What is the Hague Convention? Understanding International Abduction Law

Parenting and child custody agreements are developed to support the best interests of children following a divorce or separation. Whilst the Family Court formalises custody and parenting agreements, it’s possible for parents to breach these arrangements, which may result in enforcement applications or even revisiting of the original arrangement to grant the compliant parent with greater responsibility and autonomy (i.e. primary custody or even sole custody).    Breaches of parenting agreements can vary from failure to uphold time commitments, to even taking children on holiday interstate or overseas without the permission of the co-parent. In cases where a co-parent either hasn’t approved or has failed to be notified of travel plans or there are Court orders preventing children from leaving the state with one of their parents, the remaining parent can claim a violation of the Hague Convention and report the incident as a child abduction.   The Hague Convention is a complicated component of not only Australian Family Law but also international law. Today, our Family Lawyers here at Oxford Partners Lawyers will provide more insight into the Hague Convention and how this international agreement may affect your Family Law matters.

What is the Hague Convention?

Originally developed in 1980, the Hague Convention on the Civil Aspects of International Child Abduction is an international agreement (recognised by around 40 countries worldwide) that defines criteria for international parental child abduction.    The Hague Convention effectively provides legal infrastructure for supporting the return of abducted children to their home country. The Hague Convention also supports parents in maintaining legal rights to contacting or securing access to their abducted children while the children are still overseas.   The Attorney-General’s Department acts as the Australian Central Authority, which tasks them with administering the Hague Convention for Australian residents. For Australian parents looking to file a Hague Convention application or file an application for access to children overseas, these actions can be done through the Attorney-General’s Department and with support from your dedicated Family Lawyers.

When does the Hague Convention apply?

Under the Hague Convention, parents have a right to seek to have their child returned to their home country if that parent claims the child was taken without their permission and without the authorisation of the Court.    Under Australian Family Law, co-parents can either engage in family mediation or file a formal Court application to secure approval for overseas relocation or travel with children. If the travel plans aren’t approved by a co-parent proceeds to travel with those children, the remaining co-parent can file a court order to have the children returned under the Hague Convention (i.e. via filing a Hague Convention application).    Note: if a child has been relocated to a foreign country that does not recognise the Hague Convention, a Family Lawyer can still offer guidance in having the child returned to their home country. In these child relocation cases where the child’s home country is Australia, the Department of Foreign Affairs and Trade may need to intervene to assist parents in securing services with a lawyer based in that non-Hague country. 

Australian Law and International Abduction: What to do if your child is abducted?

If you have reason to suspect that your child has been abducted by a parent and you have reason to be concerned for the welfare and safety of that child, the first step is to report the matter to your local police immediately and file a police report.   From here, your local police officials can offer assistance with notifying the Australian Federal Police. If there’s a chance your child has not yet left the country, the federal police force may be able to flag their passport and prevent them from being removed from Australia on sight at the airport.   If your child is confirmed to have left the country and has been taken to a country that honours the Hague agreement, the Australian Central Authority may be able to assist you in filing a Hague Convention application and facilitating the prompt Court-ordered or voluntary return of your child.   If your child has been taken to a country where the Hague Convention is not enforced and there is no other separate agreement with Australia pertaining to international parental child abduction or other laws, you may still be able to secure assistance from the Consular Branch of the Department of Foreign Affairs and Trade. 

How to file a Hague Application: step-by-step

If your child has been abducted (i.e. has been wrongfully removed from Australia, or is being wrongfully retained in a Hague Convention country without your consent), you have the right to promptly file a Hague Convention application to the Australian Central Authority.    The Attorney-General Department has outlined a full overview of the Hague Convention application process on their website, which stipulates the following consecutive steps in the context of a successful Hague application:

• Application received by the Australian Central Authority (ACA)
• ACA assesses application against the Hague Convention
• Application accepted by ACA, transferred to relevant Central Authority in the Hague country
• Overseas CA takes appropriate action (i.e. mediation, voluntary return, filing in Court for the return of the child)
• Order for the return of the child is made, and the child is returned

Note that Court proceedings in the child’s host country may be lengthy, as the respondent may file evidence in their defence which may need to be reviewed across multiple hearings and Court dates. For this reason, most central authorities will advocate for mediation to arrange a voluntary rather than a Court-ordered return. 

Establish child custody and parenting agreements with support from Oxford Partners Lawyers

Understanding the Hague Convention is essential for co-parents who are looking to travel with their children often, whether to visit family living overseas, or for the enrichment of those children during school holiday periods.    With strong and mutually agreed upon child custody and parenting arrangements, you can ensure your family can enjoy quality time interstate and even overseas with minimal risks of violating the Hague Convention. However, if you do seek to file a Hague Convention application, our legal team can assist. Get in touch by calling us at (03) 9670 7577 or via web enquiry to book your free preliminary consultation with Oxford Partners Lawyers.