Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
The Hague Convention is an international treaty between countries under which arrangements are made for the return of children who have been wrongfully removed from, or are retained outside, their country of habitual residence.
An example of wrongful retention would be where one parent takes the children from Australia on a holiday to visit family in the USA and once there decides not to return the children to Australia.
Not all countries are signatories to the Hague Convention and the arrangements described only apply where a child has been taken form one Hague Convention signatory country to another.
The Attorney General’s department of Australia is responsible for co-ordinating the implementation of the Hague Convention in Australia.
When courts decide whether or not children should be returned to Australia or sent back to another country, the usual issues that are relevant in deciding Family Law disputes about children (where they live, the time they spend with the other parent) do not apply.
In a Hague Convention matter the court is deciding which country is most appropriate to decide custody issues. That is, should it be where the children are now or the country from where they formerly lived?
For example, an Australian woman marries an Italian man and they set up home in Italy and have children. The marriage is an unhappy one and there are allegations of violence by the husband to his wife and children. The wife flees from Italy where she and the children have lived for some years back to Australia where she lived before her marriage. The decision for the court is whether the matter should be heard in Australia or Italy. If the court decides that it is Italy the children will have to return to Italy until the Italian courts decide the issue of the arrangements for the children.
What are the requirements for an application for the return of a child to Australia from another country?
- The child must be under 16 years of age;
- The person asking for the child’s return must have “rights of custody” in relation to that child. Those rights include the right to have the child spend time with them;
- The applicant must have been exercising the rights of custody at the time the child was taken from Australia. This means that the child must have been living with that person or spending time with them on a regular basis;
- The child must have been habitually resident in Australia immediately before being taken overseas. Habitual residence means the child resided in Australia for an appreciable period and there was a settled intention to continue residing in that country;
- The child must have been taken to or retained in a country which is a signatory to the Hague Convention;
- The child must have been wrongfully removed from Australia or wrongfully retained in another Hague Convention country without prior consent or without a court order.
Under the Hague Convention, on what grounds can the child’s return be objected to?
The Convention establishes the following grounds on which a parent may rely to oppose the return of the child to or from Australia:-
- The child is 16 years or over;
- The child has been outside Australia for over twelve months and is settled in their new environment;
- At the time of the removal or retention, the child was not habitually resident in Australia, or the country to which it is proposed the child be returned;
- The person asking for the child’s return did not have rights of custody or if they had those rights, they weren’t exercising them at the time of the removal;
- The person asking to have the child returned gave prior consent to the permanent removal or retention of that child or, later agreed to the removal or retention of the child;
- The child would be exposed to a grave risk of physical harm, psychological harm or some other intolerable situation if returned;
- The child objects to being returned and is of an age and maturity to justify their views being taken into account;
- The child’s return would be a breach of their fundamental human rights.