The Hague Convention and international parenting disputes

Australia is a deeply multicultural country. In fact, almost half of Australians have one parent born overseas. For many families, this means that children are also deeply connected to another country. There may be frequent visits, relationships with overseas relatives and even time spent living there.

But when you’re separating, these same close connections can also lead to tricky legal situations, including cross-border parenting disputes, for example, if a child is taken overseas without one’s parent’s agreement or not brought back from overseas when they were expected to be. 

These situations can feel urgent and overwhelming. And unfortunately, Australia has one of the highest per-capita rates of international parental child abduction in the world, with more than 250 cases every year. This is exactly where the Hague Convention on the Civil Aspects of International Child Abduction may help as well. 

What is the Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’) is an international agreement that many countries across the world have adopted, including Australia. (You can view a full list of participating countries on the Hague Conference on Private International Law website.) In Australia, the Convention is implemented through the Family Law (Child Abduction Convention) Regulations 1986, which set out how our courts must deal with return applications.

But the Hague Convention isn’t in place to make custody decisions. It doesn’t decide which parent a child ultimately should live with. Instead, its terms are called upon when there are parenting disputes that span two countries because its focus is on determining where those decisions should be made. Its overarching goal is to return children to their ‘home country’ so parenting matters can be determined under that country’s laws. 

When does the Hague Convention apply?

Even as an international convention, the Hague Convention won’t apply to every international parenting dispute. There are a few key criteria that must be met first. These include:

1. The child in question must be under 16
2. The child was habitually living in a country that’s a signatory to the Hague Convention before the issue arose (this includes Australia)
3. The other country involved is also a signatory to the Hague Convention
4. The child was removed or in breach of someone’s parenting rights under the law of the home country, and that person was exercising those rights, or would have been if the child hadn’t been removed

One of these factors that is the most disputed is what makes a country the child’s ‘habitual residence’. Typically, this comes down to where the child was living on a day-to-day basis before the move, rather than their citizenship or even where they were born. 

To understand this, the court will look at things like schooling, their routine and where their life is primarily centred. The intention of the parents and the duration or settled nature of their stay in the country are other factors the court will also consider. 

What is considered international parental child abduction?

The term ‘international parental child abduction’ can sound very extreme, but under family law, it has a broader meaning. It doesn’t only refer to criminal kidnapping – though it certainly does cover that. It also includes situations where:

• A parent takes a child overseas without the other parent’s consent
• A child travels overseas with permission but is not returned 
• A parent relocates a child internationally without court approval

In many cases, there isn’t malicious intent. In fact, often the parent involved in removing or failing to return the child believes they are acting in the child’s best interests. However, if the move breaches the other parent’s legal rights, for example, if they haven’t agreed to the international move or it’s in breach of existing court orders, it can still fall within the definition of international child abduction under the Hague Convention.

In some situations, a parent can still be in breach even if there are no existing orders, if removing the child breaches the other parent’s rights of custody under the law of the child’s habitual residence. An example of this might be where both parents have joint parental responsibility by operation of law. 

How the Hague Convention process works in Australia

If the Hague Convention does apply to a particular situation, there is a structured process that follows in Australia. 

Step 1: Make an application through the Attorney-General

In Australia, the first step is to make an application through the Attorney-General’s Department, which acts as the authority in Australia under the Hague Convention (known as the ‘Central Authority’) and is responsible for processing applications and coordinating return proceedings. 

Your family lawyer can provide legal assistance to help with your application.

Step 2: The application is assessed

In Australia, the Attorney-General’s Department, acting as the Central Authority, reviews the application to determine whether the Hague Convention criteria have been met.

Step 3: Court proceedings begin

If the Attorney General decides that the criteria have been satisfied, and the child has been brought to or retained in Australia, the matter is then brought before the Federal Circuit and Family Court of Australia. Its goal then will be to decide whether or not the child should be returned to the original country, not who they should live with in the long term or any other long-term parenting arrangements. If the child has been taken from Australia, then the Australian Central Authority will liaise with the central authority where the child is, to commence court proceedings there.

Step 4: The court’s decision

Ultimately, the court will make a decision. There are typically two possible outcomes, which are:

1. A return order requiring the child to go back to their home country
2. A refusal if certain exceptions apply

What are the exceptions to returning a child?

While the Hague Convention supports returning children to their home country, there are some important exceptions. A court may refuse to order a return if:

• There’s a serious risk of harm to the child
• The child objects and is mature enough for their views to be considered
• The other parent consented to, or later accepted, the move
• More than 12 months have passed, and the child has settled into the new country

These exceptions are carefully considered and are not applied lightly. For example, a claim of serious risk must be supported by clear evidence, such as family violence, abuse or circumstances that would place the child in an unsafe environment if they were returned.

Of course, every case is decided on its own facts. That means that outcomes can and should vary depending on your specific circumstances and the evidence that’s available. 

Speed and urgency guides every step

These cases are often urgent and are treated as such. The Hague Convention and the Central Authority’s aim is to resolve them as quickly as possible to minimise any disruption and other negative consequences for the child. Article 11 provides that all authorities shall ‘act expeditiously’ and that if a decision isn’t made within six weeks from the start of the proceedings, the applicant may request a statement about why there is a delay. 

The practical result is that Hague Convention applications are prioritised and fast-tracked, with courts aiming to resolve them within a matter of weeks, with six weeks used as a benchmark for how quickly courts should aim to decide them. In practice, however, some cases could take several months from filing to final decision, but they are still treated as urgent and listed more quickly than most family law matters.

How these matters differ from relocation cases

It’s easy to assume the Hague Convention deals with the same situations as international relocation cases. The big difference is when they come into play. 

Relocation cases are generally where one parent is seeking permission to move a child interstate or overseas before it happens. On the other hand, Hague Convention matters deal with what happens after a child has already been taken overseas. 

If you’re considering making a move overseas with your child and you’re divorced or separated, it’s important to understand the difference. There are circumstances where you can move your child overseas, but it’s always best to work together with the other parent and seek permission prior to making the move, rather than find yourself coming under a Hague Convention issue. 

What to do if you’re dealing with an international parenting issue

If you’re separated or divorced and want to take your child overseas, timing and communication matter. Making decisions with the consent of the other parent is the best way to avoid finding yourself in an international parenting dispute. If they won’t give consent, you can seek court orders to allow you to travel or even move overseas with your child. 

If your child has been taken overseas without your consent, you need to act quickly. Delays can affect your outcome negatively and can actually be a factor in the court’s decision-making process. So, seek legal advice as soon as possible, and if the Hague Convention is the right approach, make the application quickly. 

If you’re being accused of wrongfully removing or keeping a child from returning to a country, get legal advice as soon as you can, and certainly before responding to any applications or before making any additional decisions. These situations can escalate quickly, and early guidance can make a huge difference. 

Working with lawyers experienced in Hague Convention matters

International parenting disputes are complex. They involve different legal systems, urgent timelines, and since they involve your children can be very high stakes as well. Having the right support is vital for legal and practical reasons, of course, but also emotionally.

Our team has experience in Hague Convention matters and understands how to navigate both the legal process and the practical realities involved. Many of our lawyers have worked on matters involving international child abduction and cross-border parenting disputes. 

Getting the right advice early can significantly impact the outcome of your matter. If your child has been taken overseas, contact our experienced family lawyers today for no-obligation advice. We’re here to help.