The 1980 Hague Convention on the Civil Aspects of International Child Abduction – of which Australia is a signatory – is a treaty designed to make the return of an internationally abducted child as swift as possible, if the return does not put the child in grave risk.
In the words of the treaty, it ‘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’. It is also designed to protect and uphold the child custody arrangement that has been legally decided in the country from which the child has been abducted. (It is hoped that the treaty is a deterrent for those parents that believe a different court will provide a more sympathetic child custody arrangement).
However, the protection provided by the treaty has – in the words of Watts McCray partner Justin Dowd – ‘entered new territory’. A recent European court ruling has fundamentally altered the protection once provided by the Hague Convention.
In 2005, a Swiss woman formally married to an Israeli man illegally travelled to Switzerland with her child. The father sought action through the Israel Central Authority for the return of the child. The Swiss court, however, found that in accordance with the Hague Convention and on the premise that the father had joined an ultra-orthodox and radical Jewish movement, there would be grave risk to the child if returned to Israel. When the father appealed in 2007, he was successful. The mother then filed an application with the European Court of Human Rights (ECHR).
The ECHR came to a decision in July 2010. It ultimately ruled that the Hague Convention could not be the sole treaty or organisation through which abduction and child custody cases must be considered, and that it is the child’s best interest at the time of hearing (as opposed to the time of wrongful removal from one country to another) that must be the fundamental test or measure of whether a child is to be returned to the state from which the child was wrongfully removed.
In this case, therefore, the mother and child were allowed to remain in Switzerland on the premise that it was in the child’s best interest, and that the child and mother’s return to Israel could cause the violation of European human rights.
What does it mean?
This case heralds two essential changes to the Hague Convention as it is applied to European cases. Firstly, that the Hague Convention is to be interpreted in conformity with other UN and European conventions as well as other case law, and secondly that the child’s best interest at the time of hearing be the test that is applied to the hearing.
Whether this precedent has eroded the protection afforded by the Hague Convention, or increased the protection of children by involving the principles of other human rights and international law organisations is open to interpretation. However, as Watts McCray partner Dowd recently commented, ‘it must be seen as an authoritative and deliberate decision; one which will presumably lead the way for European courts to approach Hague Convention cases in the future.’