Chapters

Convention Countries - the Hague Convention

Children may not be taken overseas without the consent of both parents or a court order. If a child has been taken overseas without the knowledge or consent of a parent or retained overseas for a period longer than consent was given, there are steps that can be taken to have the child returned to Australia.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’). If a child is taken to a country that is also a signatory to the Hague Convention, then the child will usually be returned to Australia. Under the treaty, a child must be returned to the home country unless the parent seeking the return has not actually had ‘time with’ with the child for some time, there is a grave risk the child would be harmed if returned, the child objects to the return and is an older child, or if the child has been removed from their home country for more than a year and is settled in the new environment.

Under the treaty, it is not necessary for the person who lost the child to have had a parenting order at the time of the abduction. It is only necessary that the child usually lives in the country from which they were taken, and that the person who lost the child has a legal right under the law of that country to determine where that child may live. The Family Law Act (Cth) automatically gives these rights to each parent on the birth of a child without a parenting order.

The Federal Attorney General is responsible for taking all action to locate and secure a child’s return, at no cost to the parent who lost the child. A solicitor with the Department of Family and Community Services prepares the application. There are a number of signatories to the Hague Convention.

Non-Convention Countries

Many countries that are not signatories to the Hague Convention (including some Pacific Island countries, some of Australia’s neighbours in Asia and some African countries) are still reciprocating jurisdictions for the purpose of enforcing court orders (see Schedule 2Family Law Regulations (Cth) 1984). Australian parenting orders may be registered in these countries. The orders should then be enforced and the child ordered to return to Australia. The Federal Attorney General’s Department may provide legal, financial and practical assistance to track down abducted children to these and other countries.

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