International Family Law: Hague Convention & Child Abduction

Posted on August 16, 2022 by Lauren Spence

Lauren Spence Family Lawyer Sydney

Lauren Spence

Author
Lauren is a passionate family lawyer who genuinely appreciates the emotional difficulty that comes with divorce and separation. Since her admission as a solicitor of the Supreme Court of NSW, Lauren has practiced almost exclusively in the area of divorce and family law.

Understanding Child Abduction and the Hague Convention

Sharing the parenting of a child can be challenging. It is even more complicated when one parent moves overseas, whether this is temporarily for work, or a permanent relocation. In that case, sharing parental responsibility can involve navigating the family law system of two countries.

When your former partner takes your child to another country without your permission, or refuses to return your child to Australia, this is considered to be child abduction. Child abduction is prohibited under international law.

As a parent, you can seek your child’s return to their home country through the rules and procedures outlined in the Hague Convention on the Civil Aspects of International Child Abduction. This article explains how the Hague Convention can help you if your child has been taken to another country without your permission.

What is the Hague Convention?

The Hague convention is a “multilateral” treaty, meaning it involves Australia and a number of other signatory countries.

The Hague Convention sets out the rules for how a parent or guardian who lives in a different country can spend time with your child. This treaty only applies to children who are under the age of sixteen.

The convention is designed to:

  • preserve your current child custody arrangements; and
  • deter a parent from crossing international boundaries in order to keep your child away from you.

In simple terms, the Convention requires a country to take steps to organise the return of your child to their home country (or habitual residence). However, this is only possible when:

  1. Your child’s country of habitual residence is also a member country of The Hague Convention;
  2. In the country of habitual residence, you have right of custody or access to the child;
  3. Your child was wrongfully kept in, or removed to, the overseas country;
  4. The wrongful retention or removal occurred in the previous 12 months; and
  5. None of the limited defences to child abduction apply.

A full copy of the convention is available here: Convention on the Civil Aspects of International Child Abduction.

What is international family law?

Strictly speaking, there is no such thing as international family law. Each country has their own laws that cover division of property and the care and custody of minor children after the breakdown of a relationship.

There are, however, lawyers who specialise in helping families involved in international family law cases. In those cases, the lawyer will be helping their client to navigate the domestic family laws of two different countries and will be knowledgable about the relevant international law conventions and treaties.

How big of a problem is international child abduction?

Some statistics

The Attorney General’s Office regularly publishes statistics on the number of child abduction cases in Australia.

For instance, in the 2018-2019 financial year, the Australian Central Authority received 145 applications under The Hague Abduction Convention regarding the abduction of a child to, or from, Australia. Of that number, the Authority was able to finalise 113 of the applications.

During this period, Australia also assisted with 28 requests from a signatory country for cooperation with transnational placement of a child.

What can I do to prevent my child being abducted by my ex?

Your child’s passport

There are practical barriers that prevent a parent from removing a child from Australia without the other parent’s permission. A child cannot travel overseas without a passport, which will only be issued with the consent of both parents (or legal guardians) or a court order. If you have any cause for concern, you should submit a Child Alert Request to the Australian Passport Office to indicate that you do not consent to your child receiving a passport.

Of course, it is not unusual for a child to already have a passport because the family has previously travelled overseas. In that case, there are ways to alert the authorities to be on the look out for your child leaving the country without your permission.

Family Law Watchlist

The Australian Federal Police maintains a Family Law Watchlist (also known as the Airport Watchlist). The Watchlist alerts police when someone attempts to take your child out of the country.

To place your child on Airport Watchlist you will need to complete the Family Law Watchlist Request Form. It may also be necessary to apply for a court order in order to have your child placed on the Watchlist.

What can I do if my child has been abducted to another country by my ex?

If your former partner has already abducted your child, the first thing you should do is immediately report the abduction to the police. After that, there are some additional steps you can take.

Legal Counsel

You should urgently seek legal advice. A solicitor can help you obtain court orders and assist you to navigate the complex rules of the Hague Convention. Neither the police, nor the federal government, will be able to provide this legal assistance.

International Social Service (ISS) Australia provides a range of services, including free legal assistance with child abduction cases. If possible, you should also engage a private solicitor who will focus on developing a legal plan for the return of your child.

Federal Government Support

The federal government may be able to help you arrange the return of your child. You can contact the Australian Central Authority if your child has been taken to a country that is a signatory to the Hague Convention.

If your child has been taken to a country that is not a member of the Hague Convention, you may still be able to get assistance through the Consular Branch of the Department of Foreign Affairs and Trade. The service operates 24 hours a day and can be contacted on 1300 555 135.

Australian Central Authority

The Australian Central Authority (ACA) within the Attorney-General’s Department manages Australia’s obligations under the Hague Convention. You can actually contact the ACA if you have any general questions about The Hague Convention.

The ACA provides a lawful procedure for you to seek the return of your abducted child to their home country. They can assist you to make an application for the return of a child or an access application. The ACA will then communicate directly with the relevant overseas government agents to have your child returned to you. Although the ACA will commence the procedure, this process may still involve mediation or further court proceedings. The ACA also provides a service for you to establish contact to, or access with, your child overseas.

An application to the ACA must include, among other things, the:

  • child’s name;
  • date of birth;
  • habitual residence prior to removal from Australia;
  • passport number; and
  • description and photo.

The application must also include the details of each parent, including their:

  • name;
  • date of birth;
  • nationality;
  • occupation;
  • habitual residence;
  • passport number; and
  • date and place of marriage (if applicable).

When you are drafting the application, you must include these details as well as any other information you have such as:

  • where the child might be and with whom;
  • the circumstances of the removal of the child from Australia; and
  • any legal or factual grounds you have for making the application.

It is highly advisable to obtain legal advice before you apply to the ACA. A solicitor can help you organise your documentation so that the ACA is more likely to accept your application.

The ACA will assess the application on its merits against the criteria of the Convention. If the ACA accepts the application, it will transfer it to the overseas Central Authority, who will take further action. Typically, the authority will first contact the abductor and try to arrange the voluntary return of the child to Australia. If that fails, the authority will file an application in the foreign court for an order of enforcement.

Generally, for an application of return to be successful, you must establish that your child was wrongfully removed, and that the conditions of the Convention all apply in your case.

However, there are exceptions where the return of the child will not be determined to be in their best interests. This can occur in circumstances where:

  • the abduction was more than one year ago, and the child is now settled;
  • you consented to the removal;
  • the return of the child would expose them to risk of physical or psychological harm; and/or
  • the child objects to returning and is mature enough, in the view of the court, to make that decision.

How many countries are in the Hague Convention?

An application under the Hague Convention for the return of a child can only be made to or from a country that has signed the Convention.

The Hague Convention is in force between Australia and the countries listed below:

  • Albania
  • Argentina
  • Armenia
  • Austria
  • Bahamas
  • Belarus
  • Belgium
  • Belize
  • Bosnia and Herzegovina
  • Brazil
  • Bulgaria
  • Burkina Faso
  • Canada
  • Chile
  • Colombia
  • Costa Rica
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Dominican Republic
  • Ecuador
  • El Salvador
  • Estonia
  • Fiji
  • Finland
  • France
  • Georgia
  • Germany
  • Greece
  • Guatemala
  • Honduras
  • Hong Kong (China)
  • Hungary
  • Iceland
  • Ireland
  • Israel
  • Italy
  • Japan
  • Latvia
  • Lithuania
  • Luxembourg
  • Macau (China)
  • Malta
  • Mauritius
  • Mexico
  • Moldova, Republic of
  • Monaco
  • Montenegro
  • Netherlands
  • New Zealand
  • Nicaragua
  • Norway
  • Panama
  • Paraguay
  • Peru
  • Poland
  • Portugal
  • Republic of Korea (from 1 June 2015)
  • Romania
  • Saint Kitts and Nevis
  • San Marino
  • Serbia
  • Singapore
  • Slovakia
  • Slovenia
  • South Africa
  • Spain
  • Sri Lanka
  • Sweden
  • Switzerland
  • Thailand
  • The Former Yugoslav Republic of Macedonia (FYROM)
  • Trinidad and Tobago
  • Turkey
  • Turkmenistan
  • Ukraine
  • United Kingdom
  • United States of America
  • Uruguay
  • Uzbekistan
  • Venezuela
  • Zimbabwe

Additionally, the countries listed below have agreed to follow the Hague Convention, but the agreement has not yet been formalised between these countries and Australia at the time of writing. If your child has been abducted to one of these countries, you cannot currently seek a return to Australia under the Hague Convention.

  • Seychelles—acceded in May 2008
  • Morocco—acceded in March 2010
  • Gabon—acceded in December 2010
  • Andorra—acceded in April 2011
  • Russia—acceded in July 2011
  • Guinea—acceded in November 2011
  • Lesotho—acceded in June 2012
  • Kazakhstan—acceded in June 2013
  • Iraq—acceded in March 2014
  • Zambia—acceded in August 2014

Australia also has bilateral agreements on the issue of child welfare with Egypt and Lebanon —called the Australia-Egypt Agreement and the Australia-Lebanon Agreement.

Legislation and resources

For more information on the Hague Convention, including a current status table of each signatory country and the most up-to-date country information, you can visit the Hague Conference on Private International Law- external site website.

You can also visit the official international parental child abduction page for information on how to make a Hague Convention application, and access a copy of the application form.

If your child is already in another country, you may also need to seek specialist legal advice in that country. The Department of Foreign Affairs and Trade (DFAT) may be able to help you locate an English speaking lawyer in the foreign country.

Contact Unified Lawyers today

Unified Lawyers can assist you with every step in returning your child to your custody.

Unified Lawyers can help you to contact the ACA and draft a successful application for the return of your child. We can conduct negotiations on your behalf, help you make an application to the Federal Circuit and Family Court of Australia, and provide specialist evidence to a court in an overseas country.

Unified Lawyer’s experience acting for parents include those who have had a child abducted to countries that were signatories of the Hague Convention and non-ratified countries. This experience will ensure that you obtain the best possible outcome.

Lauren Spence Family Lawyer Sydney

Lauren Spence

Author
Lauren is a passionate family lawyer who genuinely appreciates the emotional difficulty that comes with divorce and separation. Since her admission as a solicitor of the Supreme Court of NSW, Lauren has practiced almost exclusively in the area of divorce and family law.

“All materials throughout this entire website has been prepared by Unified Lawyers for informational purposes only. All materials throughout this entire website are not legal advice and should not be interpreted as legal advice. We do not guarantee that any of the information on this website is current or correct.
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