International Family Law: Hague Convention & Child Abduction

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.

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.

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.