The abduction and recovery of children from foreign countries has always been a prevalent issue and has been subject to media attention recently with channel Nine’s 60 Minutes crew being imprisoned for allegedly assisting a mother to kidnap her children in Lebanon with the intention of bringing the children to Australia to live.
It is a very distressing time for a parent in the circumstances where their child is being withheld from them in a foreign country. There is legislation that protects parents with parental responsibility and enables them to be able to recover their child that is being wrongfully withheld from them outside of the Australia. Similarly there are other countries that have similar legislation to recover children that have been wrongfully retained in Australia. Most people would be familiar with the story of the Vincenti sisters that were born and lived in Italy until 2010, when their mother moved them to Australia. The father made an application in Italy for the recovery of the children which was successful and the children were returned to Italy.
The Hague Convention
Australia, together with 81 other countries, are parties to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980, known as ‘The Hague Convention’. The purpose of The Hague Convention is to provide a process to bring about the prompt return of the children to their home country.
Each convention country has a Central Authority which acts as an enforcement agency. A request for the return of a child wrongly removed or retained is made to the Central Authority. There are a number of requirements that must be included in an application to the Central Authority to satisfy the terms of the Convention. These requirements are as follows:-
- The child must be under 16 years old;
- The parent must have the ‘right to custody’ in relation to the child;
- The parent must have been exercising rights of custody at the time the child was wrongfully removed from, or retained, outside of Australia;
- The child must have been habitually resident in Australia immediately before the child was wrongfully removed from, retained outside, of Australia;
- The child must have been taken to, or retained in, a country which is a party to The Hague Convention; and
- The child must have been taken from Australia or kept in another Convention country without the consent, or without a court order.
The following describes who has ‘rights of custody’ in respect of a child for the purposes of the Hague Convention:-
- Each of the child’s parents, unless the parent due to an order has no parental responsibility;
- A parent who, under a parenting order, a child is to live with or has parental responsibility;
- A parent without an order but who has parental responsibility for a child due to the operation of the Family Law Act and is responsible for the day-to-day or long-term care, welfare and development of the child.
If an application is successful pursuant to The Hague Convention, it does not necessarily return the child directly to the parent making the application. The purpose of The Hague Convention is to return a child to their home country so the court in that country can determine the parenting arrangements of the child.
Hague Convention Application Statistics
In the 2014/2015 financial year, there were 114 existing applications in the Central Authority, seeking the return of a child that was being held in another country and 82 new applications made in the Central Authority seeking the return of a child that was being held in another country. Out of those applications being dealt with in the Central Authority, only 56 children were successfully returned to Australia.
Conclusion
If you are a parent concerned that you may be placed in a situation where your child could be withheld from you outside of Australia, we recommend that you seek legal advice and ensure that you have the necessary safeguards in place to prevent it from happening. If there are Parenting Orders in place, it is a crime to remove a child from Australia without written consent of the parent and is punishable by up to three years imprisonment.
