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Social Media and the Voice of the Child in Hague Convention Cases

Emma Nash, Solicitor, of Spring Law considers a Hague Convention case which has attracted extensive attention in Australia and analyses the potential wider impact of the coverage, especially that within social media.

Emma Pinder, Solicitor, Spring Law

Emma Nash, Solicitor, Spring Law

It is a story that, if taken at face value, would move all but the hardest of hearts.  Four young sisters who want to live with their mother in Australia are fighting to prevent their father from enforcing a judgment under the Hague Convention to have them returned, against their will, to Italy.   Fearful that their father might be successful and their wishes ignored, the sisters, aged between 8 and 15 years, have reached out to the online community.  They have started a Facebook page entitled "Kids Without Voices" and the site is gaining more and more support each day.

The girls' message is a powerful one that highlights some of the problems with Hague Convention applications and the unhappiness that they can lead to.  But is this internet exposure setting a dangerous precedent for those looking to use public opinion in order to influence the course of proceedings in their favour?

It is not suggested that these girls have no right to be heard or that their preferences and opinions should not be taken into account when important decisions about their future are being made.  Indeed there are provisions in the Hague Convention which allow for this to happen.  What is worrying is the potential for the girls' case to be misinterpreted and distorted through the media and, in particular, social media.  The news coverage and websites that have sprung up in support of these girls , and even many of the posts on the Facebook page itself, suggest a misunderstanding of the facts and the operation of the law.  In addition, much of the media attention this case has received has been one sided, favouring the mother's version of events over that of the father.  This raises further concerns as to whether the father's right to a fair hearing is being affected to his (and possibly the girls') detriment.

In fact, there is no guarantee that the girls themselves are behind the Facebook page which makes no attempt to hide the fact that posts are being censored (the Facebook page cites section 121 of the Family Law Act as justification for removal of all references to the Court documents.  This appears to be correct on the grounds that the court documents may reveal the identities of the parties).  The page states that the girls set it up but it appears that others are now maintaining it for them.  The page also provides supporters with the option to donate money to the girls' "fighting fund".  Again this could set a dangerous precedent for harnessing popular, political and financial support through a medium which does not and cannot  provide the full story.

Under The Hague Convention on Civil Aspects of International Child Abduction, if a child has been removed by one parent, without the consent of the other parent, from a signatory state where they have been habitually resident, to another signatory state, then that child must be returned to the originating state.  There are exceptions to this rule.

In the case of the sisters now in Australia, the mother claimed that the father gave his consent for the mother to permanently re-locate to Australia with their four girls and that he changed his mind only subsequently.

The father claims that he gave permission only for the girls to go on a month long holiday with their mother and was expecting them to return.  When they did not, he started proceedings which came before the Family Court of Australia in May 2011, reported as Department of Communities (Child Safety Services) & Garning [2011] FamCA 485.  The judge found that the mother had wrongfully removed the children from their place of habitual residence, without the consent of the father, and ordered that they be returned to Italy.

The Mother's Case

The weaknesses in the mother's defence were numerous:

  1. She claimed to have a witness, a close friend, who was present when the father signed the passport applications and who would verify that he understood the move was to be permanent.  The mother was unable to produce the witness or an affidavit from them and provided no explanation as to why no affidavit could be produced. The judge drew adverse inferences from this as he was entitled to do under the Australian authority of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
  2. She also claimed that her actions had been sanctioned by the Australian government, but the documents she produced from the embassy in Rome did not support her case.  She had successfully established that the girls had Australian citizenship and were entitled to Australian passports, but she had been advised by the Australian authorities that she would need to obtain the informed consent of the father in order to permanently relocate the girls.
  3. The mother had been interviewed for a newspaper article entitled "Family Flees to Safety of Coast", in which she admitted that she misled the father as to her true intentions for going to Australia.  The mother subsequently claimed she was misquoted but offered no further explanation.
  4. Her case was also weakened by the fact that return tickets had been purchased. The explanation that they were cheaper than single fares was brought into question when it emerged that she had not been honest about the source of funds used to purchase the tickets.
  5. t became apparent that the children themselves had been told by the mother that they were only going on holiday and were expecting to return to Italy.  The judge was not convinced by the mother's explanation.  She claimed that she was concerned that the children would raise the matter with their father in a way which would lead him to change his mind about the move.
  6. She tried to argue that the children would be in grave risk from the father if they were returned to Italy and yet she had previously signed a contact agreement with the father and had subsequently offered him contact with the children in Italy for one month each year.  The judge concluded that, in such circumstances, she could not be that fearful of the children having contact with their father.

The mother's case did not stand up to scrutiny.  The judge alludes to the mother's own desperate desire to return to Australia as justification for her actions: "When a person becomes desperate, whether with objective justification or not, they can sometimes consider that the desired end result justifies all means, however desperate" (para 52).

Subsequent Developments
Two days before the children were to be delivered by the mother to Brisbane Airport, an emergency application was brought by the State Central Authority, reported as Department of Communities (Child Safety Services) & Garning (No 2) [2012] FamCA 353.  The mother's relatives had stepped in and the girls could not be found.  Their maternal great-grandmother had taken the girls into hiding whilst the mother tried to put together her appeal case.  It was under these circumstances that the Facebook page was set up.

What you will not find on any of the websites, or in newspaper articles is the full reason why the authorities were brought in to locate the children and put them into care, an unusual step as the deadline for taking the children to the airport had not yet passed.  According to the judgment in the emergency proceedings, the girl's grandmother contacted the mother's senior counsel and informed him that she was going to murder the girls and encourage the mother to kill herself.  This is a shocking statement given that part of the mother's initial defence was that the children would be in grave danger from the father if returned to Italy.  The girls have since been found and are currently in foster care.

An application has now been made by the girl's great-aunt on constitutional grounds that the girls were denied natural justice as they were unrepresented throughout the proceedings.  This application has been allowed and will be heard in the first week of August.

Misconceptions and Misunderstanding
The wealth of online media and social media coverage has thrown up a number of misunderstandings and misconceptions about the facts of the case and the application of the law:

a. There is a great deal of compassion and support for the girls who, it has been reported, are being separated from their mother and forced to return to their "abusive" father.  This is incorrect as the Hague Convention is designed to rectify child abduction and not decide residence and contact battles which, it is deemed, should be determined in the state where children are habitually resident (in this case, Italy).  The mother would have to return to Italy in order to have access to her children. This may seem harsh, but her unilateral actions have forced the father to travel to Australia to see his children and fight for their return home to Italy.  The Australian courts even ordered the father to pay a lump sum to the mother to allow for her to return to Italy with the girls.

b. You would also not know from the girls' Facebook page that the father could have legally removed the girls at any time but agreed that he would not do so until the matter had been resolved.  Nor has it been reported that there is a large family in Italy which has expressed a desire to see the girls returned to their country of birth.  The Italian family has also attempted to use social media to communicate its position although without the same level of media support.

c. The father has been painted by the mother and the media as an abusive and violent workaholic (the "Family Flees…" article is particularly damning).  The father has strongly denied the allegations in a statement he felt compelled to make in the wake of the publicity this case has generated.  His initial failure to respond to and engage with the media and, in particular, social media in relation to this case had been interpreted by many as indifference and guilt but might as easily have been the actions of a man who wished to keep his private life private.  The judge at the hearing in May 2011 did consider the father's behaviour and mental state and concluded that he did not pose a risk to the children.  Further, the judge reiterated that if the mother had been fearful of the children's safety then the authorities in Italy were more than capable of dealing with the matter. 

d. The girls claim that they have not been given any voice in these proceedings and yet they were interviewed by a family court consultant and their views were presented to and considered by the judge at the hearing in May 2011.  It appears that the weight given to their wishes and their lack of separate representation before the courts, are the real motivation behind their campaign.

The Wishes of the Children
The Hague Convention allows for the views of the children to be taken into account by virtue of Article 13.  In England and Wales, this has been considered by Baroness Hale in Re D (A Child) [2006] UKHL 51, [2007] 1 FLR 961where she stated that there should be a "presumption that the child will be heard unless this appears inappropriate".  An enquiry should be made at the outset to determine the most appropriate manner in which the child's views should be conveyed to the court.  There are three options: interview with a CAFASS officer; direct meeting with the judge; or legal representation.
For a child to be given separate legal representation before the courts of England and Wales is rare, the presumption being that a CAFCASS interview should be sufficient.  Baroness Hale set out the test in Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251 saying that the court must consider whether separate representation will add enough to the court's understanding of the issues to justify "the intrusion, the expense and the delay that may result."

Once the views of the child are before the court, the court will consider them and determine whether or not they should affect the outcome of the hearing.  It is not enough for the child merely to state a preference to remain in the new jurisdiction, the objection must have a sufficient strength of feeling which goes far beyond the ascertainment of the child's wishes; see Re R (A Minor: Abduction) [1992] 1 FLR 105.

Finally the court must consider whether the child has attained a level of maturity so as to have their view taken into account.  English case law suggests the views of the child are more likely to be taken into account today than in previous decades, explained in part by the increased influence over the years of the UN Convention on the Rights of the Child 1989.  In Re W (Abduction: Child's Objections) [2010] EWCA Civ 520, [2010] 2 FLR 1165, the English Courts considered the views of a six year old child.

The judge in the matter of these girls went through the steps set out above at the initial hearing in May 2011, having determined at a preliminary hearing that an interview with a family court consultant would be sufficient to determine and convey the girls' views.  As a result the judge determined that, whilst the children did object to the return to Italy, they did not do so with sufficient strength of feeling beyond a mere preference.  Further, the judge concluded that the children had not reached the appropriate level of maturity so as to have their views taken into account.  This is curious as the ages of the children at the time ranged from 7 to 14 years and does not appear to fit with the analysis of the English authorities set out above.  The Australian judge did not refer to case law when considering the children's objection to returning to Italy.

The longer these proceedings go on, the more difficult any return will be for the sisters.  Accordingly, there might be perceived to be a benefit in dragging out proceedings so that the girls become more settled and more mature in their reasoning so that there is a greater chance that their preference to stay in Australia will be upheld by the courts.  This raises more concerns as to the operation of the Hague Convention which is supposed to minimise risk of harm to the abducted child by offering a mechanism for a swift return to the state he / she was resident in.  After the initial decision in May 2011, a stay of the girls' return was agreed to by the father followed by further appeal applications by the mother.  When the Australian courts consider this matter again in August 2012, 15 months will have elapsed since the first hearing.  This will have given the children time to mature and their views will need to be considered afresh.  It is in this context that the girls' social media campaign could be considered as evidence of the "strength of feeling" of their objection to being returned. The dangers of reliance on such evidence cannot be ignored. The extent to which the girls' views have been shaped by the mother and her family remains unclear and cannot, and should not, be determined by reference to social media and the internet.

It is important that a child's wishes should be taken into account but within the confines of the law, with trained professionals able to provide an unbiased opinion on the child's wishes and full comprehension of the consequences of those wishes being granted.  Where too much weight is given to the child's wishes this may inadvertently put pressure on the child to choose one parent over the other which could damage the future relationship between the child and their parents.

There are obvious dangers of allowing social media to participate in the justice system; it is easy to present a compelling case for just about anything online.  It is not possible to ascertain the exact level of involvement that the sisters have had in starting up and maintaining the Facebook page.  The fact that the Facebook page includes details of a bank account where supporters can donate money to create a fighting fund for the girls, also suggests a possible ulterior motive for the campaign. 

What is also worrying is the precedent that could be set if the mother is successful in keeping the girls in Australia, despite failing to prove her case that the father consented to the permanent move.  That a child's wish, communicated and augmented by online activities, could  be enough to validate an unlawful abduction is concerning and may weaken the protection that Hague Convention offers in preventing future abductions.  It may also encourage abducting parents to put undue influence on the children in question. 

There are provisions to take the views of the child into account in these circumstances, and to suggest that the Australian sisters were excluded completely from the process would be untrue.  What has yet to be determined is whether the consideration of their view was adequate and may lead to a further evolution in the way in which wishes of children are considered under the Hague Convention.  Again, the appropriate forum for such issues to be resolved is a court room and not a chat room.