Search Results (11)

Bring them home, keep them home is research based in New South Wales (NSW) Australia, that aims to understand successful and sustainable reunification for Aboriginal families who have children in out-of-home care (OOHC). This research is led by Aboriginal researchers, and partners with Aboriginal organisations. It is informed by the experiences of 20 Aboriginal parents and family members, and more than 200 practitioners and professionals working in child protection and reunification. This paper traces the evolution of Bring them home, keep them home which is now at the forefront of influence for NSW child protection reforms. Using specific examples, it highlights the role of research advocacy and resistance in challenging and disrupting systems in ways that amplify the voices of Aboriginal families and communities and embeds these voices as the foundation for radical innovation for child reunification approaches. The paper shares lessons being learned and insights for Aboriginal-led research with communities in the pursuit of restorative justice, system change, and self-determination. Providing a framework for liberating Aboriginal families from child abduction systems, this paper seeks to offer a truth-telling and practical contribution to the international efforts of Indigenous resistance to child abduction systems. Full article

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures. Full article

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims. Full article

Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child’s return. However, enforcing these agreements can be challenging. This article examines Brazil’s experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states. Full article

The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime of recognition and enforcement of decisions on this subject matter. Final considerations are drawn with a view to determining whether the Regulation is able to streamline the most critical issues arising from the practical application of the predecessor Regulation (EC) No 2201/2003 and, more broadly, to cope with evolving and challenging cases of child abduction. Full article

This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future. Full article

In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions. Full article

A key impetus for the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction was the protection of children from the harmful effects of their wrongful removal or retention. This article considers how well the Convention is achieving this aim in light of the challenges it faces in a global society that has changed significantly since its introduction. Two key aspects of the Convention’s operation are addressed in this regard: (i) The intersection between domestic violence and the exception to return in Article 13(1)(b); and (ii) the adoption of practices to enable abducted children to receive information about, and be given effective opportunities to express their views and be heard in, Convention cases. The article discusses why, how, and to what extent the Convention needs to be nurtured to best position it to meet current and future challenges and demands, including the current differences in interpretation and implementation globally. Suggestions are made to help future-proof the Convention so that children can be best protected in the way envisioned by the Convention. Full article

A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions’ approaches with the lens of whether the courts are preferring the particular child over the ‘theoretical’ child. Full article

This British Academy/Leverhulme-funded research investigated the health and justice service responses to the needs of South Sudanese refugees living in refugee settlements in Northern Uganda who had been subjected to sexual and gender-based violence (SGBV) and torture. It involved the collection and thematic analysis of the narratives of 20 men and 41 women who were refugee survivors of SGBV and torture, including their experiences in South Sudan, their journeys to Uganda and experiences in refugee settlements, in particular their access to health and justice services. Thirty-seven key stakeholders including international, government, non-government organisations and civil society organisations were also interviewed regarding their experiences of providing health and justice services to refugees. All refugees had survived human rights abuses mainly carried out in South Sudan but some had also occurred on route to Uganda and within Uganda. Despite the significant impact of their experiences, the analysis indicated that there was limited service response in refugee settlements in Northern Uganda once the immediate humanitarian crisis ended. The thematic analysis indicated five main themes coming from the interviews. These included: the nature of refugee experiences of SGBV and torture, including domestic violence and child abduction and forced marriage; issues associated with service provision such as lack of adequate screening and under resourcing of health and justice services; a lack of gender sensitivity and specialist services, particularly for men; the sustained involvement of civil society organisations and local non-governmental organisations in providing counselling and offering emotional support and hope to survivors; and enhancing health and justice responses and services to improve refugee recovery, dignity and resilience. The authors recommend that integrated gendered and culturally sensitive service provision should be adopted, which brings together formal and informal health, justice services and survivor support programmes. Full article

Intercountry adoption from Latin America became a sizable, “quiet” migration to the U.S., as evident in its historical evolution from El Salvador, Guatemala, and Honduras. The recent migration of unaccompanied minors and families traveling with children from these case countries has been characterized by child–family separation, prolonged detention and institutionalization of children, and adoption through various means. This study has been concerned with how both trends became intertwined in the era of globalisation. To address this question, the authors examined intercountry adoption literature and migration-related briefs, legal claims, and news reports. The study suggests that internationally recognized child rights have been violated in the border crisis. Forced family separation resulting from stricter immigration measures has met criteria for child abduction, violating international convention protecting families in transnational kinship and adoption. A child–family separation typology was inferred from individual case studies ranging from separation by death to prolonged or indefinitive separation to de facto adoption. Reunification has failed for migrant children in custody since relatives or kinship members may be undocumented or parents may be deported. The current immigration system for migrant children’s care only prolongs their detention and violates their human and civil rights while turning child abduction into de facto adoption. Full article