The Hague Abduction Convention

Mark Durkan Excerpts

Tuesday 10th March 2015 Westminster Hall

[Mark Durkan (Foyle) (SDLP)]

It is a pleasure to meet under your chairmanship at this stage of the afternoon, Sir David.

The subject of the debate is The Hague abduction convention, which is more fully known as The Hague convention on the civil aspects of international child abduction. It dates back to 1980 and has force in UK law under the Child Abduction and Custody Act 1985. Many of us, as MPs, will have come across the convention, perhaps from a number of different angles depending on constituents’ experiences. Such experiences can be brought to us either directly or by families whose members want to use the convention to try to ensure the restoration of a parent’s due and wanted relationship with a child, or by constituents or their families who feel that their family has been affected by a case taken under the convention in which their circumstances, or how events unfolded, have not been fully understood or appreciated.

The purpose of the debate is not to pretend that any of us in such cases, or in the general balance or mix of cases that we get, should look at the subject from the perspective of one interest or another, whether that of the parent who has custody of a child or that of the parent who is seeking custody under the convention. The real reason for proposing the topic for debate occurred to me in the light of experience. Some of that experience relates to a particular case; some relates to a few other cases in recent years in my constituency and in the wider area of north-west Northern Ireland.

--- Later in debate ---

On resuming—

[Mark Durkan]

As I was saying before the Division, I was prompted to introduce the debate by a number of issues and observations that have arisen from cases that have been shared with me by Foyle Women’s Aid—not all relate directly to people in my constituency, but all those involved have been using the support of Foyle Women’s Aid—and from some other cases.

I stress that at no point will I be questioning specific decisions in specific cases, nor will I be naming any of the people involved in the cases. That is partly because of the sensitivity of a current case, which I suppose has most prompted me to raise the issue. Just this week, a woman has had to return to Australia with her child, who was born in my constituency, on the basis of decisions that have been made following a case taken under The Hague convention.

I stress that I am not trying to involve the Minister in anything that would rightfully be within the purview of the devolved Department of Justice in Northern Ireland. Perhaps more importantly, I assure Ministers not just here, but in Northern Ireland, that in no way am I trying to second-guess any decision by any judge of the Northern Ireland courts. I want to be very clear that the Lord Chief Justice should have no concern with any of the aspects of the debate that I will raise here today. I do not believe that Members should use any forum of the House to try to second-guess or overturn decisions of judges or the courts.

Rather, the issues I want to raise today are about whether we as legislators need to give more consideration to The Hague convention as it stands, whether the 1985 Act is sufficient and whether additional light needs to be shed on the issue, given all the experience and understanding we now have in relation to the changes to family life and our understanding of it. There is also greater internationalisation of life now and far more complicated trans-jurisdictional arrangements are in place. Also, a more acute understanding has arisen as to the limited regard that different aspects of the law have had for key principles such as the best interests of the child. There is also the question whether the law is duly responsive to any evidence or allegations that arise about conditions of abuse that might have affected a child or that might affect a partner.

[Jim Shannon (Strangford) (DUP)]

The hon. Gentleman has raised an important issue. A parent whose child has been abducted will be aware that their access to legal aid is restricted. Given the vulnerability of all the parties involved, does he agree that it is vital to ensure that they all have the assurance that they will be represented fairly?

[Mark Durkan]

I thank the hon. Gentleman for raising that point. Legal aid is a key issue for anyone involved at either end of cases such as these, whether they want to bring a case to have their child restored to their custody or they find themselves accused and become a defendant in such a case. The question of legal aid, and the restrictions on it, is particularly acute. Although Ministers have, perhaps understandably, changed position on some elements of legal aid because of more specious cases or cases in which people were testing any sort of claim culture connected to accidents, the fact is that, for a parent, a case about their child is a matter not of calculated choice, but of the emotional imperatives that come with being a parent.

It is important that people should have as much recourse to legal aid as possible, and the decisions around legal aid should be duly sensitised to such situations. Certainly, in a recent case that I know of, a woman has found herself facing a case of child abduction, and on being told to take a child who was born in Northern Ireland back to Australia she found herself in precisely the position whereby she was weakened, so I know this can come on either side of such cases. I am sure that the Minister would be sensitive in all such situations, although we are talking in this case not particularly about one side or another, but about the balance of justice, which goes to the heart of the legal aid questions.

I want to return to the points that particularly concern me, which arise from decisions made recently. I am not concerned because the court made those decisions, but a question arises for legislators and for the Government as the transposing signatory to The Hague convention as to whether we are perhaps leaving courts in a position where they have to take decisions on fairly narrow grounds in fairly shady light, sometimes having to disregard evidence that people try to bring forward in relation to either abuse against them that they allege took place at the hands of the other parent or where they say they have evidence of ill treatment or questionable treatment by the other parent of the child.

It seems that the courts tend to set a very high threshold in relation to consideration of any such evidence, and also then say that it would not be for them to determine anyway, but would be for the court in another jurisdiction if the child was to be returned to that other jurisdiction. It seems that in child abduction cases the courts and the legal profession find themselves almost adopting a standard akin to the rules of the road. For instance, in car accident cases it is automatically presumed that if a person has driven into the back of another car, the liability lies with that person. It does not matter about any other circumstances or conditions; the court does not want to know. It is straightforward.

I hear such a message from people who have handled a number of cases, and the woman who has this week had to return to Australia felt that she was in such a situation. The evidence that she had been raising and pursuing was essentially set aside. That is not because the court did not want to know or because judges wanted to be insensitive to that, but that is not how the law stands and it is not how the law tests such things. Essentially, for the court, the real issue was to decide where the jurisdiction on the matter should rest, and the court has basically said that any of the other issues would be for a court in Australia to decide. That point does not stand alone.

The mother obviously appealed the decision that was made in respect of her and her two and a half-year-old child, but she had to give undertakings. On losing the appeal, she had to sign the following:

“The Appellant agrees not to institute, encourage or pursue any criminal proceedings whether in Northern Ireland or Australia, against the Respondent in respect of any of the allegations made against the Respondent in the course of the Hague Convention proceedings.”

Here we have The Hague convention being operated and brokered via the courts on the basis that, even if there is evidence that could give rise to possible criminal proceedings, as part of the discharge of a case under The Hague convention such evidence is not to be pursued.

As a legislator, I believe that that goes against the grain and the spirit of much of what we have heard from the Government in recent times about more responsive and alert reactions to evidence that arises in different family circumstances.

In this particular case, issues did arise around whether the child was exposed to risk. I do not want to go into any of the particulars of that, but the determination seemed to be that that was not a matter on which the courts would or could hear anything. Again, to my mind, that is inconsistent with the very clear standards that we hear ringing right across all the political institutions in recent times: in relation to the position of children, every effort will be made to ensure that the best interests of the child are fully considered and addressed.

In relation to how such cases are addressed, it seems to be very hard for anyone to find out whether anybody has the role of advocating the best interests of the child. It is not clear that the court is in a position to hear or take the evidence. Perhaps we need to apply some of the yardsticks developed under the Modern Slavery Bill, which states that in some instances there will be a child advocacy service whose responsibilities will be particularly to speak to and address everything on the basis of the best interests of the child. Perhaps that should be applied here.

I hope that the Minister and his Department, and his colleagues in other Departments, because I know this cuts across various Departments, will take the spirit of what has been said on so many other fronts and make sure that it also informs how we go forward with The Hague convention, in terms of how we address it as legislators, how the Government address their role as a signatory and how they take forward their discussion with other Governments in modernising The Hague convention and the various memorandums of understanding that go with that, so that none of what we are saying in relation to child abuse and domestic violence—violence against women or anything else—runs out when it comes to the very important and vexed issue of The Hague convention.