The Hague Convention is an important part of Australia’s Family Law

It was on the news that four girls were sent back to Italy by the Family Court of Australia pursuant to the provisions of the Hague Convention. The number of cases involving international abduction of children from Australia is rising. Australia is one of the signatories to the Hague Convention and benefits from its provisions.

The Hague Convention is an important part of Australia’s Family Law in cases involving children being abducted to a foreign country. Being a signatory, Australian Government can ask assistance from a foreign country where the abducted child or children were brought and which is also a signatory to the convention in solving its abduction case.

So what is the Hague Convention?

The Hague Convention on the Civil Aspects of Child Abduction (1980) is an International Convention which aimed to protect the unlawful abduction of children overseas. And the Australian Government has pledged to support and uphold the Convention.

The signatories to the Convention agreed to:

• The interests of the children are of paramount importance in matters concerning their custody.
• To protect the children internationally from the harmful effects of their wrongful removal or retention
• To establish procedures to ensure their prompt return to the State of their habitual residence
• To secure their protection for rights of access

Under Article 3 of the Convention, there is wrongful removal or retention of children if 1) it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and 2) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody in relation to 1) arises when there is a judicial or administrative decision granting custody to the holding parent, or by operation of law or by legally binding agreement recognized by the State.

If there is a court decision in that country granting custody to the alleged abducting parent, then it is illegal to remove the child from that country without said parent giving his or her permission.

It may be distressing to see the girls being returned to Italy but it is worthy to stress that Family Law Act was aimed to protect children from harm and applied for their best interest. The Court in applying the law was critical of the mother in engaging the media and for influencing the children against their father.