Australian Process of Applying for a Hague Convention for the Return of a Child

By Madisson Webber, Lawyer

What is the Hague Convention?

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is an international agreement.  As of the time of writing, there are 103 contracting parties to the Hague Convention.

The Hague Convention provides a legal framework for the return of a child who has been unlawfully abducted to another country, ensuring their return to their home country.  In Australia, the Australian Central Authority is responsible for administering the Hague Convention.  It is implemented through section 111B of the Family law Act 1975 (Cth) (“the Act”) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

Where is it in Force?

Aside from Australia, the Hague Convention is in force in several countries, in relation to which Australia has accepted the accession of those countries, including:

1. New Zealand;
2. Unites States of America;
3. Canada;
4. United Kingdom; and
5. Singapore.

There are several countries which have not acceded to the Hague Convention, (including many which have provided numerous migrants to Australia), including:

1. India;
2. China;
3. Indonesia;
4. United Arab Emirates; and
5. Malaysia.

Although the Hague Convention has been acceded to by the countries listed below, Australia has not yet accepted this accession, and the Convention is not in force between Australia and these countries:

1. Morocco;
2. Russia;
3. Iraq;
4. Philippines; and
5. Pakistan.

Process of Applying for the Return of a Child in a Non-Hague Convention Country

It is important to note that if your child has been abducted to a country where the Hague Convention has not been acceded to, or in relation to which the Convention is not yet in force between Australia and that country, you cannot seek the return of the child under this framework.

In such cases, the Department of Foreign Affairs and Trade (“DFAT”) may be able to offer limited consular assistance and advice.  You should otherwise seek legal advice in that other country if the other parent refuses to return with the child.  If unsuccessful, you may be able to file an application in the Federal Circuit and Family Court of Australia (“Family Court”) seeking the return of your child, but please note it is very likely that proceedings will be required to be filed in that other country.

Under section 69E of the Act, proceedings may be instituted for the return of the child if:

1. The child is present in Australia on the relevant day; or
2. The child is an Australian citizen or ordinarily a resident in Australia on the relevant day; or
3. A parent of the child is an Australian citizen, is ordinarily resident in Australia or is present in Australia on the relevant day; or
4. A party to the proceedings is an Australian citizen or ordinarily resident/present in Australia on the relevant day; or
5. It would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

This is further codified by section 111CD of the Act, which stipulates that a court may exercise jurisdiction for a Commonwealth personal protection measure in various circumstances, including the following:

1. A child who is present and habitually resident in Australia; or
2. A child who is present in a country which is a party to the 1996 Hague Child Protection Convention (“the 1996 Convention”) in various circumstances; or
3. A child who is present in a country which is not a party to the 1996 Convention, if:

a). the child is habitually resident in Australia; and

b). any of the relevant paragraphs applies to the child.

Elements of an Abduction

Under the Hague Convention there are a number of elements that must be established before a court can make a return order, including:

1. The child is under 16 years of age;
2. Immediately prior to the child’s removal, they were habitually resident in the country they were removed from;
3. The wrongful removal of the child is in breach of the other parent’s parental rights; and
4. The parent seeking the return of the child must have been exercising those parental rights at the time of the abduction or would have been exercising them if the child had not been removed or retained.

Exceptions to Return

Under Regulation 16 of the Regulations, there are several exceptions to the Courts’ obligation to return an abducted child, including:

1. The parent opposing the return of the child is able to prove that the parent seeking the return of the child provided prior consent;
2. The parent opposing the return of the child is able to establish that it would pose a grave risk in the sense that the return would expose the child to physical and/or psychological harm;
3. If a child reaches an age of maturity at which it is appropriate for the court to consider their views, and the child objects to being returned; and
4. The return of the child would not otherwise be permitted by the principles relating to fundamental human rights and freedoms.

The Court’s Duty

The Family Court is required to order the return of the child under Regulation 16 of the Regulations if the above exceptions are not met.   Additionally, an application for the return of the child must be made and filed within one year of the child being removed and the Court must be satisfied that the child’s removal was wrongful.

It is important to note that if a request has been made for the return of a child from Australia to another Hague Convention country, the Court is prohibited from making final parenting orders for the child until the Hague Convention application is resolved.

Kennedy Partners has extensive experience in dealing with international family law matters, many of which are relocation matters.

Feel free to contact us on 9618 7300 to discuss the Hague application process in more detail.