The Hague Convention received intense media coverage late last year when an Italian father made an application under the Convention to have four children returned to Italy following their Australian mother’s failure to return the children after a four-week holiday in Australia.
The mother appealed the Family Court decision of June 2011 for the children to be returned to Italy. However, on Appeal, the Full Court upheld the original decision. The children were taken from their mother and returned to Italy to their father amidst widespread media coverage.
The Hague Convention of the civil aspects of international child abduction became part of Australian Law on 1 January 1987 with the passing of the Family Law (Child Abduction Convention) Regulations 1987.
The objects of the Hague Convention are aimed at the prompt return of children wrongfully removed to or retained in any Hague Convention country and to ensure rights of custody and of access under the law of one Hague Convention country are respected in others.
In practice, the Hague Convention’s main purpose is for children to be returned to the country of their habitual residence so that the Court in that jurisdiction can determine any issues relating to where they should live. The principles that underpin the Hague Convention are different to the principle that underpins our Family Law Act, known as “the best interests of the child” – applied when making a determination about where a child should live.
For an Application of Return to be successful under the Hague Convention, the applicant must establish that the removal of the child to or retaining of the child in a Hague Convention country is wrongful, that a child was under 16, that the child was habitually resident in that country immediately before their removal or retention, that the applicant has “rights of custody” in relation to the child under the laws of that country, that the child’s removal or retention is in breach of the “rights of custody” and at the time of the child’s removal or retention, the applicant was exercising their “rights of custody” or would have been but for the wrongful removal or retention.
Further, applications should be made within one year of the child or children being removed. Therefore, as Australia is a party to the Hague Convention, our Courts are generally required to order the return of a child or children to his or her home country unless specific circumstances exist for the removal.
In circumstances where children are taken to non-Hague Convention countries, there is no power under Australian law to order the return of the children to their home country.
The mechanisms for seeking the return of children abducted to Non-Hague Convention countries are frequently difficult, cumbersome, expensive and not always successful.
Historically, the Hague Convention has been successful in providing a uniform approach for dealing with the difficult issue of international child abduction by returning children to their habitual place of residence. It aims to avoid parents taking matters into their own hands and “shopping” for the best jurisdiction that suits them to make a decision about children.
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