International Child Abduction refers to the wrongful removal of a child from the country of habitual residence or the wrongful retention of a child outside of their country of habitual residence.
In order for a child to be found to have been habitually resident in a country the court generally require the child to have lived in that country for an “appreciable” period of time.
What is the Hague Convention?
The Hague Convention refers to the Convention on the Civil Aspects of International Child Abduction. The principal object of the Convention is to protect children from the harmful effects of cross-border abductions and wrongful retentions of children, by providing a procedure to secure the prompt return of the child to the state of their habitual residence. A further object is to recognise the resolution of dispute (except in exceptional circumstances) is best determined in the country with which the child has the most substantial connection. It provides for the prompt return of children and also serves as a deterrent to child abductions and wrongful removals.
How does the Hague Convention operate?
The Hague Convention operates between countries that are signatories to the Convention and applies to any child who is an habitual resident in a country that is a signatory. In Australia, the Family Law (Child Abduction) Regulations 1986 and Section 111B of the Family Law Act 1975(Cth) give legislative force in Australia to the Hague Convention.
In Australia the formal procedures are usually carried out by the Commonwealth Central Authority. The regulations compel a Court to order the return of a child to his or her home country unless certain and specific exceptional circumstances exist. The best interests of the child are not the paramount consideration in Hague Convention matters.
An order for the return of the child does not determine the merits of any custody issue in relation to a child. Removal/retention of a child is wrongful if the child is under 16 years of age, the child habitually resided in a Convention country immediately prior to the removal/retention, the Applicant had rights of custody (including rights relating to the care of the child and the right to determine the place of residence of the child) which were being exercised at the time of removal or would have been exercised but for the removal.
When an application for a return Order for a child is made and the application is filed more than one year after the day on which the child was first removed from their country of habitual residence or retained in another Hague Convention country, the Court must make the Order if it is satisfied that the person opposing the return has not established that the child has settled in his or her new environment. It is therefore crucial to act quickly and seek urgent legal advice if a child has been wrongfully removed or wrongfully retained.
Will a Court always order the return of a child who has been wrongfully removed/wrongfully retained?
A Court may refuse to make an Order if a person opposing the return of a child establishes that the Applicant seeking the child’s return:
- Was not actually exercising rights of custody when the child was removed from or retained in the country of their habitual residence and those rights would not have been exercised if the child had not been so removed or retained;
- Had consented or subsequently acquiesced to the removal from the country of their habitual residence/retention of the child in another signatory country;
- There is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
- Each of the following applies:
- The child objects to being returned; and
- b. The child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
- c. The child has attained an age and a degree of maturity at which it is appropriate to take into account his or her views; or
- The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of Human Rights and Fundamental Freedoms.
What if I am concerned that my ex-partner will take my child to a non-Hague Convention Country?
If a child has been removed to/retained in a non-Hague Convention country, the procedures under the Hague Convention cannot be utilised to secure the return of the child to their country of habitual residence. It is therefore important to seek urgent legal advice if you hold concerns that your child is at risk of being removed to a non-Hague Convention country. If a child is removed to a country that is not a signatory to the Hague Convention it may be very difficult or even impossible to secure their return. It may be appropriate in these circumstances to instruct a lawyer to apply for an Airport Watch List Order or to take other appropriate action on your behalf. An Airport Watch List Order, once in force, will prevent a child from being removed from the Commonwealth of Australia.
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