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Outcomes for objecting children under the 1980 Hague Convention on the Civil Aspects of International Child Abduction

 Principal Investigator: Professor Marilyn Freeman, University of Westminster, London
Co-Investigator: Associate Professor Nicola Taylor, University of Otago, New Zealand

Biographies

Professor Marilyn Freeman: Marilyn is the Principal Research Fellow at the University of Westminster Law School in London, England. She is also Co-Director of the International Centre for Family Law Policy and Practice. Her PhD was in international child abduction, a field in which she has worked for more than 25 years. She has also undertaken research on relocation and forced marriage. Marilyn is a qualified barrister (non-practising) and holds a door tenancy at a leading set of family law chambers in London, ensuring an ongoing exchange of information and collaboration between the practical and academic aspects of these topics. She is also a qualified family mediator trained to undertake direct consultation with children in mediation, and to work with international child abduction cases.

Associate Professor Nicola Taylor: Nicola is the Director of the Children’s Issues Centre at the University of Otago in New Zealand. She also holds the Alexander McMillan Chair in Childhood Studies and has a part-appointment in the Faculty of Law. Nicola has a Bachelor of Social Work (Hons) degree, a Bachelor of Laws (Hons) degree, a PhD, and has been admitted as a Barrister and Solicitor of the High Court of New Zealand. She is also an accredited Family Mediator. Nicola has a particular interest in socio-legal research with children, parents and professionals including residence and contact, relocation, international child abduction, children’s participation, child-inclusive practice, family dispute resolution and relationship property division.

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November 2017

Outcomes for Objecting Children under the 1980 Hague Convention
on the Civil Aspects of International Child Abduction

International child abduction is a global and growing phenomenon. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides for co-operation between its 98 signatory States to ensure that a child wrongly removed or retained from their State of habitual residence in breach of rights of custody is returned forthwith. Unlike most other family law matters the focus here is on the jurisdiction, not the child’s welfare, unless one of the very limited Convention exceptions applies, including when a child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take their views into account. Little evidence currently exists regarding the impact on such children when they are ordered by the Court to either return or not return. Utilising an innovative interdisciplinary cross-jurisdictional methodology, this project is ascertaining the perspectives of family justice professionals, children who have objected to their return and their parents regarding the child objection exception, and the welfare outcomes for these abducted children, to better inform international law, policy and practice. The Human Ethics Committees of the University of Otago (September 2017) and the University of Westminster (October 2017) approved the project and this enabled the empirical fieldwork to commence.

As well as the interviews with family members and professionals, the project also involves the development of i) a literature review, with a Reference List of around 60 articles to date; ii) case law analyses of reported court decisions involving the child’s objections exception in England/Wales and New Zealand; and iii) a global online survey of family justice professionals. Next year, three seminars/workshops will be held in Auckland (8/9 February 2018), Genoa (8/9 March 2018) and London (22/23 March 2018) to report on the project outcomes and help build international consensus on the way forward. Keynote speakers are confirmed for each event: Professor Mark Henaghan, Dean of the University of Otago Faculty of Law, New Zealand (Auckland seminar); Professor Dr Thalia Kruger, University of Antwerp, Belgium (Genoa seminar), and Baroness Hale of Richmond, President of the Supreme Court of the United Kingdom (London seminar).

We have been able to promote the project to leading academics, researchers, judges, NGOs, Central Authorities and family law practitioners / barristers at recent international family
law conferences in Dublin (7th World Congress on Family Law and Children’s Rights, 4-7 June 2017) and Amsterdam (International Society of Family Law, Triennial World Conference,
25-29 July 2017). The grant enabled us to attend, as Observers, the 7th Special Commission to review the practical operation of the 1980 Hague Convention on the Civil Aspects of
International Child Abduction
and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, 10-17 October 2017, The Hague, The Netherlands. This was an invaluable opportunity to promote the project to Central Authorities and senior judges and legal practitioners from numerous jurisdictions, undertake some key interviews and encourage participation in the global online survey.

The response to our project has been overwhelmingly positive and people have been very willing to offer assistance. This is an important issue as with research of this nature the successful outcome depends greatly on the support of those working in the field, and where, by definition, those who have been through an abduction event are likely to be dispersed throughout the world. The British Academy’s role in funding our research on such a topical issue in the international child abduction field has also been applauded by those working in this field. We have found the Academy’s backing to be important, in addition to our own standing, in enhancing the project’s credibility.

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Project Abstract

The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides for co-operation between its 95 signatory States to ensure that a child abducted from their State of habitual residence in breach of rights of custody is returned forthwith. Unlike most other family law matters the focus here is on the jurisdiction, not the child’s welfare, unless one of the very limited Convention defences applies, including when a child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take their views into account. Little evidence currently exists regarding the longer-term impact on such children when they are ordered by the Court to either return or not return. Utilising an innovative interdisciplinary cross-jurisdictional methodology, this project will ascertain the perspectives of family justice professionals, children who have objected to their return and their parents regarding the child objection defence, and the welfare outcomes for abducted children, to better inform international law, policy and practice.

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