If your child has been wrongfully removed or retained from their home country, you may be able to make an application to seek the return of your child under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’).
What is the Hague Convention?
The Hague Convention is an international treaty addressing child abduction. The treaty provides a lawful procedure to return a child to their habitual residence after being wrongfully removed or retained. The Hague Convention is enforced in Australia and is administered by the Australian Central Authority (‘ACA’). Currently, there are about 90 members of the convention.
An application is made to the ACA, who will assess your application against the requirements under the Hague Convention. If the ACA accepts your application, it will then be forwarded to the authority in the country where you believe your child may be.
An application must be made within one year of your child being wrongfully removed or retained from their habitual residence.
Determining if the child was wrongfully removed or retained
The Federal Circuit and Family Court of Australia must consider and establish the following in order to grant a return order.
Age Of Child
The Hague Convention does not apply to children 16 years or over.
Habitual Residence
Immediately prior to the child’s removal, the child must have been a habitual resident in a Hague Convention country. A child can only have one habitual residence and to determine this, the court considers multiple factors, which includes but not limited to, the child’s connection to the country and their parents’ intention to reside in the convention country.
Right of Custody
The parent seeking the return of the child must have a right of custody. Right of custody includes the right to care of the child and the right to determine the place of residence of the child.
The parent’s right of custody must have been exercised at the time the child was removed from their habitual residence, and as a result, the right of custody has been breached.
Exceptions
The court may refuse to grant a return order on the basis of:
What happens if a child was taken to a non-Hague Convention country?
If your child has been taken to a country that is not part of the Hague Convention, then you cannot make an application under the convention. The Department of Foreign Affairs and Trade may be able to provide some limited consular assistance. It is fundamental to obtain legal advice immediately.
If you are concerned that your child may be removed from the country, you should consider adding your child to the Airport Watchlist.
You can further submit a Child Alert Request to the Department of Foreign Affairs and Trade if your child does not have a passport. By submitting this request, it will be part of the consideration before issuing your child a passport.
Next steps
If you or someone you know wants more information or needs help or advice with their family law matter, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian jurisdiction only. You should obtain professional advice before you undertake any course of action.