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Canadian Court Hints It Will Order Return of Baby to Australia, Despite Court?s Fears For Baby?s Safety If He?s Not Placed into Foster Care Instead of with the Left-Behind Parent

By Janet Langjahr

Canadian woman takes up with Australian man. Couple has son in Australia and family lives there.

A year and one-half later, Mother leaves Australia with son, claiming to fear Father’s abuse.

Now, Mother is seven months pregnant - and also has another child by another father.

Father files an application for return of the son to Australia under the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention mandates the return of the child to his or her place of habitual residence, in this case, Australia. But there are exceptions under the Convention, including substantial risk of abuse.

The Canadian court has reportedly indicated informally that it intends to order the two year old boy’s return to Australia. But the court won’t formally rule.

An unusual situation. How come? In the presiding judge’s own words:

?Quite simply I am most uncertain about the atmosphere I would be sending [the son] Daine back into should I simply send Daine back to Australia and into the care and control of his father.

?I am hesitant to simply order the return of Daine without knowing that the Australian courts and Australia?s social agency networks have been engaged . . . In particular, I wish the Australian Embassy to advise me as to whether an agency, the equivalent of Ontario?s Children?s Aid Society, exists.?

To place the two year old boy into foster care in Australia, rather than expose him to danger in his father’s care in Australia.

Under the express language of the Hague Convention, however, no country, such as, for example, Canada, is required to order the return of a child if

“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”.

So, does the shoe fit?

Read more in this Owen Sound [Ontario, Canada] Sun Times article: Mother may have to send toddler to Australia in custody battle.

Full post as published by Florida Divorce - Child Custody - Domestic Abuse Law on June 02, 2008 (boomark / email).