The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty between 101 countries that acknowledges the harm caused by International Parental Child Abduction (IPCA) and aims to provide a legal avenue for the speedy return of the abducted child to their home country. Australia is a party to the convention.
Family lawyers often recommend that parents be very careful before consenting to their child being taken to a country that is not a signatory to the Hague convention, as the options for retrieving a child who is overheld or abducted from countries that are not signatories to the convention can be limited.
International Parental Child Abduction
International Parental Child Abduction occurs when one parent or guardian takes their child from their home country without the permission of the other parent or guardian, or without the authorisation of the court.
Applications
To make an application under the Convention, you must ensure that:
- The child is under the age of 16 years old;
- The child was habitually residing in a Hague Convention signatory country. To “habitually reside” means that the child was an actual resident in a particular country for an appreciable (not necessarily long) period; and that there was a voluntary, settled intention to reside in that country habitually: DW & Director-General, Department of Child Safety[1];
- The child was wrongfully removed or retained in a country a signatory to the Hague convention. The court may need to look to parenting orders/plans for ‘rights to custody’ or ‘parental responsibility’: Re J & Director-General, Department of Community Services.[2]
The application will then be made to the Central Authority of that country for the return of the child.
Procedures for application
The procedures for the applications are set out in the Family Law (Child Abduction Convention) Regulations 1986.
Once the application has been made to the Central Authority (CA), the CA must act to ensure the return of the child to the country in which they habitually reside. The court must make a return order if:
- the application was filed within one year after the child’s removal or retention or if made after one year it cannot be proven that the child is settled in his or her environment;
- the child was under 16;
- the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia;
- the person, institution, or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia;
- the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
- at the time of the child’s removal or retention, the person, institution, or other body was actually exercising the rights of custody (either jointly or alone); or would have exercised those rights if the child had not been removed or retained.
Defences
The adducting parent may argue any of the following defences against the application being granted:
- The child objects to being returned, the child’s objection shows a strength of feeling beyond the mere expression of a preference and the child has attained an age and a degree of maturity at which it is appropriate to consider their views;
- The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and freedoms;
- There is a risk that returning the child would expose them to physical or psychological harm or place the child in an intolerable situation;
- The child is now settled in the new environment;
- The left-behind parent consented to the removal or retention of the child; or
- The left-behind parent is not involved in the child’s life.
To find more information about the Hague Convention and to find a complete list of the countries involved please view the website here.
Nicola Maltman – Law Clerk – Matthies Lawyers
Thus should you have any queries in regard to family law matters, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.
[1] DW & Director-General, Department of Child Safety [2006] FamCA 93.
[2] Re J & Director-General, Department of Community Services [2003] FamCA 929.