In an increasingly globalised world, more and more relationships cross national and cultural boundaries. When these relationships break down, people must grapple not only with the breakdown of their relationship, but with the cross-border complications that can arise as a result.
So, where should children live when a relationship breaks down? Within Australia, this question can be difficult enough, particularly where the parents are geographically distant. The issue becomes even more complex where parents choose to live in different countries and, sometimes, situations arise where a parent has wrongfully removed a child from the country they are living in to another country.
We discuss the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and consider a recent case involving a father appealing against a Hague Convention decision dealing with his removal of the children from the UK to Australia.
If a child is taken to a country which is a signatory to the Hague Convention, there are avenues to return the child to their habitual place of residence. Importantly, though, not all such situations require an application to be made pursuant to the Hague Convention and there may be other more effective means for having children returned, such as registering an already existing order in the country where the child has been removed to, and seeking the enforcement of that order.
The Hague Convention
The Hague Convention is an international treaty, which has been implemented in Australia by way of the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth). However, where ‘ordinary’ family law cases regard the best interests of the child as paramount, this is not the case when determining matters pursuant to the Hague Convention.
Courts exercising Hague Convention jurisdiction apply a limited discretion, and must adhere to a prescriptive set of guidelines when determining one of the key questions: was the child’s removal from or retention in the country wrongful?
In answering this question, the Court will consider, among other matters, whether:
- the child was under 16; and
- the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
- the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
- the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
- at the time of the child’s removal or retention, the person, institution or other body:
a. was actually exercising the rights of custody (either jointly or alone); or
b. would have exercised those rights if the child had not been removed or retained.
If the above matters are satisfied, the Court must make an order for the child’s return, unless:
- the person, institution or other body seeking the child’s return:
a. was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
b. had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
- 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 place the child in an intolerable situation; or
- each of the following applies:
a. the child objects to being returned;
b. the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
c. the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
- 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.
To begin the process of seeking a child’s return, an application must be made to the relevant ‘central authority’. In Australia, this is the Commonwealth Central Authority.
Hays & Department of Communities and Justice
In Hays & Department of Communities and Justice1, following separation, the father removed the children (aged 8 and 10) from where they were living in the UK to Australia. The father removed the children without the mother’s knowledge or consent and notwithstanding interim orders which had been made in the UK. The father subsequently informed the mother that he did not intend to return to the UK.
The mother immediately applied to the UK central authority to seek the children’s return pursuant to the Hague Convention, and an application was subsequently made in Australia. By that point, the final family law hearing in the UK had concluded and orders had already been made in the UK for the children to live in England (which the father appealed). Despite this, the Hague Convention application pressed ahead and, ultimately, the children were ordered to return to England.
The father did not return the children and appealed against the Hague Convention decision. He raised a number of grounds of appeal including (among others):
1. That the children’s threats of harm against themselves (and the mother), coupled with their potential residence in a foster home prior to their living with the mother (as part of the reunification plan for the mother and the children), constituted a grave risk of harm to the children, and that to return them would put them in an intolerable situation.
This ground of appeal was rejected. While the Court accepted that the children’s return to the UK would be difficult, it found that the risk of harm was not grave, and that it was to be managed as well as possible in the circumstances.
2. That the mother was not exercising her rights of custody at the time he removed the children to Australia, and that she had acquiesced to their removal.
The Court did not agree with the father, and found that while the mother may have offered for the children to primarily live with the father at one point, this was based on the children remaining in the UK, and her participation in the family law proceedings in the UK and the institution of the Hague Convention application was clear evidence of the mother seeking to exercise her rights of custody. In any event, the fact the mother sought agreement in respect of the children’s living arrangements, however little time they were to spend with her, was in itself an exercise of her rights of custody.
3. That the children objected to returning, and that their preference was to live in Australia.
The Court again rejected this ground of appeal. The children’s reasoning for their expressed preference, which included their “love for life in Australia, regularly playing sport here, living near the beach, spending time bodyboarding, surfing or otherwise outdoors, their dog, their new friends and extended paternal family here, the warm weather in Australia and the “cold and miserable” weather in the United Kingdom” was actually found to point to their lack of an emotional maturity sufficient to give weight to their views, rather than supporting the father’s argument.
The father’s appeal of the Hague Convention decision was ultimately dismissed and the Court upheld the order at first instance that the children be returned to the UK.
What can I do if my child has been taken to another country?
The best course of action to be taken if a child has been removed to another country will depend upon the individual circumstances of a matter.
The recent case of Hays & Department of Communities and Justice is an example of a situation where there were other, more appropriate courses of action that could have been taken where a child had been removed from the UK to Australia.
Despite the father’s appeal of the Hague Convention decision being dismissed, the Court expressed the view that it was not necessary for the Hague Convention proceedings to have been commenced in the first place, in circumstances where there was already an order in the UK requiring the children live in the UK.
The more appropriate course of action for the mother would have been to simply register the order of the UK court in Australia, and seek that it be enforced. In the circumstances of this case, this would have been a much more effective way by which to secure the children’s return, and would have potentially avoided the children’s protracted stay in Australia.
What can I do if I am concerned my child may be taken from Australia to another country?
If you are concerned that your child may be removed from Australia to another country, you can take urgent measures including:
- placing the children on the Australian Federal Police airport watchlist;
- retaining the children’s passports;
- filing a child alert request in relation to any application for a new passport for the children; and
- seeking legal advice including with respect to the appropriate proceedings to commence.
The HopgoodGanim Family Law team are able to advise clients in relation to all aspects of international matters affecting children.
For further information on this issue, please contact HopgoodGanim Lawyers' Family Law team.