Stifled Voices: Hearing Children’s Objections in Hague Child Abduction Convention Cases in Australia

Abstract

In 2012, four Italian children unlawfully retained in Australia by their mother were sent back to Italy, even though they had been in Australia for over 2 years, all four objected to being returned and the two elder children were aged 12 and 14 years at the time of the first hearing. The High Court of Australia ruled that the children had been afforded natural justice and that their views had been appropriately heard and considered, despite the children not having had legal representation or the opportunity to express their views directly. This article examines the meaning and operation of the ‘children’s objection’ exception to a mandatory return order made in Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. While the general rule is that children unlawfully taken from their home country by a parent must be returned, Article 13 gives a court discretion to refuse to return a child if the child objects and is of sufficient age and maturity. In Australia, the child’s objection must also show a ‘strength of feeling’ beyond a mere preference or ordinary wishes. The authors discuss the limitations of the current procedures for hearing children’s objections in light of the child’s right to be heard pursuant to Article 12 of the United Nations Convention on the Rights of the Child, and advocate greater use of Independent Children’s Lawyers and meetings between children and judges in Hague Convention cases.