Hague Convention on the Civil Aspects of International Child Abduction: The consideration of habitual residence in Australian courts

Patricia EASTEAL, Joshua Favaloro, Fanny THORNTON

Research output: Contribution to journalArticle

Abstract

This article takes as its starting point the Hague Convention on the Civil Aspects of International Child Abduction, an international instrument providing a procedure for pursuing the return of abducted children in domestic courts. The Convention applies to children habitually resident in a Contracting State immediately before their alleged wrongful removal or retention, or to any breach of custody or access rights. Despite the importance that is clearly attached to the “habitual residence” construct, the drafters of the Convention did not clearly define the concept, leaving it to national courts to interpret based on their own understanding. The article presents the resulting conceptual and practical challenges with respect to the judicial application of the habitual residence test. More specifically, it presents analysis of the relevant Australian jurisprudence to clarify the reasoning applied in Australian courts. The article shows how weighting of shared parental intentions or broader, and especially more child-centred facts, may lead to different outcomes. It concludes that uncertainty underpins Hague Convention applications in the domestic legal context and suggests a couple of ways forward.
Original languageEnglish
Pages (from-to)194-208
Number of pages15
JournalFamily Law Review
Volume6
Publication statusPublished - 2016

Fingerprint

abduction
child custody
weighting
jurisprudence
uncertainty
resident

Cite this

@article{88dc334def704c298b208d5844eea2e4,
title = "Hague Convention on the Civil Aspects of International Child Abduction: The consideration of habitual residence in Australian courts",
abstract = "This article takes as its starting point the Hague Convention on the Civil Aspects of International Child Abduction, an international instrument providing a procedure for pursuing the return of abducted children in domestic courts. The Convention applies to children habitually resident in a Contracting State immediately before their alleged wrongful removal or retention, or to any breach of custody or access rights. Despite the importance that is clearly attached to the “habitual residence” construct, the drafters of the Convention did not clearly define the concept, leaving it to national courts to interpret based on their own understanding. The article presents the resulting conceptual and practical challenges with respect to the judicial application of the habitual residence test. More specifically, it presents analysis of the relevant Australian jurisprudence to clarify the reasoning applied in Australian courts. The article shows how weighting of shared parental intentions or broader, and especially more child-centred facts, may lead to different outcomes. It concludes that uncertainty underpins Hague Convention applications in the domestic legal context and suggests a couple of ways forward.",
keywords = "International Child Abduction, Habitual Residence, Australian Family Law",
author = "Patricia EASTEAL and Joshua Favaloro and Fanny THORNTON",
year = "2016",
language = "English",
volume = "6",
pages = "194--208",
journal = "Family Law Review",
issn = "1037-6631",

}

Hague Convention on the Civil Aspects of International Child Abduction: The consideration of habitual residence in Australian courts. / EASTEAL, Patricia; Favaloro, Joshua; THORNTON, Fanny.

In: Family Law Review, Vol. 6, 2016, p. 194-208.

Research output: Contribution to journalArticle

TY - JOUR

T1 - Hague Convention on the Civil Aspects of International Child Abduction: The consideration of habitual residence in Australian courts

AU - EASTEAL, Patricia

AU - Favaloro, Joshua

AU - THORNTON, Fanny

PY - 2016

Y1 - 2016

N2 - This article takes as its starting point the Hague Convention on the Civil Aspects of International Child Abduction, an international instrument providing a procedure for pursuing the return of abducted children in domestic courts. The Convention applies to children habitually resident in a Contracting State immediately before their alleged wrongful removal or retention, or to any breach of custody or access rights. Despite the importance that is clearly attached to the “habitual residence” construct, the drafters of the Convention did not clearly define the concept, leaving it to national courts to interpret based on their own understanding. The article presents the resulting conceptual and practical challenges with respect to the judicial application of the habitual residence test. More specifically, it presents analysis of the relevant Australian jurisprudence to clarify the reasoning applied in Australian courts. The article shows how weighting of shared parental intentions or broader, and especially more child-centred facts, may lead to different outcomes. It concludes that uncertainty underpins Hague Convention applications in the domestic legal context and suggests a couple of ways forward.

AB - This article takes as its starting point the Hague Convention on the Civil Aspects of International Child Abduction, an international instrument providing a procedure for pursuing the return of abducted children in domestic courts. The Convention applies to children habitually resident in a Contracting State immediately before their alleged wrongful removal or retention, or to any breach of custody or access rights. Despite the importance that is clearly attached to the “habitual residence” construct, the drafters of the Convention did not clearly define the concept, leaving it to national courts to interpret based on their own understanding. The article presents the resulting conceptual and practical challenges with respect to the judicial application of the habitual residence test. More specifically, it presents analysis of the relevant Australian jurisprudence to clarify the reasoning applied in Australian courts. The article shows how weighting of shared parental intentions or broader, and especially more child-centred facts, may lead to different outcomes. It concludes that uncertainty underpins Hague Convention applications in the domestic legal context and suggests a couple of ways forward.

KW - International Child Abduction

KW - Habitual Residence

KW - Australian Family Law

M3 - Article

VL - 6

SP - 194

EP - 208

JO - Family Law Review

JF - Family Law Review

SN - 1037-6631

ER -