The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) is an international agreement which provides a means for parents to seek the return of their child or children if they have been wrongfully removed or retained in another country, with which the Hague Convention is in force with Australia. This enables parenting disputes to be decided in the jurisdiction where the children are habitually resident. The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) give effect to section 111B of the Family Law Act 1975 (Cth) which implement the Hague Convention in Australia
An application under the Hague Convention can only be made to or from a country that is party to the Convention. Unlike most treaties, the Hague Convention requires other states to accept accessions to the Convention. The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the countries listed here.
Article 13(b) of the Hague Convention provides that a country may deny a return request if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The dual objectives of the Hague Convention, as stated in Article 1 are: “a) to secure the prompt return of children wrongfully to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” It is possible, however, that Hague Convention applications may be used by a perpetrator of domestic or family violence, to coerce or attempt to coerce the return of an abused partner when they have escaped a situation of danger. Australian and international research indicates that most respondents to Hague Convention applications are now primary care-giving mothers, many of whom seek to escape domestic and family violence or child abuse. The requirement to demonstrate “grave risk” or that the return would “place the child in an intolerable situation” can be difficult to meet, even where there is a documented history of family violence and child safety concerns.
In the leading Australian case of Murray & Director of Family Services ACT the court refused an appeal seeking to prevent the return of children to New Zealand in circumstances where the father was a member of a Dunedin motorcycle gang and the mother alleged a serious history of and threats of domestic violence towards her. The court expressed the view that the powers to prevent return should be limited to the most extreme cases of risk, noting there was nothing in a return order requiring the mother to return, or for her or the children to reside in the same part of New Zealand as the father, and that it was offensive to suggest New Zealand courts and authorities would be unable to protect the mother and children from any risk of return.
In the more recent case of Walpole & Secretary, Department of Communities and Justice a mother, who had fled from New Zealand and moved to Australia to escape an abusive partner with a history of child abuse with the assistance of New Zealand police, was initially ordered to return her children to New Zealand when the first instance judge accepted she was separated from the father and that she would return to New Zealand where the children could reside with her. This failed to take into account her history of returning to the abusive relationship, in spite of the disclosure of a protection order in favour of the mother. Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the Hague Convention application matter while failing to obtain the full criminal antecedents or child protection records of the father whom it was aware had left Australia under threat of deportation, necessitating the lesser resourced mother to obtain his Australian and New Zealand antecedents and child protection records for the purposes of her appeal.
In 2022, the Family Law (Child Abduction Convention) Regulations 1986 were amended to put beyond doubt that family violence can be considered before return orders are made for children under the Hague Convention. Furthermore, to protect against domestic and family violence risks, protective measures can be put in place to protect the child from high parental conflict by providing certainty for interim parenting arrangements upon the child’s return until more permanent arrangements are made by a court in the habitual residence jurisdiction. These can be used in conjunction with conditions precedent to return which must be fulfilled prior to, and in anticipation of, the child being returned. Failure to comply will result in a child not being returned.
More recently, the Family Law Amendment Act 2023 (Cth), which came into effect of 6 May 2024, removes the requirement that the court must consider there to be ‘exceptional circumstances’ to justify the appointment of an independent children’s lawyer (ICL) in matters brought under the Hague Convention, and it requires ICLs to meet with a child and give them an opportunity to express a view (section 68L FLA). Under the FLA there is an express statement (section 68L(1) FLA) that Hague Convention matters are to be included in the list of matters involving a child’s welfare as a relevant consideration for the purposes of section 68L FLA. The explanatory memorandum observes that the purpose of this change is ‘increasing the voice of the child in these cases, and therefore prompting the child’s right to be heard’. In May 2024, the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 came into force which repeal the requirement that a child’s objection to a return order must ‘show a strength of feeling beyond the mere expression of a preference or of ordinary wishes’ in order to be considered by the court.
The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) is an international agreement which provides a means for parents to seek the return of their child or children if they have been wrongfully removed or retained in another country, with which the Hague Convention is in force with Australia. This enables parenting disputes to be decided in the jurisdiction where the children are habitually resident. The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) give effect to section 111B of the Family Law Act 1975 (Cth) which implement the Hague Convention in Australia
An application under the Hague Convention can only be made to or from a country that is party to the Convention. Unlike most treaties, the Hague Convention requires other states to accept accessions to the Convention. The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the countries listed here.
Article 13(b) of the Hague Convention provides that a country may deny a return request if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The dual objectives of the Hague Convention, as stated in Article 1 are: “a) to secure the prompt return of children wrongfully to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” It is possible, however, that Hague Convention applications may be used by a perpetrator of domestic or family violence, to coerce or attempt to coerce the return of an abused partner when they have escaped a situation of danger. Australian and international research indicates that most respondents to Hague Convention applications are now primary care-giving mothers, many of whom seek to escape domestic and family violence or child abuse. The requirement to demonstrate “grave risk” or that the return would “place the child in an intolerable situation” can be difficult to meet, even where there is a documented history of family violence and child safety concerns.
In the leading Australian case of Murray & Director of Family Services ACT the court refused an appeal seeking to prevent the return of children to New Zealand in circumstances where the father was a member of a Dunedin motorcycle gang and the mother alleged a serious history of and threats of domestic violence towards her. The court expressed the view that the powers to prevent return should be limited to the most extreme cases of risk, noting there was nothing in a return order requiring the mother to return, or for her or the children to reside in the same part of New Zealand as the father, and that it was offensive to suggest New Zealand courts and authorities would be unable to protect the mother and children from any risk of return.
In the more recent case of Walpole & Secretary, Department of Communities and Justice a mother, who had fled from New Zealand and moved to Australia to escape an abusive partner with a history of child abuse with the assistance of New Zealand police, was initially ordered to return her children to New Zealand when the first instance judge accepted she was separated from the father and that she would return to New Zealand where the children could reside with her. This failed to take into account her history of returning to the abusive relationship, in spite of the disclosure of a protection order in favour of the mother. Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the Hague Convention application matter while failing to obtain the full criminal antecedents or child protection records of the father whom it was aware had left Australia under threat of deportation, necessitating the lesser resourced mother to obtain his Australian and New Zealand antecedents and child protection records for the purposes of her appeal.
In 2022, the Family Law (Child Abduction Convention) Regulations 1986 were amended to put beyond doubt that family violence can be considered before return orders are made for children under the Hague Convention. Furthermore, to protect against domestic and family violence risks, protective measures can be put in place to protect the child from high parental conflict by providing certainty for interim parenting arrangements upon the child’s return until more permanent arrangements are made by a court in the habitual residence jurisdiction. These can be used in conjunction with conditions precedent to return which must be fulfilled prior to, and in anticipation of, the child being returned. Failure to comply will result in a child not being returned.
More recently, the Family Law Amendment Act 2023 (Cth), which came into effect of 6 May 2024, removes the requirement that the court must consider there to be ‘exceptional circumstances’ to justify the appointment of an independent children’s lawyer (ICL) in matters brought under the Hague Convention, and it requires ICLs to meet with a child and give them an opportunity to express a view (section 68L FLA). Under the FLA there is an express statement (section 68L(1) FLA) that Hague Convention matters are to be included in the list of matters involving a child’s welfare as a relevant consideration for the purposes of section 68L FLA. The explanatory memorandum observes that the purpose of this change is ‘increasing the voice of the child in these cases, and therefore prompting the child’s right to be heard’. In May 2024, the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 came into force which repeal the requirement that a child’s objection to a return order must ‘show a strength of feeling beyond the mere expression of a preference or of ordinary wishes’ in order to be considered by the court.