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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?

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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 CodeThe 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


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