8. Children belong to their mother! Beau does not need to go to her father in Australia

Below is my English-language machine-translated Father Knowledgecenter Report on the appeal judgement given by the Dutch Court of Justice of The Hague on last Wednesday the 14^th of November 2007, siding with a Dutch mother in her international child abduction and Hague Convention case against the Australian father from Brisbane and the Australian Family Court System on the issue of the exes’ 8 year old daughter Beau, who was taken to the Netherlands by her Dutch mother, having to be send back to her father in Brisbane or not.

The Dutch judges of the Court of Justice in The Hague in the appeal judgement of the mother on the 14^th of November pronounced that the child Beau does not need to be send back to her father in Brisbane, Australia. The full court judgement is part of my report below. (see pronouncement and report below)

Strictest warning to Australian fathers regarding mediation processes:: Be most aware of fall pits in the provisions made in Australian mediation contracts !!!

I do want to discuss this issue with Australian father representatives to warn all of you especially against mediation processes in the Australian family court system that have lured the father from Brisbane into signing a parenting order provision giving away all his rights whare it is stating:

“Parties on 19 May 2005 `Consent have signed order, in which among others - as far as here important - parties `have agreed Parenting order implying:

“(..)

CHILDREN ORDERS

(..)

7. If with any training period the mother wishes to relocate with the child, including to a location outside or Australia (with it being specifically noted that the mother and child were both born in The Netherlands and the mother may wish to return with the child to the Netherlands) then the father will unconditionally sign all document and do all such act and things to facilitate:

(a) the child obtaining a passport and travel/entry document ash may be required to facilitate the lawful movements or the mother and/or the child;

(b) the child exit from Australia and entry into the Netherlands (or such other country ash the mother may from time to time-require), together with her re-entry and exist on multiple occasions to and from whatever countries the mother and child reside; and

(c) the child continuing residence in such other country ash the mother may direct from time to time.”

Lessons to be learned here are:
On the basis of the father’s signature and the Australian court pronouncement of that Parenting order the Dutch Court now concluded that the Australian father had consented the mother taking their daughter to the Netherlands.

The lessons to be learned from this by Australian fathers of binational children is to never ever again consent to Australian mediation agreements making these sorts of absurd provisions for fathers to sign and by doing so giving away all their rights related to the provisions of the Hague Convention on International Child Abduction. See for more details on the relevant provisions of the Hague Convention on International Child Abduction ruling this case at the bottom.

In case any of you also speak or read a bit of Dutch, my original Dutch report can be read at:

Telegraaf over oordeel Gerechtshof Den Haag :: "Kinderen horen bij hun moeder! Beau niet naar haar vader in Australië"
Vaderkenniscentrum (VKC), Peter Tromp, 15 November 2007
http://vaderkenniscentrum.blogspot.com/2007/11/43.html

Below are also the links to the articles on this case written in the Dutch newspapers. I also looked in the Australian newspapers but found nothing reported till yet.

Regards, Pieter Tromp, Netherlands Father Knowledgecenter Europe

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Dutch newspaper the Telegraph commenting the judgement by the Court of Justice of The Hague in the case of the Australian child removal case of the 8 year old daughter Beau by her Dutch mothersays:: Children belong to their mother! Beau does not need to go to her father in Australia

Dutch Father Knowledgecenter – Peter Tromp - 16^th of November 2007

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Pronouncement Court of Justice The Hague in appeal in Australian child removal case

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Children belong to their mother! Beau not to her father in Australia

Telegraph - woman pages - current | React do 15 nov 2007, 12:31 | 3 responses

AMSTERDAM - the judge almost always decides in the advantage of the mother. This way now also at Beau. Isn't a this beetje undeserved? Or is a child simply the bests finished at the mother? And care mothers improves much for their ducklings.

React

Fathers have no rights

8 the person whose birthday it is Beau can remain of the judge at its mother in the Netherlands. Its father who lives in Australia had claimed the protection. In vain therefore.

More rights

The judges almost always give the protection to the mother. Does a mother have more rights by those nine months? Or does a mother give simply more for its child? Correctly by this special link? And only do mothers know exactly what their kroost necessary have?

Take part in the Dutch debate by means of the reactbutton given below.

React

Related Article

Fathers have no rights

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The full Judgement given by the Court of Justice of The Dutch City of The Hague in the appeal of the Dutch mother in the Australian child removal case

Source: Court of Justice The Hague - Date topicality: 14 November 2007

LJ number BB7840

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The Hague, 14 November 2007 - the Court of Justice `s-Gravenhage the arrangement of the court has today destroyed Middelburg in which had been stipulated that under 21 B. had be brought back to the father in Australia. (LJN: BB5909)

The court has assumed that the written authorisation of May 2005 of the father to the mother with the child to the Netherlands to leave has still Right strength. The court reaches that judgement on the basis of the explanation of the Australian right. The mother has not left `therefore with the child unlawful - in the sense of the child removal Treaty in The Hague - to the Netherlands. The court has rejected the request of the Dutch central authority order the conductance of the child to Australia for this reason.

The central authority appears on behalf of the Dutch state and the parent of whom the child will be be kidnapped and on the basis of the treaty obliges the immediate return of the child ensure.

Against the pronouncement of the court can be established within four weeks profession in cassation at the Supreme Court.

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The full text of the judgement in the appeal of the Dutch mother against the Australian court system in the Australian child removal case

LJN: BB7840, Court of Justice The Hague, 1483-M-07

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Date pronouncement: 14-11-2007
Date publication: 14-11-2007
Right area: Personen-en familierecht
Type procedure: More higher profession

Contents indication:
Conductance under 21 to place ordinary stay in Australia or the issuing to the father. The court judges that the applied judge - on the basis of the faith principle - has not been delivered without more tied to the explanation of the foreign right in in pursuance of Article 15 of the child removal Treaty in The Hague (HKOV) declaration or that he must descend without more there on: the applied judge must independently decide if it has been met taking into account the foreign right the conditions indicate the request to conductance to. In this case the father with the legal ratified Parenting order has given authorisation the verblijfplaats of the minor to the extend that to modify and with that distance done of the exercise of its gezagsrecht as in Article 5 HKOV meant. Decision: nonsuit from the request to immediate conductance.

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Pronouncement

COURT OF JUSTICE THE HAGUE

family sector

Pronouncement : 14 November 2007

Rekestnummer. : 1483-M-07

Rekestnr. court : YOUR RK 07-1103

[appellante],

living at [place of residence],

appellante in appeal,

hereafter to call the mother,

solicitor Mr. P.J.M. von Schmidt auf Altenstadt,

against

the Executive Board judicial youth policy,

Department legal and international matter of the Ministry of Justice,

acting in its quality of central authority,

for in appeal,

hereafter to call: the central authority,

both for itself and on behalf of:

[father],

living at Brisbane, Australia,

hereafter to call: the father,

authorised: Mr. A.M.E. Guiliano.

As an interested party it has been commented:

the Council for child protection,

establishment Middelburg,

hereafter to call: the Council.

PROCEEDINGS HISTORY IN THE APPEAL

The mother is on 18 October 2007 more higher profession come of beschik¬king of the court in Middelburg of 5 October 2007.

The central authority has submitted no objection book. The representative of the central authority the court on voorhand a lawsuit note, has entered by fax on 30 October 2007, does belong to.

From the mother at the court on 29 October 2007 additional pieces have entered.

The Council has not let be possible will appear the court at letter of 25 October 2007 for the terechtzitting.

On 31 October 2007 the matter has been treated orally. Have appeared: the mother, assisted by its lawyer, Mr. J.A.M. Shoe-makers, and on behalf of the central authority, Mr. A.M.E. Giuliano, accompanied Mr. M.P. Verveer. The father is, although to this end considerably called, did not appear. The people present have conducted the word, Mr. Shoe-makers and Mr. Giuliano among others the lawsuit notes added by means of at the pieces. [The minor] in Council chamber has been heard.

PROCEEDINGS HISTORY IN THE PRECEEDING FIRST CONSTRUCTION AND THE ESTABLISHED FACTS

For process course and the decision in first construction the court refers to the fought arrangement. At that arrangement the court has ordered that hereafter to call under 21 the appearance is brought back two months after the date of the arrangement by the mother to the place of its ordinary stay in Australia. Additionally, the court has stipulated that it is delivered hereafter to call under 21 to the father if negligent it continues satisfy the mother more or differently requested has been rejected to the command and.

The court goes out facts determined of by the court, as far as there in appeal none hurt against has been aimed. In appeal it is assumed following:

The mother has Dutch nationality, the father Australian. Parties in the Netherlands to learn has known each other; [in] 1999, is in the Netherlands [the minor] born. Parties in the middle of 2000 to Australia have left there live and work; in 2001, they have gotten married. In April 2005 parties from each other have gone; [the minor] under the daily care of the mother has remained.

Parties on 19 May 2005 `Consent have signed order, in which among others - as far as here important - parties `have agreed Parenting order implying:

“(..)

CHILDREN ORDERS

(..)

7. If with any training period the mother wishes to relocate with the child, including to a location outside or Australia (with it being specifically noted that the mother and child were both born in The Netherlands and the mother may wish to return with the child to the Netherlands) then the father will unconditionally sign all document and do all such act and things to facilitate:

(a) the child obtaining a passport and travel/entry document ash may be required to facilitate the lawful movements or the mother and/or the child;

(b) the child exit from Australia and entry into the Netherlands (or such other country ash the mother may from time to time-require), together with her re-entry and exist on multiple occasions to and from whatever countries the mother and child reside; and

(c) the child continuing residence in such other country ash the mother may direct from time to time.

NOTATIONS

(..)

F. The parties acknowledge that the frequency and duration or contact will necessarily change if the mother and child relocate outside or Australia. If she were to do so the father acknowledges that his contact or necessity would occur either during school holidays or on such other occasions which would require him to travel to the child country or then residence.

On 2 June 2005 the `Parenting order by the judge in the `Family Court or Australia has been ratified at Brisbane under number 1537/05.

On 18 November 2006 the Divorce order get of 17 October 2006 of the Federal Magistrates Court or Australia its gelding blijkens to this end by this Court Certificate delivered or Divorce.

On 9 March 2007 the father Application form `seeking orders has filled in Family Law Act1975/Children/Property and has submitted at the Federal Magistrates Court or Australia, blijkens then a put stamp come in on 14 March 2007 at the Brisbane Registry; to the Court for Parenting orders and Property orders it is requested. Afterwards request has the father has been still completed in the sense that he requests the parenting earlier delivered order of 2 June 2005 terzijde put to do.

On 11 April 2007 Child Dispute Conference have taken place.

A meeting (hearing date) has been stipulated on 20 April 2007.

On 12 April 2007 the mother with [the minor] to the Netherlands has left.

APPRAISAL OF THE APPEAL

1. To assess the court stands the conductance of [the minor] towards the place of its ordinary stay in Australia, or the issuing to the father.

2. The mother requests the fought destroy arrangement and still the central authority and the father inadmissible the request of the central authority to explain, at least and reject the father.

3. The central authority fights its profession and requests the court the fought ratify arrangement, possibly under supplement or improvement of grounds. The central authority refers for that to by its submitted declaration of 12 June 2007 of the Australian central authority, the so-called `Article 15 the declaration.

4. The mother has against the fought arrangement seventeen hurts targeted.

Admissibility

5. The mother puts in the fourth hurts that the court wrongfully has considered: the magistrate in a juvenile court notes that has been tried reach, in the light of what requires the Treaty concerning the with respect to civil rights aspects of international removal of children, hereafter the HKOV, sufficiently agreement between parties in this question. The mother is open for consultation with the father and states that there is violation of Article 7 of the HKOV, now in an absolutely no manner the possibility of a schikking has been examined. The central authority thinks that she has complied with its obligations ex Article 7 of the HKOV.

6. The court is of the opinion that the objection of the mother does not succeed and predominates to this end as follows. From the pieces has forward come that the central authority has summoned the mother on 14 June 2007 and has indicated, helpfully is able be at reaching a friendly regulation. The mother has not indicated then enter to want. Firstly at letter of 8 augusts 2007 of the lawyer of the mother it is indicated that the mother would be open for conciliation. At that stage the father wished to that no longer, cooperate because he the conductance request urgently wants present to the judge. The court is of the opinion thus that the central authority has made efforts sufficiently to try bring parties to agreement. The circumstance that this has not succeeded, does not take off to that.

Appropriate right

7. In the third hurt the mother fights the determination of the court in the fought arrangement that Australian right applies. In pursuance of the provisions in Article 3 paragraph 1 under a of the HKOV the gezagsrecht are assessed to the right of the state in which the child is immediately by transferring verblijfsplaats ordinary had. The mother demonstrates that after making the arrangement between parties, confirmed by the Family Court on 2 June 2005, Australia no longer the ordinary verblijfplaats of [the minor] was, yet the Netherlands.

8. The court states first that the term ordinary verblijfplaats an actual term to which contents are given by the circumstances and facts of the concrete case, is. In this case it concerns in 1999 The Netherlands born minor who in 2000, with its parents to Australia leaves and there up to April 2007, the moment of transferring to the Netherlands, has lived. On account of that the court is of the opinion that the ordinary verblijfplaats is by transferring Australia. The fact that at the mother for some time already the intention has existed to the Netherlands to leave with [the minor] does not produce it differently, now which intention has been given firstly in April 2007 implementation. The vorenstaande bring to the court to the judgement that the gezagsrecht in principle must be assessed to Australian right.

Authority

9. In the seventh hurt the mother fights who too these are talk of parents who have the parental authority left jointly [the minor].

10. The court considers that, now the mother has not indicated on the basis of which legal provision or legal and/or administrative decision talk of a deviation of the legal scheme of common authority on the basis of the Family Law act 1975 such as have been commented in the Article 15 declaration of the Australian Government of 12 June 2007, the present matter of it is gone out that the parents jointly the authority has meant in Article 3 jº 5 left as of the HKOV [the minor].

Appraisal of the request

11. Hurt the fiftieth, sixth, tenth and twelfth lend yourself for a common discussion.

The question which is due to the court for is or the mother [the minor] unlawful in the sense of Article 3 of the HKOV to the Netherlands has transmitted `and does not do return.

12. The court states first that in order to determine if is there talk of an unlawful transferring of Article 3 of the HKOV, Article 14 of the HKOV - as far as here important and shortens reflected - stipulates that the legal authority of the applied state can directly take into account the right of the state where the child has its ordinary verblijfplaats and with there yes or no formally recognised the legal decisions.

13. The Explanatory keep report at the HKOV - as far as important -:

Article 14 - Relaxation or the requirements or proof or foreign law

Since the wrongful nature or a child removal are made to depend, in term or the Convention, on its having occurred ash the result or a breach or the actual exercise or custody rights conferred by the law or the child habitual residence, it are clear that the authorities or the requested State will property to take this law into consideration when deciding whether the child should be returned. In this sense, the provision (.) that the authorities `shall property regard to the law or the child habitual residence, could be regarded ash superfluous. However, such a provision would on the one hand underline the fact that there are no question or applying that law, but merely or using it ash a means or evaluating the conduct or the parties, while on the other hand, in so far it applied to decisions which could underlie the custody rights that had leg breached, it would make the Convention appear to be a sort or lex specialis, according to which those decisions would receive impact indirectly in the requested Sate, an impact which would not be made conditional on the obtaining or an exequatur or any other method or recognition or foreign judgments.

Since the first aspect or article 14 necessarily derives from other provisions or the Convention, the actual purport or article 14 are concerned only with the second. The article therefore appears ash an optional provision for proving the law or the child residence and according to which the authority concerned `may take notice directly or the law or, and or judicial or administrative decisions, formally recognized or not in the State or habitual residence or the child, without recourse to the specific procedures for the proof or that law or for the recognition or foreign decisions which would otherwise be applicable. There are no need to stress the practical importance this rule may property in leading to the speedy decisions which are fundamental to the working or the Convention.

14. The court infers Article 14 of the HKOV and then the given explanation that it is not kept, the contents of the right of the state where the child its ordinary verblijfplaats in a specific procedure has determined to do.

Differently than the court, the court, which the applied judge - on the basis of the faith principle - without more has not been bound to the explanation of the foreign right in in pursuance of Article 15 of the HKOV declaration delivered, is of the opinion, or that he without more would have there go on finished, but the applied judge must independently decide if it has been met taking into account that foreign right the conditions assign the request to conductance.

15. The court is of the opinion that the father with the legal ratified `Parenting order like for this reflected, unambiguously and unconditionally to the mother authorisation has given to modify to the ordinary stay/place of residence of [the minor]. He has with that to the extend that distance done of the exercise of its gezagsrecht as meant in Article 5 of the HKOV, namely the right concerning the verblijfplaats of the child decide.

16. In `Notations reflect by the father to expression have been brought in addition that he has that modification has realised himself of the verblijfplaats of [the minor] outside Australia for him consequences in the exercise of its omgangsrecht and that he has accepted those consequences.

17. The court is of the opinion that with that is provide for the provisions in Article 65Y, subsection 2 and under a, of the Family Law act 1975, as it happens, that, if parenting order effective is a person who was thereby party cannot the child take along outside Australia unless with written authorisation of the parties for which the parenting order had been made.

18. As far as it has been demonstrated in the Article 15 declaration of the Australian Government of 12 June 2007 - and by the central authority for the meeting in appeal it has been argued - that too these Article 65Z Family Law would apply act 1975 - acting concerning making parenting order -, the court goes to that beyond now from mentioned article of law does not appear that the Right strength of between parties the being certain parenting order of 2 June 2005 has been stopped exist, at least is to come expire, on some the ground that the father in March 2007 at the `Family Court or Australia at Brisbane `obviously a request has submitted seeking parenting/property orders. Moreover does not become clear from the text of Article 65 Z, which the authorisation would have be granted by a party after establishing a new procedure. This condition is, however, linked blijkens Article 65Z to a legal authorisation, yet not to by a party authorisation to give. Moreover the central authority has not been possible indicate on the basis of which legal provision Article 65Z of the Family Law act 1975 the present situation (binding) of application must be considered, and cannot this in the Article 15 be read Declaration.

To the judgement of the court Article does not foresee 65 X, second paragraph, Family Law act 1975 in this, because too these talk has not been reflected of the situation in Article 65 X as: if an appeal against a decision or a court in proceedings has leg instituted and are pen thing, but put of - almost two years afterwards - appealed to for the side order of earlier parenting.

The court rejects also the proposition of the central authority, which the mother at the moment of transferring be no longer entitled be without preceding approval of the Australian judge the ordinary modifying verblijfplaats of [the minor] and that to the Australian judge (partial) gezagsrecht would be transferred. Still apart from or as such transferred gezagsrecht gezagsrecht are in the sense of Article 5 of the HKOV, from Article 65Y - and moreover also from Article 65Z - that becomes clear an authorisation of parties is enough.

19. From above considerations follows that to the judgement of the court no talk are of violation of Article 3 jº 5 of the HKOV in the sense that the mother [the minor] has transmitted unlawfully to the Netherlands and there has kept back so that the request to immediate conductance of [the minor] to Australia is rejected.

20. In of this needs remaining hurts of the mother no more discussion lifts.

21. Having regard to the above the fought arrangement must be destroyed and as to communicate to be decided.

DECISION ON THE APPEAL

The court:

· the fought arrangement destroys and, again having:

· rejects the introducing request of the central authority;

· wise finished it more or differently requested.

This arrangement has been given by mrs. Mink, Pannekoek-Dubois and VerstratenVerstraten Verstraten, assisted Mr. Steenks as a clerk, and pronounced for the public terechtzitting of 14 November 2007.

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The professional data of the three involved Dutch judges in this judgement:

http://namenlijst.rechtspraak.nl/ (score taken on 15 November 2007)

• Ms Mr. E.A. Mink: Right court The Hague since 2005-09-01 (Secondary employment: Member church Council PKN in The Hague - East of 2001-09-01 to 2006-09-17)
• Ms Mr. C.M. Pannekoek-Dubois: Council lord to the Court of Justice The Hague since 2000-01-01 (Secondary employments: (a) member of the Commission objection of the Council for legal assistance in The Hague since 2003-09-03; (b) deputy member of the court of discipline since 2001-07-23: (c) President complaint committee association of Familierecht lawyers and - separation mediators since 2001-01-01
• Ms Mr. A.E. VerstratenVerstraten Verstraten: Council lord to the Court of Justice The Hague since 2001-09-01 (Secondary employment: Member selection Commission RM since 2001-02-01)

By right (plv-) the members RM of the court have been appointed as rechter-plaatsvervanger in the remaining courts.
By right (plv-) the members RM of the Court of Justice have been appointed as a substitutesubstitute substitute in the remaining Courts of Justice.

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Articles in the Dutch media on this topic (follow the links given):

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Beau does not need to go to Australia. Relief and joy after Court of Justice decided in case Beau Provincial Zeeuwse currently - Thursday 15 November 2007 YERSEKE - the 8 person whose birthday it is Beau from Yerseke does not need Australia. The Court of Justice in The Hague has stipulated that yesterday. ...In Yerseke dominated yesterday large relief then clear became that Beau does not need to Australia. ... Beau (8) can in The Netherlands remains General daily „This I do not wish other parents Reformational Daily Provincial Zeeuwse current

Children belong to their mother! The telegraph - 15 nov 2007 This way now also Beau. Isn't a this beetje undeserved? Or a child is ordinary the bests finished at the mother? And care mothers improves much for their kroost. ...

„This I do not wish other parents Reformational daily - 15 nov 2007 YERSEKE - the 8 person whose birthday it is Beau Boone Yerseke does not need to its father in Australia. The Court of Justice in The Hague certain Wednesday that the little girl ...

Beau , plan B and C remains in the cupboard BN/De voice - 15 nov 2007 Thursday 15 November 2007 - YERSEKE - Yerseke dominated yesterday large relief then clear became that Beau not needs to Australia. ...

Relief and joy after Court of Justice in case Beau Provincial Zeeuwse currently - 15 nov 2007 Thursday 15 November 2007 - YERSEKE - in Yerseke yesterday large relief dominated then clear became that Beau not needs to Australia. ...

Beau do not need to Australia. Provincial Zeeuwse currently - 15 nov 2007 Thursday 15 November 2007 - YERSEKE - 8 person whose birthday it is Beau Yerseke do not need not Australia. That has it Court of Justice stipulated in The Hague yesterday. ...

Beau (8) can remain in the Netherlands General daily - 15 nov 2007 THE HAGUE /BREDA - 8 person whose birthday it is Dutch-Dutch-Australian-Australian little girl Beau Ballin can at its mother in the Netherlands to remain and does not need to its father ...

This was us last weekend together? Provincial Zeeuwse currently - 13 nov 2007 Tuesday 13 November 2007 - BREDA/YERSEKE - thought last Saturday and Sunday are hundreds of times by its head shot. ...

This was us last weekend together? BN/De voice - 12 nov 2007 Tuesday 13 November 2007 - BREDA/YERSEKE - thought last Saturday and Sunday are hundreds of times by its head shot. ...

As this child gone there no heap meer' must, is BN/De voice - 12 nov 2007 Tuesday 13 November 2007 - day still one and Margo Boone from Yerseke weet or its for the Beau (8) of the Supreme Court gone must from the Netherlands. ...

As this child gone there no heap meer' must, is Provincial Zeeuwse currently - 12 nov 2007 Tuesday 13 November 2007 - tension mothers concerning puffing-up child to ex in foreign country. Margo Boone and her for the can wait now only still. ...

On the bres Beau The telegraph - 1 nov 2007 AMSTERDAM - mother Margot Boone has black blank authorisation of its ex-echtgenoot that them their 8 person whose birthday it is dochtertje Beau from Australia could take along ...

What YOU say The telegraph - 1 nov 2007 Beau must to its father in Australia. Noa, Cloe and a lot of other Dutch children preceded her. These children become the country of the father ...

QuestionsBeau still none lost matter Provincial Zeeuwse currently - 31 okt 2007 Thursday 1 November 2007 - YERSEKE - lawyer J. Shoe-makers see the pronouncement of the Court of Justice in The Hague in questionsBeau with faith . ...

Dutch city council of the village of Yirseke makes itself strong in support of Beau Provincial Zeeuwse currently - 26 okt 2007 Saturday 27 October 2007 - YERSEKE - plenary Reimerswaalse municipality Council want prevent that the eight-year-old little girl Beau from Yerseke becomes separated of ...

Yersekse mother conducts suppressed fight for for the BN/De voice - 18 okt 2007 Although them all required protection papers hands have, certain the magistrate in a juvenile court in Middelburg recently nevertheless that her 8 person whose birthday it is for the Beau within two ...

I am no childabductor says the Dutch mother Provincial Zeeuwse currently - 17 okt 2007 Although them all required protection papers hands have, certain the magistrate in a juvenile court in Middelburg recently nevertheless that her 8 person whose birthday it is for the Beau within two ...

The Hague Court will decide on the destiny of Beau (8) General daily - 16 okt 2007 BREDA/HILVERSUM - the destiny of the 8 person whose birthday it is Beau lies in the hands of Court of Justice in The Hague. That decides in November or this Dutch-Dutch-Australian-Australian little girl ...

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The provisions of the Hague Convention on International Child Abduction

Allready in its opening section the Hague Convention on International Child Abduction states:

“Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,”

HCCH | The Child Abduction Section

http://www.hcch.net/index_en.php?act=text.display&tid=21

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

HCCH | Full convention text available at ::

http://www.hcch.net/index_en.php?act=conventions.text&cid=24

CHAPTER I – SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are –

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Article 2

Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.

Article 3

The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

CHAPTER II – CENTRAL AUTHORITIES

……………

CHAPTER III – RETURN OF CHILDREN

Article 8

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

The application shall contain –

a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;

b) where available, the date of birth of the child;

c) the grounds on which the applicant's claim for return of the child is based;

d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.

The application may be accompanied or supplemented by –

e) an authenticated copy of any relevant decision or agreement;

f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;

g) any other relevant document.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

CHAPTER IV – RIGHTS OF ACCESS

Article 21

An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

CHAPTER V – GENERAL PROVISIONS

Article 31

In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units –

a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;

b) any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.