In December 2021, Japan and Australia’s diplomatic relations were threatened because of Japan’s child custody laws which allows an estranged parent to assume sole custody of a child. In doing so, the parent often takes the child away, and blocks the other parent from having any access to the child.

The legal term for this is parental abduction. Parental abduction can occur within domestic borders as well as internationally. According to articles that covered this issue last year, Japan’s legal system needs to undergo reforms that include punitive measures for parental abductions.

Many Australian families were left feeling confused because of the differences between the two countries’ legislation around such issues. Generally, disputes around international parental abductions are usually resolved through the Hague Convention.

The Hague Convention on the Civil Aspects of International Child Abduction is the primary international agreement which includes information on procedures through which a parent can seek to have their child returned to their home country.

Signatories to the Convention are required to follow the procedures, and promptly return the child to the country of “habitual residence,” i.e., the country where the child resides regularly. Both Japan and Australia are signatories to the Convention, meaning that all such issues that arise between the two countries are resolved in accordance with the provisions of the Convention.

As part of these procedures, an application for a return order can be made by the parent. A return order or recovery order directs the relevant authorities to locate and return the child to his/her habitual residence.

However, from a legal perspective, there are certain differences between the principles that the Hague Convention posits, as compared to the principles put forward by Australian legislation. This article aims to discuss this challenge, and reiterate the importance of bringing about reforms.

The Current Challenge

A recent article that was published in the Australian Family Lawyer journal highlighted the differences between Australian legislation in dealing with child custody matters, as compared to what the Hague Convention states.

It is argued that there is a stark difference between the Hague Convention’s primary concern which is balancing international comity, as compared to Australian legislation’s primary concern which is the best interests of the child.

When an application for a return order is made, the Hague Convention prefers “comity” over the “best interests of the child”. As defined in the article, comity refers to “the rule of courtesy between sovereigns.”

Specifically, in dealing with parental child abductions, the Hague Convention requires the signatories to facilitate the prompt return of the child. However, Australian legislation considers an exception if returning the child poses a “grave risk” or potential harm to the child’s psychological or physical safety.

The article spotlights the importance of "striking a balance” between comity and the best interests of the child. It states that many families fall outside the scope of the Convention’s provision because it does not include such exceptions, and it does not offer flexibility based on specific cases.

While encouraging the prompt return of the child is important, it is also equally important to gauge if doing so ensures the safety of the child.

Conclusion

Within the legal industry, it is common knowledge that each family law matter is unique, and involves different circumstances. The need to bring about a reform, and include the consideration of a child’s best interests is necessary to ensure prolonged safety and protection.

The article by the Australian Family Lawyer raises important arguments around this matter by throwing light on the need to update certain conditions of the Convention. We live in an ever-changing society, with rapid progress being made every second.

Similarly, rapid progress is also necessary in international legislation, specifically when dealing with matters related to parental child abduction. In my opinion, having a common and mutual understanding with regards to the best interests of the child will only strengthen the notion of ‘comity’ between the signatories.

Author Bio:

John Bui is the Principal of JB Solicitors. John has worked in a variety of legal matters and has extensive knowledge in the areas of family law and commercial litigation.

He has over 10 years experience in family law and commercial litigation which often sees him being called to provide expertise in matters that have an international element involving complex company, trust, partnership and valuation issues.

John is a Nationally Accredited family law Mediator and Arbitrator. In his role as a Mediator, he utilises his family law experience to facilitate the effective discussion between parties to reach a resolution in relation to their parenting or property dispute.

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