Hague Convention – Child Abduction Lawyers Sydney

Hague Convention – Child Abduction Lawyers Sydney

Hague Convention Return of illegally abducted children

The Hague Convention on the Civil Aspects of International Child Abduction

1. Introduction

The Hague Convention allows for the return of illegally abducted children to Australia. Despite this not all children are successfully returned. Preventative measures can and should be taken to avoid the illegal abduction of your child. In these cases it is vital to retain optimum legal representation, as soon as possible, to improve the prospects of preventing your child’s abduction, or your child returning safely.

2.1 What is a Convention?

A convention is written law which countries may agree to ratify or comply with. If a country fails to comply with a convention once ratified political and legal ramifications may result. The country may be sanctioned by the International Court of Justice and their government come under international scrutiny. For these reasons a ratifying country is generally compliant although for this Hague Convention some countries could be said to be ‘more compliant’ than others.

2.2 What is the Hague Convention?

The Hague Convention is formally known as the Convention on the Civil Aspects of International Child Abduction. This convention contains the rights parents or eligible carers have over illegally abducted children taken overseas. Article 7 of the convention places obligations on the overseas country which include to:

  1. Discover the whereabouts of children;
  2. Prevent harm to children;
  3. Prevent prejudice to anyone involved with the abduction;
  4. Cause the return of your child or amicably resolve issues regarding the child’s care;
  5. Provide general information regarding your child;
  6. Take their own action aimed at returning or providing access to your child; and
  7. Other obligations to safely return your child or otherwise resolve outstanding issues regarding the child’s care.

In the most simple terms, the Convention requires a ratifying overseas country to take steps to organise the return of children to their country of habitual residence, provided:

  1. The children’s country of habitual residence is also a ratifying country;
  2. The parent in the country of habitual residence was exercising rights of custody or access;
  3. The children were wrongfully retained in, or removed to, the overseas country;
  4. The wrongful retention or removal occurred less than 12 months previously;
  5. None of the limited defences apply.

The Convention provides for measures which are procedural in nature. Parenting disputes are then to be determined in the country of the children’s habitual residence, pursuant to that country’s law, once the children have been returned to that country.

A full copy of the convention is available at the following webpage.

2.3 How this relates to parents or legal guardians?

This convention allows international recognition of Australian laws and court orders regarding parenting orders and responsibility of children. The Convention refers to custody of children and rights of access, but both terms are no longer a relevant terms in Australia. This is clarified in our Family Law Act 1975, which at section 111B defines that our types of orders and and arrangements are defined to be custody and access for the purpose of the Convention.

If you have a right of custody or access in Australia, then the Convention requires an overseas country which has ratified the Convention, to enforce those rights. Sarah Bevan Family Lawyers are able to advise you of the steps you need to take.

Not all countries have ratified the Hague Convention. Where a country has not ratified the Convention they have no obligation to recognise Australian orders or parental responsibility. This means it may be much more difficult to have your child returned to Australia. If there is a potential of your child travelling to these countries it is even more important to take preventative measures.

3. Preventative measures

3.1 Airport Watchlist

The Australian Federal Police (AFP) keep a register of children who are at risk of overseas abduction. This is known as the Family Law Watchlist. If your child is on this list the AFP may monitor and restrict your child’s travel. Please contact Sarah Bevan Family Lawyers for advice on placing your child on the Family Law Watchlist.

3.2 Children’s passports

In the absence of Orders allowing for this, a child may not obtain a passport without consent of all parents or legal guardians. If you have concerns regarding your child’s overseas travel you may seek legal advice from Sarah Bevan Family Lawyers before providing consent. You should also complete a Child Alert Request at the Australian Passports Office to indicate that you do not consent to the issue of passports. This action however, comes with no guarantee that it will prevent a child from travelling overseas.

3.3 Be selective with your child’s travel

International travel is now a standard part of many, even most, children’s lives. Travel can offer children a vast array of important experiences and may also enable a child to maintain ties with overseas family. For many people, international travel for their child with their other parent is not something of concern. But for others, it may be highly concerning.

If you want to travel overseas with your child or want to prevent your child from travelling overseas, you should seek advice about this from Sarah Bevan Family Lawyers prior to making any arrangements for travel. If you have concerns your child is about to be abducted overseas, act with urgency.

4. What if your child has been abducted from Australia?

There are a number of steps that may be relevant in your individual circumstances. We will first assist you to contact the Australian Central Authority (ACA) and make any applications for the return of your child on your behalf. This government department communicates with relevant overseas government agents to have your child returned. This process may involve mediation or further court proceedings. At Sarah Bevan Family Lawyers we are able to assist you during the entire process.

Other steps may include making an application to the Family Court of Australia, having us provide specialist evidence to the court in the overseas country, and conduct negotiations on your behalf. Sarah Bevan Family Lawyers has acted in many cases both where a child has been abducted from, and to, Australia involving numerous ratifying and non-ratifying countries.

Further information regarding the process for return of your child may be found at the following Australian Government webpage http://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/Internationalparentalchildabduction.aspx

5. Statistics

The Australian Government has published statistics regarding applications to the ACA for the return of illegally abducted children. These statistics indicate that during the 2014 – 2015 Financial Year 82 children were abducted from Australia to overseas Hague Convention countries. Approximately 34 of these children were abducted to New Zealand, 24 to the UK and USA and 24 to other Hague Convention Countries.

From these 82 child abductions 56 children were returned to Australia. This ultimately means that only around 68.29% of the applications resulted in the return of the child to Australia. Sarah Bevan Family Lawyers are specialists in these types of cases.

These statistics are able to be downloaded HagueConventionapplicationstatistics

6. Summary

Do not delay in seeking advice from Sarah Bevan International Family Lawyers Sydney. Preventing travel is always better than trying to have children returned from an overseas country.

Whatever your circumstances, our specialist advice can assist keeping your children safe, or having your children returned to your care.