The recent case involving the four Italian girls being removed by their mother from Italy to Australia has certainly generated a lot of public debate and interest.
We have received many questions and queries from clients and also from friends and associates about what has happened and what will happen.
What is the Hague Convention?
As a modern country, we can be proud of the fact that we are a signatory to the Hague Convention in relation to the international abduction of children. This is a convention signed by many civilised countries around the world that was put in place to ensure the prompt return of children to their place of habitual residence if they are wrongly removed from that county. In other words, the Hague Convention does not decide the merits of a custody dispute. The convention says that a parent does not have a right to wrongfully remove children who are habitually resident in that country to another country unilaterally and get away with it. If they do that than the Convention requires that the children simply be returned to that country so that due process and the laws in that country can be applied to the children.
International Movement of Children
In Australia, we are rightfully outraged when children are taken by a parent and secreted off to a non-convention country. There have been many cases where mothers have had their children taken overseas by wealthy fathers and secreted in countries that are not a signatory to the Hague Convention. Usually, these countries provide little recognition for the rights of women and as such, we as the public are usually outraged when this occurs.
A similar outrage should be felt by the public when the opposite occurs. That is, when children are residing and habitually living in another modern country and are removed from that country to our country without due process taking place in the overseas country.
There are exceptions and defences under the Hague Convention to oppose the automatic return to the habitual country of residence. No doubt, in the case involving the four Italian girls, they are placing their hopes upon those exceptions and defences especially the ones relating to the wishes of the children.
The Rights of Children
Australia is also a signatory to the International Convention on the rights of children and we can be proud of not only our international stance but also our Federal Laws which recognise the rights of children. Children do have a right to be heard and to be listened to in relation to any dispute regarding their parents. However, once again there are specific laws and processes to be followed in relation to how that occurs.
It is not for us or anyone to judge what has happened in the sad case involving the four Italian girls. However, it needs to be understood that the Court here is not deciding the custody issues regarding the children. If the Court here does order the return of the children then that is what the Court simply does. It orders the return of the children to Italy. The Court here will not award long term custody to the father or the mother. That will be a matter for the Italian Courts if and when it occurs.