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When the Hague Convention does not Apply
13 April 2015
In recent months we have reported on a number of Hague Convention matters. Those applications have dealt with issues of international child abduction where a child is either retained in or removed from a convention country.
This report addresses an application by a mother seeking to have her children return to Shanghai from Australia where the parents had been holidaying with their two daughters together. While in Australia the father unilaterally decided to retain the children and made an application to the Court seeking Orders in those terms. The mother opposed the application seeking that the children's passports be returned to her and thereby enabling her to return the children to Shanghai as originally anticipated by the parties. In circumstances where China is not a Hague Convention country the strict statutory requirements applied in Hague Convention matters do not apply. The matter was dealt with having regard to the Family Law Act and unlike a Hague Convention application the paramountcy principle, that is, what is in the best interests of the children, applied.
In determining that the children should be returned to China with 'speed' the Court considered the benefit for the children enjoying a meaningful relationship with both their parents and noted that in this particular matter there were no allegations of domestic violence or physical abuse, nor was there a risk the children would be exposed to physical or psychological harm or to family violence. The Court considered issues including the father's unilateral decision to retain the children in Australia thereby dislocating them from their school, day care, maternial grandparents and the friends they had in Shanghai. The husband's arguments included a criticism of the Chinese education system, claiming it was too competitive and therefore caused stress for children, he could provide the children with a house and a garden rather than the high rise apartment they lived in Shanghai, removing the children from long, extremely cold winters which restricted their outdoor activities and finally, removing them from a country where they were regarded as "westerners" and "little foreigners: given the children were "Eurasian".
When considering what was in the children's best interest the Court found that none of the father's arguments represented a significant risk to the children. The Court made a summary Order for the children's return to Shanghai recognising that such an Order was in the children's best interest and protected their welfare.
In coming to the conclusion that it was appropriate to return the children to China the Court also had regard to Chinese Law. The Chinese Articles contain factors for consideration not dissimilar to those required for consideration in parenting matters under the Australian Family Law Act. The two countries also have at the heart of their legislation a focus on the interests of the child.
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