My children want to stay with me, why must they return to Australia?

by Peter Magee on September 24, 2015

Peter Magee

Recently a UK Judge ordered children be returned to their mother in Australia.  The mother had sent the children to spend time with their father and the children had not been returned.

Australia, along with over 87 other countries, is a signatory to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). By signing the Hague Convention, Australia agreed with the other participating countries to co-operate, for the specific and limited purpose of returning abducted children to their country of habitual residence so that any contested custody proceedings would be heard and determined in that country rather than in the country to which the child has been taken by the alleged abductor.

The object of the Hague Convention is twofold (See Art 1):

Firstly, to secure the prompt return of children wrongfully removed to, or retained in, a Hague Convention country to their country of habitual residence (return applications); and

Secondly, to ensure that the rights of custody and access under the law of one contracting state are effectively respected in other contracting states.(access applications).

The principles underpinning the Hague Convention are as follows:

  1. Abduction, in itself, is normally disruptive and upsetting to the child who is subject to it;
  2. It frequently puts the non-abducting parent at a great physical, litigious and emotional disadvantage; and
  3. Unless quickly repaired, tends to reward abducting parents, confirming their action in taking the law into their own hands.

A Judge hearing the Hague Convention matter is obliged to return the children to their country of habitual residence, they do not consider any substantive issues regarding the custody matter, for example, which parent the children should live with on a long term basis; as it is considered that the appropriate jurisdiction for such matters to be heard is in a Court in the country of the child’s habitual residence. 

Over the years there have been many high profile cases of international parental child abduction, most recently the story of the Italian sisters who were kept in Australia by their mother grabbed headlines not only in Australia but worldwide.

Does anyone remember the Sally Fields movie with ‘Not without my Children’? International Child abduction is a big issue, especially for countries such as Australia, which is a common destination for migration and is a multi-racial in composition.

It might interest you to know that for the majority of international parental child abduction cases reported to the Australian Authority, where the child has departed Australia using their Australian passport, the Australian passport was issued with full parental consent. [Watch this space for a blog on Children’s passports].

A couple of important points for parents to bear in mind……..

  1. Many countries today, remain unwilling to accept the possibility of returning children abducted into their jurisdiction back to their country of habitual residence and as such have not joined the Hague Convention system. When a child is abducted to a non-Convention country, the situation you will face is that there will ordinarily be no effective legal or political sanction or remedy for the parent or child who is a victim of abduction to these countries.
  2. Australia has entered into bilateral agreements with some countries however these are political remedies and only aim to commence a dialogue between the parties; they are not aimed at securing the return of the child to their place of habitual residence.

Even when a country has ratified the Hague Convention, this will only be effective between Contracting States that have declared their acceptance of the accession. What this means is that even where a Country has acceded to the Convention, it is not in force in Australia until Australia has declared that we accepted that country’s accession. There are currently ten countries, which have ratified the Convention, but Australia has yet to accept their accession.  This means the Convention is not in force between Australia and those countries. 

If you would like more information about these matters, or you are concerned your child may have been abducted, make an appointment to come in and talk to us about your options today.

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