Deborah Joy Laing v. Australia

On 10 December 1999, the Special Rapporteur on New Communications rejected the author’s request for interim measures.

In his response of 23 April 2001 to the State party’s submission, counsel submits that the State party is mistaken when stating that the Australian courts considered Jessica’s interests to be of paramount importance. The operation of the Hague Convention and its implementing legislation, show that the child’s best interest is not taken into account. Furthermore, he submits that the State party’s assumption that Jessica’s future custody remains to be finally determined by a US court lacks foundation, since there are final orders of an American court awarding permanent custody to Jessica’s father, with no visitation rights for the mother.

In respect of the State party’s allegation that article 2 is not an autonomous right, counsel submits that the jurisprudence of the Committee may be reversed at any time, in light of further arguments regarding consideration of another case, and that recent jurisprudence of the Committee reveals a shift in the application of article 2, paragraph 3 of the Covenant towards providing a freestanding right for individuals. Moreover, in view of the particular circumstances that Australia has no Bill of Rights, no uniform constitutional, statutory or common law protections, which reflect the Covenant, leaves the authors with no effective remedies to safeguard their rights.

In respect of the claim under article 7 of the Covenant, counsel submits that the salient issue is whether a certain treatment which a State party is responsible for has the effect of being cruel. She considers that the forced separation of Jessica from her family constitutes cruel treatment because it has the effect of imposing severe suffering on Jessica and her family. Furthermore, the question of whether the treatment of a child is cruel requires an assessment of the child’s particular circumstances, and in that regard a mere threat of such treatment is sufficient.

Counsel also submits that where the objectives of the Hague Convention for a speedy return of a child are not satisfied, the strict and inflexible application may be oppressive and unfair in certain circumstances. In the present case it took 13 months from the time of the unlawful removal until the first decision of an Australian court, and after 6 years, final resolution of the case remained outstanding.

Moreover, the psychiatric report submitted by the authors’ suggest that Jessica is sensitive to change and has difficulty with sleep and nightmares as a result of the temporary separation by police from her family in 1998. The State party has not challenged this evidence. Another report prepared for the Family Court when Jessica was 2 years old noted that “an abrupt and permanent separation from her mother would be associated with protest and extreme distress...” Counsel submits that mental distress may constitute cruel treatment.

In relation to the State party’s contention under article 12 of the Covenant, that Jessica has the right to be reunited with her father as a child and as an individual within a family, counsel submits that a claim concerning a family life must be real and not hypothetical, like in the case of Jessica.

Counsel reiterates the claim of a violation of article 14, paragraph 1. The State party’s response that even if the proper law had been applied the result would have been the same, did not represent the view of second Full Court of the Family Court, but merely represents the view of one judge. Moreover, the views of the Chief Justice and another judge of that court considered that in the light of the correct law, the result may not have been the same.

In relation to the State party’s contention that it is not the role of the Committee to review the facts, counsel acknowledges the Committee’s established jurisprudence, but contends that the application of an incorrect law and the failure to correct the error makes the decisions of Jessica’s removal “manifestly arbitrary”. He adds that the authors’ right to a fair trial includes a right to be provided with reasons at the time the orders were made.

In respect of the claim under article 17, counsel submits that interference with home in this case, is the interference with the authors’ family arrangements and home life, including the extended family.

In respect of the claim under article 23 of the Covenant, counsel notes that the ECHR has constantly held that article 8 of the Convention includes a right for the parent to have measures taken with a view to his or her being reunited with the child, and an obligation for the national authorities to take such action. In Jessica’s case, there are no family bonds between father and child, and the only family requiring protection is Jessica, Samuel, Ms. Laing, as well as the extended family in Australia,

With regard to the alleged discrimination of Ms. Laing, counsel submits that Mr. Surgeon was represented by the Central Authority, and that she only received a grant which covered a small proportion of the overall costs.

On 3 September 2001, the State party submitted further comments. With regard to counsel’s contention that there is no factual foundation for Australia’s assertion that American courts may give Ms Laing custody of, and access to, Jessica, it submits that the custody order in favour of Mr. Surgeon, may, under the Georgia Code, be challenged and subsequently changed by the Court if there is a material change in the circumstances.

Furthermore, in relation to the authors’ claim that Australia has no statutory or common law protections which reflect the terms of the Covenant, the State party submits that both legislation and the common law protect the rights in the Covenant. For example, under the Human Rights and Equal Opportunity Commission Act 1986, the Human Rights and Equal Opportunity Commission (the Commission) has the power to inquire into alleged Commonwealth violations of the rights set out in the Covenant.

On 7 November 2001, counsel submitted further comments and notes that the Commission does not provide an effective remedy, since its only power is to prepare a report on human rights violations to the government. The Commission cannot issue enforceable decisions.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2 (a) of the Optional Protocol.

As to the claims presented by the author on behalf of her daughter Jessica, the Committee notes that at the time of her removal from the United States Jessica was fourteen months old, making her ten and a half years old at the time of the adoption of the Committee’s decision. Notwithstanding the consistent practice of the Committee that a custodial, or, for that matter, non-custodial, parent is entitled to represent his or her child under the Optional Protocol procedure without explicit authorization, the Committee points out that it is always for the author to substantiate that any claims made on behalf of a child represent the best interest of the child. In the current case, the author had the opportunity to raise any concerns related to Covenant rights in the proceedings before the national courts. While the Committee takes the position that the application of the Hague Convention in no way excludes the applicability of the Covenant it considers that the author has failed to substantiate, for purposes of admissibility, that the application of the Hague Convention would amount to a violation of Jessica’s rights under the Covenant. Consequently, this part of the communication is inadmissible pursuant to article 2 of the Optional Protocol.

As to the alleged violations of the author’s own rights, the Committee notes that the present situation, including its possible adverse effect on the enjoyment of Covenant rights by the author, is a result of her own decision to abduct her daughter Jessica in early 1995 from the United States to Australia and of her subsequent refusal to allow for the implementation of the Hague Convention for the purpose of letting the competent courts to decide about the parents’ custody and access rights in respect of Jessica. In the light of these considerations, the Committee finds that this part of the communication has not been substantiated, for purposes of admissibility and is, consequently, inadmissible pursuant to article 2 of the Optional Protocol.

As to the remaining part of the communication, related to the author’s claims presented on behalf of the author’s son Samuel who was born in September 1995 in Australia, the Committee notes that the exercise of Samuel’s rights is not governed by the Hague Convention. Noting also that the decisions of the United States courts may potentially affect the possibilities of Samuel to maintain contact with his sister Jessica, the Committee in the light of its conclusions above nevertheless takes the view that the author has failed to substantiate, for purposes of admissibility, any claim that such effects would amount to a violation of the Covenant. Consequently, this part of the communication is inadmissible pursuant to article 2 of the Optional Protocol.

The Committee therefore decides: (a) that the communication is inadmissible under article 2 of the Optional Protocol;