The Australian "custody sisters"

[kerikiwi]

If the child wants to stay there's an ethical conundrum right there.

Not really, if the reason given for saying the children should be allowed to stay is because they really, really want to.
If there is no ethical conundrum for saying the children should be allowed to stay because they really, really want to when the abductor is a parent, why would there be an ethical conundrum if the abductor is a stranger?
If there is an ethical conundrum in the latter case, but not the former, then the because they really, really want to needs modification such as 'the abductor was a parent and they really, really want to'.

 

[Wildy]

I think the law ought to be changed. You're trivializing a harrowing experience for kids who are old enough so they should be allowed to decide which parent they want to live with.

You do understand that the Australian courts were ruling on a parental child abduction case and not a custody dispute?

What age do you consider "old enough to decide which parent they want to live with"?

Their resistance was vehement and sustained. They resisted being dragged from their home, they resisted being dragged onto the airplane, and they begged to be rescued after they arrived in Italy.

Well the oldest ones did. You don't hear much about the youngest now do you?

Maybe you can anesthetize yourself to all that by citing due process and the supremacy of the law, and assuming that the authorities know what is best for everyone, but I can't. I think it's barbaric.

So what you're saying is that the law should be disregarded when convenient?

 

[Sideroxylon]

Not really, if the reason given for saying the children should be allowed to stay is because they really, really want to.
If there is no ethical conundrum for saying the children should be allowed to stay because they really, really want to when the abductor is a parent, why would there be an ethical conundrum if the abductor is a stranger?
If there is an ethical conundrum in the latter case, but not the former, then the because they really, really want to needs modification such as 'the abductor was a parent and they really, really want to'.

I'm saying the wishes of the child should be one of the things taken into account.

 

[Shiner]

I'm saying the wishes of the child should be one of the things taken into account.

In this case they were. Considerably. The court found that these wishes were not enough to warrant the overturning of an International agreement on child abduction.

 

[kerikiwi]

I'm saying the wishes of the child should be one of the things taken into account.

Indeed that was the whole problem when this little sequence of posts started.
Do you mean, as another poster said, the wishes of the child are paramount, or that the wishes of the child are subordinate to certain other conditions?
Hence my outline of the logic involved.

 

[Sideroxylon]

Indeed that was the whole problem when this little sequence of posts started.
Do you mean, as another poster said, the wishes of the child are paramount, or that the wishes of the child are subordinate to certain other conditions?
Hence my outline of the logic involved.

No, the child's wishes should not be paramount. What children want is often not what is best for them. You can often say the same about adults and that's why there are laws that govern their behaviour too.

 

[Charlie Wilkes]

You do understand that the Australian courts were ruling on a parental child abduction case and not a custody dispute?

What age do you consider "old enough to decide which parent they want to live with"?

I'm not sure. In many parts of the US, girls are old enough to work as paid babysitters when they are 12. If they are old enough then to look after the welfare of other children, maybe they are old enough to look after their own welfare.

Well the oldest ones did. You don't hear much about the youngest now do you?

No. But the older girls have a more developed ability to assess the situation and their parents.

So what you're saying is that the law should be disregarded when convenient?

A reasonable effort should be made to uphold the law, but IMO physical coercion goes beyond a reasonable effort in a case like this. They should stick to verbal negotiations, and if that doesn't work, too bad.

 

[Wildy]

I'm not sure. In many parts of the US, girls are old enough to work as paid babysitters when they are 12. If they are old enough then to look after the welfare of other children, maybe they are old enough to look after their own welfare.

If we use 12 as a cut off point, would you accept that in the case of the younger two they might not be able to determine their own best interests?

So if the judge had the discretion to decide whether the girls should be sent back or not how would he balance up the desires of the older girls with the best interests of the younger ones?

A reasonable effort should be made to uphold the law, but IMO physical coercion goes beyond a reasonable effort in a case like this. They should stick to verbal negotiations, and if that doesn't work, too bad.

So if the abductor causes negotiations to break down they should automatically win?

 

[Charlie Wilkes]

If we use 12 as a cut off point, would you accept that in the case of the younger two they might not be able to determine their own best interests?

So if the judge had the discretion to decide whether the girls should be sent back or not how would he balance up the desires of the older girls with the best interests of the younger ones?

I would allow the four girls the option of not being physically dragged anywhere and try to work forward from there.

So if the abductor causes negotiations to break down they should automatically win?

My concern in this case is not whether the "abductor" wins or loses.

 

[katy_did]

If that's the case, then maybe, in international cases at least, the legal system should allow the kid to remain in his/her comfort zone. Adolescence is challenging enough as it is.

I think what you're suggesting - as I read the above, allowing older children to decide where they should live - would be far more rigid than what's in place at the moment. At present, the court can always decide that a child should return to the abductor parent's custody and country, if it feels that's in the child's best interests (which could simply be because that's what the child wants, if he or she is of an age/maturity to decide that). What you're saying is that once a child reaches the age of 12 (let's say), their wishes take precedence over everything, including their own best interests.

It's difficult for me to see that this would be a better way of doing things than taking the entire circumstances of the child's case into consideration, which should include their wishes but not to the exclusion of all else. 12, 13, 14 year olds aren't adults. To place the huge responsibility of such an important decision on them - effectively asking them to decide what's in their own long-term best interests, and in such a way that it could easily seem as if they're being asked to 'take' sides between warring parents - isn't fair to the children themselves. Certainly their wishes should count a great deal, but I can't agree that the kids should be asked to make the final decision.

This case has been handled with a view toward fairness to the parents. Mom clearly broke the law. Dad got screwed, he went to court, and the court made it right. I get all that.

But whatever wiles or deceptions Mom may have engineered when she took the kids to Australia, they seem to have gone willingly. And that is not true of the return.

But as has been said, they may not have gone willingly if she hadn't lied to them. Had their father told them he wouldn't see them again if they went to Australia (as the mother made clear to the children in the reverse situation) they might very well have been upset and asked to stay in Italy.

I think this points to another problem here too. We have no idea how the children reacted when they were first told they weren't returning to Italy. We have no idea if they cried themselves to sleep at night because they missed Dad, if they had tantrums and felt isolated and lonely because they were in a country where they didn't speak the language, and so found it difficult to make friends. We don't know because there are no YouTube videos of any of this. The two minute video we do have represents a tiny fraction even just of their lives in Australia, let alone all the years they spent in Italy. It seems foolish to let that (orchestrated) "frenzied moment" be the deciding factor in all of this.

 

[katy_did]

Another thing I found appalling about this case is that the Judge refused to allow the appointment of a Lawyer for the children. This is very unusual, and an independent "Lawyer for the Child" is almost always used when the children are of an age to understand proceedings, especially in a case where the motives of the father and the mother are unclear, and where their has been clear influence on the children by one or both parents.

This makes it clear to me that, right from the outset, Judge had decided he wasn't going to take any notice of what the children wanted, and his statements about being "mindful of the children's wishes" were no more than weasel words.

IMO, these children have been deprived of their entitlement of legal representation in a court of law, and as such, have also been deprived of due process.

Where do you get the impression it's "very unusual" for children not to have independent legal representation in a case like this? I had exactly the opposite impression, that it's only in exceptional cases that children have their own legal representation (usually where what the children want differs from what either of the parents want) and that in fact if the aunt's attempt to get the children legal representation had succeeded, it would have changed the way in which cases involving children are dealt with in Australia, and perhaps even globally. From here:

The basis of the challenge is that the children be allowed their own legal representation, independent of their parents, in the Hague Convention custody dispute; that they “be given a voice”.

If successful, the constitutional challenge to federal law would set a precedent for future Hague Convention cases.

Family law expert, Professor Patrick Parkinson, of the University of Sydney, believes the application only has a slim chance of being based.

“I think the application is very unlikely to succeed,” he said.

“The claim that they are making is essentially that the children in this case have a constitutional right to have separate independent legal representation.

“There is no right to independent legal representation in the Family Law Act, it is a discretion that the judge has in Hague Convention cases. Where we are returning a child, or children, overseas, the law says it [independent legal representation] can only be in exceptional circumstances and they [the plaintiffs] are challenging that, they are saying it is unconstitutional.

“If you say there is a right to legal representation in Hague Convention cases, you are really implying there is a right for legal representation in every children’s case which is not what the law currently says. That would be a big shift and fundamentally the reason we don’t have independent legal representation in every case is because in some cases at least, we assume at least one of the parents is adequately protecting the interests of the children.

“So in this particular case, there is no difference between the interests of the mother and the interests of the children. Mum wants to stay in Australia, mum wants to keep the kids in Australia, (which is what the children claim to want) so it is a reasonable assumption that the children’s case can be adequately presented by the mother because, it is for all intents and purposes, the same case.”

 

[Caper]

My concern in this case is not whether the "abductor" wins or loses.

But that's the consequence isn't it? As long as the abductor can convince the child to stay with them... then parental kidnapping is an effective tactic in custody disputes.... according to your philosophy.

 

[katy_did]

We don't know if they would have been willing if they hadn't been lied to. They thought they were going on holiday.

Cite your source.

The mother herself admits in the 60 Minutes video that she didn't tell the two youngest children they were moving permanently, though she said she did tell the two eldest. In court, however, she said all four children thought they were going on holiday. From here:

Further, the Court had before it a report of the Court’s family consultant, Ms E, who interviewed the four girls pursuant to an order made by me on an interlocutory basis. That was attached to an affidavit filed 13 May 2011. In paragraph 11 of her report, Ms E says this:

[Mr V’s] position is that he consented to the children travelling to Australia with [the mother] for a holiday only. The children’s statements appear to support [Mr V’s] understanding.

Ms E does not elaborate, or give any actual specifics of statements made by the children upon which she bases that opinion evidence, but I consider it safe to infer that the children said something to her to support her view that when they came to Australia they, too, thought they were only coming for a holiday.

In any event, when I put Ms E’s opinion evidence to the mother during the course of her submission for her considered response, the mother clearly confirmed that her four daughters had only been told by her that they were coming to Australia for a holiday before they came. The mother indicated to the Court that she had not told them that she was bringing the children permanently to Australia because she was concerned to avoid them raising the matter with their father in such a way that might cause him to change his mind once the mother had gained his consent for the permanent relocation.

 

[smartcooky]

The answers were evasive, disingenuous and dishonest.

No, my answers were direct and to the point, and most importantly, they were honestly and sincerely what I believe.

The level of debate has gone well past your capacity to understand.

No, Charlie and I are well ahead of the game. Its the rest of you that are struggling to keep up, and struggling to understand simple concepts, like human rights, and the right to self determination. I keep having to remind some posters about things that I posted days ago.

Your original statement can be paraphrased as:
because the girls, who were abducted (kidnapped, taken away, whatever label you want to hang on the act) by their mother, now want to stay with their mother, they should be allowed to.

That would certainly be preferable in the short term to treating them in the uncivilized and barbaric fashion we saw in the video. That type of treatment of children is unconscionable. If I dragged my teenage daughter away from a party in that way, any policeman in the vicinity who saw me would have had me on the ground and in handcuffs in a flash. I would be spending the night in Police cells, and I would be up in front of the beak the next morning on an assault charge.

To test this idea, the question was asked: if children were abducted(or whatever label you want to hang on the act) by a stranger and later expressed the same desire as these girls to stay with their abductor, should they be allowed to?

Again I maintain, and I will always continue to maintain, that this is irrelevant. We are NOT talking about a kidnapping by someone unknown to the children.

What you seem to forget is that children are bonded to the mother from before birth, so it is natural for them to want to stay with their mother. Its called maternal bonding, and it begins to develop during pregnancy. Many things stimulate the development of the bond, and these include mother beginning to feel her unborn child moving. On the other side of the bond, the unborn child hears the mother's voice and heartbeat. By the beginning the third trimester, maternal bond can be very strong.

The desire to remain with an unknown captor is called the Stockholm Syndrome. Absolutely NONE of the things I have mentioned above take place. The bond formed in a case of Stockholm syndrome is based on violence, fear and distrust. The captor is usually physically violent toward the captive, and then when the violence stops, the captive mistakes this for kindness. This seems counter intuitive but it comes about as a result of the victim's subconscious need to survive in traumatic circumstances.

To suggest that a child's bond with it mother's and a hostage's bond with a kidnapper are the same is preposterous in the extreme. They are not analogues of each other in any way, shape or form.

It's a simple yes/no.

Oh, if only it was that simple. Child custody cases are never that simple.

 

[katy_did]

What you seem to forget is that children are bonded to the mother from before birth, so it is natural for them to want to stay with their mother. Its called maternal bonding, and it begins to develop during pregnancy. Many things stimulate the development of the bond, and these include mother beginning to feel her unborn child moving. On the other side of the bond, the unborn child hears the mother's voice and heartbeat. By the beginning the third trimester, maternal bond can be very strong.

Cite? I could only find this:

The paternal preference was gradually replaced by a maternal preference, based on the "tender years" presumption. The tender years doctrine (intended to apply to children under age 6) was originally invoked to determine temporary custody arrangements in English law, giving mothers custody of infants only until they were ready to be returned to the father. But by the 1920s, the maternal preference for custody in English and American law, regardless of the child's age, became as firmly fixed as the earlier paternal preference, and was encoded in statute in all 48 states. The assumption that mothers were better suited to nurture and raise children received an intellectual underpinning in the 1930's from Freudian psychoanalytic theory, which focused exclusively on the mother-child relationship, and ignored the role of the father in the child's development. The resulting idealization of motherhood was often reflected in custody decision-making, as in this 1938 Missouri judicial opinion: "There is but a twilight zone between a mother's love and the atmosphere of heaven."

 

[uke2se]

No

Any way you slice it, they have been denied their right to their own representation in an Australian court, which had nothing to do with the mother at all.

They have no such right. According the international law, they have the right to representation in an Italian court. They are getting just that.

 

[Caper]

No, Charlie and I are well ahead of the game. Its the rest of you that are struggling to keep up, and struggling to understand simple concepts, like human rights, and the right to self determination. I keep having to remind some posters about things that I posted days ago.

Yes... you support parental kidnapping... that's what I call ahead of the game!!

 

[DreamingNaiad]

Yes... you support parental kidnapping... that's what I call ahead of the game!!

It's not about supporting what the mother did. Are there any posts on this thread that do?

It's about saying 'what's done is done, now what's in the best interests of the kids'.

It may not be fair to the dad but this isn't about him or her.

 

[ponderingturtle]

It's not about supporting what the mother did. Are there any posts on this thread that do?

It's about saying 'what's done is done, now what's in the best interests of the kids'.

And ignoring all the harm the mother did and continues to do. But they want that harm so it is all good, like leaving kids who want to stay with a abusive parent too.

 

[DreamingNaiad]

No, my answers were direct and to the point, and most importantly, they were honestly and sincerely what I believe.



No, Charlie and I are well ahead of the game. Its the rest of you that are struggling to keep up, and struggling to understand simple concepts, like human rights, and the right to self determination. I keep having to remind some posters about things that I posted days ago.



That would certainly be preferable in the short term to treating them in the uncivilized and barbaric fashion we saw in the video. That type of treatment of children is unconscionable. If I dragged my teenage daughter away from a party in that way, any policeman in the vicinity who saw me would have had me on the ground and in handcuffs in a flash. I would be spending the night in Police cells, and I would be up in front of the beak the next morning on an assault charge.



Again I maintain, and I will always continue to maintain, that this is irrelevant. We are NOT talking about a kidnapping by someone unknown to the children.

What you seem to forget is that children are bonded to the mother from before birth, so it is natural for them to want to stay with their mother. Its called maternal bonding, and it begins to develop during pregnancy. Many things stimulate the development of the bond, and these include mother beginning to feel her unborn child moving. On the other side of the bond, the unborn child hears the mother's voice and heartbeat. By the beginning the third trimester, maternal bond can be very strong.

The desire to remain with an unknown captor is called the Stockholm Syndrome. Absolutely NONE of the things I have mentioned above take place. The bond formed in a case of Stockholm syndrome is based on violence, fear and distrust. The captor is usually physically violent toward the captive, and then when the violence stops, the captive mistakes this for kindness. This seems counter intuitive but it comes about as a result of the victim's subconscious need to survive in traumatic circumstances.

To suggest that a child's bond with it mother's and a hostage's bond with a kidnapper are the same is preposterous in the extreme. They are not analogues of each other in any way, shape or form.



Oh, if only it was that simple. Child custody cases are never that simple.

Please don't start with magical mummy love. Many mothers don't bond with their children immediately or even at all. They still love them but there is no magical woo bond. In fact, I've never seen any evidence of it existing. It seems like a way to make new mothers feel inadequate when they don't feel like sunshine and rainbows whenever they hold their baby.

I know many fathers who are closer to their kids emotionally than the mother.