Journal Article

Children Caught in Conflict – The Child Abduction Convention and Australia*

in International Journal of Law, Policy and the Family

Volume 24, issue 1, pages 95-114
Published in print April 2010 | ISSN: 1360-9939
Published online December 2009 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/ebp016
Children Caught in Conflict – The Child Abduction Convention and Australia*

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In 2002, Peter Nygh, a former professor of law and later judge of the Family Court of Australia suggested that the High Court of Australia, in its interpretation of The Hague Child Abduction Convention, had ‘continued on its march away from international consensus’. This article explores the reasons for those expressed concerns, discusses whether they were justifiable, and examines more recent cases to see whether they tend to confirm or deny Peter Nygh's opinion. The article considers the extent to which, in Australia, the Child Abduction Convention is being implemented in practice and concludes that, in a concededly small sample of cases, there appears to be a tendency for national courts to refuse to send the abductor and the abducted child back to the country of abduction, possibly influenced by the uncertainty as to what might then happen to the child. The article concludes that to the extent that national courts do not give effect to the reciprocity principle in the convention, they undermine the mutuality upon which the convention relies.

Journal Article.  8183 words. 

Subjects: Family Law ; Marriage and the Family

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