The recent case of the four “missing” girls has been the focus of attention in the news headlines.
The case isn’t about children being returned to Italy to live with their father against their wishes and in defiance of their mother’s claims that father is abusive.
It is about what is the best jurisdiction or court forum, for the litigation and judicial determination, as to who the children will live with, and how much time they will spend with the other parent.
The Hague Convention was negotiated and entered into to avoid the international “kidnapping” of children. The intent of the Convention is that child custody litigation and judicial determination is best heard and made in the country of the children’s “usual place of residence”. If children have been removed without a parent’s consent, or overheld without a parents consent, the aggrieved parent requests the relevant “central authority” to initiate litigation pursuant to the Hague Convention Regulations for a court order that the children return to their usual place of residence.
It should be noted that not all countries are signatories to the Hague Convention.
Once returned, the child custody litigation begins in the usual way by either parent making an application to the relevant court for parenting orders, or parenting and relocation orders.
If the parent making the application for relocation is successful, then the children will return to the country from where they have been recently returned – to live with the parent who removed them. Usually there are other parenting orders made providing for the children to spend time with the other parent, either block time during holidays, or on a more frequent basis, depending on distance and practicality.
These are complex and highly emotionally charged proceedings. A parent’s grievance can only be addressed by the application of the legal process provided by the Hague Convention. Hague Convention applications are “fast-tracked” by the Family Court of Australia as they are intended to be a narrow inquiry. The final judicial determination of the parenting application is subject to the delays found in the local courts.
The focus of Hague Convention proceedings is to decide which court is best placed to determine the parenting dispute. The custody hearing comes later. An aggrieved parent can lose many precious months attempting extra-legal avenues to force their parenting arrangements on their ex-partner. Anywhere in the world long delays are experienced in achieving a judicial determination of a parenting dispute. It is strongly recommended that the legal process be employed to best achieve a timely outcome.
Pity the children.