Going home?

Family|Family Law|Relationships|October 5th 2012

Right now four Italian sisters are big news in Australia. Earlier this week, the girls, aged between nine and fifteen, were put on a flight to Italy at Brisbane Airport. Unfortunately, the two oldest became so upset that they had to be removed from the plane before take-off.

The girls’ great aunt told the Australian Associated Press: “They were screaming, kicking, fighting and struggling like wild animals. They were traumatising the other passengers.”

Certainly a distressing scene: not one that many of us would like to witness.

The sisters had earlier been separated from their mother and forcibly taken from their home on the Sunshine Coast in Queensland by police. Again media reports are vivid and upsetting: the girls screaming ‘no!’ and trying to resist, the mother running after the police cars before collapsing in tears.

Just hours before, Judge Colin Forrest had ruled against the mother’s final attempt to prevent the girls being returned to their father in Italy. Yes, as you’ve probably already guessed by now, this is a particularly bitter international custody dispute.

The girls, who hold joint Australian-Italian nationality, first came with their mother to Australia in 2010, ostensibly for a one month holiday, but did not return. The following year the Australian Family Court issued an order that the custody dispute must be resolved in Italy. In May this year, the family failed to put the girls onto a plane by a court-ordered deadline and the sisters were later found in hiding.

After that the case returned to the courts. During the hearing last week, representatives of the mother argued that the original family court order should be cancelled because more than 12 months had passed since it was issued and the sisters were now settled in Australia.

But Judge Forrest rejected this. Although the sisters are reported to have expressed a clear wish to stay with their mother in Australia, he ruled that they had been “significantly influenced” by the mother and her family and that there were no grounds for disregarding Australia’s obligations under the Hague Convention on child abduction, a piece of legislation we have, of course, discussed in earlier stories. More formerly known as the Hague Convention on the Civil Aspects of International Child Abduction, this international treaty is concerned with precisely these situations: a parent taking the children of a relationship to another country without the other’s consent. The convention provides a legal framework for their return. Originally signed in 1980, there are now 88 signatories to the convention, including, of course, Australia and Italy.
In the case of the four sisters, who naturally cannot be named, the mother now finds herself in a very difficult situation. She cannot return to Italy to be with her daughters during the custody hearings in that country because she is a student.

Speaking to the Australian Associated Press, the mother’s aunt explained: “She has absolutely no money, none of us do, so we can’t support her financially in Italy either”.

Meanwhile, the mother’s great-aunt told reporters that the father had turned his entire village against her. “I would say she would be unwelcome.”

The mother fears a cold welcome, in spite of the judge’s insistence on an undertaking from the father that she would not be prosecuted back in Italy for taking the children without his consent.

The aunt said: “I know that the courts have got an undertaking from the father that he won’t prosecute her in any way in Italy, but I’m not sure that holds any weight once he’s in another country. We’re certainly sceptical on whether there would be any consequence for not holding him to that undertaking. It’s the only reason [she’s not going back]. What good is she to her daughters if she’s in prison?”

Legal experts will be able to offer the mother some advice on that particular point, and if the undertaking has been given then for this system to work internationally it should be honoured, but in the meantime, mother and daughters will be separated by thousands of miles. Of course, it is unlikely that she will lose all access to her children following the custody hearings, but I also cannot imagine the Italian authorities looking too kindly on a mother with a history of international child abduction. But leniency is possible.

What has happened here is that an Australian judge has decided that where these children live is not a matter for the Australian courts but the Italian courts. And the mother has sought to usurp their authority by taking the decision into her own hands and flouting the law.

Of course the $64,000 question is why? Why did the mother fail to return from her Australian holiday? What happened between the parents?

We can speculate. Perhaps it was simply a marriage that had run its course. The mother presumably thought the father would never agree to her moving the children to Australia with her and she didn’t think the Italian courts would agree either. So she took matters into her own hands. A similar case was recently reported here by the father’s sister. I suggested he contact the Child Abduction Unit to try and secure their return.
Judge Forrrest was upholding the Hague Convention not only for the benefit of this particular family but for future multinational families too. After all, if you expect abducted Australian children to be returned from Italy, you have to be willing to return abducted Italian children from Australia.

The sad phenomenon of the ‘stuck mum’ is one we have examined in earlier stories. We have heard from some of them on the blog. They are brave women because they have stood by the rule of law for the sake of their children, even at a cost to their own lives. They won’t take the law into their own hands, and so they put up with life in foreign countries. In this particular case however, the children have clearly borne the brunt. They have been subjected to a trauma they will surely remember the rest of their lives – forcible separation from their mother – as a consequence of her flouting the law.

Although this case does not involve the UK, it is another vivid illustration of the ways in which starting a transnational family can have the most serious of consequences. My advice remains: think long and hard before doing so and reach clear agreement before leaving this country about what will happen if the relationship ends

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(13)

  1. Chambers says:

    I am appalled by the mother who staged such a scene when police took her four daughters to the airport to be reunited with their Italian father.
    How dare she inflame a situation so distressing to her daughters? It is so in keeping with the rest of her actions – essentially abducting the girls from their father, allowing them to be hidden when the court ordered their return, apparently having them coached into not wanting to go back, and refusing to accompany them back to Italy to at least ease any distress, despite the girl’s father offering her $8000 and immunity from prosecution if she did so.
    http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/i_feel_anger_at_this_mother_not_pity_for_her/P40/

  2. Observer says:

    “They have been subjected to a trauma they will surely remember the rest of their lives – forcible separation from their mother – as a consequence of her flouting the law.”
    It’s sad that these first cases of women need to be the guinea pigs, and that their children need to suffer on account of it; but my observation is that only when we see thousands more cases like this of mom’s being removed or jailed will we move toward a better future in which both mothers and fathers stop thinking of their children as possessions and start thinking of them as shared responsibilities.
    Try as a I might, I have little sympathy for this mother. I can almost begin to understand why fathers abduct, because of the desperation and their knowledge that this might be the only way to retain a relationship. But that still doesn’t make it any less of a crime.
    Which makes me wonder whether if this mother was a HE instead of SHE, whether he would already be in prison.

  3. JamesB says:

    Agree with Chambers.
    Not sure on the law, family law is very complicated and the hague convention is complex family law.

  4. Observer says:

    James, there’s nothing complicated about family law. It’s always about the bottom line only. That’s why it’s commonly referred to as a form of institutionalized child abuse. Those who practice it are either complicit or naive.

  5. Fiona says:

    You are all making a lot of assumptions here. Perhaps the girls behaved like this because they know better than any of you what they are being returned to.

  6. JamesB says:

    Leah, like maybe the Dad’s a Werewolf or secret part-time child molester or something, ffs.

  7. David says:

    I have personal experience of the effects of The Hague Convention. The impact on parents and children is dramatic – and it has become an ‘industry’ for lawyers (ie. Fee Earner). I think there is little can be shown to have been achieved for parents and children . I agree with the comment above that the “bottom line” is: ” an institutionalised form of child abuse”. Often complicit with fathers seeking not necessarily the return of children as the main priority, but as a means to punish a mother who is escaping a bad marriage in a foreign land – who is doing the most logical and natural thing by seeking the social and practical support of family and friends at home. Support without which,in a foreign and possibly hostile environment (a situation usually aggravated by a vengeful father), the mother is going to find all the financial and practical challenges stacked against her. I am unconvinced that, despite its laudable aims , the Hague Convention has in any way improved outcomes for children or parents. These matters need to be thought through again in the context of children and parents. So far, the HC has only succeeded in enriching the legal profession at the financial, emotional and social cost of children and parents.

  8. JamesB says:

    I don’t know if I agree with David and Observer. But I do say I have a Russian friend who lives in this country and Tipstaff (court policeman) came to her house and took her and her son’s passports after an ex parte hearing… The reason… That Russia is not a signatory to the Hague convention and the father said she was a flight risk. Now mum and son are stranded and can’t even holiday abroad.
    I don’t know what the moral of the story is. Perhaps sort things out between you. I do say this though that it nearly happened with me and my kids and for that reason I think I do agree with the Hague convention. That said I do understand David’s point and don’t like these fathers that do exist like that. My friend’s ex being one of them. On balance though I think it best in place. The place to fight these (horrible) men and women (as in this case) is in the appropriate court. In this case Australia. I know an English woman who returned to UK and then successfully petitioned in Australia to do the right thing and bring her children back from Australia and a difficult not very nice ex there.

  9. KT says:

    The Hague Convention needs to be reformed or repealed. There is already a long history of sending abuse victims back to the abuser. Switzerland has already implemented some reforms, but other countries have yet to follow. Also, it is a continuous problem for women in court that they are falsely accused of lying when they are telling the truth. Highly paid “Whores of the Court” experts make a living off of throwing these abuse victims under the bus. So the provisions for domestic abuse victims do not work at all. Evidence is suppressed or ignored and then the judge claims there is nothing that can be done. Also, because patrilocation (women move to where the man and his family live) frequently occurs, the system greatly disadvantages a woman who needs the support of her own family when she and her children are being mistreated. See the Hague Domestic Violence Project for a long list of cases where abuse victims had their children taken away and sent to live with the person they were fleeing from. http://www.haguedv.org/cases/ Also, see this article regarding the changes made by Switzerland in response to this maltreatment of children in Hague cases. http://www.wcl.american.edu/journal/lawrev/58/weiner.pdf
    Australia should be VERY VERY ASHAMED of the treatment of these girls who were told they were under arrest and handcuffed them and forcefully removed them from their primary caretaker, which is something else that should never occur. If the lawmakers in Australia want to stay in office, they should implement changes to the Hague so that this never occurs again, and so that these girls can be reunited with their mother who they want to be with.

  10. JamesB says:

    If it is best they be with their mother then they will be with her. I think I believe in the Hague convention more than you. I don’t think 1 country can change the policy, think signatory countries need to so can’t really blame the Australians.

  11. Observer says:

    Whether one agrees with how the Hague Convention works is neither here nor there, because in reality it doesn’t really work. There was a documentary highlighting its failures not long ago.
    The Hague Convention has proven itself over and again in failing to bring back children of abducting mothers, and failing to prosecute this crime.
    If the Hague Convention brings back children of abducting mothers, we can almost be sure it is for very good reasons, and because the mother is abusive. Those mothers can point their fingers and fling abusive allegations at the father all they want, but we can almost be certain that they are false. If they are not false, then it is a real pity, and maybe solicitors and women’s rights charities should stop inciting mothers to make false allegations, so that society does not put yet another allegation down to crying wolf.
    I think the problem or failure that the above comments highlight is that justice is NOT applied on a case-by-case basis, as those in the industry would have you believe.
    David and KT seem to have knowledge of one unfortunate mother who was caught up in this mock justice system, and assume from that that all mothers are victims and all fathers are abusive. That’s just a slack thought process, which sounds full of hate and a desire to control a more productive discussion about Hague.
    Let’s put gender hate aside, and consider what the truth is for a change.

  12. JamesB says:

    The point about the Hague convention is that the children be brought back to face due process in a decent fair way. In this case Italy. I think that is fair enough. Rather than abduct the parents should go to court for permission to abduct then if they have a case she could go from Italy to Australia with no hassle. Wrt mock justice, yes, can exist on either side especially on the balance of probabilities and with expensive lawyers and it saddens me that but still there has to be rule of law and running from it is not it.

  13. EM says:

    As I understand things the framework of the Hague convention is fairly decently written. However each signatory country is responsible for its implementation within that countries legal framework. Such implementations have been and may still be flawed which has created a system with insufficient checks. As a result there have been several high profile cases in the last decade where due to a failed implementation the Hague convention has been misused.
    As with all family proceedings the needs and safety of the children must be first and foremost and can and should override the parents article 8 rights.
    Sadly family court in the UK can be a real lottery type experience where the judge and how good your legal team are make a huge difference. and real change is needed.

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