Hague Convention international return and removal of children

The Family Law Amendment Bill 2023 (Cth) is currently before Parliament. The Bill amends the Family Law Act 1975 to:

  • permit the appointment of independent children’s lawyers (ICLs) in matters brought under the Hague Convention and require ICLs to meet with a child and give them an opportunity to express a view.
More information can be found here: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7011

The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) is an international agreement which provides a means for recovery of or access to children outside of Australia. The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) give effect to section 111B of the Family Law Act 1975 (Cth) which enable both the performance of Australia’s obligations, and the ability of Australia to obtain benefits under the Hague Convention.

The Hague Convention is a multilateral treaty, which provides a procedure for the prompt return of children unilaterally removed or retained away from their country of habitual residence so that parenting disputes can be decided in the jurisdiction where the children are habitually resident. An application under the Hague Convention for the return of a child 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 best interests of the child is not a paramount consideration De L v Director-General Department of Community Services (NSW) [1996] HCA 5; 187 CLR 640; 70 ALJR 532; 136 ALR 201 (10 October 1996).

The dual objectives of the Hague Convention are the “promotion of the return of the child to the state of habitual residence” and “taking measures to prevent child abduction” (per Watts J in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, [87]). 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 [1993] FamCA 103; (1993) FLC 92-416, (1993) 16 Fam LR 982 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 [2020] FamCAFC 65 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.