International Child Abduction
The Family Law (Child Abduction Convention) Regulations 1986 which came into force on 1 January 1987 give legislative force in Australia to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
The principal object of the regulations is to secure the prompt return of a child who has been wrongfully removed from one Convention country to another or wrongfully retained in a Convention country. A further object is to recognise that the resolution of disputes regarding children is best determined in the country with which the child has the most substantial connection.
In Australia the formal procedures are usually carried out by the Commonwealth Central Authority. The regulations compel an Australian 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 to or retained in Australia 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.
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 or retained in Australia 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/retention of the child in Australia;
- 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:
a. 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;
- 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.
If a child has been removed to/retained in a non-Hague Convention country, the procedures set out above cannot be utilised. It is therefore important for a parent to seek urgent legal advice if he or she holds concerns that his or her child is at risk of being removed to a non-Hague Convention country. 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 their behalf. An Airport Watch List Order, once in force, will prevent a child from being removed from the Commonwealth of Australia.
Our team of family lawyers are experienced in International Child Abduction matters and are available to discuss any aspect of International Child Abduction with you. Please call us today on +61 3 8397 2220 or contact us online.