However, there was no affidavit produced of that witness – at the hearing or the Appeal.

The Mother also gave a media interview after she moved to the Sunshine Coast.  In that interview she described how she had told the Father they were going on a holiday only, so that she could get out of the country.

The weight of evidence stacked up against her.

There are circumstances where children’s wishes can be taken into account.   The Garning children were interviewed by an independent report writer and their views placed before the Court.  Those views were not found to be sufficient to justify them remaining in Australia.    It is important to note that in domestic family law cases, children’s wishes do not determine the issue – they are only one of a range of factors the court takes into account.

The next avenue of appeal is for Ms Garning to seek leave to appeal to the High Court of Australia.  There is no automatic ‘right’ to an appeal to the High Court – the court has to be satisfied that the matter is important and significant enough for them to hear it.   There are a lot of knockbacks.

Unless she is successful, the children will have to return to Italy (note: to Italy, not to the Father...) and the Italian courts will determine the appropriate arrangements for them.