More and more frequently, Family Law solicitors are faced with the situation where we have a client in our office who is panicking as their former spouse has taken the children overseas without their permission.
On many occasions, the situation resolves itself without issue, however there are an increasing number of cases where the former spouse leaves the country with no intention of returning. In these circumstances, often the spouse who is left in Australia can be left feeling helpless as Australian law cannot control their former spouse in another country.
The answer to this is called The Hague Convention. The Hague Convention is, in it’s most simplistic form an international treaty against child abduction. There are currently in excess of 98 Countries which have signed the Convention, with more being added every year.
In short, countries which have signed up to The Hague Convention have agreed that they will assist in the enforcement of parenting orders made in other countries. For example, if a parenting order was made in Australia and your former spouse removed the children to England, then upon receipt of a request from Australia, the English Courts would assist in enforcing the Australian Order and return the Children to Australia.
But what if you don’t already have a parenting Order in place. In these circumstances, The Hague Convention still applies, however before returning the children to Australia, the English Courts would need to determine several factors, such as the habitual residence of the children. If this is ultimately found to be Australia, then the children would be returned and then proceedings would follow in Australia to put in place a parenting order.
Unfortunately, an application under The Hague Convention can be a slow and drawn out process due to the difficulties in exchanging documents and different time zones, as well as trying to navigate through a foreign legal system. Therefore, it is important that an application is brought as soon as possible to ensure that there are no unnecessary delays in returning your children.
If your former spouse has taken your children overseas without your consent, contact our office and we will put you in touch with one of our Family Law experts who can guide you through the process of returning your children to Australia.