Child Abduction and The Hague Convention

The role of the Hague Convention in international child abduction cases.

The four Italian girls at the centre of the international child abduction case that has gained worldwide media attention were recently ordered by an Australian Family Court Judge to return to their father in Italy.

We subsequently witnessed the devastating scenes of the children being dragged from their mother by police; kicking and screaming, taken directly to the airport to board a plane to Italy, while many of us wondered -how could this happen? How could this decision possibly be right?

For those with an understanding of family law and in particular the law as it relates to International Child Abduction matters the decision was neither surprising nor controversial. The purpose of this article is to give a brief overview of the Hague Convention as it relates to child abduction matters and examine how this impacts international abduction cases involving Australian parents.

By way of background, each separate nation has a different body of laws that apply exclusively to that country. Every country is able to make laws concerning its territory and the people that live within that territory without interference.

Historically, this caused problems for parents when the other parent abducted their children and took them to new countries, beyond the reach of the laws of the country where the children were taken from. This effectively left parents without a remedy to have their children returned to them.

Recognising that this was a serious issue, in 1976 an international treaty was drafted regarding international child abduction by parents.  Australia, along with 87 other countries (including Italy) is party to the Hague Convention on the Civil Aspects of International Child Abduction. The purpose of the convention is to provide a clear and expedious course of action in circumstances where children have been wrongfully removed from one country to another, otherwise outside the reach of the jurisdiction of the resident country.

The convention provides for the return of children to the country where they were previously a “habitual resident”.

What this essentially means is that if a parent removes their children from a country which is a party to the Hague Convention (the “habitual residence country”) without the consent of the other parent and takes up residence in an alternative country (the “the current residence country”) which is also a party to the Hague Convention, the parent who has had the children removed is at liberty to make an application in a Court in the current residence country seeking the return of the children.

Under the Hague Convention, a Judge presiding over such a hearing is obliged to return the children to the habitual residence country. The Judge does not consider any substantive issues regarding the custody matter, for example, which parent the children should live with on a long term basis; the appropriate forum for these issues to be heard is in a Court in the habitual residence country.

The purpose of making an application in the current residence country is therefore to have the children returned to the habitual residence country where the matter can be considered by a Judge in that jurisdiction.

In the case of the mother who removed the four Italian girls from Italy, she acted without the consent of the father and therefore in breach of child abduction laws. The father was therefore at liberty to make an application in an Australian court seeking the return of the children. The Australian Family Court Judge who ordered the return of the children was acting entirely in accordance with the Hague Convention in making his decision. The appropriate forum for the children’s long term living arrangements to be determined is ultimately the Italian Family Courts, and it is still open to the mother to return to Italy and make an application seeking that the children live with her in Australia.

This is a complex area of law and if you are considering relocating internationally with your children, or if your former partner has relocated or is considering relocating with your children, please contact your nearest TGB office to arrange an appointment or register online.