The girls’ lawyer argued that the Family Court denied procedural justice when it failed to appoint legal representation for the girls before it determined they return to their father in Italy.
The girls say they want to stay in Australia with their mother, but it now seems they will have to return to Italy for a court fight there.
Tony Morris QC says it was always going to be a tough job convincing the High Court to recognise a child’s right to legal representation, but he thought it was worth a try.
“One’s always disappointed when one loses. But more generally, I would have personally been more comfortable if the court had recognised a greater set of rights for children and young people,” he said.
“But they’re the High Court of Australia. They’ve made their decision. I respect that.”
After the hearing, he explained why he had taken the action on behalf of the girls.
“My understanding is the girls would have been on a plane that evening if we hadn’t brought that application,” he said.
“So, yes it was perhaps a long shot but a shot that I thought had reasonable prospects of succeeding.”
The four sisters attracted headlines when they went into hiding with one of their mother’s relatives on the Sunshine Coast to avoid being returned to their country of birth, Italy, for a custody hearing in May.
The girls’ parents separated in Italy in 2007 and have joint custody.
Their Italian father claims the girls came to Australia with their mother in 2010 for a holiday.
But when they failed to return on an agreed upon date, he lodged a complaint with police who invoked the Hague Convention, which deals with returning children allegedly stolen from one country to another.
The mother claims she had permission to move the children to Australia permanently.
But following the rules of the Hague Convention, the Family Court ordered the mother and children to return to Italy to settle the question of custody there.
Queensland’s solicitor-general, Walter Sofronoff QC, told the court the Family Law Act presumes children do not have the same capacity as adults, partly to protect them from having to oppose their parents in litigation.
He told the court the views of the girls – that they did not want to return to Italy – were taken into account by the court via a family report and rejected.
Justice Virginia Bell told the court a key element of the family law regime is that the best interests of the child may not always accord with what the child wants.
But Mr Morris says the girls were upset they were given no voice in the proceedings.
“Certainly the court has recognised on many occasions that adults should not have an automate against them unless they’re given a fair opportunity to be heard,” he said.
“My argument was that children should that same set of rights.”
The University of Sydney’s family law specialist Patrick Parkinson says the High Court bid was never likely to succeed.
“Even defendants in criminal trials don’t have an absolute right to legal representation at the tax payers’ expense. And certainly in civil cases they don’t,” he said.
“So to say that children have a constitutional entitlement to be represented independently of their parents did seem to me to be a very tough argument to try to run.”
Moira Rayner, a lawyer and a former Equal Opportunity Commissioner in Victoria, agrees the High Court bid was doomed to fail.
“Because the Hague Convention is rather old fashioned in that it regards the rights of parents and the principles of which is the most convenient forum to be its only concern and it doesn’t address at all any obligations under another international instrument such as the United Nations Convention on the Rights of the Child,” she said.
She says the conduct of courts in domestic jurisdictions may need to be examined.
“I’m not sure that we need to look at the international convention but at the conduct of courts in domestic jurisdictions which really need to look at the growing body of evidence that children who participate in decisions that affect them deeply are much better able to absorb them even when the results are not what they hoped for,” she said.
“Now that has started to happen over the last 25/30 years in the jurisdictions in Australia under the Family Law Act and may be expected to occur throughout Europe and various other countries which embrace the idea of the rights of children to participate in decisions that affect them.”
The case will now return to the Family Court for one final appeal.