CHAPTER 2

Regulatory and operational frameworks

2.1 International parental child abduction sits within complex regulatory, governance and operational frameworks that span international and domestic legal systems. These frameworks—which operate primarily under the civil law—can be divided into two broad categories, depending on whether abductions are committed:

to and from countries which are signatories to the Hague Convention (Hague Convention abductions); or
to or from countries which are not signatories to the Hague Convention (non‑Convention abductions).

2.2 The Hague Convention is a multilateral international legal instrument which establishes a framework for responding to international parental child abduction. Application of the Convention is limited to abductions where both the country from which the child is taken, and the country to which the child is removed, have ratified or acceded to the Convention. Non-Convention abductions are governed by two sources of law—general principles of private international law and, where available, bilateral agreements. Both types of abduction are discussed in this chapter.

Hague Convention abductions

2.3 The Hague Convention was concluded on 25 October 1980, and entered into force generally on 1 December 1983. Australia ratified the Convention on 29 October 1986, and the Convention entered into force for Australia on 1 January 1987. To date, 86 countries are contracting states to the Convention.[1]

Objects of the Hague Convention

2.4 The Hague Convention is an expression of international concern to protect children from the harmful effects of wrongful removal from one country to another. Its objects are to:

secure the prompt return of children wrongfully removed to, or retained in, any signatory state (described in the Convention as a 'contracting state'); and
ensure that the rights of custody and access under the law of one contracting state are respected in other contracting states.[2]

Relationship to the 'paramountcy principle'

2.5 The Hague Convention does not directly apply the 'paramountcy principle' in international child law—namely, that the best interests of the child must be the overriding consideration in decision-making affecting his or her rights, liberties or interests.[3] Rather, the Convention takes a utilitarian approach to advancing the best interests of the child.[4] It is based on the following presumptions:

as a general principle, international parental child abduction is contrary to the best interests of the child;
prompt return will promote the child's best interests by vindicating the right of the child to have contact with both parents, supporting continuity in the child's life, and ensuring that custody and access issues are determined by a court in the most appropriate jurisdiction to do so; and
the principle of prompt return advances the best interests of children generally, because it serves as a deterrent to international parental child abduction. In restoring the status quo which existed before the abduction, prompt return is said to deprive the abducting parent of any benefit that he or she might otherwise have gained.[5]

2.6 The United Nations Committee on the Rights of the Child has recognised that the Convention implements, in part, various articles of the Convention on the Rights of the Child—for example, those concerning the prevention of various forms of child abduction or trafficking, and the rights of children to maintain personal relations and direct contact with both parents.[6]

Application of the Hague Convention

2.7 The Hague Convention does not automatically apply between all contracting states. Where a new contracting state accedes to the Convention, Article 38 imposes the following requirement:

The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.

2.8 Consequently, the Australian Government must declare its acceptance of another country's accession before the Convention is effective as between the acceding country and Australia. The Convention leaves the acceptance of accessions to the discretion of individual contracting states.

2.9 Decisions whether or not to accept an accession are informed by an assessment of the acceding country's capacity to implement the Convention.[7] Official records indicate that the Australian Government is yet to accept the accessions of eight contracting states.[8]

2.10 Certain matters must be established under Articles 3-5 to enliven the jurisdiction of the Convention. There must be a wrongful removal of a child from a contracting state in which he or she is habitually resident, or a wrongful retention of a child in a contracting state which is outside his or her place of habitual residence.

2.11 A 'child' is defined as a person who is under 16 years of age.[9] 'Wrongful removal' means the removal of the child in breach of rights of custody or access which were being exercised at the time of removal, or would have been exercised had the child not been removed. Similarly, 'wrongful retention' means the retention of a child in breach of rights of custody or access which were being exercised at the time of retention, or would have been exercised had the child not been retained.[10]

Operational framework for return of wrongfully removed or retained children

2.12 To implement its objectives, the Hague Convention establishes a cooperative framework between contracting states, to enable the return of abducted children to their country of habitual residence. This means that family law proceedings concerning the child's custody and residence may be commenced in the latter jurisdiction.

2.13 The Convention provides for a system of:

judicially or administratively determined return orders, made by a court or tribunal of competent jurisdiction in the country to which the child was abducted, requiring the return of the child to his or her country of habitual residence;[11] and
administrative cooperation between the country of the child's habitual residence and the country to which he or she was abducted.[12]

2.14 The Convention makes clear that a return order is not a custody determination, or any other form of decision on the merits of a custody issue. It is simply an order requiring the return of the child to the jurisdiction that is most appropriate to determine the merits of the case—generally that of the child's habitual residence.[13]

Central Authorities

2.15 Contracting states are required to designate an agency, referred to as a Central Authority, to perform the above obligations concerning administrative cooperation.[14] The Convention prescribes an application process by which individuals with an international parental child abduction claim may seek assistance from the Central Authority in their jurisdiction to secure the child's return.[15]

2.16 The Convention provides further for a scheme of mutual assistance between contracting states. It requires contracting states to which children have been abducted to provide assistance to individual applicants and respondents who are nationals of, or habitually resident in, another contracting state. Such persons (who are generally the 'left-behind' parent and the abducting parent) are entitled to legal aid and assistance in the contracting state to which the child has been abducted, as if they were nationals of that state.[16]

Costs of returning abducted children

2.17 In addition, the Convention makes provision in respect of costs incurred by Central Authorities in managing applications. Article 26 states that each Central Authority will bear its own costs, and will not impose charges in relation to applications submitted to them for assistance in seeking the return of a child under the Convention. The Convention provides, however, that contracting states may make certain reservations as to costs.[17]

2.18 Where a contracting state has made such a reservation, the individual applicant—generally the left-behind parent—may be required to meet these expenses personally, or apply for assistance where available, under legal aid or other support schemes in the abducting country or in their country of habitual residence.

Obligations of expediency

2.19 The Convention imposes various obligations of expediency on Central Authorities and administrative or judicial bodies responsible for determining applications for return orders.[18] The Convention also provides guidance on the judicial (or administrative) decision-making processes for determining whether a wrongful removal or retention has occurred.[19]

Exceptions to the principle of prompt return

2.20 The Convention contains limited exceptions to the principle of prompt return.[20] The judicial or administrative body in the abducting jurisdiction may refuse an application for a return order where a respondent establishes the existence of one of the following exceptions:[21]

the child has been in the new country for over 12 months and is settled in his or her new environment;[22]
the requesting-parent was not exercising his or her rights of custody at the time of removal or retention;[23]
the requesting-parent consented or subsequently acquiesced to the removal or retention;[24]
there is a grave risk that any return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation;[25]
the child objects to the return and has attained an age and degree of maturity at which it is appropriate for the court to take into account these views;[26] and
the return of the child would not be permitted by fundamental principles of the requested country, which relate to the protection of human rights and basic freedoms.[27]

2.21 There is variation between interpretations of these exceptions by individual contracting states. This is due, in part, to the different ways in which the Convention is implemented by individual contracting states, which reflect differences in their legal systems and adjudicative approaches. In addition, some contracting states have negotiated protocols between themselves on the interpretation of the Convention in order to improve consistency of approach.[28]

International administration and oversight of the Hague Convention

2.22 The Permanent Bureau of the Hague Conference on Private International Law (Hague Conference) coordinates the international administration and oversight of the Convention.[29] The Hague Conference administers initiatives such as:

meetings of a Special Commission of member states in relation to the practical operation of the Convention;
the development of good practice guides concerning the practices of Central Authorities, and other implementation, prevention and enforcement matters; and
international judicial liaison, education and awareness initiatives through the International Hague Network of Judges. This network enables judicial officers or decision-makers under the Convention to liaise about specific proceedings, or, more generally, through educational and networking events.[30]

Implementation and operation of the Hague Convention in Australia

2.23 The Convention does not prescribe its means of implementation in the domestic laws of contracting states. Article 2 directs contracting states to 'take all appropriate measures' to implement the objectives of the Convention, utilising the 'most expeditious procedures available'.

2.24 In Australia, the Convention is implemented by the Family Law (Child Abduction Convention) Regulations 1986 (Regulations), which are made under sections 111B and 111D of the Family Law Act. The Regulations do not incorporate the Convention into Australian law by reference, but simply restate its effect.[31]

Australian Central Authorities

2.25 The Regulations provide for the establishment of a Commonwealth Central Authority (CCA), supported by state and territory Central Authorities (SCAs). The CCA is the Attorney-General's Department (Department) and the SCAs are generally located within state and territory human services portfolios or police forces.[32]

2.26 Broadly, the Regulations provide that the role of a Central Authority is to do, or coordinate the doing of, anything that is necessary to enable the performance of Australia's obligations under the Convention.[33] If a child has been wrongfully removed to another contracting state, a parent may make an application to the CCA to seek assistance in securing the return of his or her child. Similarly, if a child has been wrongfully removed to, or retained in, Australia from another contracting state, an overseas Central Authority may apply to the CCA to seek assistance in securing the return of the child.[34]

2.27 There is no obligation on persons seeking the return of an abducted child to proceed through a Central Authority. Under the Regulations, an individual parent may make an application under the Convention directly to a court or tribunal in the jurisdiction to which his or her child has been abducted.[35] Parents may wish to engage private legal representation;[36] and some parents may be entitled to legal aid for these purposes, in the event that they meet the means and merits tests for such assistance.[37]

Outgoing matters (abductions from Australia)

2.28 In New South Wales, Victoria, Queensland, South Australia and Tasmania, SCAs provide assistance in preparing a Hague Convention application to persons whose children have been abducted from Australia to another contracting state. This includes the preparation of application forms and supporting documentation, including affidavits, at no cost to the applicant. Under national cost recovery arrangements, the SCAs bill the Commonwealth for this work on a fee-for-service basis (generally using a time costing fee structure, based on an hourly rate).[38]

2.29 In Western Australia, the Northern Territory, the Australian Capital Territory, and in any other jurisdiction in which the applicant does not wish to proceed through the relevant SCA, assistance is provided by the CCA at no cost to the applicant.[39]

Incoming matters (abductions to Australia)

2.30 When the CCA receives a request for the return of a child from an overseas Central Authority, it will make inquiries to determine that the request meets the terms of the Convention. If the CCA is of the opinion that the request is compliant, it will then seek to achieve the return of the child either voluntarily or through an application to the Family Court of Australia (Family Court) for a return order under the Convention.[40] The Family Court is designated as the relevant Australian court for the determination of matters under the Convention.[41] The Regulations set out the decision-making framework that the court is required to apply, which is consistent with the requirements of the Convention.

2.31 Central Authorities are not legal representatives of the left-behind parent (outside Australia) in Convention proceedings, and their applications are made in the name of the Australian Government. Accordingly, Central Authorities are bound by the Commonwealth model litigant obligations in the Legal Services Directions 2005 (Cth).[42]

2.32 As Australia has not made a reservation as to costs under Article 26 of the Convention, the Australian Government meets the costs associated with returning children who are abducted to Australia from other contracting states.[43]

Operational support

2.33 Australian Central Authorities are the lead agencies involved in responding to incidents of international parental child abduction in Hague Convention matters. They receive operational support from several Commonwealth and state and territory agencies, including:

the Australian Federal Police (AFP), which provides operational support in preventing apprehended incidents of international parental child abduction from Australia, and in the location and recovery of abducted children;
the Department of Foreign Affairs and Trade (DFAT), which provides consular assistance to Australian children who are abducted overseas, and administers the Australian Passports Act 2005 (Cth) (Passports Act); and
various Commonwealth and state and territory human services agencies, including the Child Support Agency, Centrelink and state and territory child protection authorities.[44]

Financial assistance to persons affected by international parental child abduction

2.34 The Attorney-General's Department administers the Overseas Custody (Child Removal) Scheme (Overseas Custody Scheme). The Overseas Custody Scheme provides financial assistance to Australian parents whose children are ordinarily resident in Australia and are wrongfully removed from, or retained outside, Australia. Financial assistance is available under the scheme to enable these parents to commence legal proceedings in the overseas country to which their child has been abducted.[45]

2.35 The Overseas Custody Scheme covers both Convention and non-Convention abductions. It is means and merits tested, and is limited to specified expenses, such as the costs of engaging an overseas lawyer if legal aid is unavailable in the overseas country, and certain travel costs.[46] The scheme does not cover costs associated with overseas access or visitation, or legal costs incurred in Australia. Financial assistance under the scheme is usually limited to future expenses.[47]

Non-Convention abductions

2.36 Non-Convention abductions are generally regarded as more problematic than Convention cases. The Hon Michael Kirby AC CMG has described international parental child abduction to or from non-Convention countries as 'a legal wasteland' with 'absolutely no effective legal or political sanction'.[48]

Private international law

Outgoing matters (abductions from Australia to non-Convention countries)

2.37 If an Australian child is abducted to a non-Convention country with which Australia has no bilateral agreement on the issue of international parental child abduction, the matter is governed by general principles of private international law and—depending on determination of forum issues—the domestic family laws of the non-Convention country. The left‑behind parent seeking the return of his or her child must initiate proceedings in the overseas jurisdiction to which the child was abducted. Central Authorities have no mandate to intervene in these proceedings.[49]

Incoming matters (abductions to Australia from non-Convention countries)

2.38 Where a child who is habitually resident in a non-Convention country is abducted to Australia, the left-behind parent must initiate proceedings in the Family Court of Australia.[50] Where a left-behind parent has a parenting order made by an overseas court, he or she may apply to register it in Australia under the Family Law Act and the Regulations. Once registered, the order has the same effect as if it was made under the Family Law Act, therefore making it enforceable in Australia.[51]

2.39 Where the left-behind parent does not have an overseas family law order capable of registration, he or she could seek an order for the return of the child under section 67ZC of the Family Law Act, which enables the court to make orders for the welfare of the child. The court may also make a recovery order under the Family Law Act, requiring the child to be returned to the custody of the non-abducting parent, where he or she has parental responsibility in respect of the child.

Australian Government assistance in non-Convention abductions

2.40 Means and merits tested financial assistance is available to left-behind parents in non-Convention matters under the Overseas Custody Scheme.[52] In respect of outgoing abductions, consular assistance is also available via DFAT's Consular Emergency Centre. Such assistance includes providing information about the country to which the child has been abducted, as well as lists of lawyers and support service providers in the relevant country.[53]

Bilateral agreements

2.41 Australia has entered into bilateral agreements with two non-contracting states to the Hague Convention: Egypt and Lebanon. These agreements were entered into force in 2002 and 2010 respectively, and are administered by the Attorney-General's Department.[54]

2.42 The agreements do not provide for specific legal processes to address international parental child abduction, nor do they confer substantive legal rights upon affected persons. Instead they establish Joint Consultative Commissions which provide a forum for dialogue and mutual assistance in the event of international parental child abduction to or from either country. They also make provision for support services to be provided by the country to which the child has been abducted.

Interactions between international parental child abduction and domestic family laws

2.43 There are some specific areas of interaction between international parental child abduction (in relation to Convention and non-Convention abductions) and Australian family laws.

Outgoing matters

2.44 Various remedies may be available under the Family Law Act to prevent apprehended incidents of international parental child abduction from Australia, or respond to completed abductions from Australia, including:

relocation orders—the court may make orders permitting a parent to relocate overseas and make provision for the child's residence arrangements;[55]
parenting orders—where the court has made parenting orders under the Family Law Act, or where proceedings for such orders are on foot, it is a criminal offence for a parent to remove the child from Australia (offences carry a maximum penalty of three years imprisonment);[56]
recovery orders—a court can authorise or direct an appropriate authority to take action to find, recover and deliver a child to a person with parental responsibility for him or her (these orders can also prohibit a parent who has previously abducted or attempted to abduct the child from repeating this conduct);[57]
location orders—a person can be required to provide information to the court about a child's location;[58]
Commonwealth Information Orders—an Australian Government agency may be required to provide information to the court about the child's location that is contained in government records;[59] and
publication orders—the court may make orders permitting the media and others to publish details and photographs of the missing child and the person he or she is believed to be with.[60]

Incoming matters

2.45 As noted above, where a child who is habitually resident overseas is abducted to Australia, the left-behind parent may seek registration in the Family Court of family law orders made by a court in the jurisdiction of habitual residence.[61] He or she may also seek orders under the Family Law Act relevant to the location and recovery of the child within Australia.

2.46 In addition, the Regulations provide that the Family Court may order the return of the child to the jurisdiction of habitual residence conditional on 'mirror orders', which are identical orders made by an overseas court in the jurisdiction to which the child has been abducted. The result is that the orders of the Family Court are able to be enforced in Australia as well as in the overseas jurisdiction.[62]

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