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Responding to international child abduction

Feature Articles

Cite as: (2009) 83(03) LIJ, p.44

Obtaining or opposing return of children under the Hague Convention can be a highly emotive matter. Practitioners should be aware of procedural requirements, and limitations on their capacity to assist clients.

By Teresa Porritt

On 25 October 1980, Australia signed the Convention on the Civil Aspects of International Child Abduction (the Convention) at The Hague.1 The Convention entered into force as Australian law on 1 January 1987, and marked the date on which the Family Law (Child Abduction Convention) Regulations 1987 (Cth) (the Regulations) came into operation. The Regulations provide the framework within which incoming applications (see below) brought under the Convention are heard and determined by the Family Court of Australia.

The intention of the Convention is twofold:

  • to ensure that a child wrongfully removed to, or retained in, a Convention country is returned to their country of habitual residence (return applications); and
  • to secure protection for the rights of parents to have access to their child who is located in a Convention country (access applications).

In order to discharge its duties under the Convention, each contracting state is required to nominate a central authority to coordinate incoming and outgoing requests for assistance. In Australia, the central authority is the commonwealth Attorney-General’s Office. Given our federal system of government, and the practical convenience of responding to requests on a state-by-state basis, each state also has a responsible central authority. In Victoria, the Secretary to the Department of Human Services (DHS) is the responsible state central authority (SCA).

Return applications

Applying for orders

Where a child has been removed to, or retained in, Australia, the request for assistance from a parent located in another Convention country is known as an incoming application. On receipt of an incoming application, the SCA, in consultation with the commonwealth central authority, determines whether there is a prima facie case to initiate proceedings in the Family Court. Generally, central authorities will not reject an application unless it is manifestly obvious that the application does not comply with the Convention.

Where a child has been removed to or retained in a Convention country other than Australia, a requesting parent, through the commonwealth central authority, may decide to make an outgoing application to the central authority of that country for assistance.

If a client seeks to make an outgoing application, in reality the practitioner can do little more than assist with preparation of the request for assistance to be submitted to the local SCA. The role of the SCA is similarly limited, effectively to being a means of communicating information from the requesting parent to the overseas central authority. It is important to bear in mind that, while the requesting parent may seek particular evidence to be adduced in the proceedings, it is ultimately a matter for the overseas central authority as to whether this is done. Often, the overseas central authority will appoint a legal adviser in that country to represent the interests of the requesting parent.

Similarly, in incoming matters, the SCA, not the requesting parent, is the applicant in the proceedings so it is the instructions of the SCA that will be put before the Court.The SCA will consider the wishes of the requesting parent and endeavour to make submissions consistent with these wishes. However, on occasions the duty of the SCA to the spirit of the Convention, and not to the requesting parent, has required it to advance submissions that squarely contradict the wishes of the requesting parent.

The purpose of return applications is not to determine substantive rights of custody: the Convention requires that these matters be determined in the appropriate forum, that is, the child’s place of habitual residence. Regulation 16(1) states that the Court is obliged to make a return order where the SCA has filed an application for return within one year of the child’s removal or retention, and is able to demonstrate that the removal or retention was wrongful. A removal or retention will be considered wrongful where the child was under 16 at the time and habitually resided in a Convention country, and the requesting parent had and was exercising rights of custody in respect of the child that were breached by the respondent parent’s removal or retention of the child.

Opposing return orders

Although the High Court has recognised that “an underlying assumption of the Convention and Regulations is that it is generally better for a child to be returned promptly to familiar surroundings rather than suffer the disruption of an international move”, it has also noted: “that assumption, however, will not be right in every case”.2 In order for the respondent parent to oppose a return order being made, a defence will have to be asserted under reg 16(3), including, but not limited to:

(i) the requesting parent’s consent or acquiescence to the alleged wrongful removal or retention – the respondent parent bears the onus of proving the requesting parent agreed to the removal or retention or subsequently acquiesced. The question is one of fact and requires the Court to make an evaluation as to the more likely version of events.3

(ii) a grave risk of harm to the child – it must be established that there is a grave risk that a return order would expose the child to physical or psychological harm or otherwise place the child in “an intolerable situation”. The respondent parent will need to adduce sufficient evidence for the Court to predict, based on the evidence, that there will be grave risk if the child is returned.4

(iii) the child having settled in their new environment – the operation of this exception to mandatory return has been the subject of debate as to whether time begins running 12 months from the date the child was removed from the country of alleged habitual residence or from the date the child arrived in the country in which the application has been filed. The test itself has also been problematic for courts, which have acknowledged that “expressing the test simply as giving the words their natural meaning does not provide assistance as to what factual situation might lead [the court] to reach the conclusion that the child is settled in his or her new environment”. There is some authority, however, that the age of the child will be a factor in deciding whether or not the child has settled.5

Notwithstanding the establishment of one or more of these defences, the Court retains an overriding discretion to make a return order. Consequently, practitioners who represent abducting parents in incoming, as opposed to outgoing, applications play a much greater role in the proceedings.

Overview of procedure

As there seems to be much uncertainty surrounding the process, the following paragraphs attempt to provide a brief overview.

At the time the initiating application is filed with the Family Court by the SCA, a date is obtained for an ex parte hearing seeking orders that, among other things, restrain the respondent parent from removing the child from the jurisdiction, require the surrender of the child’s passport to the registry manager of the Court, and place the child on the Airport Watch List so that any attempt to leave the country will signal an alert to the Australian Federal Police. These orders are routinely sought and obtained on an ex parte basis because of concern that if the respondent parent knows of the application they may attempt to leave the jurisdiction. It is not uncommon for these types of orders to be sought by a parent who is concerned that their partner may be contemplating fleeing the country with their child.

On being served with the application, the respondent parent will be informed of the first return date for the matter. This date has often been confused by representatives for the respondent as the final hearing of the matter; however, it is simply a hearing to set down a timetable for the future course of the proceeding. The expeditious hearing of Hague matters is a fundamental principle of the Convention, and courts are expected to facilitate this. Indeed, reg 15 provides that where a return application has not been determined by the Court within 42 days from the date of the application being filed, the SCA may request the Court or registrar to state in writing the reasons for the application not having been determined in that period. Accordingly, timetables will usually only permit each party a matter of weeks to file a response and reply, although this may be extended in matters where evidence from overseas requires translation.

At the final hearing, it is extremely unusual for witnesses to be called. Counsel will make oral submissions, supplemented by affidavit material. Unlike most other proceedings, affidavits of overseas witnesses can be filed with the Court and admitted as evidence, even where that witness does not attend court for cross-examination.6 While this provision clearly recognises that most evidence in international child abduction cases will be provided by family and friends located overseas, and attempts to alleviate the burden of having to travel to another jurisdiction for cross-examination, there is the accompanying difficulty in directly challenging the contents of an affidavit and/or the reliability of a witness.

Access applications

The Convention seeks to ensure that rights of custody and of access under the law of one Convention country are effectively respected in other Convention countries. In order to bring an application for access, the applicant need only make a request to the relevant central authority. Often, where a child has been abducted to another country but the “left behind” parent does not seek full custody of the child, they may elect to make an application for access with a child instead of an application for return of the child.

Generally, the preference in responding to requests for assistance in these matters is for access arrangements to be negotiated privately between the parties, as opposed to initiating court proceedings. However, it is not uncommon for access applications to be brought years after a requesting parent has had contact with their child, in which case proceedings are more likely to be commenced as the parties are less likely to be cooperative. Often, where return applications have proved unsuccessful, an access application will be made shortly afterwards.

The procedure for hearing access applications is identical to that for return matters. The main difference in the two matters lies in the orders that may be made by the Court. In access matters, the orders will specify what type of access the parties, or the Court, is prepared to allow between the requesting parent and the subject child. Orders will usually be quite specific and provide for the days, times and means by which contact may occur, and for financial arrangements in respect of organising and maintaining such contact. Once an order has been made by the Court, the involvement of the SCA will generally cease, as enforcement of any breach is regarded as a private matter between the respective parties.

Conclusion

The rules and procedures particular to Hague applications attempt to ensure that the best interests of the child remain paramount. Despite the unique difficulties that accompany these applications – most notably that of obtaining information from an overseas jurisdiction, maintaining a duty to the Convention even where the requesting party’s interests conflict, and attempting to distil the truth in an arena where there is no cross-examination of witnesses – it is hoped that the determination of these applications fairly and swiftly will go some way to alleviating the sometimes overlooked stress, trauma and grief of the parties when a child has been abducted.

Practitioners who have queries about responding to Hague applications are encouraged to contact the DHS Legal Services Branch for assistance on ph 9096 7319.


TERESA PORRITT is a solicitor in the legal services branch, Department of Human Services. She practises mainly in Hague Convention applications, coronial inquests and general legal advice to DHS employees regarding their service areas.

1. Schedule 2 of the Regulations lists all Convention countries.

2. Regulation 29(3) of the Regulations.

3. See Director General, Department of Child Safety & S [2005] Fam CA 1115 (unreported, 22 November 2005) for a consideration of the facts that the judge held were insufficient to discharge the respondent mother’s onus of proving the father’s consent to the child’s removal.

4. See DP v Commonwealth Central Authority (2001) 206 CLR 401 at 41 and generally for discussion about the grave risk defence.

5. See State Central Authority & CR [2005] Fam CA 1050 (unreported, 4 November 2005) at 37 and generally for discussion about case law in relation to whether a child has settled in the new environment.

6. DP v Commonwealth Central Authority, note 4 above, at 37.

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