CHILD ABDUCTION & HAGUE CONVENTION

Child Abduction Lawyers in the Hills District and Sydney

Child abduction is a serious and highly distressing matter that often requires urgent advice and immediate legal intervention. Arnold Hills will help you take the steps available to locate and seek the safe return of your child.

CHILD ABDUCTION

Parental child abduction can occur within Australia or internationally. Immediate legal intervention may be required where a child is unlawfully removed, withheld or concealed from a parent or legal guardian.

International parental child abduction occurs when a child is removed from their country of habitual residence, or wrongfully retained in another country, without the required consent or court authorisation.

A parent and child walking hand in hand at sunset

Child abduction within Australia

If your child has been abducted within Australia, legal options may be available to locate your child and seek their return. In Australia, the Family Law Act 1975 (Cth) (Act) provides the legal basis for addressing such matters.

In the case of child abduction within Australia, an application can be made to the court for the following orders:

Recovery Order

A recovery order may require a child to be returned to a parent or another person named in the order. The court can authorise or direct the Australian Federal Police or other officers to locate, recover and return the child.

Location Order

If a child’s whereabouts are unknown, the court may require a person to provide information they hold or subsequently obtain about the child’s location to the Registry Manager of the court. This information assists the court in locating the child.

Commonwealth Information Order

A Commonwealth information order requires Commonwealth government departments or agencies (such as Centrelink) to provide relevant information from its records about the child’s whereabouts.

Publication Order

The court may authorise the release of specific information to help locate a child, partially lifting the restrictions that ordinarily apply to publishing information about family law proceedings.

International child abduction

Where a child is wrongfully removed from Australia or wrongfully retained overseas by a parent, the legal process for seeking the child’s return will depend on whether the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) applies between Australia and the relevant country.

Hague Convention

The Hague Convention is a multilateral treaty in force between Australia and a number of other signatory countries. It is designed to protect children from the harmful effects of international child abduction and provides a lawful process for seeking the return of children who have been wrongfully removed or retained.

Where does the Hague Convention apply?

If you are seeking the return of your child to Australia, the Hague Convention must be in force between Australia and the country concerned. A country being a party to the Hague Convention does not necessarily mean it is in force with Australia. The Hague Convention is in force between Australia and the countries listed here.

How does the Hague Convention process work in Australia?

The Hague Convention requires each contracting state to designate a Central Authority to perform functions under the Convention. In Australia, it is the Attorney-General’s Department that functions as the Central Authority. The Australian Central Authority handles applications and coordinates with overseas Central Authorities.

Can I apply for my child's return to Australia?

The Hague Convention may apply where the child is under 16 and was habitually resident in Australia immediately before the wrongful removal or retention. The applicant must have rights of custody that were being exercised or would have been exercised and the application was made within 12-months (with some exceptions).

What are the grounds for opposing return from Australia?

A person who has retained the child in, or removed the child to Australia can object to the child being returned by relying on any of the following grounds:

The person seeking the child’s return was not actually exercising their rights of custody when the child was removed or retained.
The person seeking the child’s return consented to, or subsequently acquiesced to the child being removed to, or retained in Australia.
Return would create a grave risk of physical or psychological harm, or an intolerable situation.
The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take the child’s views into account.
The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
The application was filed more than one year after the removal or retention, and the child has settled in their new environment.

The person opposing return must establish a relevant ground. However, even then, the Court may still order the return.

Are Hague proceedings the same as parenting proceedings?

No. Hague proceedings determine whether a child should return to their country of habitual residence; they do not determine final parenting arrangements. Those issues are ordinarily considered by the courts of the child’s habitual residence.

Children taken to or retained in a country outside the Hague Convention arrangements

If a child is removed from Australia to, or retained in, a country where the Hague Convention is not in force with Australia, the Hague Convention return process will not be available. The options for seeking the child’s return will depend on the laws and procedures of the country in which the child is located and the particular circumstances of the matter.

Australia has bilateral agreements with Egypt and Lebanon concerning the welfare of children. If your child has been taken to, or retained in, Egypt or Lebanon, it may be possible to seek assistance through the Attorney-General’s Department. However, although these arrangements may assist with locating a child and facilitating negotiations, they are not the same as Hague Convention return proceedings.

Matters involving other non-Convention countries can be particularly complex. It may be necessary to obtain legal advice both in Australia and from a suitably qualified lawyer in the country where the child is located to understand the legal options available and the steps that can be taken. Consular assistance may also be available.

Contact Arnold Hills for tailored legal advice and assistance.

What can I do if I am concerned that my child may be taken overseas?

If you are concerned that your child may be removed from Australia without your consent, it is important to obtain legal advice as soon as possible, as urgent court intervention may be required.

Depending on the circumstances, you may be able to apply to the Federal Circuit and Family Court of Australia for orders preventing the child from leaving Australia and requesting that the Australian Federal Police place the child on the AFP Family Law Watchlist. If your child’s name is placed on the Family Law Watchlist, police will be alerted if an attempt is made to remove your child from Australia.

A child may be placed on the Family Law Watchlist where:

a court issued parenting order or injunction limits or prevents overseas travel;
an application is currently before the Federal Circuit and Family Court of Australia seeking orders to limit or prevent the child’s overseas travel and requesting that the child be placed on the Family Law Watchlist; or
a parenting order or injunction is currently under appeal.

A child listed on the Family Law Watchlist will only be permitted to travel if the prohibition is ‘conditional’ and authenticated consent has been provided. If the injunction is however ‘absolute’ the child will not be able to travel, unless the court makes an order removing the child’s name from the watchlist, the child turns 18 or the order expires.

For more information on whether your child’s name can be placed on the AFP Family Law Watchlist, contact Arnold Hills for assistance and advice.

Speak with a child abduction lawyer in the Hills District or Sydney

Arnold Hills can assess your circumstances, explain the legal options available and advise you on any urgent steps that may be required to locate your child and seek their return. We can prepare and file applications in the Federal Circuit and Family Court of Australia for location orders, recovery orders, injunctions and other urgent parenting orders.

We also advise on international parental child abduction matters, including the application of the Hague Convention, international travel disputes, passport issues, and placement of a child on the Family Law Watchlist.

If your child has been taken, has not been returned, or you are concerned that your child may be removed from Australia, it is important to obtain legal advice promptly about the options available, if you cannot resolve the dispute with the other parent.

Arnold Hills assists clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney, with urgent child recovery matters, Family Law Watchlist applications, international parental child abduction and Hague Convention matters.

Contact Arnold Hills to arrange a confidential consultation.

Frequently Asked Questions

What is a recovery order?

A recovery order is an order made by the Federal Circuit and Family Court of Australia that can require a child to be returned to a parent or another person specified by the court. The order may also authorise or direct a person, commonly the Australian Federal Police, to take steps to locate, recover and deliver the child.

Can I apply for a recovery order if there are no parenting orders?

Yes. Existing parenting orders are not always required before a person can seek a recovery order. Depending on the circumstances, a parent, grandparent, person with parental responsibility or another person concerned with the care, welfare or development of the child may be able to apply. If there are no existing parenting proceedings, you may also need to commence proceedings seeking parenting orders.

What can I do if I do not know where my child is?

If your child’s whereabouts are unknown, you may be able to seek a location order or Commonwealth information order in addition to a recovery order. These orders can require persons or Commonwealth authorities to provide the court with information about your child’s location.

What should I do if my child has been taken overseas without my consent?

International child abduction matters can require urgent action. Whether the Hague Convention return process is available will depend on matters including whether the Hague Convention is in force between Australia and the country where the child is located and whether the requirements of the Convention are satisfied. If the Convention does not apply, different legal processes may be required in Australia and overseas.

What is the Hague Convention on international child abduction?

The Hague Convention establishes an international process for seeking the prompt return of children who have been wrongfully removed from, or retained outside, their country of habitual residence. Hague Convention proceedings generally determine whether a child should be returned to their country of habitual residence rather than determining final parenting arrangements.

What can I do if I am worried my child will be taken overseas?

If there is a risk that your child may be removed from Australia, urgent court orders may be available. Depending on the circumstances, you may seek orders restraining the child’s removal and requesting that the Australian Federal Police place the child on the Family Law Watchlist.

Can I take my child overseas if the other parent does not agree?

The answer will depend on whether relevant parenting orders are in force or parenting proceedings are pending. If a parenting order has been made in relation to a child, or parenting proceedings are pending, a child must not be removed from Australia unless each other party has provided authenticated written consent or a court order permits the child to be taken overseas. If agreement cannot be reached, it is prudent to obtain legal advice before travelling where there is disagreement between parents.