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The Hague Convention and International Child Abduction – what are my rights if my child is wrongfully removed from Australia?

By July 28, 2022 No Comments

What is the Hague Convention on International Child Abduction?

On 25 October 1980 the Convention on the Civil Aspects of International Child Abduction (“the Convention”) was concluded in the Hague, Netherlands[1] and entered into force on 1 December 1983.[2]

The Convention currently has 101 contracting parties,[3] which relevantly includes Australia.

The objects of the Convention are to:

  • facilitate the prompt return of children that are wrongfully removed from the country in which they usually reside, provided the foreign country is a party to the Convention; and
  • ensure specific parenting arrangements are respected in foreign countries, provided the foreign country is a party to the Convention.[4]

The Convention oversees the creation of what are called “Central Authorities” in each contracting State. The Central Authorities are required to cooperate with one another if a child gets abducted – for example, by determining where the abducted child is precisely located, facilitating or initiating judicial, legal and/or administrative proceedings, or ensuring the international exchange of relevant information.[5]

What is the “wrongful removal” of a child?

The Convention states that a wrongful removal of a child occurs when:

  • a child is removed from the country in which they usually reside; and
  • the removal is a breach of the legal rights of custody that exist in the country in which the child usually resides.[6]

So, for example, if a separated couple have a child together in Australia, and one parent has been granted full custody of the child under Australian law, if the other parent (who does not have custody) decides they want to take the child to another country, they must have the permission of the parent with sole custody before doing so – otherwise, they face being in breach of the Convention.

What can I do if my child gets abducted into a country that IS a party to the Convention?

If a child you have custody over has been wrongfully removed from the child’s country of residence, you may either:

  • apply to the Central Authority of the country your child normally resides in; or

 

  • apply to the Central Authority of the country you suspect your child has been taken to.

The relevant application form to Australia’s Central Authority can be accessed here: https://www.ag.gov.au/families-and-marriage/publications/application-form-return-child-under-hague-convention. A useful guide by the Australian Government on how to make such an application can be accessed here: https://www.ag.gov.au/families-and-marriage/publications/guide-applicants-applying-return-child-under-hague-convention. In your application to a Central Authority you should include relevant information about yourself, the abducted child, and the person you suspect to have abducted your child. The Central Authority will then attempt to help safely return your child to its usual country of residence.[7]

It should be noted that the Convention only applies to children that are younger than 16 years of age.[8]

In order to know whether the Convention applies between Australia the country you suspect your child has been abducted to, it is best to check the relevant section of the Australian Governments webpage which can be accessed here: https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/hague-convention-civil-aspects-international-child-abduction.[9]

What can I do if my child gets abducted to a country that IS NOT a party to the Convention?

If your child has been removed from their usual country of residence but taken to a country that is not a party to the Convention, the Australian Government recommends you make contact with the Australian Consular Services that exists within the country the child has been removed to. To contact the correct Consular Service, you can call the 24-hour consular emergency helpline on 1300 555 135.

The Department of Foreign Affairs and Trade may also assist you in finding an English-speaking lawyer within the country the child has been removed to.

Joss Legal’s help

The team at Joss Legal have extensive experience with international child abduction cases.

If you are experiencing issues with your child being removed from Australia without your consent, or pre-empt this may be an issue in the future, we encourage you to obtain independent legal advice.

We welcome those experiencing issues in all areas of family law to book a 1-hour $99 initial consultation with one of our knowledgeable but friendly lawyers. Our offices may be easily contacted on 08 6559 7480.

[1] Convention on the Civil Aspects of International Child Abduction 1980.

[2] HCCH, ‘Status Table’ <https://www.hcch.net/en/instruments/conventions/status-table/?cid=24> accessed 1 July 2022.

[3] Please note, however, that while China has signed the Convention, the Convention has not yet entered into force.

[4] Convention on the Civil Aspects of International Child Abduction., Article 1.

[5] Convention on the Civil Aspects of International Child Abduction, Article 7.

[6] Ibid, Article 3.

[7] Ibid, Article 8.

[8] Ibid, Article 4.

[9] Australian Government Attorney-General’s Department, ‘Hague Convention on the Civil Aspects of International Child Abduction’ (01/07/2022) <https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/hague-convention-civil-aspects-international-child-abduction> accessed 1 July 2022.