Updated: Jul 27, 2020
There is no doubt that we live in a globalised society. In fact, the Australian Bureau of Statistics estimates that there are 7.5 million migrants currently living in Australia. While Smart Traveler estimates that there are around 1 million Australians who live and work overseas at any time. Considering these figures, the possibility is very real that with time cross-continental romantic relationships may develop and children to that relationship may be born. But what happens when the relationship ends and one parent takes the children across the world without the permission of the other parent.
What is The Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction (or more commonly known in family law as simply the Hague Convention) is an international treaty agreement between countries that deals with international parental child abduction and how a parent can seek the return of a child to their home country.
Australia has been a signatory of the Hague Convention since the late 1980s having ratified the Convention on 29 October 1986 with the Convention entering in force on 1 January 1987.
How does the Hague Convention work?
If a parent has taken a child internationally without permission of the other parent or without the permission of a Court the action would generally be considered International Child Abduction upon which the Hague Convention can be invoked depending on whether the Country where the child is taken is a signatory of the Hague Convention.
In the Australian context, if a child has been taken to a signatory country, Australia can take steps to secure the return of the child back to Australia provided that certain requirements are satisfied, namely:
that the child is under the age of 16.
that immediately prior to the child’s abduction the parent seeking the return of the child has had custody rights over that child.
that the child is a habitual resident of Australia.
The parent that has taken the child can challenge the return of the child to Australia on a number of other grounds mainly:
if the child is at risk of harm should they be made to return to their parent in Australia
the child itself objects to their return to Australia
or the child has already settled in the new country.
Whether a case brought under the Hague Convention will be successful or not depends on its own merits but also on whether the country in which the children were taken is a signatory of the Hague convention. For example Lebanon is yet to become a party to the Hague Convention which makes recovery of a child taken to Lebanon a lot more difficult even though the case may be such that the child in question was born in Australia.
It should be noted that while Australia has bilateral agreement with Lebanon since 2010 to implement measures to combat child abduction cases, practice indicates that the measures and procedures are more of an administrative and diplomatic perspective rather than a lawfully binding one.
By contrast, in instances where a child has been abducted by a parent and taken to a Hague signatory country, that signatory country is bound by the Hague Convention to secure the prompt return of children to their home countries. It should be noted however that the procedure is complex, costly and lengthy especially when it takes into account a number of circumstances that led to the abduction. Nonetheless, signatory countries are still bound to take all appropriate measures to ensure that any custody orders made by a signatory country are taken into account when making a decision for the return of the child to their home country.
Notwithstanding the Hague Convention or the bilateral agreement between Australia and Lebanon, you should always consult a family lawyer before you agree to any international travel arrangements involving your children. Here at Ann Legal, our family law solicitors appear in Court regularly and can provide you with legal advice and skilled representation tailored to your circumstances. We serve the Newcastle, Hunter and Central Coast regions. Call us today on (02) 8005 8025.
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