S.
THE CONVENTION IS CURRENTLY IN FORCE BETWEEN AUSTRALIA AND SOME TWENTY-FIVE COUNTRIES, WITH FOUR
MORE BEING ADDED SOON.
6.
GRATEFUL ADVICE OF BRITISH VIEWS ON ACCESSION ON BEHALF OF HONG KONG AND ALSO WHETHER BRITAIN IS CONSIDERING ACCESSION ON BEHALF OF ITS OTHER DEPENDENCIES.
BACKGROUND
THE
THE HAGUE CONVENTION PROVIDES AN EFFICIENT AND PROMPT MECHANISM FOR THE RETURN OF CHILDREN WRONGFULLY REMOVED FROM CONTRACTING STATES. THERE IS LIMITED SCOPE FOR REFUSING TO RETURN A CHILD. CONVENTION ALSO PROVIDES A MECHANISM FOR FACILITATING ACCESS ARRANGEMENTS.
2. A RECENT INSTANCE OF ABDUCTON OF CHILDREN FROM AUSTRALIA BY THEIR NATURAL FATHER HAS HIGHLIGHTED THE INADEQUACY OF EXISTING ARRANGEMENTS BETWEEN AUSTRALIA AND MOST OF OUR REGIONAL NEIGHBOURS TO ENSURE THAT ORDERS OF THE FAMILY COURT OF AUSTRALIA ARE RECOGNISED IN THOSE COUNTRIES.
THE
3. IN RELATION TO SIMILAR CASES, ARISING IN THE FUTURE, THIS PROBLEM COULD BE REMEDIED TO A CONSIDERABLE EXTENT BY A WIDER ADHERENCE TO THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980. AUSTRALIA IS ALREADY A PARTY TO THE CONVENTION. CONVENTION WAS DRAWN UP BY THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW. ONLY MEMBERS OF THAT CONFERENCE, WHICH NUMBER SOME 39 STATES, HAVE AN AUTOMATIC RIGHT OF ACCESSION TO ITS CONVENTIONS. CHINA AND JAPAN ARE THE ONLY STATES IN THE ASIA-PACIFIC REGION WHICH ARE MEMBERS OF THE CONFERENCE.
4.
THE CONVENTION IS HOWEVER ALSO OPEN FOR ACCESSION BY STATES NOT MEMBERS OF THE CONFERENCE. IN SUCH INSTANCES THE ACCESSION ONLY TAKES EFFECT AS BETWEEN THE ACCEDING STATE AND THOSE STATE PARTIES TO THE CONVENTION THAT DECLARE THEIR ACCEPTANCE OF THE ACCESSION (SEE ARTICLE 38 OF THE CONVENTION). FOR EXAMPLE, NEW ZEALAND, WHICH WAS NOT A MEMBER OF THE CONFERENCE, ACCEDED TO THE CONVENTION LAST YEAR. EARLIER THIS YEAR, EXECUTIVE COUNCIL AUTHORISED AUSTRALIA TO ACCEPT THAT ACCESSION. THE CONVENTION CAME INTO FORCE AS BETWEEN AUSTRALIA AND NEW ZEALAND ON 1 JUNE 1992. NEW ZEALAND IS CURRENTLY THE ONLY STATE OTHER THAN AUSTRALIA IN THE ASIA-PACIFIC REGION PARTY TO THE *CONVENTION.
5. IT IS POSSIBLE THAT ONE REASON WHY SO FEW REGIONAL COUNTRIES HAVE BECOME PARTY TO THE CONVENTION IS THE EXTENT TO WHICH FAMILY LAW IN MUSLIM SOCIETIES IS GOVERNED BY SHARIA LAW PRECEPTS, WHICH DIFFER SIGNIFICANTLY FROM WESTERN FAMILY LAW DOCTRINES. HOWEVER THE CONVENTION WAS DRAFTED WITH AN EYE TO WIDER THAN JUST COMMON LAW AND CIVIL LAW PARTICIPATION. THESE CONCERNS MAY BE RELEVANT TO MALAYSIA, INDONESIA AND OTHER MUSLIM COUNTRIES IN THE REGION.
6. THE ATTORNEY-GENERAL'S DEPARTMENT IS THE DESIGNATED CENTRAL AUTHORITY FOR AUSTRALIA UNDER THE CONVENTION. IT HAS PRIMARY CARRIAGE OF ALL MATTERS RELATING TO THE IMPLEMENTATION OF THE CONVENTION AND TO AUSTRALIA'S ACCEPTANCE OF THE ACCESSIONS OF STATES NOT PARTY TO THE STATUTE. THE MINISTER FOR JUSTICE CARRIES PORTFOLIO RESPONSIBILITY FOR THE POLICY MATTERS COVERED BY, AND THE ADMINISTRATION OF, THE CONVENTION.
CONFIDENTIAL
CONFIDENTIAL FM FCO
TO ROUTINE HONG KONG TELNO 926
OF 261726Z OCTOBER 93
TOP COPY Q DIST?
INFO ROUTINE PEKING, UKREP JLG HONG KONG, CANBERRA
EXTENSION OF THE HAGUE CONVENTION ON CHILD ABDUCTION TO HONG KONG
@
004707
MDLOAN 3898
て
370/11
2.0C1 1993
1.
On 25 October, officials from the political and consular sections of the Australian High Commission in London called on HKD at their request to discuss the Hague Convention on the Civil Aspects of Child Abduction, 1980, which the Uk ratified on 20 May 1986 in respect of the United Kingdom of Great Britain and Northern Ireland only. The Australians asked whether we intended to extend it to Hong Kong.
2. By way of Background, they explained that a recent case of abduction of children from Australia by their natural father had highlighted the inadequacy of existing arrangements between Australia and her regional neighbours to ensure that orders of the Family Court of Australia are recognised in those countries. Australia felt this could largely be remedied by a wider adherence to the Hague Convention, to which Australia was already a party. The Australians were anxious that the Convention should be acceoted quickly by at least one country in their region, in order to place greater oressure on others to also accede to it. (copy of their Speaking Note follows by fax to Mrs Chok, CAB)
3.
Following telecon BUNTEN/HUNTER (ILD, AGC), we explained that it was up to Hong Kong to decide whether it wished the treaty to be extended to it. We understood that this matter was currently under consideration by the relevant policy branch in Hong kong. If a decision was made in principle to extend, we would need to discuss its continued application to Hong kong after 1997 with the Chinese in the JLG. This could take up to a year.
4.
The Australians offered to make representations to Peking on Australia's interest in this issue. They appeared to believe that the Chinese agreement to the HK/Australia ASA and IPPA indicated that such an approach might be successful. We told them that we felt this would be counter-productive. as the
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CONFIDENTIAL