The Hague Convention and International Child Abductions
The Hague Convention and international child abductions go hand in hand where there is an overseas party threatening to take a child. The Family Law (Child Abduction Convention) Regulations 1986 compel the Federal Circuit and Family Court of Australia (“FCFCOA”) to order the return of a child to their home country unless specific and exceptional circumstances exist. The Court orders the return to the child’s home jurisdiction, not to a particular person.
The Regulations apply to children under the age of 16 who are habitually resident in another country immediately before their removal to or retention in Australia. Citizenship is irrelevant to the question of habitual residence. This retention or removal is unlawful if another person has a right of custody over the child which was being exercised at the time of the wrongful retention or removal.
A person has a period of 12 months from the date of the removal or wrongful retention of the child to bring proceedings pursuant to the Regulations, commonly referred to as “Hague Convention Proceedings”. These proceedings are brought with the assistance of and managed by the Central Authority in the home country of the person seeking the return of the child.
There are limited grounds on which a court can refuse to order the return of the child to the other country. These are only if the case for return isn’t made out because the person seeking the return either did not have or was not exercising a right of custody at the time of the wrongful removal or retention; or if there would be a grave risk of harm or an intolerable situation if the child was to be returned or; the application is made more than 12 months after the wrongful removal or retention of the child and the child is settled in the new jurisdiction. In some cases, the child’s objection to returning to the other jurisdiction can be reason enough to refuse the application.
If the Regulations apply, the Court must hear and determine any application made under them before any application for parenting or other orders made under the Family Law Act 1975 (Cth). If the Regulations do not apply the Court must refuse to return the child to the other jurisdiction.
The Regulations apply between countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. Below is a list of Countries that are signatories to the convention in force with Australia as at 13/09/2023:
- Bosnia and Herzegovina
- Burkina Faso
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- Moldova, Republic of
- New Zealand
- Republic of Korea
- South Africa
- Sri Lanka
- United Kingdom of Great Britain and Northern Ireland
- United States of America
- Venezuela (Bolivarian Republic of)
The below countries have acceded to the Hague Convention, but it is not yet in force between these countries and Australia:
- Seychelles—acceded in May 2008
- Morocco—acceded in March 2010
- Gabon—acceded in December 2010
- Andorra—acceded in April 2011
- Russia—acceded in July 2011
- Guinea—acceded in November 2011
- Lesotho—acceded in June 2012
- Kazakhstan—acceded in June 2013
- Iraq—acceded in March 2014
- Zambia—acceded in August 2014
If your child has been abducted to one of these countries, you cannot seek a return to Australia under the Hague Convention.
Bilateral agreements with Egypt and Lebanon
Australia has bilateral agreements on international parental child abduction with Egypt and Lebanon. These are known as the Australia-Egypt Agreement and the Australia-Lebanon Agreement.
More information about how these agreements work and how applications are processed is available on the Attorney-General’s Department website here: https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/international-parental-child-abduction
Application forms for each agreement are available, which include a statutory declaration form which must be submitted with your completed application.
If you are concerned that your child may be abducted out of the country or your child has been abducted already, please do not hesitate to give our team a call on (03) 9793 7888 or send us an email at email@example.com