Family Law – International Child Abduction
You may have recently heard a lot in the media about cases of International Child Abduction, due largely to the highly published case of the children from Italy who went into hiding in Australia.
Our Family Law Expert, Anton A Richardson was recently asked to appear on 92.5 Gold FM as their Family Law consultant, to explain that case and International Child Abduction in general.
For those of you who may not have heard those interviews, we asked Anton to explain "What is the Hague Convention on the Civil Aspects of Child Abduction?" Here is what Anton had to say:
The Hague Convention is an international treaty designed to ensure that children who are wrongfully removed or wrongfully retained by a parent, will be returned as quickly as possible to the country in which they habitually reside so that issues of parental responsibility can be resolved by the courts in that country.
Countries that are a party to the treaty have agreed that a child who was living in one Convention country, who has been removed or retained in another Convention country, in violation of the left-behind parent's custodial rights, shall be promptly returned. Once the child has been returned, the custody dispute can then be addressed in the courts of that country.
The important fact to note is that the Convention does not address who should have custody of the child but rather determines in which country those issues should be considered.
In order to make an application for the return of a child from another Convention country the following criteria must be met:
- Your child must be under 16 years old;
- You must have "rights of custody" in relation to the child;
- You must have been exercising rights of custody at the time your child was taken from Australia;
- Your child must have been habitually resident in Australia immediately before your child was taken overseas;
- Your child must have been taken to or retained in a country which is a party to the Hague Convention;
- Your child must have been wrongfully removed from Australia or wrongfully retained in another Convention country without your prior consent or without a court order.
Your application for the return of your child to Australia may be opposed on the following grounds:
- The child is aged 16 or over;
- The child has been outside Australia for over 12 months and is settled in his or her new environment;
- The child was not habitually resident in Australia at the time of the removal or retention;
- The applicant in Australia did not have rights of custody in relation to the child;
- The applicant in Australia was not exercising rights of custody in relation to the child at the time of the removal;
- The applicant gave prior consent to the permanent removal or retention of the child or subsequently acquiesced to the removal or retention of the child;
- The child would be exposed to a grave risk of physical harm, psychological harm or some other intolerable situation if returned to Australia;
- The child objects to being returned and is of an age and maturity to justify his or her views being taken into account;
- The child's return would be a breach of its fundamental freedoms and human rights.
If you are concerned that your child may be removed from Australia you can take steps to prevent wrongful removal in the future. We can assist you in obtaining a parenting order from an Australian Court, or an order prohibiting the removal of your child from Australia. The Australian Federal Police can then place your child's name on the Airport Watch List. We may also be able to assist you in preventing the issue of a passport for your child by raising a Child Alert on the passport system. If you have any queries in regard to any of the above, please do not hesitate to contact us. Please note that in these cases, time is of the essence. It is important that you do not delay.
"For more information and advice about this topic, please call our office to speak with one of our experts in this area".
By Shanan John Ramsden Lawyer and Managing Partner of Ramsden Lawyers.
24 Jul 2012