How the Hague Convention protects children from international abduction

by Peter Magee on May 24, 2011

The object of the Hague Convention on the civil aspects of international child abduction is to secure the prompt return of a child taken from one convention country to another, being the country in which the child is generally habitual resident, prior to the unlawful retention or removal of the child. There are a number of countries that are signatories to the Convention.

If your child is removed from Australia without your consent, urgent enquiries should be made regarding whether the country the child has been taken to is a country where the convention applies. If so, you should make a request to the Central Authority in Australia to fund and file an application for the return of the child.  Alternatively, you may instruct a solicitor privately of your own choosing at your own expense.

To be an eligible person to file such an application the following must apply:

  • The child is under the age of 16 years;
  • The child is habitually resident in Australia;
  • You were at the time of the abduction exercising parental responsibility;
  • You did not acquiesce to the removal or retention of the child in an overseas jurisdiction; and
  • In relation to the application, the country concerned is a signatory to the Convention.

For a child to be habitually resident in a country, the court will look at the facts of the matter including but not limited to where the child had been living and for what period of time, in addition to the parents’ intentions in relation to remaining living in that country.

Even if the court is satisfied that the child is a habitually resident in a country and therefore should ordinarily be returned, the return of a child may not be ordered if the other party makes out one of the defences. A defence not requiring the return of the child to the country in which they are habitually resident could include that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.  Other defences could include evidence satisfying the court that the applicant consented to, or subsequently acquiesced to the removal or retention of the child.  These are not the only circumstances in which the return of the child may not be ordered.

What you can do to prevent abduction

If you consider there is an overseas flight risk, whereby there is a real risk that the other parent may travel overseas with the child, we advise you to seek advice from a legal practitioner in relation to preventing your child being taken out of Australia first.  A flight risk may evolve if the other parent with which the child lives with or spends regular time with frequently travels overseas, or has family or property interest overseas.  You may need to have an application  filed in court to prevent the child from being removed.

Your matter may be an appropriate case to request an “Airport Watch List Order”.  Upon an application being filed in court, a copy of the application can be served on the Australian Federal Police for your child’s name to be placed immediately on a warning list at all departure points of Australia to prevent the child from leaving the country. The Watch List is in effect at all international seaports and airports.

Otherwise, other options available to prevent your child from being taken outside of Australia include the following:

  • Make enquiries with the Department of Foreign Affairs to object to the issue of a passport for your child;
  • Make enquiries with the passport office and lodge a Foreign Affairs and Trades Child Alert Request form to prevent a passport being issued to the child without your knowledge; and
  • Lastly seek an order from a court exercising jurisdiction under the Family Law Act 1975 ordering that the child’s passports and/or the other parent’s passport be delivered to the court.  Before making the order, the court need to satisfy itself that there is indeed a risk that the child will be removed from Australia.

If you have any concerns regarding the removal of your child from Australia, please do not hesitate to contact one of our solicitors. A solicitor would be pleased to meet with you at our Sydney, Miranda, Parramatta, Wollongong or Canberra offices.

{ 1 comment… read it below or add one }

Child custody laws June 17, 2011 at 11:44 am

Thank you for this open post. You are giving individual an idea for the best thing to do regarding in need of family law solicitor.

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