International Family Law - Child Abduction (Hague Convention)
International parental child abduction happens when one parent takes their child from its home country without the other parent or the court providing consent.
The Hague Convention on the civil aspects of international child abduction (or Hague Abduction Convention) is a treaty developed by the Hague Conference on Private International law which provides for a prompt process to return a child abducted by a parent internationally from one member country to another. The Convention states that:
“The states signatory to the convention are firmly convinced that the interests of children are of paramount importance in matters relating to their custody, desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”
The Australian Central Authority, within the Attorney-General’s Department, is responsible for administering the Hague Convention. It provides a lawful procedure for seeking the return of abducted children to their home country. It also provides services to obtain contact or access to children overseas.
If an application is necessary, pursuant to the Hague Convention, the first step to be taken is to contact the Australian Central Authority (‘ACA’). The party seeking to make the application must first make an application to the ‘ACA’ which, among other things, must include:
*Date of birth;
*habitual residence prior to removal from Australia;
*passport number; and
*description and photo;
As well as the child’s parents;
*date of birth;
*habitual residence; and
*date and place of marriage (if applicable).
The party making the application (the person who had custody of the child before their removal) must also include their details as well as any information they possess regarding where the child may be and by who the child is being retained. Further details are required regarding the circumstances surrounding the removal of the child from Australia and any legal or factual grounds justifying the application. It is essential to obtain legal advice before applying the ACA to give yourself the best chance of having your application accepted.
The ACA will then assess the application on its merits against the criteria of the Hague convention and provide reasons to the applicant for their decision. If the ACA accepts the application, they will then transfer the application to the overseas Central Authority, who will take further action. Typically, they could contact the abducter and seek the voluntary return of the child to Australia, and then file your application in the relevant court of that country for a decision if a voluntary return is not made.
Generally, for an application of return to be successful, the applicant must establish that the removal of the child is wrongful, and:
*the child was under the age of 16;
*the child was habitually resident in the country immediately before their removal or retention;
*the applicant has ‘rights of custody’ in relation to the child under the laws of the country they were removed from;
*the removal or retention of the child breaches those rights;
*at the time of the child’s removal or retention, the applicant was exercising those rights or would have been if not for the child’s removal or retention.
There are exceptions to the above; being:
*the application is made more than one year after the removal, and the child is now settled;
*the removal was by consent;
*the return of the child would expose them to risk of physical or psychological harm; and/or
*the child objects to the return and is mature enough, in the view of the court, to make that decision.
The Hague Convention is in force between Australia and these countries.
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