International Law on Child Custody and Abduction

Table of Contents

Abstract 3

1.0 INTRODUCTION.. 4

1.1 Background. 4

1.2 Statement of the Problem.. 6

1.3 Justification of the Problem.. 7

1.4 Research Questions. 7

1.5 Objectives. 7

1.6 Conceptual Framework. 7

1.6.1 Legal framework in Australia regarding international child custody and abduction. 7

1.6.2 Legal Framework in Canada Regarding International Child Custody and Abduction. 9

1.6.3 Legal Framework in Lebanon Regarding International Child Custody and Abduction  11

1.6.4 Hague Convention Legal Framework Regarding International Child Custody and Abduction  11

2.0 LITERATURE REVIEW… 13

2.1 International Custody Laws in Australia. 13

2.2 Effect of Melissa Hawach’s Case on International Custody Laws in Australia. 14

2.3 International Custody Laws in Lebanon. 16

2.4 Effect of Melissa Hawach’s Case on International Custody Laws in Lebanon. 16

2.5 International Custody Laws in Canada. 17

2.6 Effect of Melissa Hawach’s Case on International Custody Laws in Canada. 18

3.0 RESEARCH METHODOLOGY.. 19

5.0 EXPECTED RESULTS. 20

8.0 CONCLUSION.. 20

Bibliography. 22

 

 

 

Abstract

Issues relating to parental abduction and children custody have raised major challenges in establishing a uniform law that facilitates inter-jurisdictional cooperation. Different countries have different family laws regarding children custody, access, and abduction. The Hague Abduction Convention was established and come into force in 1983. This convention is met to offer an expeditious way of prompt returning an internationally abducted child by a parent from one member country to another. The convention has facilitated preserving of the status quo child custody plan that existed before wrongful removal of various children from one jurisdiction to another. Most countries have tried to establish laws that will ensure smooth cooperation with other nations while others have adopted conservative laws that are not recognised beyond few jurisdictions. This study evaluates the international child custody and abduction laws as well as the legal framework of Australia, Canada, and Lebanon as shaped by the developments in the Melissa Hawach and her former husband, Joseph Hawach.


 

1.0 INTRODUCTION

1.1 Background

The advancement in communications technology and reduced cost of international travel has facilitated global integration and shaped the global nature of the contemporary society. Due to the increased association, communication and interaction between people from different countries, there are more marriages that have international element than ever before. Inopportunely, most of the international marriages end up in divorce or separation due to differences in values, perceptions, and culture[1]. When a couple separate, the most affected party are the children. Often, after the separation or divorce of the parents, the custody dispute over their children ensues.

The increased movement of people from all cultures and backgrounds, driven by globalization of the labour market has spawned many disputes in the families that have an international element. On additional to this, the proliferation in the number of international family disputes emanates from the increased number of the relationship of mixed nationality people and high rate of subsequent breakdown in the relationship. The disintegration of these relationships in many cases causes the parents to go back to their foreign countries. This drags children into international legal battles between the separated parents. The breakdown in marriages with international element has increased the rate of international children abduction and custody disputes[2].

Some of the most challenging custody disputes entail the decision of one parent to retain a child in the foreign country, or remove children or a child from one country without the consent of another parent. Research carried out by McCue found out that many international abductors are loving parents, mainly the mothers, fleeing their homes following the disintegration of their marriages as opposed to common belief that abductions are majorly caused by the discontented parents[3]. After the breakdown of a relationship, many parents are often tempted to act impulsively and to go away with the children secretly, which leaves the other parent bereft and sometimes leaves the children hopeless dislocated.

In legal terms, the international child abduction refers to illegally removing children from their home by a family member or acquaintance and taking them to a foreign country. The “illegality” in this context means going against the custodial rights. On the other hand, the child home is taken to mean habitual residence[4]. The term habitual residence is a standard in the conflict of laws, used to the applicable in determining a certain legal dispute. The habitual residence is usually, less demanding as compared to the domicile and focus is given more on the experience of the past rather than intentions of the future. In law, an individual is normally considered to have one habitual residence where the individual routinely returns after visiting other regions or resides[5].

As the phrase breach of the custodial rights implies, international child abduction usually entails illegal removal of a child, which creates room for jurisdictional conflict of laws. This is a situation where multiple jurisdictions and authorities may conceivably at conflicting and seemingly reasonable custodial decisions, which has a limitation of geographical application[6]. Often this kind of cases has a substantial effect on the child’s connection and access to half or more of their family members and it can also lead to the loss of former culture, language, nationality, and name. In essence, this violates various rights of a child on top of causing severe emotional and psychological trauma the family left behind and the affected child.

When a family dispute of this nature arises, a determination has to be made with regard to which laws and legal system will be applied. Much complication arises when the parties hail from or occur in multiple legal jurisdictions. Given that the abductors in these children abduction cases are mainly not a stranger to the affected children, there is a wide misconception that the children are mainly not in danger. However, many studies have characterized children abduction as a form of child abuse and parental alienation, which sometimes is accompanied by harmful consequences for families and children’s. The detrimental effect of this kind of abduction is further multiplied by the additional of the international dimension.

Current norms of the international family laws are heavily influenced by the idea or concept of nationality and domicile. In early years, different regions around the world had different ways of governing how the personal status was determined. In Latin America and US, the personal status recognition gained momentum in the nineteenth century. In this region, the prevailing principle was that the domicile determines the jurisdiction over the personal matters. The domicile was considered to be acquired immediately upon migrating to a foreign jurisdiction regardless of whether the nationality or citizenship was acquired. On the same period, the idea of personal status in Europe was shaped by Mancini (Italian politician), who held a belief that the governing of the personal status is determined by one’s nationality[7].

A number of efforts were made in the 1920s to come up with a series of international treaties that will govern the conflicts of laws in various regions around the world. Some of the treaties that inclined much to the favour of nationality, as a determiner of the jurisdictional factor, had significant practical challenges that led to many countries renouncing them after ratifying them. The concepts of “domicile” and “habitual residence” were introduced Montevideo and Bustamante Code conventions in Latin Americans[8]. Failure of early treaties culminated in the formational of successful treaties such as the protection of minors’ convention in 1961, and the 1956 convention on recovery abroad of maintenance held in New York under the auspices of the United Nations

The convention of  1961 created a compromise between those that advocated for “nationality” and those that advocated for “habitual residence” as the jurisdiction determining factors. The “child’s interest’ was also emphasised as a basis for the determining the authority of the nationality of the child. The interest of the child is considered to take prevalence or overrule the authorities of the habitual residence of the child. Due to lack of specific provisions on the abduction of a child in the treaty of 1961, many countries often interpreted the concept of “habitual residence” in way that permitted the parents take children to their foreign country followed by immediate acquisition of “habitual residence”. This generated a perverse incentive for children removal from their homes to other foreign jurisdictions in a bid to obtain a more favourable outcome in custodial compared to what would have been gained in the child’s home jurisdiction[9].

Various efforts have been amassed to create conventions on foreign enforcement of judgements and recognition, in order to make it harder for the courts to give favourable judgment to apparent solely because he/she is a national of the state in which he/she is suing. This led to The Hague convention, which has tried to address the dissatisfaction in the determination of the child’s habitual home, which came up with the term “international child abduction”. In order to shed the light, in the challenges that characterize determination of a child status in the family disputes with international element this study seeks, to analyse, evaluate, and critically examine the nature and legal framework of the international laws on child custodial. Specifically the study evaluates the legal framework of Australia, Canada, and Lebanon, as well as that of Hague convention regarding international child custody and abduction. The study will also evaluate the custodial dispute case of Melissa Hawach with her former husband, Joseph Hawach, in light of how the case has changed or affected laws that govern international custody disputes in the three countries in particular Australia.

1.2 Statement of the Problem

The family case of Melissa Hawach and her former husband Joseph Hawach gained international attention due to the complex nature their custodial dispute. The couple had two children who held citizenship in Lebanon, Australia, and Canada. Melissa was born in Canada and moved to Australia where she married a Lebanese- Australian, Joseph. Later the couple moved to Canada. While in Canada, their relationship broke down, and they separated. Melisa, been the mother of the children successfully obtained the custodial order over the two children. However, in 2006, their father took the children on a three-week tour of the Australia with the consent of their mother.

Melisa later received a report from Joseph’s brother that the children would not return to Canada. Joseph took the children to Lebanon and demanded that he would only return them if their mother, Melisa, agreed to migrate to Australia, agree to drop the kidnapping charge against Joseph and gave him Joseph full custody over the children. The case was more complicated because Joseph received the custody from a court in Lebanon because the laws of Lebanon automatically give the father the parental rights unless he is proven unfit. On the other hand, Melisa had filed a divorce in Canada and obtained custody of the two children.

Melisa located the whereabouts of Joseph and children, and following her failure to obtain the custody of the children through a court in Lebanon, abducted the children and smuggled them out of Lebanon through Jordan and Syria. The soldiers that assisted her in the abduction were apprehended and charged in Lebanon court where they were later released on bail. In 2007, courts in Australia and Canada recognised the claim of custody of Melisa. Currently, there remains an outstanding court warrant in Lebanon for the arrest of Melisa on kidnapping, for which it has been recommended an imprisonment of three years. On the other hand, Interpol has a warrant over Joseph to be extradited to Canada to face charges of initial abduction[10].

The three citizenship of the children, Lebanese, Canadian, and Australian, has played a central role in the ensuing dispute about the proper place for determining the custody. In this case, Australia recognizes the Canada authority as the children’s primary residence as stipulated in the International trinity on child abduction. Lebanon is not a party to the international treaty and as such, it asserts the jurisdictional authority of the case to itself. The case has raised concerns, with a Canadian parliamentary, member citing the case as an illustration of the need for Canada to secure children custody treaties with other countries. The nature of the case illustrates the challenges facing the international law on children custody, especially in cases where children are taken in the countries that have not ratified the treaty. The legal loophole has jeopardised the interest and rights of many children. For this reason, the study seeks to determine the developed in the legal framework of the three countries and of the international community following the progress of the children custodial case of Melissa Hawach and her former husband Joseph Hawach.

1.3 Justification of the Problem

The case of Melissa Hawach and her former husband Joseph Hawach sheds light on the legal gaps in the laws governing the jurisdiction of the cases involving multinational custody dispute. Interstate parental kidnapping and other moves that involve children raise a legal question regarding the country that should exercise the jurisdiction in making the determination of the children custody or modifying the existing custodial order. Other questions also arise concerning whether the custody determination made in one country is enforceable in another, and if it is enforceable what procedures are in place to secure the enforcement.

Different states and conventions have tried to address these issues through enacting laws that regulate the jurisdiction of the court in making and modifying the determination of visitation and custody. They have also enacted laws that dictate the  interstate effect that such the determination are to be given in other countries. In spite of the development of the legal framework of various countries, there is a missing link in integrating different jurisdictional laws and interpretation procedures in a comprehensive universally applicable law. Most countries have made effort to integrate the international concepts in their family laws to protect the rights of their citizens and ensure that they get a fair trial even in foreign countries.

Australia has elaborate child custody law that recognises various international treaties such as the Hague treaty. This is a similar case to Canada, which has played an instrumental role in shaping the nature and framework of the international laws on child abduction and custody. However, countries like Lebanon do not recognise many international treaties and more specifically, treaties concerning child custodian and abduction. This creates jurisdictional conflicts when the cases involving the international family arise. The existence of this legal challenge necessitates harmonisation of legal procedures, approaches, and laws, which have a uniform standard to guarantee uniform application in sister countries.

1.4 Research Questions

The study will seek to answer the question: what is the legal framework of the Hague convention and in Lebanon, Australia, and Canada, regarding international child custody and abduction in relation to the developments in Melissa Hawach’s case?

1.5 Objectives

The research to be carried out will endeavour to meet the following objectives:

  • Establish the legal framework in Lebanon, Australia, and Canada regarding international child custody and abduction
  • Discuss Hague convention legal framework in such custody cases
  • Determine the ways in which this case affected or changed laws that govern international custody disputes in the three countries in particular Australia.
  • Offer recommendation on what needs to be done to ensure children custody is accrued out in a way that will not affect the children negatively.

1.6 Conceptual Framework

1.6.1 Legal framework in Australia regarding international child custody and abduction

The legal framework in Australia deals with different parenting arguments as well as ensuring that the best interest of the children is observed especially after the separation of their parents. Child protection is dealt with primarily on a territorial and state basis, under the territory and state legislation, while the parenting arrangements are handled under the section 51 of Australian constitution and commonwealth Family Laws Act 1975. The domestic laws in Australia enshrine some of the obligations that the country has under the internal law. This is because Australia in a member of United Nations and the international community. The country is a signatory member of the “Hague Convention on the Civil Aspects of International Child Abduction” which is handled by the Family Laws Act 1975[11].

In 2006, Family Law Act 1975 was amended by Family Law Amendment (Shared Parental Responsibility) Act 2006 with the object of ensuring the best interest of the child is met. The new amendment act applies to any court matters that involves and touches on the children who were in court after or on July 1st, 2006. Coming into force of this Act changed the Australian child laws dramatically. It places much emphasis on the rights of every child to be protected from any form of harm and to have a meaningful relationship with both parents. This amendment sets forth a presumption that the best way in which the interest of a child can be met is by having both parents take shared and equal responsibility of the child. When dealing with the children matter under the Act, they are determined mainly based on the person that the child will “spend time with” and “live with[12].

The concept of custody been considered to mean, where the child live, was abolished by the Family Law Reform Act in 1995 to give much wider powers to make decision to the parent with whom a child lived, as opposed to the mere concept of where the child live, that is “residence” and “live with”. After this reform, the act gave both parents a legal same parental responsibility, but not shared, irrespective of with whom and where the child live. By definition, parental responsibility is legally considered as powers, all duties, authority, and the ability of a person to make various decisions that touch on long term and day-to-day welfare and care of the child, which can include such things as what their name is and the Scholl that they go[13].

In order to ensure that the children stay with a person who cannot harm them, the act does not specify that a child spend time with or reside with a person who is necessarily their parent. Section 65 (C) of the act requires any concerned person with development, welfare or care of the child to apply for child custody through the court order. The Act gives much emphasis on the best interest of the children, where section 60C (a) requires the court not to make any order contrary to these interests. When parents have a dispute of the custody of a child, they are required to file a case before a court where the court will be left to decide on what constitute the best interest of the child.

In Goode & Goode, [2006] FamCA 1346 it was held that the 2006 amendments to the Australian Family laws brought critical changes to the Australian custody law. Section 61C (1) of the amendment requires that each parent has parental responsibility for their children until they turn 18 years old. The object of this provision is based on the presumption that the best interest of the child is derived when each parent have shared equal responsibility[14]. However, section 61DA (4) provides for the rebuttal of this presumption when the court the presumption of shared responsibility is in conflict with the child’s best interest. Under the Act, both federal magistrates and family courts will decide and award the full custody of a child to the parent who has the ability to meet the best interest of the child.

Australia ratified the “The Hague Convention” in 1986, which led to the setting up of the Australian Central Authority in the country’s Department of the Attorney general[15]. This authority is mandated to administer the Hague convention on applicable law, jurisdiction, recognition, cooperation, and enforcement between the signatory countries and Australia in respect of measures of protecting the child and parental responsibilities. It offers a lawful procedure used when one seeks to return an abducted child from a foreign country to their home country. On addition to this, the authority collaborates with other countries’ central authorities to obtain access or contact to the children overseas. When a party applies to this authority for the return of an abducted, or child kept oversee for a longer period than the agreed, the authority applies to the central authority of the country in which the child is kept. The requested authority applies to the local court for the return of the child if the application meets the terms of the Hague convention.

If a child is retained or removed to a country that is not signatory to The Hague’s Convention, the aggrieved party is required to commence proceeding in that country in order to get back the child. Australia does not have general criminal laws dealing with child abduction. This inhibits the cooperation of Australia with non-signatory countries to the Hague Convention. This is because, these countries do not permit the prosecution of the abductors or extraditing them to the countries where the parental abduction is not considered an offence. The Hague Convention still uses the terms “custody” and “access” despite the change of these terminologies orchestrated by Family Law Reform Act[16].

Despite the change in terminology, the Family Law Reform Act 1995 has provisions, which makes it clear that provisions of the Hague Convention apply to the Australian parents. Some of the provisions of the Act provides for special interpretation of the Act when it is applied in the context of the Hague Convention. For example, Family Law Reform Act 1995 subsection 111B (4) provides that for the purposes of the Hague Convention a person having the custody of the child will be considered to be the one who; has the contact order in relation to accessing the child, responsible for day to day care, development and welfare of the child, and a person with the residence order that relates to the child. When abduction case is applied by the Central Authority in Australia, the local courts consider that case under the Hague convention requirements to avoid jurisdictional business[17].

1.6.2 Legal Framework in Canada Regarding International Child Custody and Abduction

In Canada, different aspects of family laws are dealt with by territorial, provincial, and federal laws. Some of the family territorial laws used to deal with parental abduction in Canada include the Children’s Law Act of Northwest Territory and the new Family Law Act of the British Columbia territory. Provincial and federal governments are vested with specific constitutional powers in relation to family laws while the territorial governments are given specific roles under the original Acts. The Divorce Act of the federal government in Canada is applied when separated, or divorced parents seek or one to settle access, custody, and support of their children. Territorial and provincial laws in relation to the child access, custody and support, are applied in the situations where married people separate without pursuing a divorce or when unmarried people separate as well as in some divorce issues. Territorial and provincial laws have provisions that deal with the relationship between a child and a parent such as guardianship and parental authority. The constitution gives power to the provinces over the justice administration, while territories have delegated powers.

The term “access” and “custody”are used by the legislation in common law territories and provinces and federal legislation, with the same legal principles applying to govern access and custody issues in Canada. Quebec has a relatively different legal framework given different rules set out in its Civil Code. The Civil Code of Canada follows the tradition of civil law and refers to the parental authority concept to define obligations and rights of the parent toward their children[18]. This code is developed under the principle that both mother and father have to exercise parental authority together whenever the marriage disintegrates when they separate or during a divorce. However, despite slight differences in family laws of territorial, provincial, and federal governments, the ruling of one territory is enforceable in all the territories of Canada.

In Canada, the guiding principle when determining the custody issues is the “best interest of the child”. Other factors that are considered include the bonding and relationship between the parent and the child, the parenting ability of both parents, the emotional, physical, and mental health of the parents, and the care arrangement before the separation. Other factors considered include the Child’s, sibling issues, and schedule of the two parents. The past behaviour of a parent is immaterial in custodial cases in Cabana unless they have a direct implication on their ability to serve as a parent. Through Canada, there four types of custody that are recognized.

The types of custody recognized in Canada are joint, sole, split, and shared custody. Joint legal custody is where the two parents have custody over their children. This is granted in the case where they can cooperate and can have their own arrangement on access and residency of the children. Sole custody applies when custody is given to one parent, and the child stays permanently with this parent, although the other parent can have access rights. Split custody is where the two parents divide the number of the children with each parent having joint custody of some of the children. Shared custody is where the two parents spend at least 40% of the time with the children and have joint custody over the children[19].

Canada is signatory to the Hague Convention, and this convention forms part of the Canada laws following its incorporation in the country’s territorial and provincial statutes. Canada has established a Central Authority under the provincial Attorney General departments that coordinate with the central authorities of other signatory countries to pursue cases of international children abduction. Other agencies in Canada that can be approached in the cases of international child abduction include “Federal department of justice and Family Orders and Agreements Enforcement Assistance Unit[20]. When a child has been illegally removed to another country member to The Hague convention, the parent is supposed to make an application for return to the family court or notify the central authority. Applications are often made in the courts where the family proceedings are carried out in the place where the child under contestation is living at the application time. In the cases where there exists a unified family court, the application is made to this court. The application is also made in provincial courts in territories that have two court levels that have family jurisdiction.

The abduction of a child a parent can be filed under the criminal charges in Canada. This can be the case when the parent removes the child illegally without the consent of another parent when the child is under 144 years of age. Sections 282 and 283 of the Criminal Code of Canada considers an offence of a parental abduction as to have occurred when a parent removes or takes out of the possession of, in contrary to the wish of the other parent or in contravention of the existing custody provision by any court in Canada. The crime of enticing away, taking, detaining, harbouring, or receiving a person under the fourteen years of age in contravention of custody order issued by a court in Canada is liable for an imprisonment sentence for a term that does not exceed ten years. The criminal code in Canada, recognises, the abduction as a crime when it is proven that that the intent of removing the child was to deprive the other parent of the child’s possession or control over the child. In the criminal abduction charges, consent or lack of it of the child is immaterial.

1.6.3 Legal Framework in Lebanon Regarding International Child Custody and Abduction

Lebanon is not a country member of the Hague Convention. This country does not have extradition treaties with other western countries. Issues regarding children custody and abduction in Lebanon are primarily decided under the religious law by different religious courts. However, a person can petition a civil court to deal with the issues of custody and child access as opposed to, the religious court[21]. This is usually the case, when the case when the civil court has to decide whether the religious court have jurisdiction over the custody issues raised. The process of having the civil court assume jurisdiction over the custodial matters normally takes up to two years and a minimum of five years to have this court decide the case. Given the conservative nature and high influence of religion in the country’s family laws, the country does not recognize the abduction of the child to or from other foreign countries as a crime.

In Lebanon, family laws are exclusively under the religious court jurisdiction. This means that each religious sect dictates its own rules relating to divorce, marriage, custody, and inheritance. The personal status laws of this country were established as early as the year 1936. They were established to allow various historical religious groups in the country to use their own laws in deciding the family matters issues. The government has little or no oversight of these rules[22]. There are eighteen different religious sects that are recognised in Lebanon each having its own family rules. This was meant to enshrine sectarianism or sectarianism in the country’s governance system. These religious sects include twelve Christian sects, four Muslim sects, the Jewish, and the Druze sects, all of which are represented by the existing fifteen different personal status laws dealing with family issues.

Most of the religious family laws in Lebanon are more patriarchal. For example, among the Sunni Muslims father is given physical custody of his daughter who is above nine years old and a boy who is over seven years old. For the Shia Muslims, father is given custody for the girls over the age of seven and the boy over the age two. Fathers are given the power to establish whether the mother is morally fit to bring up the child, and if found not fit, she loses her rights over the children[23]. When a mother remarries, she loses the custody over the children but men never lose custody. Dual citizenship is not recognised in Lebanon. In the case where a person has dual citizenship with Lebanon among the citizenship countries, they will be accorded all treatments as Lebanese nationals by the security authorities. This means that any a child who has dual citizenship will be bound to the Laws of Lebanon in the lens of the civil courts in Lebanon.

1.6.4 Hague Convention Legal Framework Regarding International Child Custody and Abduction

The Hague abduction convention or the convention of The Hague on the civil aspects of the international Child Abdication is multinational treaty the offers expeditious method of returning a child who has been internationally abducted by a parent who hails from one member country of treaty to the other. This treaty came into force in 1983[24]. By the year 2015, 93 states were party to this convention. This treaty only applies to those children who are under the age of sixteen years. The objective of this treaty is to ensure that there is a prompt return of the children who have been abducted wrongfully from their habitual residence and retained in a contract that is a member of the treaty, which is not their habitual residence country[25]. The treaty also aims at restoring the status quo child custody arrangement that existed before the child was retained or removed, resulting in one parent being deterred from crossing the international boundaries while looking for the sympathetic court.

The Hague convention requires that when a person files a case in any court for The Convention’s action ought not to consider the merits of the underlying dispute on child custody. Instead, the convention requires the court to determine the country in which the issues raised is to be heard. It recognises the habitual residence of a child as the place in which the child is supposed to return following the abduction or breach of access to rights or custody. The convention considers the retention or removal of a child wrongful when the removal or retention itself was in breach of custody rights that are attributed to a person or during the removal, those rights were exercise either alone or jointly but was without the consent of the other party.

The Hague convention’s Article 6 requires the contracting countries to designate a central authority that will discharge the duties that are imposed by the convention. These authorities are required to cooperate with one another in ensuring achievement of the convention’s objective. When a child is abducted, article 8 of the convention requires the aggrieved person to apply to the central authority of any contracting country to get the assistance of securing the child. The administrative or judicial authorities of all the contracting countries are required to act expeditiously in proceedings for ensuring the return of the abducted children. The administrative authorities of the contracting country are given six months to ensure that the child returns failure to which the central authority of the country requested request for the delay reasons. Article 12 of The Hague convention requires that, when a child is found to have been wrongfully removed the authorities are required to order the return of the child forthwith, provided the period of less than a year has passed.

If the period of one year has expired, the child will also be returned unless it is clearly demonstrated that the child has settled in the new environment. The judicial or the administrative authority is required to dismiss the application stay the proceedings for the child’s return if the authority has a reason to believe that the child under consideration has been taken to another country. however, article 13, of the convention, exonerates the  judicial authority of the requested state from obligation of ensuring the child is returned if party requesting for the return of the child was not exercising custody rights before retention or removal or had subsequently acquiesced in the retention or removal[26]. On addition to this, administrative or judicial authority is not bound to order for return if there is severe risk that the return would predispose the child to psychological or physical harm or put it in an intolerable condition.

The determination of the habitual residence according to The Hague’s convention is primarily based on fact as opposed to the one encumbered by the legal technicalities. In arriving at the “habitual residence”, the court considers the history of the location of the children, parties shared intentions, and the family’s settled nature before the facts giving rise to the return request[27]. This convention limits the defences against the return of the wrongfully retained or removed children. All defences against the return of a child should be established to the extent that is required by the standard of proof that is required, mainly determined by lexfori.

Article 3(b) of the convention requires the defence against the child return to ‘habitual residence’ based on the argument that the child will be predisposed to a grave risk, should only be interpreted in restrictive fashion. The intent as well as the spirit of The Hague convention is to ensure that the interest of the children is given priority by granting them an opportunity to live in their habitual residence, and that they will be free from mistreatment of any kind. However, despite this intent and spirit, often this article is used by the abductors as a tool for litigating the child’s custody or best interest. Practicality, article 13 (b) is used by many countries to request for assessment of parental fitness, psychological profiles, quality of relationship and other evidence concerning lifestyle, even though the article’s inquiries are not intended to handle the issues of factual questions that are appropriate for the child’s custody[28].

2.0 LITERATURE REVIEW

            When a marriage breaks and divorce is eminent, it is obvious that the next step that is likely to lead to confrontations between the parties is the division of property and the custody of the children. Basically, the good of the children is a major concern for the parties involved in the separation as well as third parties facilitating the settlement of the separation procedures. Issues concerning the custody of the children are addressed by the Commonwealth Family Law Act of 1975[29]. In all disputes that regard the custody of the children, section 65E of the Act is usually consulted to give light to the direction of the case. This involves an interim hearing which is later superseded by a final hearing after which a ruling is made[30]. The review of literature discusses the international custody laws in Australia, Lebanon and Canada in the context of the case of Melissa Hawach with her former husband, Joseph Hawach and how it has affected and changed laws that govern international custody disputes in the three countries. The review of literature also reviews some relevant cases and the approach of the legal procedure of these countries towards international custody.

2.1 International Custody Laws in Australia

Australia has vast and detailed child custody laws that govern all matters relating to the custody of children after separation of parents or death of the legal guardian. The concerns of child custody in Australia are addressed by the Australian legislation in the 1975 Family Law Act. The most crucial parts of the law deals with divorce of parents, guidelines on parenting where separated parents are involved whether previously married or not married as well as issues involving financial maintenance of children by separated parents. The act was enacted with the main purpose of protecting the interests of the child after divorce or separation of the parents while making sure that both parents are adequately involved in the child’s life[31]. Initially, the Family Law of Australia dealt with all child custody concerns involving children that were either adopted or born in the marriage. However, after the division of powers between the Australian states and the Commonwealth, the act could only address matters of children born in the marriage. The family law of Australia has been subject to numerous changes due to specific legal externalities that keep on arising and needs to be legally addressed[32]. Such include the international custody case of Melissa Hawach.

Matters relating to custody of children are addressed in Part VII of the Act. The part has experienced significant amendments in the year 1995 and year 2006. The act determines the matters relating to children in the light of the person who is expected to live with them the person whom they will spend most of the time with. The legal meaning of the term custody was constrained and basically meant where a child lived. After legal reforms of 1995, the term was given a broader meaning. The concept of the term custody allowed the parent a broader decision making platform where he or she was allowed to determine where the child lived and who lived with it. The reform Act also allowed both parents to the disputed child equal responsibility on the child regardless of the residence of the child or the person living with it[33]. The act does not however indicate that only the parent of the child can be the legal custodian but section 65C of the Act allows other interested parted with the welfare of the child to apply for a court order to have the child under their custody. The court consequently makes its ruling based on whether the person interested with taking custody of the child have best interest in the welfare of that child[34].

If there arises a dispute in matters relating to parenting of the child and the matter is taken before a court of law. The court after hearing the grievances of each of the parties concerned makes the ruling based on whether it is in best interest on the good of the child. The Act recommends that both parents should have shared and balanced responsibility towards parental obligations of their children. This means that both parents are required to consult one another in decision making involving crucial matters regarding to their children. However, this presumption does not hold waters in the case that one of the parents was involved in abuse of the child either physically or sexually[35]. There is no presumption that allows for equal time allocation with the child. The court is involved in allocating the time that it deems substantial for spending with the child for the parent who is not living with it. Substantial time is inclusive of special days such as birthdays and holidays, weekends and weekdays. The basis in determining who a child lives with or spends time is determined with what the court deems to be best interest in the child[36].

2.2 Effect of Melissa Hawach’s Case on International Custody Laws in Australia

            The Australian custody law has been very volatile and has under gone various reforms to suit the current trends. Originally, the 1975 Family Law Act of Australia had provisions on child custody that were not inclusive of all externalities of the current global society. The current global trends on social matters are prompting to new legal complexities that were not foreseen during yester years when the world was less globalized. This hence demands constant improvement in the legal provisions and reforms of the current law[37]. Some of the cases that have arisen in the recent past are of their kind and have no previous judicial precedents. The set of circumstances through which such cases occur are also unique and are not addressed by the current constitution. This hence calls for restructuring of the laws while including the new set of circumstances being experienced requiring legal interventions[38].

The case of Melissa Hawach touched Australia in unique manner not experienced before. The case touched on three different jurisdictions inclusive of Australia, Lebanon and Canada. It was the first time that Australia found itself in the middle of a complicated international custody case involving children with triple citizenship. Australia sets forth resolution of international custody disputes to be resolved using International Treaty of Child Abduction[39]. Based on the international treaty, Australian law recognized that Canada was the main dwelling of the children hence the Canadian authority was the one mandated to determine on the custody of the children. The Australian law had no provisions for indicating the venue of a child’s custody determination where more than one nation was involved. Other than conforming to the international treaty of The Hague, Australian law of child custody had no influence on the case. The dilemma arose where Lebanon and Canada were not members of the Hague convention of determining child custody. This means that Australia had no equitable bargain since the international treaty cannot have any implications on non-members and only international provisions on child abduction and custody for the countries would determine the case[40].

The Australian judicial system identified that it was necessary for the country to enact provisions for child abduction and custody cases involving different jurisdictions in order to have equitable representation where the involved parties are not partisans of the international treaty regulating the matters of child abduction. Additionally, the case was peculiar since it involved expatriates and the Family Law Act of Australia had no such provisions. First, the Family Law act was amended to include provisions for international child custody. The consequent law provided that all cases of child custody or abduction would be subject to all requirements and provisions provided in the act therein. This means that, in an event that Australia is faced with a similar set of circumstances, it will have a bargaining power in the case without direct involvement of the Hague child abduction treaty[41].

The scope of the Family Law of Australia was expanded to include the plight of expatriates. Before the case of Melissa Hawach occurred, the Australian law did not include child custody discourse involving expatriates. At present the Australian family law recognizes that all issues relating to children of expatriates will be addressed in the jurisdiction in which the children are residing. The international custody and abduction law provides that if the children are living with their country in a country overseas and one parent is in possession of the passports, the other parent will not have the ability to remove them from that country. The parent who is willing to remove the children from the country will have to seek consent of the court to do so. The resultant Australian law on custody of a child after Melisa’s case provides that an expatriate of the country can initiate a complaint to the local authorities in case one party plots to remove the children from the country without their consent so that the departing party can be stopped from leaving[42].

Countries which are not signatories of the Hague Convention may deny all or part of the requests made by the Convention about child abduction therein. For instance, the Convention demands that the custody of abducted children is supposed to be determined by the country from which the children were originally moved from. The Australian legal system cited the problem of failure of another jurisdiction which is not a partisan the Convention refusal of allowing return of abducted children from the country. In this regard, the law made a provision where Australia can negotiate with international jurisdictions in cases concerning child abduction and custody where such jurisdictions are not members of the Hague convention. In the US, Mexico and Canada an act of the law dubbed “bring our children home” was proposed  in 2007 to provide legal assistance to parent whose children were abducted and taken to other jurisdictions which do not wish to return the children to the original country[43].

A similar case to that of Melissa Hawach occurred in Queensland Australia in August 2010 involving abduction of four young girls aged between fifteen and nine years by their Australian mother from Italy.  The four girls had dual citizenship Australian and Italian since their mother was Australian-born while their father was an Italian. The events of the case are similar to that of Melissa in that the mother to the children took the children from their father who is the legal custodian in Italy to Australia for an alleged holiday trip but choose to stay in the country with them. The Australian High Court made a ruling based on the international custody clause introduced after the case of Melissa Hawach connected to section 51(xxxvii) in the constitution of Australia. The section gives Australian law the flexibility to deal with some issues not included in the Commonwealth law. Previously the Commonwealth powers had significant impact on the Australian family law and limited its involvement with international custody cases[44]. The High Court of Australia ruled that the children should be returned to Italy where the original custody case was decided. Although the Australian international custody law requires that children be returned to their original country for custody proceedings, where such a ruling may be injurious to the welfare of the children it may be stayed by the court.

2.3 International Custody Laws in Lebanon

            Lebanon is arguably one of the countries with the most discriminative child custody and divorce laws. The international human rights watch (IRHW) report indicates that women are discriminated against by the divorce and custody of children law of Lebanon. From the report it is evident that Lebanese laws on child custody, divorce and other family matters tend to favour men while discriminating against women. Lebanon is not a signatory of The Hague convention hence is not under the obligation to consider any presumptions of convention in matters of international child custody. There are extensive difficulties in returning children who have been retained by one of the parents in Lebanon for any reason to any country. Since the country is not a signatory to the convention, it cannot be pressured to grant a safe return of children to their original country if they are living with one of their parents regardless of the custody terms of their country of origin. Married men in Lebanon are obligated by the law to refuse their wives and children from leaving the country if they so deem fit even if they are not Lebanon-born[45].

There exists an acute difficulty in returning a child to another country if it was abducted by a parent who lives in Lebanon. The Lebanese law does not recognize international kidnapping of a child by one of the parents as a crime. This is especially where the abductor is the father of the child. The Lebanese laws on international custody of children are incompatible with those of other jurisdictions especially the ones subscribed to the Hague convention. This hence raises international legal conflicts based on ethical concerns of other countries. The custody laws of Lebanon grants all rights regarding family matters to the men[46]. Since the current Lebanese family laws borrows from the traditional Muslim laws, family issues and rivalries are resolved in favour of men while paying less attention to the opinion of the woman or the children. Matters of child abduction, custody and divorce as well as other family discourse are resolved in religious based courts. This hence limits justice as compared to the mainstream judicial system used in other countries. Alternatively, the case might be transferred to a legal court upon request but is likely to take up to two years before the request is approved and up to five years before the first hearing[47].

2.4 Effect of Melissa Hawach’s Case on International Custody Laws in Lebanon

            The Lebanese custody law is very rigid since it is regulated by the Islamic customary and religious laws. The religious and the societal laws of the Muslims are not easily changed since they connect divine believes of the Islam. The nature and structure of the Lebanese custody and divorce laws tends to be incompatible with any other international law[48]. The case of Melissa Hawach had not much effect on the rigid Lebanese child custody and child abduction laws. However, the case attracted international attention on the extreme and discriminative family laws of Lebanon and the incompatibility of such laws with the international community. Although the Lebanese laws have been extensively criticised by the international community such as the convention of The Hague, it is evident that modifications are not going to be experienced in the near future since the nation is yet to bow from the international pressure. The international legal implication of the case in Lebanon was a breach of the law of the land.

Lebanon asserts international jurisdiction on abduction and child custody to itself since it is not subject to the international treaty on abduction of children regulated by The Hague[49]. Based on the Lebanese legal system, the circumstances in the case of Melissa Hawach were injurious to the local law and illegal. The custody law of Lebanon does not recognise abduction of a child by the parent and more especially the father. The law recognises that the mother of the child should be the custodian of the child only in the condition that the child is a girl aged seven years and below or a boy aged two years and below. According to the Lebanese laws, the father of the child had legal right of being with his children in the country and had not whatsoever abducted them. Since the father of the children had already been granted custody of the children by the Lebanese law, the wife was not rightfully allowed to take procession of the children. The laws governing custody and divorce in Lebanon have not experienced any significant changes since Melissa’s case in 2006.

The case of Melissa Hawach raised the country’s consciousness in child abduction. The country in turn instituted harsh measures to under age children abductors. For instance, the two men a New Zealand and an Australian held in connection with kidnapping and assisting Melissa Hawach in abducting her children from their Lebanese father faced harsh penalties from the Lebanese civil courts. The family law of Lebanon does not take attention of court orders from any other country granting custody of children to their mother who is not a Lebanese if they are born of a Lebanese father. Lebanon is not yet ready to subscribe to the Hague convention due to complexities of the Muslim religious laws which are virtually incompatible with mainstream legal systems[50].

2.5 International Custody Laws in Canada

The Family Law of Canada defines child custody as the legal right and obligation guaranteed on a person by the court to make all the needful decisions about the life of a child. The Canadian law on child abduction and custody provides that both parents have equal rights towards raising their children and equal decision making on how the children will be raised. In case of separation or divorce, the parents are allowed by the law to decide on how and their children will be raised and who will be with them without necessarily involving lawyers or the courts. In case of disputes in deciding on matters involving the welfare of the children, either of the parties can apply for custody in the local courts. However, the custody can be petitioned by the other party after some time if the current circumstances of the child’s custodian changes in such a way that they affect the child. The party who is not living with the child may consequently apply for access to the child in the law courts for an order to spend time with the child[51].

The Canadian officials outside the country work intimately with the local authorities to ensure safety and protection of children of Canadian origin in overseas countries. Canada being a signatory of the Hague Convention and having signed the child abduction treaty allows the convention to take care of all matters relating to international abduction or child custody. Where abduction case involves nations that are signatories of the convention, the child abduction guidelines of the convention takes the lead in the case. The Canada obliges to the convention proposition that international adduction or custody cases be held in the country of origin of the involved children even in the case of dual or multiple citizenship. The Canadian international abduction law rules in favour of the party that has the best interest for the children regardless of the original country of origin. The law also recognises the relationship between the child and the parent as well as the parenting capabilities of the disputing parents[52].

Parental kidnapping and abduction of the children is illegal in Canada. The legal systems in Canada require authenticity in the situation where a parent would like to take his or her child abroad. In case the parent wants custody of the child, he or she is required to apply the same in the court of law. Where a child has been abducted and smuggled out of the country to a nation that does not subscribe to The Hague convention, the international abduction law of Canada petitions the foreign government to have the matter decided under the Canadian jurisdiction[53]. There lacks clear understanding of the place that the abduction case should be decided where the countries involved in the case do not adhere to a common law in matters of international abduction. Canadian law on international custody case provides that the case should be heard in the habitual country of residence. In the situation that the abductor is in the country, the Canadian law requires that he or she be handed over to the rightful country of origin.

2.6 Effect of Melissa Hawach’s Case on International Custody Laws in Canada

            The unique nature of Melissa Hawach’s case had a significant effect in the manner which Canada addressed similar cases. Each international abduction case is unique in nature and different levels of complexities are involved. The Melissa Hawach’s case for instance involved children with triple citizenship where two of the jurisdictions were signatories of the convention of The Hague while one was not. Just like in the case with Australia, Canada had no legal option to remove the abducted children from Lebanon since the legal provisions in the Lebanese law would not agree to it. On the other hand, the case raises the question of whether Melissa was right to secretly remove her children from Lebanon without following proper legal procedures. A legal dilemma still exists since had Melissa involved the legal authorities she would probably not have taken her children back to Canada. This would have been due to the incompatibilities between the sets of law used by the jurisdiction of Lebanon and that of Canada.

Matters involving child custody and support are addressed under the Child Support Guidelines in the Canadian Constitution Act, 1867. All matters of family private matters are discussed under this section. However, matters of international custody and abduction are addressed by the international convention of Hague[54]. After the case of Melissa Hawach, legal critics in Canada cited that children are much more affected in the process of litigation which is compulsory where The Hague Convention is involved. It was also identified that in addition to the trauma experienced by the minors from the litigation process, minimal benefits are achieved through this process. The law alternatively introduced mediation as an option of resolving disputes of family matters where either of the parties can file a complaint to the law courts in case they are dissatisfied in the process. Even in cases of cross-border family disputes, mediation seems to be the most convenient method due to lack legal complexities brought about by the litigation process. The mediation process allows the concerns of every person to be addressed while giving the welfare of the children utmost concern[55].

The judicial system of Canada is currently in the process of designing a legal statute that can enable it bargain equitably in child abduction cases with countries that are not members of The Hague Convention. A bill requiring amendment of the law on international child custody cases has already been proposed. The Canadian government is also increasing its vigilance on international child abduction. The Canadian legal system advices parents whose children are in custody of their children to confirm that their agreements of the custody allow them to travel with the other partner overseas. The current custody and child abduction act of Canada provides that in case a child is abducted in a country that does not recognize the Canadian custody documents, the children are allowed to take refuge in the Canadian embassy in the country if there is any[56].

3.0 RESEARCH METHODOLOGY

The research findings and analysis will be derived from the secondary data[57]. Secondary data is obtained from review of the past studies on the subject matter of the research. Secondary data providing pertinent information about the international abduction and child abduction framework of Australia, Canada and Lebanon will be assessed. All relevant media containing information about the legal framework of The Hague Convention and the implications of the convention on international custody cases will also be vouched from the secondary data. In order to identify any significant changes in the laws that govern international child custody rows in Australia, Canada and Lebanon as a result of Melissa Hawach’s international custody case, legal publications will be reviewed as well as fact sheets and case files of these jurisdictions. All documents containing information that is relevant for the research will be analysed and verified for authenticity and relevance before being adopted as an information source for the research.

The study will take form of a descriptive research. This is where fact findings on different angles of the research will be established through surveys and enquiries. The main aim of descriptive research is the portrayal of the state of events at the present time. In this research method, the author has no power to control the variables under investigation and can only report on the happenings. This approach will be best suited for the research since the study aims at establishing material facts on legal facts and frameworks and no manipulation of data is expected. A cross research will be conducted on the data sources for the research. This will involve cross examination of viable legal journal articles, books, credible websites and legal reports containing information useful for the study. In order to eliminate bias and enhance data accuracy, the research will collect information from various sources located in different databases[58].

4.0 LIMITATIONS OF THE STUDY

Although there remains much research to be carried out in the area of the study, the research will generate admirable findings in the area of international child custody and abduction. However, since the study relies on information produced by previous researchers on the topic and other relevant secondary information sources, there is a likelihood of flaws in the research. The first limitation expected in the study is that there are enormous data amount relating to the subject under investigation and it will be difficult to establish the most relevant for the research. Additionally, huge data sources are expected to be strenuous for the researcher who will probably experience difficulties in sorting the most relevant information for the study. It is foreseen that there might be insufficient data and information on some key issues of the research. Such include specific dates as well as legal acts and sections of the desired laws under review. This is because such information is published slowly and may not be readily available for review in the research.

Some of information which the research seeks to review is sensitive in nature and the researcher would probably require authorization to access such data. Information regarding case files and fact sheets for past cases may not be readily accessed from the public online or physical database. There would probably be a need to contact the relevant authority to secure the permission to review such data. This is a major limiting factor to the research since it is not guaranteed that the relevant authorities who are custodian of the required data will grant access to the researcher. Failure of the research to review such information is likely to lead to a deficient research output. In another spectrum, contemporary secondary data sources from legal publications, books and journals may not be fully referenced hence it would be difficult for the research to identify the true annotations of the acclaimed facts therein. Additionally, overreliance on legal publications may be misleading since they are not legal sources of legal information.

5.0 EXPECTED RESULTS

The research seeks to establish the national and international implications and ramifications brought about by the case of Melissa Hawach case of international custody. After reviewing the legal framework of the three countries involved in the case (Australia, Canada and Lebanon) the study is expected to establish the significance of the legal platform of these countries in resolving such cases. The study will also establish whether the national and international laws of these countries are adequate in addressing the problem of national and international child abductions. Provisions of the laws of the three countries regarding child custody will also be established. The research will also establish the significance and implications of The Hague Convention on the cases similar to that of Melissa Hawach. The research will also establish how The Hague Convention can be of help to signatory countries while dealing with international abduction cases. Limitations of the convention in similar cases will also be established. Finally, the research aims at establishing the effect of Melissa Hawach’s case on the laws that govern disputes involving international abduction in the three countries involved. The changes observed in these laws in connection to the case will consequently be established.

8.0 CONCLUSION

            In all manner of family disputes there has to be specific legal systems that should address the concerns in these case. Complexities occur when the circumstances or parties involved in the case come from several jurisdictions. The concepts which influence current day international custody law are domicile and the nationality of the disputing parties. This hence prompted countries to come together and establish a standard legal platform that would address all matters relating international disputes on child custody to eliminate legal complexities in handling such matters. This hence led to the formation of The Hague Convention which addresses all concerns of member states involving international abduction and custody of children. The convention gives member countries a common ground and procedure for solving inter-country abduction and child custody cases[59].

This research proposal aims at providing a guideline of how the researcher will conduct the research and the key areas of the research to be addressed. Through this proposal, it is evident that there is need to research on the subject of the study owing to the gravity of international abduction cases. The case of Melissa Hawach provides a perfect example of an international custody dispute and poses a legal challenge to the concerned authorities on the most amicable way of resolving the dispute. The case is a good platform for the research to discuss the implications of the national and international legal foundations and corollaries in cross-border child custody cases. Through this case, the research will be able to identify the changes in the child custody laws of the involved countries.

 

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[54] Commonwealth Family Law Act of 1975

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