Protecting Children Across Borders: Understanding the Hague Convention’s Role in Australia’s Family Law System.

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By Shannon Jenkin, Paralegal

What is the Hague Convention?

The 1980 Hague Convention on the Civil Aspects of International Child Abduction, or the “Hague Convention”, is the main international agreement designed to safeguard children from the harmful impacts of parental abduction across international borders.

Why is the Hague Convention significant for family law in Australia?

When a child is wrongfully removed or retained, the Hague Convention offers a crucial legal foundation for parents who have had their children taken overseas without their consent, or who are concerned that their children may be at risk of abduction. This means that if a child is taken from Australia to another country without the other parent’s written consent or permission of the Court, the other parent may utilise the Hague Convention to have the child returned to Australia. The process is initiated by the left-behind parent, who submits an application to the Central Authority in their country of habitual residence. In Australia, this is the Australian Central Authority in the Attorney-General’s Department.

To date, the Hague Convention has had a considerable impact on Australian family law and is an essential instrument for shielding children from the consequences of international kidnapping and retention. It ensures that children are not exploited as bargaining chips in parent-child conflicts and that their welfare always comes first in any decision-making.

An Application under the Hague Convention can only be made if the country where the child is located has signed the Hague Convention and has been recognised by Australia. A list of reciprocating countries recognised by Australia can be found on the Australian Government Attorney-General’s Department website which is linked here.

What legal procedures must be followed when relocating to another country with a child?

As an Australian-based parent planning to relocate overseas with your child, it is essential to seek consent from the child’s other parent initially. If the consent is unattainable, you must take part in mandatory Family Dispute Resolution to negotiate and try to resolve the matter. If no agreement is reached then you must  file an Application with the Federal Circuit and Family Court of Australia to seek Orders to permit your relocation.

Are there any limitations to using the Hague Convention?

While the Hague Convention is an important legal framework, it does not automatically guarantee the return of a child. The abducting parent may argue against the return of the child for various reasons, such as the risk of harm to the child, or the child’s objections to being returned. Additionally, the Hague Convention only applies to cases involving minors under the age of 16.

How can a family lawyer help?

Mills Oakley can provide legal advice and assist with proceedings involving the Hague Convention and also matters where a parent is seeking to relocate overseas. It is essential to seek legal advice early if you are a parent planning on relocating overseas with your children. If you are also a parent concerned that your child may be abducted overseas, then it is important that you speak to us urgently for us to assist you with safeguarding your child’s removal from the Commonwealth of Australia.

For further information, please do not hesitate to contact us.

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