INTERNATIONAL ASSOCIATION OF YOUTH AND FAMILY JUDGES

AND MAGISTRATES

XVI WORLD CONGRESS

MELBOURNE, AUSTRALIA, 27 OCTOBER 2002

CHILDREN AND FAMILY LAW – PARAMOUNT INTERESTS AND

 HUMAN RIGHTS

 The Hon Justice Michael Kirby AC CMG*

A TIME OF ANNIVERSARIES

          The year, 2003 will be a time of anniversaries.  In Australia, we will celebrate the centenary of the High Court of Australia, the nation's federal supreme court¹.  Although called into existence by the Constitution of 1901, the Court was not constituted until its first members were sworn into office in Melbourne in October 1903. 

          The Constitution granted powers to the Federal Parliament to enact laws with respect to marriage² and divorce and matrimonial causes³.  It was only in relation to the latter that the Parliament was afforded the power to make laws with respect to parental rights and the custody and guardianship of infants.  However, such laws took a long time coming.  Although as early at 1913⁴ the desirability of federal legislation was raised in the High Court, it was not until 1959 that a federal law was enacted⁵.  It was not until 1975 that the Family Law Act was adopted by the Federal Parliament to provide, in substance, national standards for family law throughout Australia and for the creation of the Family Court of Australia, a new federal court.  It was the 1975 Act that introduced 'no fault' concepts for the dissolution of marriage in this country.  Until then petitioners had to show that one of the grounds for divorce, often very narrowly defined, warranted judicial orders permitting dissolution of a marriage and a fresh start to a socially sanctioned relationship between adult parties.  Only from such a relationship could "legitimate" children be born⁶.  It was not until 1999 that the Federal Magistrates Court was established⁷.

          Two other anniversaries in 2003 will mark events that occurred a half a century ago.  One of them, of importance for law, for science and for the future of the human species was the discovery by Watson and Crick of the double helix structure upon which DNA exists – the encoded genetic material that contains our inherited characteristics as human beings.  This breakthrough has given rise to the Human Genome Project.  This is an extraordinary endeavour that promises many complex and challenging problems for humanity and the law⁸.

          Another important golden anniversary in 2003 will be of the publication by Alfred Kinsey and his colleagues of their second landmark volume, Sexual Behaviour in the Human Female[9].  This work effectively changed the way in which the world (at least those whose minds were open to empirical data on the subject) viewed women's sexuality.  There were imperfections in aspects of Kinsey's methodology and in a number of his conclusions.  However, his reports on the deep-seated sexual behaviour of adults, male and female alike, sparked generations of similar studies.  They have had a profound effect that is still working its impact on the world of human relations and the law.

          As one of the seven Justices of the High Court of Australia, it thus falls to me to play a part in the decisions of the Court disposing of appeals on matters of family law applicable throughout Australia.  In a minor way, I am also privileged to follow in the footsteps of Watson and Crick.  I know Dr James Watson.  I serve on a number of international bodies that are exploring the ethical and legal consequences of the scientific revolution that he and Crick initiated¹⁰.  More recently, I have been appointed to the Board of the Kinsey Institute for Research in Sex, Gender and Reproduction within Indiana University in the United States.  I recently attended a meeting in Bloomington, Indiana that planned the reflections in 2003 on the anniversary of Kinsey's publication of 1953.

          In these remarks I intend to describe some of the recent decisions of my Court as they affect aspects of family law touching contemporary issues of parental and children's rights.  It is impossible to do more than to touch on a few themes.  However, first I must make a number of points about the times we live in.  They are times of great scientific development that can be turned to good or evil purposes.  They are times when science, including biology and social sciences, require new attention to developments that lift us out of the parochial world in which the law is generally accustomed to dwell. 

          The present generation of judges and lawyers must look at many problems in terms that are not only national but international.  We are required to search for solutions to our controversies with the aid of comparative law and international law in a way that was not common in the past.  These developments should not frighten us.  They are natural to every legal system in a time of global science and technology.  They require fresh thinking if we are to arrive at just solutions. 

          My perspective is international partly because of the experience I had had in a number of international bodies.  Somehow, as we enter a new millennium, with many global opportunities and not a few global problems, judges, magistrates and practising lawyers must begin to think as technologists and social scientists have always done – with a focus fixed on international, and not purely local, concerns.

THE NOT SO GOOD OLD DAYS

          It would be interesting, but not essential to my purposes, to speculate on what have been the causes of the profound changes in the social context within which family law must operate today in many countries, including Australia. 

          Why, when compared to the years and even centuries that went before, have we seen so many radical alterations?  The increase in the breakdown of lifelong relationships?  The increase in serial personal relationships?  The reduction in the number of births within such relationships?  The virtual disappearance of the stigma of illegitimacy and of the unmarried state?  The expanded demands for recognition of new human relationships, including those of de facto married opposite-sex couples and same sex couples?  The suggested expansion of the concept of "marriage" itself to include civil unions other than those between a man and a woman for life¹¹?  The efforts of single and infertile couples to secure children using the modern technology of human reproduction¹²?  Even the demand of some couples to have access (if it be scientifically feasible) to progeny produced by techniques of reproductive cloning?

          Just to mention these topics is to indicate the changing world in which family law must now operate.  The greater willingness of women to assert their legal rights and the increased economic capacity of women to pursue those rights, when compared to earlier generations, mean that issues are now debated before legislatures and the courts that once would not have been mentioned out of respect for the patriarchal values reflected in most legal systems.

          Were the Kinsey Reports simply outcomes of the social disruption and fresh thinking which, in the United States, accompanied the upheaval of the Second World War?  Or did they arise independently and, in turn, stimulate some of the changes that ensued?  Did the advent of the contraceptive pill occasion radical changes to human perceptions of the family?  Did the knowledge that the diversity of human sexuality was reflected in a bell curve (rather than in polar differences) alter the way in which individuals thought of themselves and of their human relationships?  Have "no fault" statutes encouraged the erosion of the traditional family unit in developed countries?  Or did such laws simply catch up, after the event, with changes that were already happening as young people stayed away from the formal commitment of marriage in ever increasing numbers?  To what extent did the women's movement, and the movement for the rights of sexual minorities, stimulate the changes we have seen?  Or are they themselves merely consequences of changes already under way?

          In some countries, possibly a majority, issues such as the foregoing are not at the forefront of the considerations that face youth and family judges and magistrates.  In such countries, the daily issues are probably  more like those addressed in the Australian legal system as I found it forty years ago.  At that time divorce was very difficult to obtain, especially for a woman who was not supported by a male.  Giving birth to children out of wedlock was still a shocking thing, shameful to mother and child alike and attended by many civil and social disadvantages.  Often women faced substantive hurdles in attempting to assert their legal rights.  There was no mutual empowerment from the women's movement.  No one ever mentioned same-sex relations.  Advanced reproductive technology was unavailable.  Cases of domestic violence and child abuse were swept under the carpet.

          To those participants who live and work in such societies I can say that lawyers of the older generation in Australia remember how it was.  Although some of a nostalgic bent present such times as blissful decades of true "family values", those who actually worked in the law in those days remember otherwise.  I recall, as a young articled clerk, sitting with a mature woman to take her discretion statement by which she confessed her most private sexual conduct with the man she wanted to be free to marry.  I can remember the investigating agents with their bedroom raids and cameras.  The newspaper accounts and tabloid photographs that cast such a burden on adults and children alike.  The common denial of access to a child for a parent living with a new partner.  As Lord Justice Harman said of the law of earlier times:  "The very idea at that time that you gave access, except under the most stringent conditions, to the adulterous spouse, was rejected with indignation"¹³.

          When we reflect upon the alterations in society and the great problems that they present for youth and family judges and magistrates, we do well to remember that the "good old days" were not always so good for those living through them and especially for children caught up in the court conflicts of such times.

          I have mentioned the Kinsey Institute and the work of Dr Kinsey for a particular reason.  Here I must introduce a personal reflection.  When the Kinsey reports on human sexuality were published in the United States, they attracted a good deal of attention in Australia.  In 1953 I had reached puberty and discovered that my own sexual orientation was homosexual.  At that time, it was a most profound secret.  It was secret from friends and colleagues; even from the members of my family whom I loved most.  The only glimmer of reassurance on a dark landscape was the knowledge of Kinsey's research which showed that I was far from alone. 

          In the intervening years, in Australia, we have dismantled most of the criminal laws that stigmatized adult, consenting, private homosexual conduct and criminalised same-sex relations between males.  Important inequalities remain¹⁴.  But gradually the injustice and legal inequality have been removed.  Sitting recently in Perth for the annual circuit of the High Court to Western Australia, I learned of the legal reforms introduced by the Parliament of that State¹⁵.  Amongst those enactments was one conferring jurisdiction on the Family Court of Western Australia with respect to aspects of same-sex relations that have broken down.  Such jurisdiction has not yet been conferred on the Family Court of Australia by the Federal Parliament.

          I regard it as inconceivable that my own relationship with my partner, which has lasted more than thirty-three years, will break down.  Yet if it did, it would appear more seemly and appropriate that the consequences should be decided by an experienced family court judge or magistrate, with the facilities available to them, than, for example, by a judge sitting in the Equity jurisdiction of a State court, obliged to squeeze such a matter into a busy list for the most part concerned with bank mortgage foreclosures and the liquidations of insolvent companies. 

          I have introduced this personal perspective to demonstrate that the issues arising from same-sex relations are likely, before long, to concern family court judges and magistrates in many countries.  People in such relationships exist in every walk of life, including the judiciary itself.  they are citizens too.  In the old days, such realities were never mentioned, in deference to the law or the principle "don't ask, don't tell".  That approach left many people vulnerable and unprotected by the law.  Now, things are changing.  It seems likely to me that, in due course, the reforms adopted in Western Australia will extend throughout this country, with counterparts in many other countries where the law comes face to face with social reality and the obligation to do equal justice to all.

THE NATIONAL RELOCATION PARADIGM

          Family breakdown is no longer exceptional.  It reaches into the Royal Family, political and judicial life, indeed everywhere.  Figures from the Australian Bureau of Statistics suggest that the number of divorces granted annually in Australia is over 48,000, involving approximately 48,000 under-aged children¹⁶.  Necessarily, these figures do not include cases involving the separation of parents who are not married.  To this statistic must be added another.  Within Australia (and doubtless in other similar societies) when marriages break down, overwhelmingly it is the female partner, the mother of the children, who becomes the parent with whom the children of the marriage thereafter reside.  In Australia, in approximately 84% of cases, the mother becomes the residence parent¹⁷.

          This is the context in which two cases have come to the High Court of Australia concerning the wishes of a mother, having primary responsibility for the care and custody of a child, to relocate with the child to a place distant from that in which the father resides.  In such a case, family judges and magistrates are presented with extremely difficult choices.  Such choices must be made in accordance with binding law.  That law presents the obligation of choice.  That obligation rests ultimately upon a judicial officer.  The number and complexity of such cases has greatly increased in recent times.  The causes of the increase are many and varied.  They are products of the dynamic forces of social change and technology. 

          The social change to which I refer includes the increasing breakdown of marriage; the enhanced willingness and capacity of women to assert their rights; and, in societies such as Australia, the larger number of parents who come as migrants from another country to which one of them wishes to return with the child or children of the failed relationship.  The technological considerations include the ease of transport that facilitates the movement of people around the world when compared to earlier times and the improved methods of communication (by telephone, video film, the Internet and otherwise) that provides new and different means of retaining connection with a child at long distance that were simply unavailable to parents and courts in earlier times.

          Of the two cases that have recently presented this issue to the High Court of Australia, the first involved a suggested relocation within Australia itself.  The case was AMS v AIF¹⁸.  The initials are used by the Court to protect the anonymity of the parties involved, and of their children.

          In AMS a child was born in 1990 to a couple who had met in Perth, Western Australia.  By the time of the birth, the couple were living in the Northern Territory.  In this instance, the parents never married.  They separated early in 1994 and the child continued to live with the mother.  Later that year both parents returned to Perth.  In the following year the mother informed the father that she wanted to return to the Northern Territory with the child.  The father applied for an order restraining the mother from removing the child from Western Australia where the father enjoyed orders for access.  He sought sole custody of the child with reasonable access for the mother.  The mother applied for the consent of the Court to change the child's principal place of residence from Perth to Darwin.  The primary judge refused that request. He restrained the mother from altering the child's place of residence in any way that would make the father's access more difficult.

          I will not mention all of the constitutional and legal questions that arose in the case.  A majority of six of the Justices of the High Court of Australia held that the trial judge had erred in exercising his discretion in the matter by requiring a demonstration by the mother of "compelling reasons" to warrant removing the child from Perth.  The majority¹⁹ concluded that such an approach was not warranted by the statutory requirement that the decision-maker treat as paramount the welfare of the child.

          In my reasons, with which on this point Chief Justice Gleeson and Justices McHugh and Gummow generally agreed²⁰, I pointed to the fact that:

"Statute may, and commonly does, instruct that the 'welfare' or 'best interests' of the child should be the paramount consideration²¹.  … However the 'paramount' consideration is not the same as the 'sole' or 'only' consideration … [A] statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is a conflict between these considerations, priority must be accorded to the child's welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides²².  If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child.  There is no such universal rule"²³.

          In my reasons in AMS I also acknowledged that legislative changes in Australia²⁴, sometimes reflecting international law²⁵, laid increased emphasis on the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis.  However, I insisted that this rule was not "an absolute one".  I suggested that "courts recognise the implications of the application of that right to the custodial (or residence) parent, and particularly because most of them are women".  I went on²⁶:

"To avoid unnecessary derogations from women's equality or the 'feminisation of poverty' resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary".

          Rejecting such a presumption (which was proposed by a minority in the Supreme Court of Canada²⁷), the Justices of the High Court of Australia held that such an approach would be incompatible with the statutory obligation to decide each case on its own factual merits.

          The actual order made in AMS was that the matter should be returned to the trial court.  However, I think it is fair to say that, at least with respect to relocation cases within Australia, the weight of the majority opinion of the High Court was in favour of recognising that relocation orders should be more readily allowed, at least when compared with applications to take a child to another country.  In AMS I expressed my views in these words²⁸:

"…[C]ourts have suggested, rightly in my view, that more relaxed attitudes should be adopted to relocation within Australia to relocation overseas.  This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community".

          However, foreshadowing what was later to come, I said²⁹:

"But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such  moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.  Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas³⁰; wishes to return to a supportive family in the land of origin³¹; or has a well thought out and reasonable plan of migration³² may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangements in another jurisdiction but with different orders as to access and contact".

THE INTERNATIONAL RELOCATION CHALLENGE

          The problem predicted in this last passage required resolution in the recent decision of the High Court of Australia in U v U³³. 

          That was a case where a couple, each born in India, migrated to Australia where the mother gave birth to a daughter who is therefore an Australian citizen.  The mother subsequently took the child back to India without notice to the father.  Later, consent orders for access by the father were made by the Family Court in Mumbai.  Those orders were complied with.  Later still, the mother returned with the child to Australia to give her marriage a second chance.  Unusually for such cases, she agreed throughout the proceedings that the father was a good parent.  However, the attempt at reconciliation failed and the mother sought to return to India with the daughter.  The father contested her application.  The trial judge made a parenting order in favour of the mother.  That order required her to reside in an area close to Sydney.  The mother appealed unsuccessfully against this order to the Full Court of the Family Court of Australia.  She then brought a further appeal to the High Court of Australia.

          Again, the High Court divided.  Obviously, there are strong reasons for restraint in appellate intervention in discretionary decisions of such a difficult, and often evenly balanced, character. In the High Court, the Justices analysed the suggested error on the part of the trial judge upon which the mother relied.  This concerned, substantively, the suggestion that the primary judge had failed to address the actual issue which the parties had brought to the Court for decision. 

          In the course of the cross-examination of the mother by the lawyer for the father, she had been asked to assume that the judge would allow her to return to India, but only without her daughter.  Taxed with that question she was asked whether, in that event, it would be her intention to remain living in the designated area.  Unsurprisingly perhaps, the mother answered that question in the affirmative.  This was then treated by the trial judge as an "alternative proposal".  He considered that it was her proposal and represented the best solution to the problem before the Court.  This was so because it meant that the mother and the father would each have continuous physical contact with the child.  Objectively speaking, that was in the best interests of the child.  The mother's primary proposal had been one allowing her to take the child to India but providing for extensive rights of access to the father on visits in India and to Australia, by telephone and by the Internet.  Self-evidently, a parent cannot hug a child by electronic means.

          The joint reasons of the majority³⁴ drew strong and predictable attention to the "discretionary judgment" that had been made by the trial judge who, it was said, had considered the various arrangements of the child and had not been shown to have been affected by any errors of principle or otherwise³⁵.  It is a fundamental rule of appellate procedure that appeal courts, certainly those of a final character, do not simply retry such issues, that might be finely balanced and have been decided at trial.  They only disturb the primary decision if an error is shown.  The High Court majority saw no such error.  Moreover, Justice Hayne (on this point writing with the concurrence of Chief Justice Gleeson³⁶ and Justice McHugh³⁷) rejected any suggestion that the trial court was confined in its inquiry to what the parents suggested would be in the best interests of the child³⁸.  Justice Hayne said³⁹:

"To confine the inquiry in this way would … disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both parents put forward to the Family Court as appropriate arrangements for residence and contact".

          There were two dissenting opinions.  Justice Mary Gaudron saw it as fundamental that the proposal that the daughter live with her mother in Australia was "the father's alternative proposal and not, as the trial judge stated, the mother's"⁴⁰.  In these circumstances, Justice Gaudron considered it to be erroneous to criticise the mother for having failed to think through this proposal.  She went on⁴¹:

"[R]egrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another State or country or to maintain a close bond with her child one that will, almost invariably, disadvantage her forensically.  A mother who opts for relocation in preference for maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness that they deserve".

          My own reasons were similar to those of Justice Gaudron.  I accepted the principle of appellate restraint⁴².  However, for me the error of principle and approach, warranting appellate intervention, was that of mistakenly treating the husband's alternative proposal as one offered to the court by the wife.  Her reluctant concession in cross-examination was elevated into an alternative "proposal".  It was one that effectively relieved the trial judge of the very difficult problem of choosing on their merits between the respective cases of each of the parties.  It diverted the attention of the decision-maker from the matter for decision, namely the controversy tendered to the court.  I remarked⁴³:

"Were it otherwise, in virtually every case, the predicable line of cross-examination of the custodial parent (usually female), and the equally predictable answers, will result in an omission to consider and decide the relief that such parent brings to the Court as the controversy to be resolved".

          My view took me back to a fresh consideration of the requirements of the provisions of the Act demanding that the interests of the child must be the "paramount consideration" in such cases.  I repeated that "paramount" does not mean "only" or "sole".  I elaborated this point in the following passage⁴⁴:

"[T]his conclusion is borne out not only by reference to Australian legislation and relevant judicial authority.  It is reinforced by a proper analysis of this case in terms of the principles of international human rights law.  Such principles may influence local law on such questions⁴⁵.  The principles are obviously concerned with the interests of a father and also of a child to have, and maintain, regular contact …  Today contact does not have to be exclusively physical or face to face if the cost of insisting on such physical contact is to impose serious deprivations upon the human rights of custodial parents, who are mostly women.  To take the contrary view is to entrench gendered social and economic consequences of care-giving upon women in a way that is contrary to [international law]⁴⁶".

          A line of judicial authority in England⁴⁷ appears to follow the approach that Justice Gaudron and I favoured.  However, whilst each case remains dependant upon its own circumstances, the majority decision of the High Court of Australia in U v U undoubtedly emphasises, once again, the restraint upon appellate disturbance of primary orders.  That approach appears to reflect a more stringent view of overseas relocation than was adopted in AMS in respect of relocation within Australia.

          No one doubts that it is in the best interests of a child ordinarily to have two loving parents who give support, encouragement, instruction and sustenance through the vulnerable years of childhood and thereafter.  I had the blessing of such a family.  I know how important it is.  But where that possibility is not available, difficult decisions have to be made.  Such decisions increase in number and complexity in the modern age because of the considerations that I have already mentioned.  often the decisions must be made by judges or magistrates.

          In making such decisions, courts must obey the legislation that governs them.  They must also obey binding court rulings, such as, in Australia, those in AMS v AIF and U v U.  Typically, they place great emphasis upon, and substantial finality in, the conclusions of the primary judicial officer.  This makes it doubly important that trial judges and magistrates should approach their decisions with a full understanding of all applicable considerations.  Verbal formulae, offered by appellate courts, can only go part of the way in explaining how binding laws must be applied in such instances.  Justice Richard Chisholm of the Family Court of Australia describes the ebb and flow of Australian judicial authority on this question.  He suggests that there is what he calls a "San Andreas Fault"⁴⁸ running through the decisions.  In his view, this "fault" differentiates between what he calls the "weak view" concerning the operation of the paramountcy principle and the "strong view".

          The paramountcy principle is stated in international conventions and in binding Australian law⁴⁹.  Differentiating between the so-called "weak" and "strong" view will help the judicial path-finder to avoid the San Andreas Fault appearing in the form of unpleasant appellate over-ruling.  However, it is difficult to change the word "paramount" into the word "sole".  If that makes me a proponent of the "weak" view, so be it.  As I remarked in AMS⁵⁰:

"Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child's welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight.  In part, this is because (as English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child.  But, in part, it is also because legislation such as [the Australian statutes] is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges".

          Published commentaries about  U V U have mostly favoured the minority view⁵¹.  However, in a rule of law and democratic society, the majority judicial opinion prevails.  In Australia, the binding principle extracted from the majority ruling in U v U governs all courts until that principle is altered by valid legislation or modified by the High Court itself. 

          Nevertheless, it is unlikely that the last word has been written on this vexed topic.  Judges in the decades ahead will continue to walk carefully, avoiding the worst dangers of the judicial fault line whilst striving, in every case, to reach the lawful and just outcome in an extremely difficult context of the law's operation.  This context is universal and the problem is likely to increase rather than diminish⁵².

          In different societies, where family law is still patriarchal, there will be no great difficulty about cases of this kind.  There will be few hard choices to be made.  But where, in Australia and like countries, that approach has been overthrown and true equality is the principle that the law embraces, it will be essential not to overlook the practical facts that most custodial parents are women; that women are no longer the adjunct to the lives of their former husband or partner; and that once the relationship has irretrievably broken down it is generally in the interests of the children, and of the parties themselves, to find solutions to their ongoing contacts that respect the best interests of the children in a context that upholds the best interests of the parents⁵³.

AN INTERNATIONAL REFLECTION

          It is worth noticing the extent to which, in U v U and many other recent family law cases⁵⁴, international law has come to play a part in municipal decision-making.  It has done so to a degree that was undreamt of in my youth. 

          To some extent this change is the consequence of the domestic application of international conventions.  A noted example is the Hague Convention On the Civil Aspects of International Child Abduction (1980).  That Convention has been considered in a number of decisions of the High Court of Australia and of comparable final courts of appeal⁵⁵.  Most recently, the Australian Parliament gave local legislative effect to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children[56]. 

          Even where international law has not been incorporated expressly by legislation enacted by the Parliament, it is normally legitimate, at least in a common law jurisdiction, for a court resolving gaps of the common law or ambiguities in legislation, to have regard to international law, specifically the international law of human rights⁵⁷.  This is a new development in the law.  Like the other changes I have described, it is one that is in harmony with the great forces that are at work in the world today, that affect the law itself.  It was the prohibition in international law against unequal treatment based on racial differences that unlocked the door for the decision of the High Court of Australia in favour of the recognition of native title to land in Australia, after more than a century of judicial denial of that possibility⁵⁸.

          At a recent judicial seminar at the Yale Law School, an issue that attracted a great deal of attention was the extent to which international human rights law may affect interpretations and understanding of a national constitution.  Some years ago in Australia, I suggested that this was a proper, indeed inevitable, development⁵⁹.  In saying so, I was alone.  At the Yale Seminar close attention was given to the recent decision of the Supreme Court of the United States in Atkins v Virginia⁶⁰.  In that case, a majority of that Court⁶¹ held that the execution of mentally retarded criminals constituted "cruel and unusual punishment", prohibited by the Eighth Amendment to the Constitution of the United States. 

          In the course of his opinion for the Court, Justice Stevens referred, amongst other things, to the shift "within the world community" where "the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved"⁶².  This opinion attracted vehement opposition from the minority.  Justice Scalia wrote⁶³:

"Equally irrelevant are the practices of the 'world community' whose notions of justice are (thankfully) not always those of our people.  … [W]here there is not first a settled consensus amongst our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through their Constitution"⁶⁴.

          This dissenting view notwithstanding, it is important to be aware of the growing influence of international law, especially the international law of human rights, upon the decisions of courts everywhere in the world.  Lawyers of the next generation will perceive a local legal problem through different spectacles.  They will see local law and local solutions in a context of global law and global solutions.  As the cases on parental-child relocation illustrate, this is something that is already happening in the field of family and children's law.  We should alert our minds to a legal revolution that is underway.  Quietly and imperceptibly the way in which we view law itself (like the way in which we view so many other things) is becoming more global in focus.  I do not pretend that this change comes without problems and difficulties.  But the beginning of wisdom is an appreciation of the dynamic that has already commenced and now has widespread influence upon the law and therefore on judging.

          In a world of DNA and the human genome, of social revolution of the kind that Kinsey chronicled, of the expanding operation of international conventions and of the application of international human rights norms, the work of final courts of appeal takes on a new focus.  So does that of all other courts.  Youth and family judges and magistrates from all over the world can share their experiences, pool their problems and reflect on the similarities and differences of the solutions they severally offer.  We must all be obedient to our own laws.  That is what constitutionalism and the rule of law require.  But the contemporary judiciary is engaged in a global dialogue. 

          As Australia enters the centenary year of its highest court, it looks with proper pride at the achievements of its judiciary in the years past.  It is confident that those achievements will be even greater in the future.  They will be greater, in part, because judicial officers now enjoy wider field of experience.  Less and less does our jurisdiction chart our intellectual horizons.