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abductions and renditions
This page considers law and pactice regarding international
child abduction, rendition of terrorism suspects and extradition
of people in relation to civil offences.
It covers -
introduction
The
child abduction
The 1980 Hague Convention on the Civil Aspects of
International Child Abduction (here)
reflected discussion at the 1976 Hague Conference on Private
International Law at which 23 nations agreed to develop
an international treaty to deter international child abduction.
The Convention applies to wrongful removals or retentions
that occurred on or after the date the treaty came into
force between participating nations. As of mid 2006 some
76 nations, including Australia, are participants. Many
courts have regarded the Convention as persuasive and
its influence is thus somewhat wider than its formal scope.
(Selected case law is here.)
The Convention is a civil legal mechanism available to
parents seeking return of (or access to) a child; litigation
accordingly involves the parents rather than national
governments. The Convention centres on questions of residency
rather than citizenship and thus does not confer any immigration
benefit.
Participating nations have agreed that a child who is
habitually resident in one participating nation and has
been removed to or retained in another participating nation
in violation of the custodial rights of the 'left-behind
parent' shall be promptly returned to the country of habitual
residence. The Convention also has some provision for
exercising visitation rights abroad.
Subject to some exception there is an obligation to return
an abducted child below the age of 16 if application is
made within twelve months from the date of wrongful removal
or retention. Where the application is made after one
year, there is scope for a court to exercise discretion
in deciding that the child has become resettled in the
new country and thus refuse return of the child.
A court may more broadly refuse to order return of a child
if there is a grave risk that the child would be exposed
to physical or psychological harm (or otherwise placed
in an intolerable situation in the country of habitual
residence), if the child objects to being returned and
is sufficiently mature for the court to take account of
the child's views, or if return would violate fundamental
principles of human rights and freedoms of the country
where the child is being held.
A parents seeking return of a child must
- have
had (and been actually exercising) a "right of
custody" at the time of abduction
- not
have given permission for removal of the child (or,
in the case of a retention, for the child to be retained
beyond a specified and agreed period of time).
The
"right of custody" is general and is not sole
custody. It concerns "rights relating to the care
of the person of the child and, in particular, the right
to determine the child's place of residence". If
there was no court order in effect at the date of abduction
the "rights of custody" may be established by
the law in the nation (or province) in which the child
was living before removal.
Each participating nation has designated a 'central authority'
to carry out duties under the Convention. Those duties
are identified in Articles 7-12 and 21 of the Convention,
essentially involving facilitation of civil action.
The emphasis is on the swift return of the child to the
place of habitual residence, with the expectation that
disputes about custody dispute can be resolved in that
jurisdiction (eg by mediators or courts). Some nations
have accordingly denied return of children on the basis
that the 'taking' parent would be arrested if accompanying
the child. The rationale is typically that arrest of the
parent would expose the child to psychological harm under
Article 13(b) of the Convention.
The salient work on the Convention is The Hague Convention
on International Child Abduction (Oxford: Oxford
Uni Press 1999) by Paul Beaumont & Peter McEleavy.
It is supplemented by International Child Abduction
(London: Sweet & Maxwell 1993) by Sandra Davis, Jeremy
Rosenblatt & Tanya Galbraith and Globalization
of Child Law: The Role of the Hague Conventions (The
Hague: Kluwer Law International 1999) edited by Sharon
Detrick & Paul Vlaardingerbroeck.
In 2005/6 there were 75 such cases; on 2004/5, 79; in
2003/4, 85; in 2002/3, 97; in 2001/2, 89 and in 2000/1,
87.
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