or not grave risk would exist if the child was to be returned to the country of habitual residence. The defence pertaining to the child’s objections was also considered in terms of the international and domestic law to which Australia subscribes to.
[5] The final exception regarding human rights violations has been assessed by the Australian courts in regards to the cases of Bennett and A v GS and although the exception was not successful, it is submitted that the approach adopted in this regard, which involves a consideration of the domestic and international laws to which Australia subscribe, is of assistance to countries who have not had the opportunity to consider such exception.
[6] Therefore in light of the discussion of the Australian perspective and approach to this Study, the comparative between South Africa and Australia shall proceed in Chapter [4] below.
Chapter Four: Comparative
1. Introduction
[1] From the above discussions it is evident that international parental child abduction is a worldwide problem and one which is specific to this Study between South Africa and Australia.1 The reasons for international parental child abduction were canvassed within Chapter [1] herein and thus shall not be repeated at this point. The purpose of this chapter is to compare the adequacy of the exceptions provided within the Hague Convention against the rule of peremptory return within South Africa and Australia.
This shall be done in order to determine whether South Africa would benefit by applying the Australian approach herein, or whether the South African approach is currently sufficient. Australia was chosen because over the years the Australian authorities have had great opportunity to analyse case law in this regard and the Australian law and application thereof is similar to that of the South African legal system, values and approach. The focus of this chapter will be specifically on the exceptions/defences available in each of the above countries.
[2] South Africa and Australia have both signed and ratified the Hague Convention2 and have legislatively incorporated the Hague Convention within their domestic law.3 South Africa and Australia
1 PR Beaumont & PE McEleavy The Hague Convention on International Child Abduction (1999) 2; D Finkelhor, G Hotaling
& A Sedlak ‘Children abducted by family members: A national household survey of incidence and episode characteristics’.
(August 1991) 53 (3) Journal of Marriage and Family 805, available at http://www.jstor.org/stable/352753, accessed on 19 July 2010; B Clark ‘Division P: Child abduction’ in B Clark ‘Division P: Child Abduction’ in B Clark (Ed) Family Law Service (2010) (Issue 54 October 2010) (Loose Leaf) at para [1]; ‘Living in Limbo: The experience of International parental child abduction the call for a National support service’ International Social Service Australian Branch (February 2005) 3, available at http://www.missingpersons.gov.au/Asset s/Files/9bb6de98-a9ab-436f-8c08-cb63c21ff155.pdf, accessed on 19 April 2011.
2 South Africa became a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, 1980 on the 6th November 1996: JMT Labuschagne ‘International parental abduction of children: remarks on the overriding status of the best interests of the child in international law’ (2000) 33 Comparative and International Law Journal (CILSA) 334–335.
Australia ratified the Hague Convention on the Civil Aspects of International Child Abduction, 1980 on the 29th October 1986 and it entered force and effect on the 1st January 1987: M Kirby ‘Children caught in conflict – the Child Abduction Convention and Australia’ (Autumn 2010) 21(1) Australian Family Lawyer 3; M Nicholls QC ‘International Child Abduction: Australian Law, Practice and procedure’ (July 2010) 2, see Australian Government Attorney-General’s Department International Child Abduction, available at http://www.ag.gov.au/childabduction, accessed on 31st March 2011;
Australian Central Authority, Australia Attorney-General’s Department, Canberra ‘Hague Child Abduction Convention:
Information for Parents of Abducted Children’ (November 2001) 1, available at http://www.ag.gov.au/agd/WWW/rwpattach .nsf/viewasattachmentpersonal/(C99C9C662AE008709B6A1B06BCF8E5CF)~parentsofabducted+childrenNov01.pdf/$file/p arentsofabducted+childrenNov01.pdf, accessed on 8th July 2011; L Curtis ‘The Hague Convention on the Civil Aspects of International Child Abduction: the Australian experience’ (April 1989) 15 Commonwealth Law Bulletin 627; L Young & G Monahan Family Law in Australia (7th ed) (2009) 344; De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640 at 673; DP and Commonwealth Central Authority; JLM and Director-General New South Wales Department of Community Services [2001] 206 CLR 401 at para [23].
have been Hague Convention countries since the 1st January 1998.4 The incorporation of the Hague Convention within the Australian law is different to South Africa, who enacted the Hague Convention through the creation of their own statute and incorporated it fully within their domestic law.5 Australia, however, did not directly incorporate it but created statutes to allow for its enactment.6 South Africa and Australia both maintain a discretion to regulate the implementation of the Hague Convention within their borders.7 As Australia ratified the Hague Convention a few years prior to South Africa, this time frame makes them a suitable country to compare South Africa with.8 Thus it is submitted that a comparative difference exists between South Africa and Australia in regards to the manner in which they incorporate the Hague Convention within their domestic law.
[3] The objects of the Hague Convention in both Australia and South Africa are the same as provided for in terms of the Preamble, Article 1 and 2 of the Hague Convention. These objectives are to secure the
3 South Africa legislatively implemented the Hague Convention within its boarders through the now repealed Act 72 of 1996 on the 1st October 1997: CMA Nicholson ‘The Hague Convention on the Civil Aspects of International Child Abduction, pill or placebo?’ (1999) 32 CILSA 230; Labuschagne op cit (n2) 334-335; Clark op cit (n1) at para [2]; Section 313 and Schedule 4 of the Children’s Act 38 of 2005 repealed Act 72 of 1996. Schedule 2 of the Children’s Act 38 of 2005 incorporates the Hague Convention in full within the domestic law of South Africa, see also section 275 of the Children’s Act 38 of 2005; J Weideman & JA Robinson ‘The interpretation and application of Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction’ (2011) 1 Stellenbosch Law Review 72. See also JM Hlophe ‘The judicial approach to
“Summary applications for the child’s return”: A move away from “Best interests’ principles?”’ (1998) 115 SALJ 439.
Australia gave effect to its ratification through the incorporation of section 111B within the Family Law Act, 1975 (Cth) which made provision for the Family Law (Child Abduction Convention) Regulations, 1986 which came into force and effect on the 1st January 1987: Regulation 1 of the Family Law (Child Abduction Convention) Regulations, 1986; Schedule One of the Family Law (Child Abduction Convention) Regulations, 1986; Kirby op cit (n2) 4. The Hague Convention on the Civil Aspects of International Child Abduction, 1980 is however not in force between all signatory countries as there are sub- requirements which need to be satisfied in order to bring it into force between them. Regulation 10 of the Family Law (Child Abduction Convention) Regulations, 1986; kindly also refer to Articles 35, 37-40 and 43 & 44 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 for further information and understanding herein. See also Living in Limbo op cit (n1) 17.
4 Article 24 and 26 (3rd paragraph) of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 provisions apply.
5 Living in Limbo op cit (n1) 17.
6 Loc cit.
7 Section 280 of the Children’s Act 38 of 2005. Within Australia, Regulations have been manufactured and implemented in order to ensure the applicability of the Hague Convention within its domestic law however, these Regulations, subject to section 111B of the FLA, ensure that the Hague Convention is not incorporated in full without the Australian Legislature and Government is able to regulate its aspects herein: Living in Limbo op cit (n1) 17.
8 The reason South Africa only became a signatory after Australia seems to point towards the old Regime System of Apartheid which used to dominate our law as well as our international reputation. As a result of the formation of the Constitution of the Republic of South Africa, 1996 and the abolishment of the Apartheid system and laws, South Africa was able to begin to interact fully and completely on the international field.
return of the child to its home jurisdiction and the best interests of the child are not considered to be the paramount consideration herein in either country.9
2. Constitutionality of the Hague Convention and Regulations within South Africa and Australia