The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) is the main international agreement that covers international parental child abduction and provides a process through which a parent can seek to have their child returned to their home country.
In Australia, the Australian Central Authority in the Attorney-General’s Department is responsible for administering the Hague Convention.
An application under the Hague Convention for the return of a child can only be made to or from a country that has signed and ratified the Hague Convention. There are over 80 countries worldwide where the Hague Convention is in force. For the full list of member countries, please visit the following page: https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/hague-convention-civil-aspects-international-child-abduction
Ultimately, the Hague Convention provides a lawful procedure for seeking the return of an abducted child to their home country.
According to the Central Authority, in the 2017-2018 year, 143 applications were made to other Hague Convention countries where Australian children had been wrongfully removed to or retained in and 162 applications were made to Australia from other Hague Convention countries.
So, what can or should you do if you think your child is at risk of being removed from Australia?
If you’re worried that your ex-partner is thinking of removing your child from Australia without your consent, you should seek legal advice immediately.
There are also a number of quick and immediate steps you can take. If you have your child’s passports and birth certificates in your possession, you should store these in a safe place.
If the other parent has these documents or you are worried about the other parenting obtaining these documents, it may be appropriate to obtain a Child Alert Request to prevent the issuing of a passport to your child.
A Child Alert Request is, in effect, a warning to the Department of Foreign Affairs and Trade that there may be circumstances that need to be considered before issuing an Australian passport or other travel documents to a child.
If you have sole or shared parental responsibility for the child, you can submit a Child Alert Request on the Australian Passport Office website.
However, a Child Alert Request will not prevent your child from travelling if they already have an Australian or other passport. To stop a foreign passport from being issued to your child, you will need to contact the embassy, high commission or consulate in Australia.
You should also contact the Australian Federal Police and an expert family lawyer for advice on placing your child’s name on the Family Law Watchlist. Once on the Family Law Watchlist, if an attempt is made to remove your child from Australia, they will be prevented from doing so.
To place your child’s name on this list you must either obtain a court order or have filed an application for a Court Order to be made to prevent your child being taken from Australia. You must also notify the Australian Federal Police of your Order or Application by filling in specific forms for the Family Law Watchlist.
What can I do if my child has already been removed from Australia and/or is being retained in another country?
If your child has already been removed from Australia or is being retained in another Hague Convention country for longer than what you had agreed to, you should seek immediate expert legal advice.
If your child has been taken to a country that has not ratified the Hague Convention, you may be able to obtain assistance from the Consular Branch of the Department of Foreign Affairs and Trade.
If your child has been taken to or retained in another country that has ratified the Hague Convention, the Australian Central Authority may be able to assist you in facilitating their return.
The process is, very broadly, as follows:
- An application is filled out and made to the Australian Central Authority who then assess the application against the Hague Convention;
- If the application is accepted by the Australian Central Authority, it will be transferred to the relevant Central Authority in the Hague Convention country where the child has been removed to or retained;
- The overseas Central Authority then decides what action to take, such as mediation, seeking the voluntary return or filing a court order for the return of the child;
- If a court application is required, both parties will need to provide evidence in support of or response to the application;
- The Court may have several hearings on the matter before a final determination is made.
My Partner Won’t Allow Me to Travel with my Child. What Now?
If you and your partner cannot agree on travel plans, you should not take matters into your own hands by traveling without their consent as this may constitute a criminal offence punishable by up to 3 years in prison.
Instead, you should refrain from travelling overseas until a Court application has been made and an Order permitting same has issued.
In determining whether to permit overseas travel, the Court will consider a number of factors that are relevant to deciding what is in the best interests of the child.
Generally, the court will consider the parenting circumstances, the relationship between the parents, the length of the proposed trip, the age of the child, the proposed destination for the trip (e.g. whether the proposed destination is a Hague Convention country) and whether the court has any reason to think that the child will not be returned by the parent after the trip.
If you are successful in obtaining an order from the court, then you will be permitted to take your child overseas without the consent of the other partner, as long as you follow the court’s orders. While the terms of each specific Order will vary, these types of Orders usually include giving notice to the other parent of the intended travel, providing the other parent with a travel itinerary and providing them with proof of return airfare ticketing. The court may also ask you to ensure that the other parent can communicate with the child while they’re travelling.
If necessary, the court can also make specific orders which will outline where a person is allowed to take a child. For instance, these orders may forbid a parent taking a child to a country that hasn’t signed up to the Hague Convention, or to countries where the Department of Foreign Affairs and Trade have issued a warning.
Consult our International Child Abduction Law Experts
Whether you are concerned about your child being removed from Australia without your consent, whether you need to take steps for the return of your child to Australia, or you need advice with respect to obtaining Orders permitting you travel overseas with your child, you should seek immediate and expert legal advice.
There are numerous members of our team who have a great deal of experience in international family law matters, including our Principal, Damien Greer, who has been practicing in the field of international family law for over 30 years. Over that time, we have developed close relationships with many family law practitioners abroad who we work closely with when matters with an international aspect arise. For more information or to arrange a discussion with one of our team members, please call us on (07) 3837 5500 or get started online today.