The Hague Convention and International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty in force between Australia and a number of other countries. It provides a lawful procedure for seeking the return of abducted children to their home country.

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is not, by itself, part of Australian domestic law. The Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) are and are used to interpret the Convention.

The Central Authority is charged with satisfying a signatory country's responsibilities under the Convention. In Australia, that role is ordinary performed by the Attorney General’s Department or the Department of Communities and Justice.

The Regulations compel an Australian court to order the return of a child to his/her home country unless certain specific and exceptional circumstances exist. The best interests of the child is not the paramount consideration and the discretion of a court to refuse to order the return of a child to his/her home country is very limited.

If the matter comes within the scope of the Regulations, the Central Authority must take all action required under the Convention. This usually involves them filing an Application in the Family Court of Australia (or the appropriate court in the convention country where the child is), seeking a return order. In preparing that Application, the Central Authority will give consideration to a request for ex parte orders where the Respondent may be assessed as a flight risk. A PACE alert may also be obtained.

Once the Application has been served on the Respondent, the matter should be listed for hearing within 42 days. 

The Central Authority is not limited to the instructions of the parent seeking the return of the child. The Central Authority has an obligation to be an “honest broker” and to put all relevant information before the court to enable it to implement the Convention. The Central Authority can apply for costs against the person who removed/retained the child, but the Court cannot make a costs order against the Central Authority.  

There are threshold conditions that must be met before a return order is made. The onus is on the Central Authority to establish those threshold conditions which include that the child is under 16 years of age, the child was habitually resident in the convention country immediately before the removal or retention, and that the left behind parent had rights of custody which the removal or retention breached. If a return order is made, it is to the country rather than to a particular person.

If the Application is made more than 1 year after the wrongful removal or retention of the child, then the Court can investigate if the child is now well settled in his/her new environment and has the discretion to not make a return order.

There are limited grounds upon which the court can refuse to make a return order, including that the left behind parent was not actually exercising their rights of custody when the child was removed or retained, the left behind parent consented or subsequently acquiesced to the child being removed or retained, there is a grave risk that the return order would expose the child to physical or psychological harm or place the child in an intolerable situation, the child objects to the return, or the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

This is a complex area of family law that can require you to act or respond very quickly. Please contact PE Family Law to assist you, whether you are the Respondent to an Application, or the left behind parent.