Retrieving a child from overseas – exceptions to the rule
Taking your child overseas without the permission of the other parent could result in serious legal problems for your family.
Before you leave Australia with your children, make sure you get consent from any person or institution with responsibility for the children, or get a court order permitting their travel.
If a child is taken overseas and is not returned, then swift action should be taken under the Hague Convention.
The Hague Convention is an international treaty that was started in 1987 and is aimed at discouraging international parental child abduction.
This means that if a child has been wrongfully abducted, they will be returned to their “habitual residence” so any disagreements between the parents can be dealt with in the courts of that country.
There are more than 80 countries that are now part of the Hague Convention, Australia is one of them.
If a child is taken to a country that is not part of the Hague Convention there is no international mechanism available for the child’s return and as Australian law has no enforceability overseas, few legal options exist.
Legal proceedings in the country that the child was abducted to are usually the only option.
If a country is a member of the Hague Convention (and a child is held over in Australia), then the Australian government (known as the Central Authority) will initiate the application for the child’s return and determine whether the child should be returned, based on the child’s “habitual residence”.
However, there are some exceptions to the general rule that says children must be returned to their country of habitual residence.
If the child objects to being returned to their country of habitual residence and has attained an age and degree of maturity at which it is appropriate to take account of their views, then that could result in the child being allowed to stay overseas.
The Australian regulations also require that a child’s objection demonstrates a “strength of feeling beyond the mere expression of a preference or of ordinary wishes”.
Where this approach is taken, children must express their objection in extremely strong terms.
There’s no specific age in which a child’s view is taken into account by a court, but generally speaking, the older the child, the more their opinion will be listened to. For example, if a 16-year-old objects to being returned home, that will carry more weight than the opinion of a 6-year-old.
If the “left behind” parent was not exercising custody rights at the time the child was taken overseas, that could also result in an exemption being made.
And if returning the child exposes them to physical or psychological harm or otherwise places them in an intolerable situation, then the court is not bound to order their return
This is a complex are of law and for Australian parents, it’s important to remember that the Family Law Act has no power outside this country.
If you are concerned about a child being taken out of the country, you must get urgent specialist family law advice.
Contact Michael Lynch Family Lawyers on: (07) 3221 4300 or [email protected]
