Case note: children removed to a non-Hague Convention country

The background

Acting on a property settlement following separation, we were instructed that the other parent had taken the two children of the relationship out of Australia to her country of birth and left them in the care of their maternal grandparents, before returning to Australia without them.

Both children are Australian citizens and both were young. Our client had not consented to the travel and was concerned about their welfare in the care of elderly relatives, in a country the children did not know.

Why the Hague Convention did not help

The Hague Convention on the Civil Aspects of International Child Abduction provides an agreed process for seeking the return of a child wrongfully removed from one signatory country to another. In Australia it operates through the Family Law (Child Abduction Convention) Regulations 1986 (Cth), with applications made through the Commonwealth Central Authority.

That mechanism was unavailable here. The children were in a country that is not a party to the Convention, so there was no treaty pathway and no reciprocal obligation to consider a return application.

Where the Convention does not apply, the options narrow to diplomatic assistance, any bilateral arrangement between the two countries, orders in the Australian court, and negotiation.

What was done

Court documents were drafted immediately, on the basis that a delay in commencing proceedings is rarely recoverable in matters of this kind.

At the same time we contacted the Australian Consulate in the country where the children were located. Consular staff indicated they would assist if and when that became necessary.

As a contingency, we reviewed the arrangements in place between the two countries to establish whether any agreed process existed for the return of children removed from one to the other. Nothing of substance was available, in part because of the state of relations between the two countries at the time.

In parallel we wrote to the other parent’s solicitors, setting out our client’s intentions, his capacity and willingness to care for the children, and the steps he was prepared to take to secure their return to Australia.

After an extended exchange of correspondence, some direct conversations between solicitors, and further steps taken on our client’s instructions, the other parent agreed that the children would return to Australia.

The result

Our client travelled to the country concerned, the children were delivered into his care, and they returned to Australia with him. Interim arrangements were then dealt with within the family law proceedings.

Every matter turns on its own facts. International child matters depend heavily on which country is involved, whether it is a party to the Hague Convention, the immigration and citizenship position of the children, and what the other parent is prepared to do. Nothing here indicates what would happen in another case.

If you are concerned that a child may be removed from Australia, act immediately rather than waiting. Our page on child relocation and recovery orders sets out the orders available, including watch list orders.