International child abduction and the Hague Convention - ACT Law Society
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The 2022 CPD
Intensive Series
8-9 March 2022
International
In situations where international parental child abduction
has occurred, the 1980 Hague Convention on the Civil
Aspects of International Child Abduction is a piece of
child abduction
international law that can be used by parents to seek the
return of their children to Australia. In this seminar, the
Law Society’s International Law Committee presents
and the Hague an expert panel discussing the confronting issue of
international child abduction, and how the Convention
works in practice in Australian courts.
Convention Facilitator: Debra Parker,
Founding Director, Parker Coles
Curtis
Debra Parker (facilitator), with Debra is a highly regarded family lawyer
Gavin Howard and Amanda Lilley in the ACT and surrounding region
with many years of experience. Debra is
considered an expert in family law and
she is the only family lawyer in Canberra with NSW Law
Society Specialist Accreditation in the two areas of Family
Tuesday 8 March 2022 Law and Dispute Resolution.
Gavin Howard
3.30pm – 5pm
Gavin was called to the Bar in 2010
having been admitted as a solicitor in
1993. He has practiced exclusively in
family law since 1995.
Amanda Lilley, Principal Legal Officer, Attorney-
General’s Department
Members will earn Amanda Lilley is a Principal Legal Officer with the
1.5 points in Core Area 4 Attorney-General’s Department where she is one of the
two Co‑Directors of the Australian Central Authority for
the 1980 Child Abduction Convention and 1996 Child
Protection Convention.
The Law Society of the ACT | (02) 6274 0300 | actlawsociety.asn.au
15/03/2022
HAGUE
CONVENTION
DEFENCES
Presented by Gavin Howard
Barrister
Blackburn Chambers Canberra
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
WHAT I WILL BE REVIEWING
• Available bases on which a return order under the Convention can
be resisted – all from Regulation 16(3)
• Not actually exercising “rights of custody”
• the person seeking the return has consented or acquiesced
• Grave risk to the child of return, or a return would place child in an
“intolerable situation”
• The child strongly objects to return – there is more to it than just this
• 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.
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
1
15/03/2022
DISCRETION
• The words of regulation 16(3) clearly indicate that the court has a
discretion to return child if 1 of the grounds is made out (“The Court may
refuse”)
• High Court says the discretion is largely unconfined.
• Case law suggests that there are 2 factors that should generally be taken
into account
• The best interests of the individual child in relation to which jurisdiction should be
determining the dispute regarding the child;
• The purpose of the Convention that a child should ordinarily be returned to their
country of habitual residence. See, e.g. SCA v DB [2002] FamCA 804
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
Not Actually Exercising “Rights of Custody”
• “Rights of Custody” is a broad concept
• Includes “live with” and “spend time” arrangements
• Importantly includes right to determine the place of residence of
the child – eg pursuant to ESPR under FLA
• This right may not be actively being exercised to still be relevant.
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
2
15/03/2022
Consent or Acquiescence
• Consent can only occur prior to a child’s removal or retention
• Acquiescence can only occur after a child’s removal or retention
• Both are obviously questions of fact and can be inferred from conduct or
other circumstances
• Acquiescence requires a knowledge of the wrongful removal or retention
and that they have remedies for return
• “Passive” acquiescence can be inferred from silence provided the silence
and inactivity has occurred “for a sufficient period in circumstances where
different conduct is to be expected on the part of the aggrieved parent.”
see Police Commissioner of SA v Temple (1993) FLC 92-365
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
Grave risk of harm
• Regulation 16(3)(b) – there is a grave risk that the return of the child
under the Convention would expose the child to physical or psychological
harm or otherwise placed the child in an intolerable situation”.
• Problem is more in the application of this phrase than in understanding it
– Harris & Harris (2010) FLC 93-454
• The Court needs to take into account the systems and protection
available in the country of origin – e.g. FVO’s or similar
• The words “intolerable situation” carry a broader meaning can
encompass things such as risk of suicide of a parent or lack of income or
income support and housing available in country of origin
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
315/03/2022
COVID
• Secretary, Dept of Communities and Justice & Paredes [2021] FamCA 128
• One of the 1st cases to consider the possible impact of Covid on the return of children under
the convention.
• Certainly 1st case in Australia where there was appropriate evidence from an epidemiologist
about impact of Covid in country of origin (Brazil) & Australia
• Likelihood of the child contracting the disease, or being significantly adversely affected if she
did, were low.
• Likelihood of the mother contracting the disease was much higher. It could not be predicted
how serious her symptoms would be if she did.
• Court dealt with this risk by giving the mother the opportunity to be vaccinated prior to any
return.
• Postscript – mother sought and obtained orders in Brazil that permitted her to remain in
Australia for a further period
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
Strong objection of the child
• For this factor to be relevant all of the following has to be satisfied:-
• The child objects to being returned
• The child’s objection shows a strength of feeling beyond the mere expression of a
preference or of ordinary wishes
• The child has attained an age, and a degree of maturity, which it is appropriate to
take account of the abuse
• The word “objects”, of itself denotes a strength of feeling
• This factor requires a consideration of the basis of the child’s objection.
• Age does not necessarily mean maturity.
(02) 6247 5040
clerk@blackburnchambers.com.au
Level 12, 1 Hobart Place
Canberra ACT 2601
blackburnchambers.com.au
415/03/2022
The 1980 Hague Convention on the Civil Aspects of
International Child Abduction
and
The 1996 Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-
operation in Respect of Parental Responsibility and
Measures for the Protection of Children
What this presentation will cover -
• 1980 Hague Child Abduction Convention
• 1996 Hague Child Protection Convention
• Registration of orders
• Australia’s bilateral agreements with Lebanon and Egypt
• Children taken to non-Hague Convention countries
• Prevention of international parental child abduction
• Relevant offences under the Family Law Act 1975
• Resources
115/03/2022
Relevant Australian legislation
• Family Law Act 1975 (Divisions 2 and 4 of Part XIIIAA)
• Family Law (Child Abduction Convention) Regulations 1986
• Family Law (Child Protection Convention) Regulations 2003
• Various State and Territory child protection and international
measures legislation
• Family Law Regulations 1984
The Hague Convention on the Civil Aspects of
International Child Abduction
• Aim: to protect children internationally from the harmful effects of
wrongful removal or retention; to establish procedures to ensure their
prompt return and to secure protection for rights of access.
• Establishes civil processes for:
• seeking the return of children wrongfully removed or retained from
their country of habitual residence, and
• securing access to a child who lives in a different Contracting State to
one of their parents.
• Focuses on restoring jurisdiction, not an examination of the child’s best
interests or parenting arrangements.
215/03/2022
The Hague Convention on the Civil Aspects of
International Child Abduction
• The Convention is in force between Australia and 83 other Contracting
States.
• Implemented in Australia through the Family Law Act 1975 and the
Family Law (Child Abduction Convention) Regulations 1986.
• The Convention requires each contracting State to designate a
Central Authority to discharge the duties imposed by the Convention.
Australian Central Authorities
• The Attorney-General’s Department (AGD) performs the functions of the
Australian Central Authority – the ACA.
• All applications to and from Australia are transmitted through the
Australian Central Authority.
• Australia also has State Central Authorities (State CA) in each State and
Territory, which can also perform the functions of a Central Authority in
Australia.
• The ACA will refer incoming applications (where the child is in Australia) to
the relevant State CA. If the matter cannot be resolved amicably, the State
CA will file the application for return with the Family Court of Australia.
315/03/2022
Types of applications
• Application for the return of a child who was wrongfully removed
from, or retained outside of, their country of habitual residence.
– Removal: where a child is taken overseas without the applicant’s
consent
– Retention: where the applicant has given permission for the child to be
overseas for a particular period of time, and they are subsequently kept
overseas beyond the agreed time period.
• Application for the enforcement of an applicant’s rights of access to
their child.
Application criteria
Return Applications Access Applications
• Child must be under 16. • Child must be under 16.
• Child was habitually resident in a • Applicant must have rights of access.
Convention country immediately • Applicant and Child live in different
before their wrongful removal Convention countries.
to/retention in another Convention • There has been a breach of the
country. applicant’s rights of access.
• Applicant must have rights of custody
that they were exercising at the time
of wrongful removal/retention.
• Child was removed to/retained in a
different Convention country, in breach
of the applicant’s rights of custody.
415/03/2022
What are rights of custody?
Section 111B (4) of the Family Law Act 1975
For the purposes of the Convention:
(a) each of the parents of a child should be regarded as having rights of custody in respect of the
child unless the parent has no parental responsibility for the child because of any order of a court
for the time being in force; and
(b) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to live under a parenting order; or
(ii) who has parental responsibility for a child under a parenting order; should be regarded as
having rights of custody in respect of the child; and
(c) subject to any order of a court for the time being in force, a person who has parental
responsibility for a child because of the operation of this Act or another Australian law and is
responsible for the day to day or long term care, welfare and development of the child should be
regarded as having rights of custody in respect of the child; and
(d) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to spend time under a parenting order; or
(ii) with whom a child is to communicate under a parenting order; should be regarded as
having a right of access to the child.
How do you know if a child is in a Hague Convention
Country?
• The 1980 Hague Child Abduction Convention
is not currently in force between Australia
and all signatories to the Convention.
• Spreadsheet of acceptances of accessions
on the Hague Conference website.
515/03/2022
Application process
• Outgoing: Child overseas
• International Social Service (ISS) is funded by AGD to assist members of the
public to prepare applications under the Hague Convention.
• ACA reviews applications and, if requirements are met, transmits the
application to the relevant overseas Central Authority.
• The overseas Central Authority seeks to secure return of the child or access to
the child (usually through court proceedings). It’s important to note that each
country has different processes in place for Hague Convention applications.
• Incoming: Child in Australia
• Overseas Central Authority transmits an application to the ACA.
• If requirements are met, it is transferred to a State CA to file an application for
return orders in the Family Court of Australia, if the matter can’t be resolved
amicably. The State CA (or in some cases the ACA) is the applicant in the
proceedings, not the requesting parent overseas.
• Mediation is offered for access cases.
Non-return orders
• The court may decide not to order the return of the
child if it is not satisfied that the key requirements of
the Hague Convention have been met
• In addition the court is not bound to order the return
of a child if one or more of the narrow exceptions, or
defences, to the return are made out.
• Gavin will be discussing the defences in detail next.
615/03/2022
The Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in Respect
of Parental Responsibility and Measures for the
Protection of Children
• Commonly known as the 1996 Child Protection Convention
• The Convention deals with:
• Determining which state has jurisdiction to take measures of
protection in relation to a child or their property
• Determining which law should be applied by authorities in exercising
jurisdiction
• Determining the law applicable to parental responsibility
• Recognition and enforcement of measures of protection taken in one
contracting state in all other contracting states
• Co-operation between the authorities of contracting states.
Jurisdiction
• General rule is that jurisdiction is held by the
child’s Contracting State of habitual residence
– Article 5
• Subsequent Articles modify that rule in
specific circumstances.
715/03/2022
Domestic applications
• The Convention affects the jurisdiction of an Australian court
to hear and make orders in relation to a matter where the
child is habitually resident in another contracting state.
• The jurisdictional limitations from the Convention are
implemented into Australian law through Division 4 of Part
XIIIAA of the Family Law Act.
Article 7 – child abduction
• If a child is wrongfully removed or retained, the country of HR
pre abduction keeps their jurisdiction until the child has
acquired HR in another State AND
– a) each person, institution or other body having rights of custody has
acquiesced in the removal or retention; or
– b) the child has resided in that other State for a period of at least one
year after the person, institution or other body having rights of
custody has or should have had knowledge of the whereabouts of the
child, no request for return lodged within that period is still pending,
and the child is settled in his or her new environment.
815/03/2022
Limitation imposed by Art.7
• While the original country retains jurisdiction the authorities
of the Contracting State to which the child has been removed
or in which he or she has been retained can take only such
urgent measures under Article 11 as are necessary for the
protection of the person or property of the child.
Articles 8 and 9 – transfer of jurisdiction
• Article 8 – if the authorities of the State that has jurisdiction
considers another State would be better placed to assess the
child’s best interests they can ask that State to assume
jurisdiction to take measures in relation to the child.
• Article 9 – if the authorities of a State that does not have
jurisdiction but considers that they are better placed to assess
the child’s best interests they can ask the country with
jurisdiction to transfer that jurisdiction.
915/03/2022
Articles 11, 12 and 13
• Article 11 – urgent necessary measures of protection that lapse as soon as
the authority with jurisdiction has taken the measures required by the
situation.
• Article 12 – The State where the child is present can take provisional
measures of limited territorial effect providing the measures are not
incompatible with measures already taken by the authorities the State
that holds jurisdiction. Such measures lapse as soon as the authority with
jurisdiction has taken their own decision.
• Article 13 – is a lis pendens clause that aims to resolve conflicts –
essentially it is not possible for the authorities of a Contracting State to
take a measure of protection if the measure had already been sought from
another Contracting State that had jurisdiction at the time of the request,
is still seized of the matter and hasn’t already declined jurisdiction.
Requests for recognition
• The measures taken by the authorities of a Contracting State
shall be recognised by operation of law in all other
Contracting States – Article 23(1)
– Family law orders relating to parental responsibility
– Child protection orders – such as Special Guardianship
Orders
1015/03/2022
Recognition can be refused
• Article 23(2) provides a non exhaustive list of grounds upon
which recognition can be refused
Registration of overseas child orders under the
Family Law Regulations 1984
• Certain overseas child orders can also be registered in Australia under
regulation 23 of the Family Law Regulations 1984.
• Regulation 24 also provides a mechanism for the registration of Australian
orders in certain overseas jurisdictions.
• To fall within these regulations, orders must be made by, or the request
for registration must be sent to, a jurisdiction listed in Schedule 1A of the
Family Law Regulations 1984.
• Schedule 1A includes New Zealand, Switzerland, Papua New Guinea and most states
within the United States of America.
1115/03/2022
Bilateral agreements
• Australia has bilateral agreements with Egypt and Lebanon that aim to
resolve parenting matters amicably.
• Requirements:
• child must be under 18
• child must be of Australian or Egyptian/Lebanese nationality
• applicant parent must have rights of custody
• Each agreement establishes a Joint Consultative Committee that can be
used to facilitate dialogue between parents.
• There is no mechanism for legal enforcement through courts if no
agreement is reached between the parents.
• Applications are transmitted by AGD through DFAT.
Children taken to non-Hague countries
We may advise left-behind parents:
• to obtain legal advice from a lawyer in the country where their child is
located.
• to contact ISS Australia for information about their international family
mediation, reunification, counselling and welfare checking services.
• to contact the DFAT Consular Office for a list of lawyers in the country
where their child is.
• that Financial Assistance may be available from our Department to assist
with legal and travel costs for parents seeking the return of children
abducted to Hague or non-Hague countries.
1215/03/2022
Prevention
Family Law/Airport Watchlist
• The Family Law/Airport Watchlist is a mechanism designed to alert relevant
authorities about the movement of children and it identifies whether children are
leaving Australia’s borders.
• The Australian Federal Police can place a child’s name on the Airport Watchlist
once an order has been issued by the relevant Family Court.
• We encourage parents to seek legal advice about seeking a court order/applying to
have their children’s names placed on the Airport Watchlist.
Child Alert – Australian Passports Office
• The Child Alert is a warning to the Department of Foreign Affairs and Trade that
there may be circumstances to be considered before an Australian passport is
issued to a child. It does not guarantee that a child will not be issued a passport if
they are entitled to one under the Australian Passports Act 2005.
• It will not stop a child from travelling if they already have an Australian passport or
a travel document issued by Australia or another country.
Offences under the Family Law Act 1975
Obligations if certain parenting orders have been made, or are pending:
• The relevant offences can be found in sections 65Y, 65YA, 65Z, and 65ZAA.
• The offences cover specific circumstances where a child is taken or sent (removed)
from Australia or retained outside of Australia.
• The offences carry a penalty of up to 3 years imprisonment.
• The offences do not apply if the exception of ‘fleeing family violence’ is made out.
1315/03/2022
Resources available to you
International Social Service Australia:
ISS provides a range of services to those affected by international child abduction,
including:
• free legal assistance with preparation of applications for return of a child or access
to a child under the Hague Convention,
• mediation and negotiation with parents in other countries, and
• free counselling and support services.
1300 657 843 (free call within Australia
+61 396 148 755 (for international callers)
www.iss.org.au
Resources available to you
International Parental Child Abduction Legal Resource
(Prepared by the Family Law Section of the Law Council of Australia)
https://www.familylawsection.org.au/publications
1415/03/2022
Resources available to you
Financial Assistance
Attorney-General’s Department
+61 2 6141 4770
finass@ag.gov.au
https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/
Commonwealthlegalfinancialassistance/Pages/Overseaschildabduction.aspx
Hague Conference on Private International Law
Full text of Conventions, records of Hague Convention countries, acceptances of
accessions, and contact details for overseas central authorities:
http://www.hcch.net
Resources available to you
Australian Central Authority
International Family Law Section
Attorney-General’s Department
1800 100 480
Australiancentralauthority@ag.gov.au
https://www.ag.gov.au/childabduction
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