Australia is a party to the Hague Convention on the civil aspects on international child abduction. The Convention is an international treaty, under which arrangements are made for the return of children who have been wrongfully removed from, or retained outside, their country of habitual residence. The Convention sets up a central authority in each country to deal with applications for the return of children taken to, or from each country. The Commonwealth Attorney General’s department is the central authority for Australia.
The purpose of the Convention is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained, are returned to their habitual residence country so that disagreements about their living arrangements can be resolved by the Courts of that country. The Convention is concerned with forum.
The Convention allows you to seek the return of a child to Australia if the child has been taken from Australia to another Convention country without your agreement. The Convention also applies if the child was taken temporarily to a Convention country with your consent, for example, to visit relatives, but has been retained in that country without your agreement.
If the child is returned to Australia from another country under the Convention, any dispute as to issues of parental responsibility is resolved by Courts in Australia. The Courts will consider what is in the best interests of the child, and the abducting parent may be successful in obtaining an Order permitting the abducting parent to take the child from Australia to live in another country.
COUNTRIES WHICH ARE PARTIES TO THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION
A current list of Convention countries can be found on the Hague Convention website – https://www.hcch.net/en/states/hcch-members.
New countries joint the Convention every year. To find out if a country has recently joined the Convention, contact the Commonwealth Attorney General’s Department, telephone 1800 100 480. The most current listing of Convention countries is available on the website on the Hague Conference on Private International Law, which administers the Convention: http://www.hcch.net.
ABDUCTIONS FROM AUSTRALIA
Convention requirements to make an Application:
a. The child must be under 16;
b. The child must have been removed from Australia to another Convention country;
c. The child must have been habitually in Australia before the removal or retention;
d. The removal or retention of the child must be a breach of a person’s rights of having the child live with that person; and
e. The Applicant must have been exercising his or her rights as to the child’s living arrangements (or would have been exercising those rights but for the removal or retention).
PROCESSING OF AN APPLICATION UNDER THE HAGUE CONVENTION
When the Application is received by the State or Territory central authority, it is faxed to the Attorney General’s Department in Canberra, which coordinates the operation of the Convention in Australia. The Attorney General’s Department transmits the Application to Authorities in the Convention country where the child is thought to be.
In many countries you will need a lawyer to represent you. The Commonwealth Attorney General’s Department can usually arrange for the central authority in overseas Convention countries to find a competent lawyer to act on your behalf.
The Convention envisages that overseas authorities will make a decision about the return of the child without the applicant travelling to the Convention country. Often, the overseas authorities allow the child to be returned to Australia in the company of the parent who took the child overseas. In some countries, you may be required to attend Court proceedings and give evidence. The Commonwealth Attorney General’s Department will advise if this is necessary. You should ensure that you have a current passport and valid visa for the relevant country. You should not travel unless it is absolutely necessary because legal proceedings in other countries often involve lengthy adjournments. Where travel to the Convention country is required and a parent needs assistance to pay fares and living expenses, the Commonwealth Attorney General’s Department may provide financial assistance.
WHEN A CHILD MAY NOT BE RETURNED
The grounds are:
a. The child is aged 16 or over;
b. The child has been outside Australia for over 12 months and settled in his or her new environment overseas;
c. The child was not habitually resident in Australia at the time of the removal or retention;
d. The applicant in Australia did not have rights that the child live with them;
e. The applicant in Australia was not exercising rights that the child live with them at the time of the removal or retention;
f. The applicant gave prior consent to the permanent removal or retention or subsequently acquiesced in the removal or retention;
g. The child would be exposed to a grave risk of physical harm, psychological harm, or some other intolerable situation if returned to Australia;
h. The child objects to return and is of an age and maturity to justify his or her views being taken into account (in some cases, overseas authorities have accepted the objection of a child as reason for refusing return. The objections of children as young as 9 or 10, have been accepted by foreign Courts).
ABDUCTIONS TO NON-CONVENTION COUNTRIES
If your child has been taken to a country which is not a party to the Hague Convention, you may still be able to have the child returned to Australia.
You will have to employ a lawyer in the overseas country. This can be more complicated, time consuming and expensive, than the process under the Hague Convention.
If you cannot pay legal fees, air fares or other costs associated with the recovery of your child, you may be eligible for financial assistance from the Attorney General’s Department.
PREVENTING INTERNATIONAL CHILD ABDUCTION
If you are concerned that your child may be removed from Australia, you can take steps to prevent wrongful removal in the future:
a. If you have a Court Order for the child to live with you, or an Order prohibiting the removal of the child from Australia, the Police can put your child’s name on the airport watch list.
b. If you do not have a Court Order, contact a solicitor for advice on obtaining an Order.
Any questions? Don’t hesitate to contact us.