Child Abduction – what happens under the Hague Convention?
Family separation can be very difficult on children. When separation causes parents to end up living on opposite sides of the world, children can get caught in the middle of some difficult family disputes. For example in which country does the child live? Or what happens when after a holiday one parent refuses to allow a child to return to their home country?
The case of Commonwealth Central Authority & Cavanaugh is a decision of the Family Court of Australia involving an application under the Hague Convention for the return of 3 children back to Finland after the father retained their passports and refused to allow them to travel back to Finland.
The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is a multilateral treaty that governs the law relating to the return of abducted children to their home country. Both Australia and Finland are party to the Convention, as are other countries such as the United States of America, United Kingdom and New Zealand.
The main issue in this case was whether the children had habitual residence in Finland. If the children were habitual residents of Finland then it would follow that they were being improperly detained by their father in Australia and should be returned to Finland.
The mother and father married in Finland in 1996. The mother was a dual citizen of Australia and Finland and the husband was an Australian citizen. The couple moved to the United Kingdom in the same year they married. Following the birth of their first child the family briefly returned to Finland before moving to Australia where they lived from 2002 to 2008. Their second child was born in 2004 and their third in 2008.
In 2014 the family relocated to Finland and agreed to live there for at least one year. In 2015 the family flew back to Australia to attend a family wedding. The family had return tickets to Helsinki for 31 March 2015. 2 days before the family was set to return to Helsinki, the mother and father separated. Whilst the children remained with their mother, the father retained their passports preventing them from returning to Finland. The mother returned to Finland and on 3 April 2015 commenced proceedings in the Helsinki District Court for divorce, interim sole custody and the immediate return of the children to Finland.
The trial judge found that at the time of the proceedings the children had no habitual residence. That is, the mother and father had abandoned their habitual residence in Australia when they moved to Finland but had not yet found habitual residence elsewhere. This was because the parents had differing intentions about where they were going to live beyond their agreement to live in Finland for 1 year. In the absence of a common intent, the family had not yet acquired habitual residence in Finland and the children could not be returned.
The Commonwealth Central Authority appealed the trial judge’s findings on 3 grounds:
- That the trial judge did not give sufficient weight to the fact that the Regulations tend to favour a finding that a child has habitual residence so that they can be protected from abduction;
- That the trial judge gave:
- excessive weight to the absence of a common intention of the parents to remain in Finland beyond one year; and
- insufficient weight to the common intention of the parents to remain in Finland for at least one year; and
- The trial judge failed to take into account the children’s ties to Finland.
The Court explained that determining a child’s habitual residence requires an inquiry into a number of factors including:
- Settled purpose;
- Actual and intended length of stay;
- Purpose of the stay;
- Strength of ties to the Contracting State (i.e. Finland or Australia);
- Degree of assimilation into a Contracting State including living and schooling arrangements; and
- Degree of cultural, social and economic integration.
Taking into account these factors, the court found that the trial judge did give excessive weight to the absence of a common intention for the children to remain in Finland beyond 1 year. The children had Finish citizenship, were attending school in Finland and had significant family connections in Finland. In addition, both the mother and father had employment in Finland and were receiving Child Benefits and health care from the Finnish government.
The trial judge was also wrong to consider that living in Finland for one year did not amount to a habitual residence as one year could amount to a habitual residence.
The court did not agree with the third ground of appeal and found that the trial judge did undertake a consideration of the parties’ circumstances in Finland.
Finding that the first two grounds had been made out, the Court found that the children were habitual residents of Finland and were therefore being improperly retained in Australia. The Court ordered that the children be returned to Finland where further custody proceedings would take place according to the laws of Finland.
This case highlights some of the complexities that can arise in family disputes that span across borders. If you find yourself in a similar kind of situation, make sure you obtain legal advice by contacting our Brisbane Family Lawyers to better understand your legal position.
  FamCAFC 233.
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Written by James Tan (Senior Associate).