Kids Without Voices – Family Law, Abduction Law and Appeals

Monday, September 3rd, 2012

Hanne & Co’s family department are able to offer specialist advice on matters of international abduction. We have been following the case of four sisters at the centre of a notorious Hague Abduction Convention case.

The four sisters have been denied separate legal representation. The sisters, who are aged 9, 10, 13 and 15 and who share an Australian mother and an Italian father, were removed from Italy and taken to Australia by their mother in 2010. According to the children’s father, abduction proceedings were issued once it became apparent that the mother had taken them to Australia for more than the agreed one month long holiday. The children’s mother has maintained throughout the legal proceedings that she had the father’s permission to remove the children indefinitely.

The appeal for separate legal representation, made by the children’s great aunt, was dismissed by the Australian Family Court on 16th August 2012. The Judge did, however, order that the children be re-interviewed for the purposes of a future hearing due to take place at the end of September and, further, that no steps were to be taken to secure the children’s return to Italy prior to that hearing.

Following the 2006 House of Lords case of Re D (a child) [2006] UKHL 51, there are three ways in which those who are the subject of abduction proceedings can make their views known to the judge who will decide the outcome of the case. The first of the three possibilities is for the child to be interviewed by a CAFCASS officer. The second possibility is for the child to have the opportunity to meet with the judge prior to the final hearing. The final option is for the child to have separate legal representation.

Separate legal representation would have entitled the sisters to more than just a chance to let the judge know how they feel; the children would be a separate party in the proceedings. At each stage there would have been a lawyer, or group of lawyers, whose sole purpose would be to represent the children’s best interests and convey the children’s views to the Court. Against this, the decision as to whether separate legal representation should be ordered, not just in this particular case but in all Hague Abduction Convention cases, may appear to be a simple one. This writer suggests however that one must be mindful about the unique purpose of the Hague Abduction Convention.

The Hague Abduction Convention is an international treaty with the sole purpose of seeing children who are abducted from a signatory state to another signatory state returned, unless well-defined exceptions exist. Even satisfaction of one of the exceptions will not necessarily, in itself, secure the children’s residence in the receiving state. The Hague Abduction Convention is, in short, very much geared towards the return of abducted children, albeit in some cases with the knowledge that it will be for a very short period whilst permission is obtained through domestic courts. The Hague Convention is about honouring international obligations and does not provide a forum for a welfare based residence dispute. Once the children have been returned, that residence dispute can be taken through the domestic courts of the country of residence. The writer suggests that it is here that the debate as to whether there should be separate legal representation of the children becomes live.

International elements in family law are becoming more and more common as we travel more now than we ever have done in the past. It is imperative your lawyer knows the law well in this very complex area, as making the right decision at the right time and building your case carefully from the start are very important. Whether you are concerned about International Child Abduction or a desire to go abroad permanently or even temporarily with your child (permanent or temporary removal from the jurisdiction), we have specialist family lawyers here at Hanne & Co, with the requisite experience to guide you carefully through your case.

Please call us if you or someone you know requires further advice on the issues covered by this article, you can call 020 7228 0017 or email info@hanne.co.uk for immediate assistance. We also have a live chat facility available in the top right hand corner of our website, please click on our contact box for more information on how we are able to help you. Our experienced solicitors are committed to resolving sensitive legal issues with the utmost confidence. Click here to read more about Hanne & Co’s family department.

By Family Solicitor Grainne Fahy and Family Paralegal Emily Page .
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