Laing; Deborah, Jessica and Samuel v. Australia
Human Rights Committee
Communication No. 901/1999
9 July 2004
International Covenant on Civil and Political Rights, Article 17(right to respect of privacy, family, home and correspondence), Article 23 (protection of the family), article 24 (protection of the child)
Hague Convention on the Civil Aspects of Child Abduction
Ms Laing complained on her behalf and on the behalf of her two children that Australia had breached a number of their rights under the Covenant. Ms Laing, an Australian citizen, and Mr Surgeon, an American citizen, had two children, Jessica, born in the United States who holds dual Australian and American citizenship, and Samuel, born in Australia after the couple’s separation who holds Australian citizenship. Mr Surgeon obtained a divorce order as well as an award for the sole permanent custody of Jessica without visitation rights for Ms Laing from an American court and initiated the procedure for return of Jessica under the Hague Convention on the Civil Aspects of Child Abduction. The Australian Courts ordered the return based on the requirements of the Convention, following which Ms Laing appealed that decision on numerous occasions and eventually went into hiding with her two children. The Australian Court decision was not enforced before the complaint came to the Committee and Jessica remained in Australia. Ms Laing provided Mr Surgeon with letters and information about the children, but no direct contact was established.
The majority of the Committee held that the complaint was inadmissible because they thought that the author of the complaint had failed to substantiate her claims.
Two of the members of the Committee issued an opinion dissenting with the majority’s conclusion that the claims on behalf of the author’s daughter Jessica is inadmissible. In the opinion of the dissenters, the question of whether the application of the Hague Convention in this case was in the best interests of the child and therefore incompatible with the International Covenant on Civil and Political Rights had to be examined. The Hague Convention rests on the principle that return of the child is in their best interests, except in cases where a long period of time has passed, the child has settled and return would cause serious harm or if a child who is mature enough and opposes that return. At the time the Committee heard this case, Jessica was almost 11 years old and almost eight years had passed since the Australian Court’s decision ordering her return. Therefore, a complaint on her behalf of violation of articles 17 (right to respect for privacy, the family, home and correspondence), 23 (protection for the family) and 24 (protection of the child) had to be admissible.
Another Committee member, who formed part of the majority, issued a separate opinion which commented on the procedure for parents bringing claims on behalf of their children. A parent, whether custodial or not, always has the formal standing to bring a case on behalf of their child, but they need to substantiate that they are representing the free will and best interests of the child. To this end, “it would always be best if the Committee could receive either a letter of authorisation or another expression of the child’s opinion whenever a child has reached an age where his or her opinion can be taken into account.”
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