1] The purpose of this study is to discuss the cases in which an abducted child must be ordered to return to their habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (the Hague Convention). 2] The historical background of the Hague Convention shall be discussed below as it provides an understanding of the implementation of the Hague Convention in both South Africa and Australia.
The formation of the Hague Convention on the Civil Aspects of International Child Abduction, 1980
38 Beaumont & McEleavy op cit (n2) 20; AE Anton 'The Hague Convention on International Child Abduction' (July 1981) 30 International and Comparative Law Quarterly 539. The Explanatory Report has persuasive value and status in the interpretation of the provisions of the Hague Convention: Buck (2010) op cit (n33 ) 220 .
Parental abduction defined
The text refers to 'unlawful removal or detention'.76 In light of the previous discussion, these terms are actually contradictory. At the draft stage of the Hague Convention it was considered desirable to retain the term 'kidnapping' in the title as it was considered a product of the mass media and was commonly used and continues to be used by them because it has a resonance with public and a powerful impact on them.77 The reason that the terms 'retention' and 'removal' are preferred in the text is because they remain within the limited scope of the Hague Convention.78 As a result of previous studies undertaken, such as indicated by Professor Pérez-Vera, the relationship that.
The purpose, aims and objectives of the Hague Convention
151 Ibid in paragraph [37]; Article 34 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980; This can be done together with the implementation of the provisions of the Hague Convention.
The Hague Convention and its interaction with other Conventions
166 Loc cit; Article 34 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980. 187 F Viljoen 'African Charter on the Rights and Welfare of the Child' in T Boezaart Child Law in South Africa (2009) 331.
Non-convention countries
Framework of the Study
Research method
1] The constitutionality of the Hague Convention was challenged in the case of Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC). This is fully discussed in terms of the child's objections to return at point [8.2(d)] herein. 86 Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980; Pérez-Vera op cit (n72) in paragraph [69].
94 Same in paragraph [73]; Article 8 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
Introduction
Family law in Australia
Therefore, most of what is referred to as 'family law' revolves around the concepts of marriage and divorce and matrimonial causes - specifically parental rights, custody and guardianship: Section 51 of the Commonwealth of Australia Constitution Act, 1990; Nicholson op cit (n4) 22. The Commonwealth laws regulate a wide range of other matters not specifically dealt with in relation to the FLA, viz.
A place for the Hague Convention in Australia
28 Article 24 and 26 (3rd paragraph) of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 provisions apply. 34 The return of children in terms of the Hague Convention is provided for in Part XIIIAA, Division 2, section 111B of the FLA and the Family Law (Child Abduction Convention) Regulations, 1986.
The constitutionality of the Australian legal framework and the Hague Convention
The objects and aims of the Hague Convention and the Family Law (Child Abduction Convention) Regulations, 1986
It is therefore submitted that Regulation 1A gives effect to the alignment of their aims and objectives with that of the Hague Convention and thus shows that the Regulations are also based on the concept that the best interests of the child are of paramount importance in all matters in regarding guardianship. 2] The requirements to be met in terms of Australian law are the same as those required under South African law.
Wrongful removal and retention: Regulations 16(1)(c) & 16(1A)
Regulation 2(1) defines "removal" in relation to a child, for the purposes of the regulations, as meaning. The case of Brown & Burke [2007] FamCa 1421 involved a declaration in terms of regulation 17.100 Article 15 of the Hague Convention is the relevant provision of regulation 17.101 However, a declaration under regulation 17 does not bind another convention court102 and is a summary procedure.103 This is because,.
Rights of custody: Regulations 3, 4 and 16(1A)(c) & (e)
The concept of parental responsibility in terms of Australian law
2] 'Rights of custody' are defined in Article 5(a) of the Hague Convention, which was adopted by Regulation 4 of the Child Abduction Regulations.117 Within Australia, the concept of 'rights of custody' exists. Section 111B(4) provides that for the purposes of the Hague Convention, cases where a parent or individual has custody, visitation or parental responsibility in relation to a child apply.
Rights of custody
The next stage is to decide, as a matter of Australian law under the Regulations (being the law of the forum where the Convention is invoked), whether they constitute 'custodial rights' within the meaning of the Regulations; and. Finally, the question is whether or not the removal or retention of the child was a violation of these rights, and therefore whether or not the removal was wrong within the Regulations.'
Habitual residence: Regulation 16(1A)(b)
In terms of sole custody, the child's usual residence is that of the sole parent (at paras [28]-[29]). In the case of divorced parents, the child's habitual residence is that of whom he lives (in par [30]).
Process in terms of the Regulations
The International Family Law Section of the Commonwealth Attorney-General's Department is responsible for co-ordinating the implementation of the Hague Convention and performs the duties of the (federal) Commonwealth Central Authority for Australia (CCA), which is the Secretary of the Commonwealth Attorney-General's Department.180 When a state or territory receives an application, the then sent to the Attorney General's Department in Canberra, which coordinates the operation of the Hague Convention in Australia.181 The regulations implemented the Hague Convention in Australia and established the Secretary of the Attorney General's Department as the central body of the Commonwealth.182. For an insight into the entire operation of the Rules and the Hague Convention, only the guideline of the above is given.
Exceptions to the rule of peremptory return in terms of the Regulations
Exception one: Regulation 16(2)
However, there has been a dramatic departure from Graziano's position on the meaning of the word 'established'.216 The test was finally settled in the case of the Director General of the Department of. The meaning of the word 'new' in the case of Director General, Department of Community Services v Apostolakis above (n242) was held to be unjustified.
Exception two: Regulation 16(3)(a)(i)
Mere acquiescence does not enhance the court's discretion to refuse the return of the child (para [246]). 346 Director General of the Department of Family and Community Services and Beverley Ann Davis supra (n333) at paragraph [13].
Exception three: Regulation 16(3)(d)
The second ground of the woman's case was based on Regulation 16(3)(d) of the Family Law (Child Abduction Convention) Regulations. If so, she would not be able to be present and participate in proceedings relating to the custody/residence of the child.
Conclusion
The purpose of this chapter is to compare the relevance of the exceptions provided for in the Hague Convention against the rule of unconditional return in South Africa and Australia. 4 The provisions of Articles 24 and 26 (paragraph 3) of the 1980 Hague Convention on the Civil Aspects of International Child Abduction apply.
Constitutionality of the Hague Convention and Regulations within South Africa and Australia respectively
The Best interests of the child principle
In relation to South Africa's position, the court in Sonderup v Tondella concluded that the limitation of the child's best interests was constitutional in relation to applications in terms of the Hague Convention, which prevents consideration of the best interests of the child unless there are exceptional circumstances or a defence/exception is given.14 In Australia, the best interests of the child are guaranteed in terms of the FLA15 and although the welfare jurisdiction is broad and unlimited, there is no basis for concluding that a statutory application must be regarded as an application within the meaning of the welfare provisions and jurisdiction of the court.16 Thus it is argued that in both Australia and South Africa this principle is generally inapplicable in Hague Convention cases. 2] The starting point for the treatment of parental child abduction in both Australia and South Africa is that the Hague Convention and its principles have been specifically incorporated into the national law of each country and that each country is committed to the principle of the best interests of the child.17 The Hague Convention provides that the best interests of the child are paramount in custody matters, but this principle can only be considered by the court of the requested country in exceptional circumstances.18 It is therefore argued that Australia and South Africa can be compared in this context. A study with particular reference to the exceptions to the rule of unconditional return provided for in Articles 12, 13 and 20 of the Hague Convention and Regulations 16(2) and (3) of the Family Law (Child Abduction Convention) Regulations 1986.
Wrongful removal and retention
2] In both countries, the respective child must be under the age of 16 years old to initiate and complete an application.20.
Rights of custody
3] Although the Hague Convention does not specifically define its terms, it is clear how custody and education rights are defined in South Africa and Australia. In South Africa and Australia, the right of the parents to determine where the child should live provides a right of custody for the purposes of applying the Hague Convention and Australian regulations.27 This is discussed in Chapters [2].
Habitual residence
Australia therefore does not refer to domestic law in such decisions, while in South Africa reference to domestic law is permitted.
Process in terms of the Hague Convention and the Australian Regulations
Exceptions to the rule of peremptory return in terms of the Hague Convention and the Australian Regulations
Exception one: Article 12 of the Hague Convention and Regulation 16(2) of the Australian Regulations: Settled in a new environment
40 Article 1 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980; Clark op cit (n1) in paragraph [19]. The meaning of the word 'new' in the case of Director General, Department of Community Services v Apostolakis supra (n58) was held to be unjustified.
Exception two: Article 13(a) of the Hague Convention and Regulation 16(3)(a)(i) of the Australian Regulations: Custody rights
66 Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980; Regulation 16(1A)(c) of the Family Law (Child Abduction Convention) Regulations, 1986. Emmett and Perry supra (n93) at para [16]. . this leads the abducting parent to believe unequivocally that the parent left behind would not seek the summary return of the child through any assertion of their rights.95.
