Parental child abduction in Australia
Parental child abduction can occur within Australia or internationally. Immediate legal intervention may be required where a child is unlawfully removed, withheld or concealed from a parent or legal guardian.
International parental child abduction occurs when a child is removed from their country of habitual residence, or wrongfully retained in another country, without the required consent or court authorisation.
Domestic child abduction occurs when the child is taken to another location within Australia without permission from the other parent.
In Australia, the Family Law Act 1975 (Cth) (Act) provides the legal basis for addressing child abduction in Australia. At Arnold Hills, we provide advice and representation in cases involving parental child abduction and Hague Convention matters.
Domestic child abduction
If your child has been removed from your care, not returned to you, withheld contrary to parenting orders, or their whereabouts are unknown, legal options may be available to locate your child and seek their return.
If it is safe to do so, you can first attempt to contact the other parent. If you cannot reach them, or they refuse to return your child or disclose your child’s whereabouts, urgent intervention may be required. Depending on the circumstances, this may include contacting the police, particularly where there are immediate concerns for your child’s safety. You may also need to apply to the Federal Circuit and Family Court of Australia for urgent court orders.
Contact Arnold Hills for tailored advice specific to your circumstances.
Domestic child abduction: Urgent child recovery and location orders in the Hills District and Sydney
If your child has been unlawfully removed or withheld without your consent or legal authority, or if your child’s whereabouts are unknown, you may apply to the court for orders to help locate and secure the safe return of your child. The court may make a location order to help locate your child or a recovery order to secure your child’s return.
What is a Recovery Order?
A recovery order is a court order requiring the child to be returned to the parent, person who has parental responsibility of the child or any other person named in the order.
A parent, grandparent or any other person concerned with the child’s care, welfare or development can apply for a recovery order under section 67Q of the Act.
A recovery order authorises police officers, commonly the Australian Federal Police, to locate, recover and deliver the child to the person named in the order.
Location Orders, Commonwealth Information Orders and Publication Orders
If your child’s whereabouts are unknown, you may apply for a location order and/or a Commonwealth information order. These types of orders require a person or Commonwealth department to provide information about the child’s location to the registry manager of the court.
- A location order is a court order that requires a person to provide the Registry Manager of the court with any information they have regarding the child’s whereabouts. This type of order generally remains in force for 12 months.
- A Commonwealth information order has the effect of causing government records, including those held by the Australian Taxation Office, Services Australia and Centrelink, to be searched on a 3-monthly basis to determine the whereabouts of the person who has removed the child. The order can also last for 12-months.
- A publication order is a court order that partially lifts the restrictions that ordinarily apply to publishing information about family law proceedings. It may allow specified information or photographs to be published by media outlets to assist in locating a missing child. A publication order will specify the information that may be published and is generally sought as a last resort after other attempts to locate the child have been made.
International child abduction
The resolution of matters involving international child abduction, and the enforcement of parental rights in foreign jurisdictions, can be complex and difficult to navigate. If your child was wrongfully removed from, or retained outside of Australia, the legal process for seeking your child’s return will depend on a number of factors, including whether the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is in force between Australia and the relevant country.
What is the Hague Convention?
The Hague Convention is a multilateral treaty in force between Australia and a number of other signatory countries. It is designed to protect children from the harmful effects of internation child abduction and provides a lawful process for seeking the return of children who have been wrongfully removed or retained.
For parents seeking the return of their abducted child to Australia, the Hague Convention only applies where the Convention is in force between the relevant country and Australia. It is important to distinguish between a country that is a party to the Convention and a country in respect of which the Convention is in force with Australia.
How is the Hague Convention enforced?
The Hague Convention requires each contracting state to designate a Central Authority to perform functions under the Convention. In Australia, it is the Attorney-General’s Department that functions as the Central Authority. The Australian Central Authority administers the Hague Convention applications made under the Convention.
Can I seek my child’s return through the Hague Convention?
The Hague Convention applies where the relevant legal requirements are satisfied, these requirements include:
- the child is under 16 years old;
- the child habitually resided in Australia or in another convention country, immediately before their wrongful removal or retention;
- the person seeking the child’s return had rights of custody in relation to the child, the removal or retention was in breach of those rights and, at the time of the removal or retention, those rights were actually being exercised or would have been exercised but for the removal or retention; and
- the application is filed within one year of the wrongful removal or retention.
Exceptions to prevent a child from being returned
A person who has retained a child in Australia, or removed the child to Australia, may seek to prevent the child from being returned by relying on one of the below exceptions:
- the child has been in Australia for over 12 months and is settled in his or her new environment;
- the person seeking the child’s return was not actually exercising their rights of custody at the time of the removal or retention and would not have exercised those rights had the child not been removed to, or retained in Australia;
- the person seeking the child’s return consented to, or subsequently acquiesced in the child being removed to, or retained in Australia;
- there is a grave risk that the child’s return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation;
- the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take the child’s views into account; or
- the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
The onus of establishing a relevant ground for opposing the child’s return lies on the person opposing the child’s return. If one of the grounds on which the court may refuse to make a return orders is established, it does not mean that the court must refuse to make an order for the child’s return. The court may still make a return order.
Hague Convention proceedings are different from parenting proceedings
Hague Convention proceedings are different from ordinary parenting proceedings.
The purpose of Hague Convention proceedings is to determine whether a child should be returned to their country of habitual residence. They do not determine final parenting arrangements, including who the child should live with, spend time with or communicate with. Those issues are ordinarily determined in the country of the child’s habitual residence.
If a child is returned, parenting issues are generally left to be determined by the appropriate court in the country of the child’s habitual residence, in accordance with the law of that country.
For more information on parenting arrangements, see our children and parenting page or contact Arnold Hills.
Child removed to and retained in a non-Convention country
If a child is removed from Australia to, or retained in, a country where the Hague Convention is not in force with Australia, the Hague Convention return process will not be available. The options for seeking the child’s return will depend on the laws and procedures of the country in which the child is located and the particular circumstances of the matter.
Australia has bilateral agreements with Egypt and Lebanon concerning the welfare of children. If your child has been taken to, or retained in, Egypt or Lebanon, it may be possible to seek assistance through the Attorney General’s Department.
Matters involving other non-Convention countries can be particularly complex. It may be necessary to obtain legal advice both in Australia and from a suitably qualified lawyer in the country where the child is located to understand the legal options available and the steps that can be taken. Consular assistance may also be available.
Contact Arnold Hills for tailored legal advice and assistance.
What can I do if I am concerned that my child may be taken overseas?
If you are concerned that your child may be removed from Australia without your consent, it is important to obtain legal advice as soon as possible, as urgent court intervention may be required.
Depending on the circumstances, you may be able to apply to the Federal Circuit and Family Court of Australia for orders preventing the child from leaving Australia and requesting that the Australian Federal Police place the child on the Family Law Watchlist. If your child’s name is placed on the Family Law Watchlist, police will be alerted if an attempt is made to remove your child from Australia.
A child may be placed on the Family Law Watchlist where:
- a court issued parenting order or injunction limits or prevents overseas travel;
- an application is currently before the Federal Circuit and Family Court of Australia seeking orders to limit or prevent the child’s overseas travel and requesting that the child be placed on the Family Law Watchlist; or
- a parenting order or injunction is currently under appeal.
Where appropriate, urgent applications can be made where there is an immediate risk that a child may be removed from Australia.
For more information on whether your child’s name can be placed on the AFP Family Law Watchlist, contact Arnold Hills for assistance and advice.
Speak with a child abduction lawyer in the Hills District or Sydney
Arnold Hills can assess your circumstances, explain the legal options available and advise you on any urgent steps that may be required to locate your child and seek their return. We can prepare and file applications in the Federal Circuit and Family Court of Australia for location orders, recovery orders, injunctions and other urgent parenting orders.
We also advise on international parental child abduction matters, including the application of the Hague Convention, international travel disputes, passport issues, and placement of a child on the Family Law Watchlist. Where a proposed move is disputed rather than unlawful, see our child relocation page.
If your child has been taken, has not been returned, or you are concerned that your child may be removed from Australia, it is important to obtain legal advice promptly about the options available, if you cannot resolve the dispute with the other parent. Where there are also concerns about safety, see our domestic and family violence page.
Arnold Hills assists clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney, with urgent child recovery matters, Family Law Watchlist applications, international parental child abduction and Hague Convention matters.
Contact Arnold Hills to arrange a confidential consultation.
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