Parental Child Abduction – Hague Convention
If your children are abducted by the other parent and taken outside of Australia to another country without your permission or the court’s permission, it will be more or less difficult for you to have your children returned back to Australia, depending on whether the country they are in is a signatory to the Hague Convention.
The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement between some countries that covers international parental child abduction.
The Attorney General website lists the countries which are a party to the Hague Convention and are therefore ‘Hague Convention Countries.
Australia is a signatory to the Hague Convention along with more than 70 other countries and has been since 1980.
The Family Law (Child Abduction Convention) Regulations 1986 enact into Australian law the matters covered by the Convention.
The Hague Convention itself is of no force and affect in Australia. The Australian Courts are only bound by the Regulations and case law when determining Hague Convention Applications.
Notably, Hague Convention Applications brought under the Regulations are not subject to the paramountcy principle that the best interests of the child is the primary consideration.
The object of the Convention and the Regulations is to secure the prompt return of abducted children who have been wrongly removed from or retained in a convention country.
The Convention also has the affect of securing recognition in other convention countries of parental rights over a child under the law of the child’s home country. In other words, signatory countries to the Hague Convention accept that disputes in relation to children are best determined by the courts in the country with which the child has the most obvious and substantial connection, following the child’s return to that country.
International Parental Child Abduction to a Hague Convention Country
The Hague Convention makes it easier to recover your child from a Hague Convention country and have them returned to Australia.
If your child has been either abducted or retained overseas by the other party for a period longer than agreed, the Hague Convention permits you to make an application to that country through the State Central Authority to seek the return of your children returned to Australia.
The Regulations which have ratified the Hague Convention in Australia compel Australia to order the return of a child to their home country unless specific exceptional circumstances apply. Discretion to refuse to order the return of a child to his or her home country is very limited.
What is the criteria to be satisfied before the Court will make a return order?
An application under the Hague convention is brought under Reg 14 of the Regulations for the return of a child who has been wrongfully removed from or retained in a Hague Convention Country.
The four criteria under Reg 16 of the CA Regulations for an application under the Hague Convention pursuant to Reg 14, which must be satisfied to fall within the scope of the Regulations, for return of a child to another country or to Australia from another country, are:
- There must be an eligible applicant – Usually the Central Authority makes the application on your behalf or otherwise, the application must be made by a person with rights of custody in relation to a child;
- There must be a relevant child (a child under 16);
- The child must have either:
- Wrongfully removed to, or retained in, Australia from another convention country;
- Wrongfully removed to, or retained in, another convention country from Australia; and
- The application is made within one year of the date of removal / retention (except if the child has not settled into their new environment).
If the application is filed over a year ago and the child is settled in their new environment, there is no obligation on a court to order return of the child.
The onus of establishing this is on the party who asserts that the child is settled in their new environment.
This is only relevant if the application is filed over a year ago, not under a year ago such that it doesn’t matter if the child is settled in their new environment if the application is filed in under a year.
Unless one of the narrow exceptions under 16(3) apply, the court must make the return order.
Wrongful Removal / Retention
The removal/retention is wrongful under Reg 16(1A) when:
- The Child is under 16;
- The Child habitually resided in a convention country immediately before the removal to/retention in Australia
- The applicant had rights of custody under the law of the country in which the child habitually resided immediately prior to the removal/retention in Australia (reg 4(2) says a person/body has rights of custody if the child was habitually resident in Australia or in a convention country immediately before his/her removal/retention)
- The child’s removal/retention was in breach of those rights of custody;
- Those rights were actually being exercised at the time of the child’s removal or would have been exercised but for the removal.
The child’s country of habitual residence immediately before the child’s removal/retention is central to determining whether a person has rights of custody in relation to a child: Reg 4(1) CA Regs.
Notably, it is the habitual residence of the child not the parent.
Habitual resident is not defined in Regulation 4 but pursuant to the case law, it comprises 2 elements:
- Actual residence in a particular country for an appreciable (not necessarily long) period; &
- A voluntary, settled intention (i.e. an intention that is unlikely to change in the short term) to reside in that country habitually: Re B (Minors) (No 2) .
A person does not cease to be habitually resident in a country just because they are out of the country temporarily (e.g. an employee working overseas even for a year). There must be an intention that the country be their ordinary place of residence.
For the purpose of the Regulations, a person can only have one place or habitual residence at any given time but it is possible for a person who lives for part of each year in one country and part of each year in another country to have different places of habitual residence at different times of year: Re A .
Rights of Custody
Under Regulation 4(1), a person, institution/other body has rights of custody re a child if:
- The child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
- Rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
For the purposes of Regulation 4(1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child: Reg 4(2).
Section 111B(4) of FLA specifies when a person has custody of or rights of custody in relation to a child for purposes of the Hague Convention and says that each of the parents of a child has rights of custody unless they have no parental responsibility for a child because of a court order, and a person who has a court order for PR and with whom child is to live has rights of custody.
If the above elements are satisfied this does not mean that the court must make a return order. There are exceptions under sub regulation 16(3) wherein the court can still exercise discretion to refuse to make a return order if one of those exceptions is satisfied.
Grounds for declining to order the return of a child
There are 6 grounds under Regulation 16(3) where a court has discretion to i.e. can refuse to order the return of a child to its home country even though the child has been wrongly removed to/retained in Australia including if there is a grave risk that the return of the child would expose the child to physical/psychological harm or place the child in an intolerable situation. There is a further exception if the child objects to being returned where the child has a strength of feeling about the view and the child is of an age/degree of maturity that it is appropriate to take account of the child’s views.
The onus of establishing one of the discretionary grounds for declining to order the return of the child lies on the person opposing the child’s return: DP v Cth Central Authority; JLM v Director-general, NSW DOCS (2001).
Importantly, if a person opposing the child’s return establishes one of these ground it does not mean that the court must then refuse to make an order for the child’s return, it just means the court has a discretion whether to order return of the child.
A summary of each of the discretionary grounds under Regulation 16(2) and (3), where the court CAN refuse to order the return of the child, are as follows:
- The person/institution/body applying for the return of the child was not exercising rights of custody when the child was removed to/first retained in Australia and would not have exercised those rights had the child not been so removed/retained: 16(3)(a)(i);
- Where the person/institution/body applying for return of the child had consented to or subsequently acquiesced in the child being removed to/retained in Australia: 16(3)(a)(ii);
- Where there is a grave risk that return of the child under the Convention would expose the child to physical or psychological harm or place the child in an intolerable situation: 16(3)(b);
- The child objects to being returned, with a strength of feeling beyond the mere expression of a preference or of ordinary wishes and has attained an age and a degree of maturity at which it is appropriate to take into account of his/her views: 16(3)(c);
- The return of the child would not be permitted by the fundamental principles of Australia relating to protection of human rights & fundamental freedoms: 16(3)(d);
- The application for return of the child was filed over one year after the day on which the child was removed to/first retained in Australia and the court is satisfied that the child is settled in its new environment: 16(2).
Unless one of the narrow exceptions under 16(2) and (3) apply, the court must make the return order.
Grave Risk Defence
The Court can refuse to order return of the child if there is a grave risk that the return of the child to the country in which they habitually resided immediately prior to the wrongful removal/retention would expose the child to physical/psychological harm or otherwise place the child in an intolerable situation.
This does not require certainty that the child will be exposed to this physical/psychological harm but there must be a grave risk of this occurring.
The burden of proof is on the person opposing the return of the child to prove that there is a grave risk to the child of being exposed to physical/psychological harm or that the child would be placed in an intolerable situation.
This defence focuses on the risk of harm.
Grave Risk Case Studies
In E (Children) (FC) (2011) FLC the court chose to return the child to the father in Norway where mother had removed them to England as the threat of violence was to the mother and not to the children and the appeal was dismissed on the basis that the Hague convention is for the benefit of the children, not the adults.
Given that violence and abuse between parents can constitute a grave risk to children, where there are disputed allegations which cannot be tried or objectively verified, the focus of the Court is on the sufficiency of any protective measures which can be put in place to reduce the risk. In E (Children), the court was satisfied that the Trial Judge was right to conclude on the evidence that sufficient protective measures were in place.
Despite this case, the grave risk of harm/intolerable situation can relate to harm or an intolerable situation for any person and not just the particular child concerned: Genish-Grant v Director-General, Dpt of Community Services (2002). In this case, the children had been brought to Australia from Israel by their mother. The court accepted the mother’s position that return of the children exposed them to an unacceptable risk of harm considering the conflict in Israel. Appeal dismissed.
DP v Cth Central Authority (2001) is the leading case in relation to the grave risk defence.
In this case, the mother was resisting a return to New Zealand on the basis that the children and she would be subject to a grave risk of violence from of the children’s father (who was a member of the bikie gang “the Mongrel Mob”). Despite showing a risk, the High Court found that the New Zealand authorities could address the risk. Justices Gaudron, Gummow and Hayne said:
“So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.”
In Department of Community Services v Harris (2010) Ryan J dismissed an application for the return of child to Norway on the basis that it was shown that despite laws in Norway designed to protect the mother and the child from serious violence, given the husband’s past violent conduct (including a threat to kill) she would be at serious risk if she returned.
At paragraph Ryan J held:
“Although on return to Norway the mother would be likely to seek police protection and orders which on their face would protect her and the child from the father and keep the child safe, I am not satisfied the orders would achieve their intended effect. For the child, the reality would be that he would primarily be reliant upon a personally isolated primary carer who historically has been unable to protect him from the risk of harm discussed earlier. The mother’s personal isolation increases the gravity of risk of harm to the child. This is because her isolation would mean that there would be few people intimately involved in her and the child’s life who could themselves intervene if her will to take further necessary action failed her. The evidence suggests that the violence which the father inflicted upon the mother ceased primarily because the mother moved to another country. There is a real risk that the type of violence which the father may inflict is not amenable to the type of constraints which the interim orders and the criminal law would impose. In this regard it is noteworthy that even after the mother had removed herself and the child from Norway the father’s threats to her continued. His threat to kill her is a threat with the potential of the gravest consequences to her and the child. I am not confident that the father’s apology and his failure to act in accordance with the threat, means it has abated.”
In DP v Cth Central Authority, the High Court has made clear that despite the wording of reg 16(3)(b) about risk that might arise from return of the child to its country of habitual residence, and not to a place or person within that country, consideration must be given to the actual situation in which the child will find themselves upon return: DP v Cth Central Authority; JLM v Director General, NSW Dpt com services (2001) FLC
In Director-General, Dpt families and RSP (2003) the court on appeal upheld the Trial Judge’s decision to exercise discretion under Reg 16(3) not to return the child to Australia as the Trial Judge accepted psychiatric evidence of the mother that she was at serious risk of committing suicide if she was ordered to return, and the evidence of the psychologist that should this occur the child would be exposed to serious psychological harm.
The Full Court made clear in this case however that the court will not ordinarily refuse to order the return of a child on the basis that the abducting parent’s refusal is based on them suffering severe mental distress if required to return, with resulting significant effects on the child, as this would thwart the aims of the convention and regulations.
The Full Court has held that the grave risk of exposure to physical/psychological harm concerns not simply a grave risk of any physical/psychological harm, but a grave risk of substantial or weighty physical/psychological harm: Gsponer v Director General, Dpt Community Services, Vic (1989); Bennett & Ors and Secretary, Attorney-General Dpt (2006).
There must be clear & compelling evidence that there is a grave risk that a child would be exposed to harm if they were to be returned to their home country and such a finding will only be made in exceptional circumstances: Director-General, Dpt families, Youth & comm care & Bennett (2000).
The fact that the return of a child to their home country might cause some distress to the child is on its own not sufficient. Any psychiatric harm must be substantial or weighty.
State Central Authority & Papastavrou  FamCA 1120 relied on unique factual circumstances where Her Honour dismissed the father’s application for return of the children to Greece from Australia on the basis that it would cause a grave risk of harm to the children. In this case, the mother moved the two children who were born in Greece to Aus following advice from her doc that she required physical and emotional support from her family. Evidence accepted was that the father had repeatedly abused her, incl in the presence of the children and had also occasionally abused one of the children. Her Honour found that return of the children would cause the children to be at grave risk of harm given the abuse, and given she could not rely on the Greek authorities to protect her and the children from future violence based on her history of contacting the police and them not being able to do anything and the expert evidence that there were problems with the laws regarding domestic violence in Greece. Mother also had a medical condition that made her more vulnerable to injury in the event of future violence. Plus mother was likely to be incarcerated if returned to Greece as father had brought criminal proceedings against her there for the children’s abduction.
In Gsponer the Full Court held that Australian courts should be slow finding a grave risk to a child if he/she were to be returned to a convention country at least where it is reasonable to expect that the harm could be prevented by appropriate judicial remedies in that country. The signing of the convention by Australia is at prima facie evidence of this.
There is no reason to conclude that a wife and children are not capable of being protected by the courts in NZ or that NZ authorities would not enforce protection orders: Murray v Director, Family services, ACT (1993).
Intolerable situation Case Studies
An inability of the abducting parent to return to the child’s country of habitual residence (which would therefore preclude them from taking part in proceedings) may cause an intolerable situation for the child – although proceedings by phone would reduce significance of this fact.
The fact that the abducting parent faces the prospect of arrest should they return to the child’s home country does not without more signify that an order for the child’s return will result in an intolerable situation: Re L  1 Fal LR (Eng) 433; CF in State central authority & Papastavrou.
However, in Papastavrou, the grave risk defence was made out because, amongst other factors, there was a serious risk to the children if the mother was incarcerated upon her return to Greece.
There will be no intolerable situation simply from criticism of the law of the child’s home country, for example, discriminatory against women or that abducting parent is unlikely to receive a fair hearing there. This is because convention countries are presumed to meet the minimum standards of justice in respect of welfare of children: Re S .
Court is now to consider family violence in Hague Convention Applications as part of the Grave Risk Defence
Up until now, it has not been possible for the Australian Courts to take adequate account of family and domestic violence that has occurred in International Child Abduction cases. The Federal Government has recently announced a bill to change the law with respect to how the Australian Courts deal with international child abduction cases where a parent flees the country as a result of domestic violence. Upon the passing of the bill, the Australian courts will be required to consider family violence in Hague convention cases before return orders are made.
The Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, which are currently before Parliament, will provide additional safeguards to parents and children fleeing from domestic violence when Australian courts consider cases brought under the Hague Convention on the Civil Aspects of International Child Abduction.
Under Regulation 16(3)(b) of the Regulations, even if the elements necessary for a return order to be made are satisfied, there are 6 grounds upon which the Court has discretion to refuse to order the return of a child to his/her home country even though the child has been wrongly removed/retained in Australia. One of those grounds is the Grave Risk defence, that is, that the return of the child would expose the child to physical/psychological harm or place the child in an intolerable situation.
The new regulations, when passed, make clear that family and domestic violence is a relevant consideration under the ‘grave risk’ defence and a court does not need to be satisfied that such violence has occurred or will occur before it is taken into account.
The regulations will also make it clear that:
- conditions can be included on a return order to protect a child from exposure to family and domestic violence even if the court is not satisfied that such violence has occurred or will occur; and
- courts must consider proposed conditions that are put forward by a party in the proceedings.
What is the process to make an application for return of my child under the Hague Convention
The process involved where a child has been abducted from Australia to a Hague Convention Country is set out on the Attorney General website.
Hague Convention applications are highly complex.
We strongly recommend you obtain legal advice if you are considering making an application for return of your child under the Hague Convention Regulations.
International Parental Child Abduction to a non-Hague Convention Country
If your child is taken by the other parent to a non-Hague Convention country, it will be more difficult to recover your child to Australia. You may have to engage a lawyer in the country where the child is located to issue legal proceedings for the recovery of your child, at the same time as you also issue proceedings in the Family Court of Australia.
Check out our page on your Rights to return of your child if taken to a Non-Hague Convention Country for more information on this topic.
Seek urgent legal advice to prevent parental child abduction
It is very important for you to be proactive and seek urgent legal advice from an experienced Brisbane Family & Divorce lawyer if you become aware that your former partner has or is going to abduct your children and relocate unilaterally to another state or country.
If you take proactive action to prevent the relocation/abduction of your children from occurring in the first place, you will be in a strategically much better position than you would be if you seek legal advice after the other parent has already taken the children to another state/country without your consent. If the other parent has already relocated with the children, it is increasingly difficult to successfully seek an order from the Court for the return of the children to where they were prior to a Trial, twelve to eighteen months down the track.
Whether you are seeking advice in relation to relocation or child abduction, our experienced Brisbane Family & Divorce Law team can help put your mind at ease by putting in place urgent measures to restrain the other parent from abducting your children. Alternatively, we can seek urgent orders for the return of your children to you.
For more information or if you have any questions or concerns in relation to your children being unilaterally relocated/abducted without your consent, contact us to book a reduced rate clean slate consultation and you will receive tailored advice from our experienced Brisbane Family & Divorce Lawyers about your individual circumstances.