Want to listen to the full episode and all our other episodes?
Hearsay allows you to fulfill your legal CPD requirements every year.
Our yearly subscription is only $299/year.
With a yearly subscription, you can access all of our episodes AND every episode we release over the next year.
Without Consent: International Parental Child Abduction
Substantive Law| What area(s) of law does this episode consider? | International Parental Child Abduction (IPCA) under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. |
| Why is this topic relevant? | IPCA occurs when a parent takes a child to another country without the permission of the child’s other parent; it disrupts the child’s life and negatively impacts their growth and development. The Hague Convention on the Civil Aspects of International Child Abduction standardises the process of requesting the return of a child to the place of their habitual residence for determination of any parenting dispute on the merits in domestic courts. |
| What legislation is considered in this episode? | Hague Convention on the Civil Aspects of International Child Abduction |
| What cases are considered in this episode? | Secretary for Justice v Duncan [1993] NZFLR 870
|
| What are the main points? |
|
| What are the practical takeaways? |
|
| How to: | How to make a Hague Convention return application
For further details on the Hague Convention return application, listen to Belinda’s episode from 25:17. |
| Show notes | Hague Conference on Private International Law Website |
| David Turner: 1:00
2:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. With more than 30% of Australia’s population born overseas, it’s maybe unsurprising that disputes about the care and responsibility of Australian children can often end up crossing international borders. Modern International Parental Abduction, or IPCA as we’ll be referring to it in this episode, occurs when a parent takes the child from their home country without the permission of the other parent or, where necessary, the permission of a competent court. Now, home in this context is defined as the habitual country of residence of the child, however, international disputes related to the abduction of children are not a new phenomenon. The goal of the international regime designed to combat this issue is not to return the child to the aggrieved parent, but to the legal system of their home country, for the termination of any parenting dispute on its merits. Now, each year between 100 to 150 applications are lodged under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which we’ll be calling ‘the Convention’ in this episode, with the Australian Central Authority, which is administered by the Commonwealth Attorney General’s Department, by a parent or guardian that’s experiencing IPCA. Now, joining me today on Hearsay the Legal Podcast to discuss this very important issue is Belinda Li, the acting managing lawyer of International Social Service Australia, a holistic service not-for-profit working in the IPCA space. Belinda, thanks so much for joining me today on Hearsay. |
| Belinda Li: | Thank you so much for having me. |
| DT: | Now, tell us a little bit about how you got into this area, it’s quite an interesting area of speciality. I don’t know that I’ve met anyone who practices in this area specifically before. |
| BL:
3:00 | Yeah, this is quite a niche area and so, I guess, like any budding law student, I set out to be a lawyer to help people and it all started with a bit of a volunteering work at our local community legal center and a large proportion of the work revolves around family law and family violence and, I guess, I stumbled into family law work, and then, I suppose, for me, it was natural to want to specialize and get into the detail or learn more and more and so when the opportunity to work in a space that dealt with families and children with an international aspect, that was definitely a very attractive role and so, I think applying the communication skills, drafting skills, and working with families, going through some pretty difficult times led me to learn about international parental child abduction, learn about the Hague Convention and really get into this space and find out what it’s all about. |
| DT:
4:00 | Fantastic and we’re looking forward to learning a lot more about it ourselves on this episode. I think it’s so interesting, you know, I hear that a lot from lawyers that we have on the show that you kind of stumble into your area of speciality. I certainly had that experience myself with the area of speciality I first focused on in insolvency law. I think we have this particular vision of how our legal careers are going to go when we’re in law school and then we end up going in a different direction, perhaps by accident, we’re just fortunate enough to find something along the way that we really enjoy so I really like hearing those stories. Now, International Social Service Australia, or ISS, it’s a not-for-profit that focuses on families separated by international borders and it’s funded by the Commonwealth Attorney-General’s Department. Tell us a little bit more about ISS; and what kind of services does it provide? |
| BL:
5:00
6:00 | So, our mission at ISS Australia is to support, protect, and reunite children and families who have been separated by international borders. Our vision is for children and families to be connected wherever they are in the world. We are the independent Australian arm of the International Social Service network, which is a global NGO, and we partner with around 140 other similar ISS organisations dotted across the world. At ISS Australia, we provide inter-country social work, legal and mediation services for children and families and we have quite a number of services. So, firstly, there’s the International Parental Child Abduction Legal Service and Social Work Service, which is where I work. There is the International Family Mediation service. We also do International Child Welfare and Kinship Care, International Post Adoption Tracing and reunification and the New South Wales Special Search Service, which provides search and reunion support to people separated by government intervention in New South Wales. So, as you can see the broad range of services and to try to put it in simple terms, we have clients who are individuals seeking connection to family and identity. Each client and their story and journey is really unique and complex, and that’s what makes our work really interesting and fulfilling and being a multi-disciplinary service as a lawyer, it is really amazing to have social workers work alongside us so that we can really support a client in a holistic way. |
| DT: | That list of services you provided, you can see how all of those connect really to that mission of creating connection between families across borders and it is an interdisciplinary service. Do you find that some of those non-legal disciplines often contribute to the work that you’re doing on IPCA or International Parental Child Abduction? |
| BL:
7:00 | So, our acronym that we use at the service is IPCA, for International Parental Child Abduction and yes, definitely all the other areas do inform our work because we get a sense of which ISS partner may be able to provide some practical support to families and children, often child welfare concerns. Of course it’s not necessarily something we could give legal advice on, but we can definitely direct a parent to explore options, to investigate any safety concerns and, I guess, being able to hear about other work is always very inspiring. So, when we’re hearing about stories of adoptees being able to reunite with a birth parent or, you know, families looking for each other and being very connected and it is a complicated process and needs to be dealt with sensitively and I feel that hearing about the work of my colleagues definitely is inspirational and also it does inform the work that we do. |
| DT: 8:00 | So, I can imagine that the social workers that work with ISS are really critical to an IPCA action and the return of a child being successful. I will use that abbreviation by the way, IPCA’s much easier to say than IPCA, so I will use that. Now, who’s a typical client of ISS when it comes to IPCA. Is there a typical client? |
| BL:
9:00 | I’d say there is no typical client, but I can talk about the issues that they usually present with. So, we deal with an aspect of family breakdown and for the family law lawyers out there, you know that we’re meeting people at probably one of the most distressing and stressful points of time in their lives and we deal with the parental aspects or we deal with matters relating to children. So, a client who approaches us is a client who is usually experiencing IPCA, where their child has been taken or kept in an overseas country. So, our service specialises in what we call outgoing applications. So, under the Hague Convention, there’s a process to ask for a child’s return to Australia if they’ve been taken to a Hague Convention country wrongfully. So, the clients we see often are parents who have recently separated or the point at which IPCA has occurred is actually the point that they’ve realized that their relationship has completely broken down. It’s not uncommon to have callers or clients come to us and say, ‘we were a family the day before, and then I come home from work the next day, there’s a note on the table from the other parents saying, ‘look, it’s over. I’m gone. I’ve taken our son or daughter and we’re in X, Y, Z country and I’m sorry.” And that’s the point where we meet clients often, which is heartbreaking but it also means that we’ve got a fair bit of work to do with them. |
| DT: 10:00 | Wow. That’s extraordinary. I can see when someone’s facing that kind of extraordinary situation where they’ve been, as you said, a family one day and separated with their child halfway around the world the next day. The ISS is obviously the first port of call, but do you ever have family lawyers who are already acting for a client come to you about IPCA issues because it is such a specialisation that a lot of family lawyers wouldn’t have dealt with in their careers before. |
| BL:
11:00
12:00 | Definitely. So, we give advice around prevention of IPCA, around if someone is contemplating leaving, or if someone’s worried about a child traveling overseas and we definitely welcome phone calls from fellow practitioners because it is quite an unknown area. You would think that family law in an Australian matter for an Australian citizen or person living in this country is contained in this country but that’s not the case. Once there’s an international element, it stretches broader than that and unfortunately, not many parents and, I dare say, not all practitioners are aware that there is the 1980 Hague Convention that is a specific protocol or system in place to seek the return of a child from overseas, or even be used to make what we call ‘Hague Access Applications’. So, an access application is when a parent in Australia wants to have contact with a child in an overseas Hague signatory country, and they might not have any orders or arrangements in somehow the communication’s broken down, a Hague access application can also kick start what we would call, sort of, ‘a spend time application’. So, there’s definitely more options out there for parents that they would not know and so it is something that family law lawyers who do know about us get in touch, which we’re very grateful for, because we’re all about helping each other out, building capacity and ultimately it’s being able to support our clients and their children. |
| DT: | You mentioned prevention, obviously advice and education about the Hague Convention and the protocols for seeking the return of a child are critical to preventing IPCA, but are there any legal mechanisms that you can utilise either in the Family Court or another forum to prevent a child from being removed from the country if you suspect that’s going to occur? |
| BL:
13:00
14:00
15:00 | There are options available. So, when we talk about prevention, the reason why it’s important to share this advice or have these conversations, it does go back to the spirit of the Convention and why it exists and research says that IPCA is harmful to children and the effects are long lasting and very impactful and so, I guess, at the early stages, if someone is worried about a child being taken out of the country without their consent or without a court order, then we rely on our family law colleagues to help them or give advice about the Family Law Watchlist order. So, it’s an order that prevents a child from being taken out of Australia by putting them on the list of the AFP. So, when they’re at border security, then that child is not permitted to travel. TIP: So Belinda’s referring here to the Family Law Watchlist which is a list designed to alert the Australian Federal Police that a child shouldn’t be leaving Australia. For a child’s name to appear on the list, one of their parents has to fill out a Family Law Watchlist Request Form and has to possess a Court issued parenting order or injunction that would prevent a child from travelling overseas, or have at least lodged an application for one. When a parent files an application with the Court in order to apply to place their child on the Family Law Watchlist with the AFP, the Court doesn’t forward that application to the AFP, it’s the parent that has to provide that application to the AFP, along with that Request Form. Now, the Family Law Act makes it a Commonwealth offence for a person to take a child from Australia contrary to an order preventing that child’s travel or where court proceedings for such a parenting order are pending. So, in other words, it’s a criminal offence to take a child who is on the Family Law Watchlist out of Australia. Generally, this is a bit more of a serious matter to take on board because it then opens up, sort of, the avenue for a family to go through litigation in the family law courts but that is one way that we speak to clients about if they’re concerned about a child being taken without their knowledge or consent. We also talk to clients and try to make relevant referrals. If there are safety concerns such as family violence and, as officers of the court, we explain to clients what the legal system does and what supports are available and that if someone is considering leaving the country with the child, what that exactly means and how to go about it through the proper way. So, we would then refer them to speak to family law practitioners about relocation and how to apply for relocation if they can’t work it out with the other parent, always is the first option or first step, if it’s safe to do so. So, there’s a lot more work to do in the prevention space because once the child’s being taken out of the country, the time is ticking and that child is experiencing the impact of IPCA. |
| DT: 16:00 | I’m glad you mentioned that those mechanisms are available if you’re unable to work it out with the other parent and if you’re unable to reach a result through mediation, because we’ve discussed on this show before that parenting plans are a really powerful tool that work for a lot of families and provide a lot of flexibility, a lot more flexibility than a court order can provide, but obviously the clients that you’re seeing at ISS have reached a stage, especially where IPCA has occurred where that’s no longer possible. Now, we’ve mentioned the 1980 Hague Convention a couple of times already in this episode and that’s really the legislative or treaty instrument that governs this area. Now, the convention places paramount importance on returning children to their place of habitual residence. Now, what does that mean in practice and why is it so important that they’re returned to their place of habitual residence? Why does it matter that they’re in Australia and not in a country that their parent has chosen for them to live in instead? |
| BL: 17:00
18:00
19:00
20:00 | So, habitual residence is a term used in the Convention. Unfortunately, there’s no specific legal definition, so we rely on the case law and it means the child’s home country, where home is and the idea is that the home country should be the rightful jurisdiction for any decisions about that child’s care, welfare and development. The Hague Convention was designed with the overarching aim to protect children from the harmful effects of IPCA or what they call ‘the wrongful removal or retention of a child‘, because this overarching belief is driven by the fact that the best interests of the child is of paramount importance. So, that’s not unfamiliar terms that family law lawyers use and the way we’re guided in our work but the distinction is that the operation of the Convention is not to actually determine the best interests, but it says the best interest of a child is that their future is to be determined in their home country so that the correct processes and laws of that country are used and if the parents cannot come up with their own arrangement or agreement, then the home country court or judge would have to, I guess, make those decisions. It’s to prevent a parent from taking matters into their own hands and trying to declare by taking a child to another country that actually, this is the country that needs to decide on this child’s future and I mentioned before that there are harmful impacts of IPCA on children, so, perhaps I can share some of that. I’m no expert, but in terms of the research that I’m aware of, children who experience IPCA often strongly attach themselves to the parent who’s taking them – so we call them the taking parent – because a child then suddenly finds themselves having been uprooted and taken to a new and unknown environment and such uncertainty gives the child a lot of anxiety from being separated from their parent who’s still in their home country. So, we call that parent the left behind parent. Sometimes a child will over align themselves with the parent taking them and then develop feelings of rejection to the left behind parent. Children, generally, are more vulnerable and reliant on adults to provide for their emotional, physical and care needs and so the act of a wrongful removal or retention really disrupts their life and family breakdown or parental separation is already hard enough for a child, but the element of being across the other side of the world and not knowing why they’re there or being told certain things that may or may not be true, it does impact their growth and development and it impacts them into their adult lives. |
| DT: | That sense of rejection of the left behind parent and that kind of erosion of the child’s relationship with the left behind parent, you can really see how that runs counter to some of the objectives that the Family Court would consider in making decisions about care for and responsibility for children, because we know that the Family Court, where it’s safe to do so, encourages children to have a relationship with both of their parents. So, you can see how that would really endanger the ability of a child who’s been taken across international borders to have that relationship with both of their parents. Do you ever find that there are cases where it’s difficult to identify the country of habitual residence of a child? Is that often or sometimes a point of controversy and maybe you could tell us about an example of a case where that has been a controversy. |
| BL: 21:00
22:00
23:00
24:00 | Yeah, definitely. So, habitual residence often is proved by evidence surrounding a child’s connection with where they were living. So, families and networks education, and these can be more difficult, especially when a child is much younger and with the increase of global movement in the world, we do see lots of families moving around and living in several countries in their lifetime. So, an example of a difficulty would be a young professional couple who have a child and perhaps one parent has a job opportunity in Australia. So, they move from the United States to Australia, with the agreement of ‘we’re going to give this job a go, we’re going to give Australia a go as our new home‘ and they come and settle in but months down the track, things don’t really work out in the relationship, there’s been some trouble settling in and so one parent says, ‘look, this isn’t working. I want to go home.’ Home in their mind is the United States, but they may have spent several months or up to a year in Australia and so the question in that case is if that parent takes the child, returns to the States without much consultation, or they tried to talk about it and all blew up and they said ‘no, we’re going’ then we’ve got this child who perhaps was born in the United States, moved to Australia for about six months, the parental intention was that ‘this is our new home and we’re going to make it work,’ but I guess one parent will say ‘it’s working‘ and one parent may say ‘it’s not‘ and we can say that there’s cracks in the relationship. We have a wrongful retention. Sometimes it’s ‘look, we need a break and a bit of a holiday. I want to take our little baby to go see my parents back in our supposed home country or the last country we were in’ and then they’re in that country and said, ‘look, we’re not coming back‘ and so we would say that might be a wrongful retention and the question is, where was this child’s habitual residence at the time they were retained. One parent will say, ‘we never intended to stay in Australia for long term.’ Another parent might say, ‘no, we packed up and moved everything.‘ So, that’s the grey areas that we work in and I suppose from the applicant parent’s point of view, the argument would be, no, there was a clear transition of habitual residence from one country to another. The taking parent, perhaps, would have a different case before the court. So, it’s never too straightforward and it’s just working with people’s lives and, as we all know, people’s lives and relationships are always complicated. TIP: So, at Hearsay we’re experimenting with some new interactive content types and for this episode we’ve created a short animation illustrating a scenario of wrongful retention similar to the one that Belinda’s just discussed. You can view this animation by clicking or tapping the animation button next to the episode audio. If you’ve got any feedback for us on our new animation we’d love to hear from you. There’s a contact form on the website, just scroll down to the bottom and click ‘Contact Us’. |
| DT:
25:00 | Absolutely and what that story that you told us really bears out, and it’s an important point that I didn’t appreciate until you told it, was that habitual residence isn’t fixed, it’s not static and that your habitual residence or a child’s habitual residence changes over time. So, if you’ve migrated to Australia for a job opportunity, perhaps even a relatively short period of time can result in that habitual residence shifting to Australia and maybe some listeners are thinking, ‘well, six months to a year doesn’t sound like very long in the scheme of an adult life pursuing job opportunities around the world‘ but we know that children can make really strong connections and impressions in the places they’re in, in relatively short periods of time, I suppose, especially if they’re just starting school or an important point in their schooling in that country. Now, if a parent wants to make an application for the return of a child who’s been wrongfully retained in another country, how do they make that application under the Convention and where do they make it because it’s not the Family Court, is it? |
| BL:
26:00
27:00
28:00
29:00
30:00 | No. So, the process is a paper-based process. So, a parent makes an application by completing a relevant application form. In that form, it has the basic details of who’s who, so the parties, the whereabouts of the child, how the child and other parent can be identified, a summary of what exactly happened. It’s a report that is a pretty detailed and substantial affidavit. So, it needs to address all the criteria for the Hague Return Application and all of that is bundled up and submitted to the Australian Central Authority. So, under the Hague Convention, central authorities are set up in all the Hague signatory countries and they have the power and responsibility of ensuring the discharge and the workings of the Hague Convention. TIP: Now, Belinda just mentioned that Central Authorities are set up in signatory countries in order to fulfil the purpose and obligations of the Hague Convention. A Central Authority under the Hague Convention has a number of functions that help facilitate the return of children across international borders. These include providing direct assistance to parties, their lawyers and to the courts of the respective jurisdictions. Under Article 7 of the Hague Convention, Central Authorities are supposed to cooperate with each other to ensure the prompt return of a child.They do that by:
Now, Australia’s Central Authority is the appropriately named Australian Central Authority (or ACA) and it’s an agency of the Commonwealth Attorney-General’s Department. For outgoing Hague Convention applications, those seeking to have a child returned to Australia from an overseas authority, the ACA supports those parents by providing case management and an avenue for communication with the overseas authority. For incoming Hague Convention applications, those seeking to have a child returned to an overseas country from Australia, there also exists state and territory based Central Authorities within Australia, who assist in these applications when the child in question resides in their state or territory. These state and territory Central Authorities typically have services like trained child protection workers, emergency accommodation and a working relationship with their local police force, as well as the ability to access certain information with the help of the Australian Central Authority – that’s the Commonwealth one. So, I tell clients that their first hurdle is to get all their documentation together, which is quite a big feat and then that’s only step one. Then they have to lodge it with the Australian Central Authority for their assessment. Now, their assessment is to do with whether or not the application meets the criteria for a case to go ahead, and then, I guess in simple terms, if it ticks all the boxes, then the Australian Central Authority takes that application and forwards it to the overseas central authority where the child is located and a similar process happens where the overseas central authority assesses the application and if it meets all their criteria, then that’s when there are different options, depending on the country, you’re in. So, sometimes there may be some notification from the overseas central authority to the taking parent to say, ‘we have received an application. Would you consider voluntarily returning the child?’ or there may be options for mediation so that parties can work out things without it proceeding to litigation but, ultimately the Convention provides for this particular application to then be filed in the overseas court and the overseas judge basically has one question to decide on and that one question is whether or not they should be an order for the return of a child to the requesting country. So, in our case, whether the child be returned to Australia and the judge similarly has to go through all the criteria to see if the application satisfies that and then the judge does have some discretion because there are exceptions or defenses in the Convention as well that allow the judge to not make a return order. |
| DT: | If that initial application is an application that’s made on the papers, there must be a lot of material that has to be provided to support it because, as we were just discussing, that question of the child’s habitual residence is such a difficult one to answer sometimes. What kind of material accompanies that initial application? |
| BL:
31:00
32:00
33:00 | So, you’ll be glad to know that there’s no rules that we have from the family courts here about the number of annexures or the number of pages. Sometimes our affidavits can be quite big. What might help is if I go through the specific criteria and then how we apply the evidence to that criteria. So, for a Hague Return Application, there are basically three things we need to prove. One; the child is under 16 years old, two; that the applicant parent has rights of custody and was exercising rights of custody, and number three; that the child was habitually resident in Australia at the time of wrongful removal. So, number one and two, I guess, the child’s age is easily shown by a birth certificate. Now, a birth certificate is quite critical in these and that is because it’s actually quite important to be able to prove that the applicant has rights of custody. So, rights of custody under Australian law is understood as a person who has parental responsibility over a child. So, generally, we ask clients, ‘do you have a birth certificate? Are you the parent listed? Do you have any court orders?‘ Because we get into a bit of trouble if there are family law orders that say that a parent doesn’t have parental responsibility, then that knocks them out of that criteria but generally speaking, a lot of our clients maybe have recently separated. So, there’s no court orders floating around. It’s always important to check that the presumption of parental responsibility exists. So, we’ve got rights of custody. Not only do we need to prove that they have it, we need to prove that they were exercising it. So, that means we ask what is your relationship with your child like? Do you actually spend time with them? And, if communication had broken down, why has that happened? And what have you been doing to pursue your relationship with your child? The last category is the issue of habitual residence that we spoke about before. So, again, we look to evidence about, say, a child’s enrollment in school, extracurricular activities, are they on a Medicare card? What relationships do they have with the people around them, in the area that they lived in? We even look at, say, the parents’ settlement in Australia as well because usually there is a bit of a connection between how settled the parents are to how settled the child is in Australia. Parental intention is a big thing as well. So, do the parties own property in Australia? What were their plans? What did they tell third parties? So, the example before about, say, the young professional couple who moved out to Australia, what did the people around them know about this? Was it common knowledge that this was their new home? Did they have the big farewell party, you know? Are they settled here? Do they have plans here? Did they meet their neighbors? So, it’s really working with your client’s instructions about what they’ve done to connect with Australia. |
| DT: 34:00
35:00 | You can see how quickly that affidavit could get large. TIP: So, with a Hague Convention Return Application, the left behind parent needs to include an affidavit that they swear that sets out the facts, including what they say are the alleged circumstances of the wrongful retention or removal. Now, this includes all of the things that Belinda just mentioned. The affidavit also has to clearly state the court orders, or the absence of them, that relate to the child and their travel out of Australia. An order for the child’s inclusion on the AFP Family Law Watchlist, for example, would be one of those things you’d mention in this affidavit. Now, if an application is accepted, the Australian Central Authority will provide an affidavit from a suitably qualified person setting out the relevant Australian law – that’s one of the services that the Australian Central Authority provides. If you’re looking at all of that context, including, you know, not just the context of the child’s schooling or their healthcare or whatever else, but also the parents, you know, I wouldn’t have expected that the circumstances of their leaving the previous country, in terms of having a big farewell or not, would be relevant, but that does speak to your intentions in terms of how long you’re planning to be away, I suppose. How large does a farewell party need to be before it’s probative evidence? |
| BL: | I know sometimes we have clients who are very keen to provide us with every piece of evidence and it does take a little bit of wading through because you’ve suddenly got photos and you’ve got text messages but then you’ve got a whole bunch of statements from people. So, it’s still having that, you know, analytical brain and that discernment as a lawyer to say, ‘does this speak to this criteria or is this extra evidence that probably doesn’t need to be included’? |
| DT:
36:00
37:00 | Yeah, absolutely and we’ve spoken on the show before about that idea of potency, you know, the metaphor that a glass of wine is a lot better than a glass of wine mixed with a glass of water – that you want just that great evidence that really is persuasive on the relevant elements of your action, but not all the filler that you might be tempted to throw in along with it. Now, once that on the papers application’s been made and it’s successful, but there’s not a voluntary return of the child, or there’s no result reached by mediation, the matter then proceeds to litigation in the country that the child’s currently resident in or the country that the child’s been taken to. Now, that strikes me as quite difficult for the left behind parent, because in other areas of law, we kind of understand this bias towards the status quo. In my area, in commercial law, if you’re seeking an injunction, there’s this bias towards the status quo. Courts generally, prefer to leave things as they are until the controversy is sorted out but here you have someone disrupting the status quo dramatically by taking a child to another country but it’s the left behind parent who’s the moving party. It’s the left behind parent who has to make an application in a foreign court. It’s the country that the child is now in with the taking parent that’s making the decision. That seems quite difficult for a left behind parent to deal with. |
| BL:
38:00
39:00
40:00 | It is very difficult and sadly clients do feel a lot of pressure and it feels quite unfair and that’s a word I’ve heard used a lot when clients are expressing how they feel about the process but with family law matters and the Hague Convention, it is ultimately a civil matter or a private law matter and so it does take a party to need to agitate and raise that there is a concern or an issue. So, we actually don’t know how often IPCA happens. We only know of clients who take issue with it and make an application. There are parents who perhaps never get that advice and never pursue or they choose not to and so, I suppose, the way I explain to clients is this is a legal option for you to secure a child’s return and so help us work with you to get the best case forward and the mechanics of the Convention is that if all those criteria are satisfied, then a judge is directed to make an order for return and the Convention is meant to be a far more efficient process and it’s meant to be done quite speedily to reduce the amount of time that a child remains overseas, to reduce the impact of IPCA on that child and so the parent doesn’t need to attend the overseas court, it’s unusual for them to attend and there may be several affidavits or applications that kind of fly back and forth. So, the taking parent has an opportunity to respond and then what might happen is that the left behind parents are our clients, we assist them with a reply. So, there’s opportunity to discuss those issues because often the taking parent will raise their defenses. So, defenses such as there’s a grave risk of psychological and physical harm to the child or that they’re otherwise put in intolerable circumstances if they have to return, or the fact that the left behind parent actually acquiesced or consented to them going or that a child has a view that is strong enough or mature enough that needs to be taken into account, or the return of a child to the country would go against their fundamental human rights. So, if the taking parent wants to defend themselves against a return, the burden is on them to also prove that they satisfy an exception to that. So, it does go both ways, both sides have a case to prove in order to determine whether a child is returned or not. |
| DT:
41:00 | Going back to our earlier point about the kind of evidence and how quickly one of these applications can get complicated, you can imagine that a matter where that defence about acquiescence or consent is an issue. Returning to our example about the professional couple who decide to return to the US for a holiday, for example, or have a real disagreement over the temporariness or permanence of their move to Australia. You can see how quickly, factually, that idea of consent and acquiescence would get complicated because you might say, ‘well, yes, you know, return to the United States for two weeks for a holiday, but I didn’t say return forever.’ Just going back to that point about the kind of appropriateness of the application taking place in the taking parent’s country. I suppose the reality is that once an order is made, there needs to be some mechanism for that order being executed and performed and that’s really only possible by the country in which the child is presently residing. It’s no good to have an order from an Australian court about the return of a child who’s currently in Italy, because how does that order get performed? Before we move on to some of those practicalities though, I wanted to ask, because we’ve been talking about Hague Convention countries. How many countries are signatories to the Hague Convention and what happens if IPCA occurs but the child’s taken to a country that isn’t a signatory? |
| BL:
42:00
43:00
44:00
45:00
46:00
47:00 | Great question. So, there are 101 contracting parties to the Convention, so, countries that have signed up, so to speak but it’s important to distinguish that the Convention is only enforced between Australia and 83 of those countries. So, the reason is that some countries have signed the Hague Convention, but Australia doesn’t recognise what we call their accession. So, it doesn’t recognise that they’re actually operating under the Hague Convention and perhaps it may be to do with, you know, they don’t recognise that the right protocols or system’s in place. TIP: Now, some of the countries that have yet to have their accession to the Convention recognised include:
The decision whether or not to recognise an accession is informed by an assessment of the acceding country’s capacity to implement the Convention which is done by the Australian Commonwealth Attorney-General’s Department. Now, that involves ensuring that the acceding country actually has the proper processes necessary to implement the treaty, which means they need a central authority that has the expertise and resources in order to function properly as one. Now, if an acceding country is judged not to have done these things, for example, if their central authority isn’t appropriately resourced or doesn’t have the right expertise, then Australia won’t recognise them as a signatory to the Hague Convention. That then limits the ability of parents in Australia or in that country to make a Hague Convention application for the return of the child. So in short, 101 have signed, only 83 we operate with and those falling outside of that, we would consider non-Hague signatory countries. Now, it is much more difficult to secure a child’s return from a non-Hague signatory country. Perhaps I’ll just mention first that we do assist clients in making what we call bilateral agreement applications between Australia and Egypt and Australia and Lebanon. So, they’re non Hague signatory countries, but there is a very specific process for those countries where under a bilateral agreement between Australia and Egypt and Australia and Lebanon, that there are diplomatic processes that can be commenced to seek a return of a child or to seek access to a child. The reality is that they do take quite a long time and they’re often not successful, but clients have used them as, sort of, a suite of options. So, they will go for mediation. They’ll start local domestic proceedings, say, in Lebanon and they’ll file a bilateral agreement application. So, they’re throwing everything at it to try to secure, return or access. Usually with children who are in non-Hague signatory countries, we would recommend the client seek legal advice in that country in particular. So, ask the question of what does the family law system look like? What are my options? What are my responsibilities? And it would be trying to see the prospects of success to get an order for a child to be returned. We often do encourage those parents to consider international family mediation, if possible, because that would be, if successful, definitely a better way to secure return or access if it is safe and suitable to negotiate with the other parent. Importantly in these cases, we do mention that there is a special financial assistance scheme run by the Attorney General’s Department. So, that’s called the Overseas Child Abduction Scheme. The name potentially is a bit of a misnomer but basically that scheme provides funding for, say, if you need to pay for a lawyer overseas, say, you need to get flights, so you know, you might get an order for return. So, the Special Financial Assistance Scheme applies across the board. So, Hague signatory countries, non-Hague signatory countries. If you have an IPCA matter and you’re seeking a return of a child, the government can provide some funding to help parents out because parents do worry that they need to make this application, ‘Oh gosh, if I get an order for return, I can’t pay for flights. I might need to travel to the overseas country, pick up the child, bring them back.’ So, those funds can be covered and the key is to ask early, apply early because they don’t reimburse retrospectively but, back to the non-Hague signatory matters, we do encourage clients to explore legal options in that country, and then perhaps secure some funding to pay for a lawyer there if there is an option for them to have court proceedings and finally, there is a rare and limited situation where we could rely on the Federal Circuit and Family Court of Australia and that’s when we need to check in with our specialist family law lawyers. There are situations where, say, a parent has taken a child to a non-Hague country and then that child is left with the grandparents in that country and then the taking parent makes their way back to Australia. There have been some situations where a court here has been asked to make an order injuncting that parent from leaving Australia and directing that parent to facilitate the return or that child back to Australia. So, that’s a really rare and complex case, but it’s not impossible. So, sometimes we do say if you hear that the other parent has returned for one reason or another and if you want to really explore all your options, please speak to a family law lawyer to see what is possible. If you could convince the courts to use their powers or their discretionary powers to make orders, to think more creatively, there’s an option but it is quite tricky. |
| DT: 48:00 | So, there are options for non-Hague Convention countries to seek the return of a child, but just not as streamlined or uniform as they are under the Convention. Now, returning to our Hague Convention matters, once your on the papers application has been made to the central authority, both central authorities have given the application the tick of approval, it’s gone through the foreign court, if necessary, an order has been made for the return of the child to Australia or to their country of habitual residence. What happens next? |
| BL:
49:00
50:00 | So, if an order’s made for their return, then what would be really helpful is that parent liaising with their case officer from the Australian Central Authority because they can provide some practical advice and support about that return and clients often benefit from our social work service team as well, to talk about, again, those practical aspects of facilitating return, helping a child settle back in the country if there’s been really limited contact and how to smooth out that process. So, sometimes the taking parent returns with the child, and it’s important to note that a return order isn’t a return order to a parent or to a particular place. It’s a return to Australia. So, you know, sometimes there are scenarios where the child lived in Victoria, but the taking parent will say, ‘no, I’m going to move to Queensland when I come back.‘ Now, unfortunately that’s sort of the transition point when it was a Hague Convention matter to then it becoming a domestic family law matter. So, we encourage clients to start exploring whether they need to make any applications in the family law courts here, to start that negotiation and process if they know that, given they’ve already gone through litigation with the other parent, then there is a high chance they may have to do so again, back on domestic land. If there is a concern that that parent could re-abduct, and this has sadly happened before, the client has gone through the whole process, a child is being returned to Australia, the child returns and then the parent takes off again. So, what I’ve mentioned before, the Family Law Watchlist is probably something we would recommend as a placeholder until matters are resolved between the parents, regarding the child and so those would be things we recommend clients start looking into. Sadly, the Hague Convention may be the first of maybe another few battles that they might have because it’s the transition of jurisdiction. The Hague Convention only resolves the problem of where the child needs to be, but the future negotiations or future dispute then is returned to their country of habitual residence for the parents to figure out. |
| DT: 51:00
52:00 | So, even though an IPCA application has been made to the Central Authority, and it’s not going through the Family and Federal Circuit Court, there’s definitely a role for that court to play in all of those matters, because there’s still the ultimate determination of parental responsibility for the child, but also determination of issues that you described, like where are they going to reside within the borders of Australia, as well? So, yes, it sounds like whether you’ve been dealing with family law proceedings in that court before IPCA happens, or that you’re in that extraordinary situation, where IPCA is the first moment where you discover that you’ve separated from your partner, it sounds like your ultimate destination is the Family and Federal Circuit Court in any event. Now, you mentioned a little bit earlier that a lot of Australian lawyers, including some Australian lawyers who practice fairly regularly in family law might not be aware of the Convention. Why is it important for lawyers who don’t regularly practice in the IPCA field to be aware of the Convention and the remedies under it and can you tell us maybe an example of what can happen if you’re not aware of what the Convention says? |
| BL:
53:00
54:00
55:00
56:00
57:00 | Yes. So, given that it is a high stakes matter where we have a child overseas, I think what’s really critical is that there is, what we would consider, somewhat of a time limitation. So, in the Convention it says that if a child’s been wrongfully removed or retained in the overseas country for more than 12 months, then it’s open for the judge to say that their habitual residence has changed or, basically, that they’ve settled in the new country. So, we do have a bit of a timer on these matters and one of the first questions we ask clients is when did it happen because then that can inform the advice that we give and sort of our assessment of their prospects of success. It doesn’t mean that if you tick over the 12 months, you can’t make an application but it means it’ll be much harder because it will be much easier for the taking parent to say, ‘but the child’s settled here and it would be harmful again to them to be uprooted again and returned.’ So, that’s sort of one key issue that it will impact the case directly that way and I suppose, with any area of law, if we boil it back to basics, it’s really important to be able to identify the issue and give appropriate advice or identify the issue and make the right referral and the difficulty is, if clients come to us, firstly, quite late in the piece, so there’s that time issue but the other issue is, I mentioned the defense of consent or acquiescence. So, that’s when a parent has done nothing about it or they might have done all sorts of things that could be interpreted as consenting. Given that that issue is sort of live and ongoing, it’s really important for clients to get the right advice early on the piece because then all of their subsequent actions can’t be misinterpreted. So, things like, have you actually requested for the child to return because sometimes we can’t find a wrongful retention because the line hasn’t been drawn in the sand. Have you actually asked for them to come back and parents understandably go, ‘I don’t want to push the issue. I just want to wait it out,‘ but that’s not right. The legal advice is no, you can’t wait it out and another issue is a big problem that we’ve seen is if clients do try to get advice and sadly they get the wrong advice, then that again will impact their prospects of success. So, recently, we assisted a parent in a case to try to secure a return of a child from New Zealand, and when we got a copy of the judgment, we were a bit taken aback because we’re like, ‘oh, no!’ You know, when a judge or a court is critical of lawyers, you know, ‘ooh, that’s something not to do’ and sadly what happened in this case was that the father had sought legal advice from a family law lawyer but the advice was that he needed to go to New Zealand, to ask for a relocation of a child back to Australia and he had no advice about the Hague Convention or very little, I think was the line and then that judge quoted an earlier case and that case goes back to 1993 and it basically similarly talked about a client failing to take steps to get advice and when they did the advice was erroneous because, again, I think he was told of him having no options and that’s probably the worst thing that could happen to a parent. If they’re not told about the option of the Hague Convention, they’re not told to act quickly, or they’re not given some guidance about the way they should communicate with the other parent, that means that they could lose their case. Luckily in the one that we assisted with, the Court was understanding that the client lost a lot of time because he was given the wrong advice and so the issue of acquiescence wasn’t made out because, I guess, it wasn’t his fault but still the competing issue would be because of the time lapsing, a child has been spending extra time in the country that they’re wrongfully retained in and the spirit of the Hague Convention is to try and get kids home back as quickly as possible.So, it’s really important just to up-skill, ask questions, don’t hesitate, reach out to specialist service. We’re always welcome to receive calls, to just talk through things because we want the clients to get the most accurate advice possible so that they can secure the best outcome. |
| DT: | And of course, no one wants to be named in a judgment in a critical way. No one wants to be criticised by the Court in a publicly available judgment. So, if Australian practitioners who aren’t regularly practicing in this area want to stay up to date on IPCA and want to make sure that they can give the right advice if and when it comes across their desk, what should they be doing? How do they stay up to date? Can they call you? |
| BL:
58:00 | Definitely give us a call. Please connect with us at ISS Australia, so this is a bit of a plug. You can find us on all the social media platforms. We do have a newsletter, we go out, we do blogs on our websites. For those who are more interested in the more technical, or even academic side, have a look at the HCCH website. So, that’s the website for the Hague Conference on Private International Law. They have resources about the Convention. They have a copy of the Convention country profiles, so you can get specific information about the country and how they operate and there’s their good practice guides there as well. For those who want to delve into the caselaw, there is a free online database called INCADAT. So, it’s I-N-C-A-D-A-T and it’s the leading legal database on international child abduction law. It’s quite comprehensive. We use it to do our case research and find out about a particular issue. So, if you want to find a case that talks about habitual residence, you just plug in that term and it should find all the cases and judgments on that issue. |
| DT: | Fantastic and we’ll include a link to all of those databases and the ISS Australia website in the further reading for this episode. Belinda, thanks so much for joining me today on Hearsay. |
| BL: 59:00 | Thank you so much for having me. |
| DT:
1:00:00
1:01:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Belinda Li from International Social Service Australia, for coming on the show for the very first episode of Season 3 of Hearsay. Now, if you listened to this episode because you’re a family lawyer, check out episode 38 next – that’s Perfecting Parenting Plans with Vanessa Jackson or if it’s more international law that you’re after, listen to episode 41 next where I talked to Australian Presence Legal about how the COVID-19 pandemic has affected immigration law and practise in Australia. Now, as you know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self assessed, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay can be found on our website Now, we all love continually, professionally developing and I love the verb form of that, by the way, and we have some amazing guests and episodes coming up in Season 3 of Hearsay but did you know that we’re also releasing a completely new podcast this year? It’s called Hearsay: Sidebar and it’s a 20 to 30 minute show where the Hearsay team gathers around the microphone to talk about the legal side of what’s in the news today. Sidebar is totally free and the first episode is already available on Spotify and Apple Podcasts right now. So, have a listen when you get a chance and if you feel like leaving us a rating and following the new show so you don’t miss any episodes, that would be awesome too. Hearsay the Legal Podcast is brought to you, as always, by Lext Australia, a legal innovation company that makes the law easier to access and easier to practise and that includes CPD. I’d like to ask you a favour. If you like Hearsay the Legal Podcast, please leave us a Google review, it helps other listeners find us and that keeps us in business. Thanks for listening and we’ll see you on the next episode of Hearsay.
|
You must be a subscriber to access this content.