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.
Photo of Maroochydore on the Sunshine Coast by Tim Douglas under a Creative Commons licence
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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