When a child crosses a border under questionable circumstances, the stakes are incredibly high. The Hague Abduction Convention is a multilateral treaty that aims to protect children from wrongful removal or retention across international borders by a parent or guardian.
For parents, this means that if a child under 16 has been taken to or retained in another country without consent of the other parent, and if both Australia and the other country are parties to the convention, there is a legal procedure for seeking the child’s return home.
The convention and Australian Family Law work side by side as the convention decides where parenting decisions should be made, and not what that decision should be.
Once a child is returned to Australia under the convention, any disputes about:
- Parenting responsibilities
- Living arrangements
- Time with each parent
- Travel conditions
These will all be dealt with by the courts under the Family Law Act 1975 (Cth) in the Federal Circuit and Family Court in Australia.
The convention does not apply in every situation. It only works where:
- The child is under 16 years old
- Australia and the other country involved are both convention countries
- The child was habitually resident in one country and then removed or kept overseas in breach of custody or access rights
The heart if the convention is the prompt return of the children. If a child is wrongfully taken from Australia, the convention provides a legal pathway to request their return to Australia so that parenting disputes can be resolved here. The decision will be made by the courts of their country of habitual residence.
It enables parents who have been denied access to the children to request through the convention for the parent to apply for access or contact rights.
It’s important to note as a parent, that the convention does not determine custody status of the children, it only restores the status quo by returning the child to the country of habitual residence
Custody, parenting orders or long-term care decisions for the children remain subject to the domestic laws of that country.
Existing parenting orders particularly provisions about travel, passports or relocation are relevant when determining whether a removal was “wrongful”. Breaching an Australian parenting order by taking a child overseas without consent may trigger Hague Convention remedies.
Exceptions and Complexities
It is important to note it is not a guaranteed fix there are a few exemptions and complicating factors to be considered.
These factors include:
- There is grave risk of physical or psychological harm to the child
- The child objects to returning and is of sufficient maturity
- A significant amount of time has passed since the removal of the children
Cases involving family violence often requires careful preparation and legal support. Each country assesses these exceptions differently. This is why specialised advice is essential.
Practical Steps Parents Should Take
If you believe your child has been wrongfully taken overseas or retained without your consent here are the steps the convention order and where to get help:
- Contact your local police or federal authorities immediately
- Confirm whether the destination country is a Hague Convention County
- Contact the Australian Central Authority to begin a return or access application
- Seek legal advice from a family lawyer familiar with international parenting disputes
- Access support services such as ISS Australia for additional guidance
If a parent applies to relocate overseas with a child, Australian courts consider the potential impact on the other parent and may weigh the risks of future abduction or Hague involvement.
For more information please visit this article on the Australian Attorney-General’s website.
If you are in a situation where your child has been taken without your consent by the other parent overseas and or you are being denied contact to your child, email us at info@icaalaw.com or call us today to book your appointment on (03) 9842 4474.
