Hague Child Abduction Convention
Information for Parents of Abducted Children
The Hague Convention on the Civil Aspects of International Child Abduction
entered into force for Australia on 1 January 1987.
AIM OF THE CONVENTION
The main aim of the Convention is to ensure that children who are
abducted by a parent will be returned as quickly as possible to Australia so
that issues of parental responsibility can be resolved by the Family
Court. The Convention also allows
parents to seek the return of children who are wrongfully retained in another
country, for example at the end of an contact visit;
parents to seek assistance in obtaining contact with to their children who
live with another parent overseas.
CONVENTION COUNTRIES
These are listed separately under Convention Countries |
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Contact the Commonwealth Attorney-General's Department on 1800 100 480
for information about new member countries or visit the Hague Conference website
for the most current listing: www.hcch.net.
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APPLICATIONS FOR RETURN OF CHILDREN
ABDUCTED FROM AUSTRALIA
Requirements for an application
There are a number of requirements that must be satisfied before a person
can make an application for the return of a child under the Convention. These
are:
1. the child must be under 16;
2. the applicant must have had "rights of custody" to the child (by law,
court order or legal agreement) prior to the removal or retention. If you have
parental responsibility for your child, you have a "rights of custudy" under the
Convention.
3. the applicant must have been exercising his or her "rights of custody" to
the child (or would have been exercising those rights but for the removal or
retention);
4. the child must have been habitually resident in Australia before the
abduction or retention;
5. the applicant must not have consented to the removal or retention of the
child;
If one of these requirements is not met, the child will not be returned.
MAKING AN APPLICATION
Where a child has been wrongfully removed from Australia to a Convention
country, an application may be made for the child's return. A copy of the
application form is in Form 1 Application for Return of a Child |
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Instruction for completing the form. The form and instructions are also found in
Attachment 1 of International Child Abduction: A Guide for parents and
practitioners |
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This form should also be used in cases where a parent wishes to seek the
return to Australia of a child wrongful retained in a Convention country.
A parent who wishes to seek assistance in having contact with his or her
child living overseas should complete the application form in Form 3 Application
for Access to a Child |
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instruction for completing Form 3. The form and instructions are also found in
Attachment 2 of International Child Abduction: A Guide for parents and
practitioners |
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When the form is completed it should be forwarded to the Central
Authority in the nearest capital city (see the list of Central
Authorities.)
The application will be sent to the Central Authority in the country
where the child is thought to be. That Authority will take action to have the
child returned. This may take some time if the abducting parent opposes the
application for return of the children in court. It is generally not necessary
for a parent to travel to the country where the child has been taken. Often the
overseas court will order that the child be returned in the custody of the
parent who has abducted or retained the child overseas. The applicant will be
informed of developments by the State Central Authority.
LEGAL EXPENSES AND OTHER
COSTS
State Central Authorities will assist an applicant in Australia to
prepare a Hague application. However, an applicant who chooses to instruct
a private solicitor to prepare a Hague application will not have those
legal expenses reimbursed by the Commonwealth.
Some Convention countries impose charges if legal proceedings are taken in
that country to obtain an order for return. (for example the USA provides no
free legal assistance; countries which provide means tested legal aid are:
Scotland, Ireland, France, Germany).
Where a child is abducted from Australia, an application for financial
assistance for the return of the child may be made under the Overseas Custody
(Child Removal) Scheme. The scheme provides financial assistance to parents for
expenses for legal representation overseas and for reasonable costs associated
with securing the return of the child eg. travel and accommodation costs for the
parent in Australia to travel overseas and accompany the child back to
Australia. Applications under that Scheme should be made to the Financial
Assistance Section, Legal Assistance Branch, Attorney-General's Department,
National Circuit, Barton, ACT 2600 Telephone (02) 6250 6770.
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CHECKLIST OF THINGS TO DO IF YOU
FEAR YOUR CHILD MAY BE ABDUCTED FROM
AUSTRALIA
To stop your child being wrongfully removed from Australia -
1. If you have a court order, the police can put the child's name on the
airport watch list. Contact the Australian Federal Police in the nearest capital
city. If you do not have a court order, contact a solicitor or legal aid body
for advice on obtaining an order. The police can also act if you have applied to
court for an order but the order has not yet been made.
2. You may be able to prevent the issue of a passport for the child.
Contact the Passports Office (Telephone 13 12 32).
CHECKLIST OF THINGS TO DO IF
YOU FEAR THAT YOUR CHILD HAS ALREADY BEEN ABDUCTED FROM AUSTRALIA
1. Report the child as missing to the local police.
2. Contact the Central Authority (see the list of Central
Authorities) in the nearest capital city to request information
on the airport departure details of the child from Australia.
3. If the child has been taken to a Hague Convention country, contact the
Central Authority in the nearest capital city for assistance and advice in
making an application for the return of the child.
4. If your child has been taken to a country which is not a party to the
Convention, you may still be able to have the child returned to Australia. The
Australian Government provides means-tested grants of financial assistance to
people who need to take legal proceedings in other countries to obtain the
return of a child. Contact the Attorney-General's Department Canberra (Telephone
06 250 6770)
INFORMATION FOR PARENTS COMING TO
AUSTRALIA TO SEEK THE RETURN OF CHILDREN ABDUCTED TO AUSTRALIA
If you are in Australia and your child has been abducted from another
Convention country to Australia, or is being wrongfully retained in Australia,
an application under the Convention for the return of the child should be sent
in the first instance to the Commonwealth Central Authority. State Central
Authorities can assist applicants to prepare an application form. (See
information on "Making
an application"). The Commonwealth Central Authority will consult the
Central Authority in your habitual residence country about the application.
The Commonwealth Central Authority must be satisfied that the application
is in accordance with the Convention. If it is satisfied with the application it
will arrange for the appropriate State Central Authority to take legal action to
obtain an order for the return of the child.
The abducting parent will then be required to defend the application or
negotiate with the State Central Authority for a voluntary return.
The abducting parent's grounds for opposing return
The grounds on which an abducting parent may oppose the return of the
child are set out in the Family Law (Child Abduction Convention) Regulations |
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(a) the child has been in Australia for over 12 months and is settled in its
new environment;
(b) the applicant did not have "rights of custody" or was
not exercising those rights at the time of the removal;
(c) the applicant consented to or subsequently acquiesced to the removal;
(d) the child would be exposed to a grave risk of physical or psychological
harm if returned;
(e) the child objects to being returned and is mature enough to express that
view;
(f) the child's return would be a breach of its fundamental freedoms and
human rights
Legal expenses and costs regarding applications to Australia
Persons from an overseas convention country seeking the return of his or
her child from Australia will not be required to bear any legal costs incurred
by Central Authorities in Australia giving effect to its Convention obligations.
The Commonwealth has agreed to meet the costs of State Central Authorities
incurred in giving effect to Australia's obligations under the Convention.
The Commonwealth will not be responsible under the Convention for any
costs incurred by an applicant for airfares for the return of the child from
Australia to the country of habitual residence. An undertaking is required from
all overseas applicants to pay for the travel and related costs of returning the
child. However an applicant can request that the responsible Central Authority
obtain a court order directing that the necessary expenses incurred by or on
behalf of the applicant, including travelling expenses and costs incurred in
respect of locating a child be paid by the person who removed the child to
Australia.
As a general rule, the Commonwealth Central Authority does not favour an
applicant being joined a party to the proceedings as this can interfere with our
effectiveness in carrying out our Convention obligations, eg. if the applicant
gives instructions or seeks orders which conflict with the Central Authority's
instructions or orders
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STATE CENTRAL
AUTHORITIES
For information and advice on making applications under the Convention
contact :
NEW SOUTH WALES
Mrs Doreen
Muirhead
Department of Community Services
ASHFIELD
Telephone: (02) 9716
2490
Facsimile: (02) 9716 2355
QUEENSLAND
Ms Helen Tooth
Family Youth and Community Care
BRISBANE
Telephone: (07) 3235 9862
Facsimile: (07) 3235
9860
VICTORIA
Mr Neil Twist
Department of Human
Services
MELBOURNE
Telephone:
(03) 9616 9865
Facsimile: (03) 9616 7012
SOUTH AUSTRALIA
Det
Superintendent Paul Schramm
Major Crime Task Force
ADELAIDE
Telephone: (08) 8207 4624
Facsimile: (08) 8231 3905
or
Ms Lydia Makiv
SA Crown Solicitor?s
Office
Telephone: (08) 8207 1632
Facsimile: (08) 8207 1794
WESTERN AUSTRALIA
Sergeant Bert Van Der
Woude
Missing Persons Bureau
PERTH
Telephone: (08) 9492 5471
Facsimile: (08) 9492
5470
or
Ms Ilse
Petersen
WA Crown Solicitor's Office
Telephone: (08) 9264 1815
Facsimile: (08) 9264 1812
TASMANIA
Mr Simon Allston
Office of Solicitor-General
TASMANIA
Telephone: (03) 6233
3408/3406
Facsimile: (03) 6233 2510
AUSTRALIAN CAPITAL TERRITORY
Mr
Peter McKeague
Department of Education and Community
Services
CANBERRA
Telephone:
(02) 6207 1503
Facsimile: (02) 6207 1090
NORTHERN TERRITORY
Mr Dave
Richardson
Territory Health Services
DARWIN
Telephone: (08) 8922 7268
Facsimile: (08) 8922 7165
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FURTHER INFORMATION
Further
information can be found in International Child Abduction: A guide for parents
and practitioners |
PDF
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the guide can be obtained free of charge from:
International Family Law Section
Attorney-General's
Department
Robert Garran Offices
National
Circuit
BARTON ACT 2600
Telephone 1800 100 480
Facsimile No. (02) 250 5917
Email: childabduction@ag.gov.au | Privacy
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