This page answers a number of frequently asked questions about the operation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the process of making an application under the Hague Convention for the return of a child.
These questions and answers are information only, do not purport to be legal advice and should not be relied on as such.
How do I get my child back from a Hague Convention country?
If you believe your child has been wrongfully removed from Australia, or wrongfully retained overseas, in a Hague Convention country, you can apply for the return of your child under the Hague Convention. More information about the process is available from the international child abduction page.
Should I try to have my child returned voluntarily?
Having your child returned to you voluntarily can save long and costly legal cases. We encourage, where appropriate, parents to keep trying to reach an agreement with the person who has abducted their child, even if the parent has already made a formal application to us as the Australian Central Authority. We will continue to progress your application while you are having these discussions.
However, you should be aware of the time these discussions take. The longer a child lives in a new country, the more difficult it may be to get an order to have them returned. Your child may have become settled in the other country. In this case, a court may decide that the child should not be returned even though they were abducted from Australia.
You should also be careful about any agreement that your child can remain with the other parent subject to certain conditions. Agreeing that your child can stay in the other country may mean that the child acquires that country as their country of habitual residence. Once you agree to your child living in their new country, you cannot apply for their return to Australia under the Hague Convention—even if the other parent does not comply with conditions you may have agreed to (such as access or contact arrangements).
You should also be aware of any other actions or agreements that may lead to a court finding that you have acquiesced to the child remaining in the new country.
We recommend that ‘left-behind’ parents, engaging in negotiation or mediation with the person who has abducted their child, seek private legal advice to assist them in their discussions.
What is the process after I make my application?
- Once we, as the Australian Central Authority, receive your application, we will assess it on its merits against the criteria under the convention.
- We will let you know whether we accept your application, and provide reasons if we refuse it.
- If we accept your application, we will then forward it to the authority in the country where you believe the child to be.
The central authority in that country is responsible for managing your application under the Hague Convention. We will liaise with them and keep you updated on your case. We may ask you for more information if the other country asks for it.
The central authority in the other country determines how they will progress your case. Commonly, they may contact the abducting person and seek the voluntary return of the child to Australia, and then file your application in the relevant court of that country for a decision if a voluntary return is not made.
We cannot interfere with the processes or court cases in the other country. It is their responsibility to initiate and facilitate any legal proceedings. Like in Australia, the courts in most other countries are independent of government. Neither we, nor the central authority of the other country, can change a decision of a court.
We do not engage private investigators or other services to secure the return of your child. More information about the process is available from the international child abduction page.
How long will it take to get my child back?
There is no definitive timeframe for a Hague case. Each application must be reviewed on its own merits, and each foreign country has its own processes, procedures and timeframes. The length of time will depend on factors such as whether a voluntary return occurs, whether the application proceeds to court, and whether the decision is appealed.
Where can I get support?
The Australian Central Authority does not provide counselling support to Hague Convention applicants. Contact details for organisations that can provide support in Hague matters are available from the Support and assistance page.
Is financial assistance available?
Neither we, nor International Social Service (ISS) Australia, charge for the work we do with your application. However, depending on which country your application is going to, the costs of running your matter in that country may not be covered by the central authority of that country.
Where that happens, you may be able to apply for legal aid in the other country. You may also be able to apply for financial assistance from this department under the Overseas Child Abduction Scheme.
When might the other country not return my child?
A court in the other country may refuse to return the child if:
- it is not convinced that the key requirements of the convention have been met
- it determines that you (the applicant) had agreed to the child being taken or kept in that country, or subsequently acquiesced (see below) to the removal or retention
- the child has been in that country for more than twelve months and is settled there
- the child objects to being returned and is old enough and mature enough for their opinion to be considered
- returning the child would expose them to a grave risk of physical or psychological harm, or some other intolerable situation, or
- returning the child would breach their fundamental freedoms and human rights.
What is 'acquiescence'?
If someone 'acquiesces' to something, they consent to it or allow it to happen.
Under the convention, one of the reasons a court may decide not to return a child to Australia is if the court believes the applicant 'subsequently acquiesced' to the removal of the child from Australia, or their retention in the other country.
It is up to the court to decide what constitutes 'subsequent acquiescence' and whether or not the applicant did in fact acquiesce.
However, common actions that may raise a question of acquiescence include:
- engaging in court proceedings in the country where the child is located, apart from those in relation to the Hague Convention application (this may indicate that you give permission for the child to remain in that country, or that you have 'submitted to the jurisdiction')
- providing verbal or written agreement to the abducting person that you consent to the child being taken to, or remaining in, a country (either before, during or after the removal or retention)
- helping the abducting person make decisions about the child's living arrangements in the other country, such as where the child should live or go to school
- any other action which may indicate that you give permission for the child to remain in the country they have been taken to or held in.
What if my child is in a non-Hague Convention country?
We can only help you with a return or access application if your child is in a Hague Convention country or in Egypt or Lebanon. If your child is in another country, you may want to seek private legal advice in that country about your options.
The Department of Foreign Affairs and Trade (DFAT) can provide limited consular help to parents whose children are located overseas. Depending on the legal and social services framework of the foreign jurisdiction, this may include providing a list of local lawyers, and facilitating liaison with local authorities and child welfare agencies to ensure the welfare of the child involved.
Call: 1300 555 135 (24-hour consular service)
Please note, financial assistance may be available to help parents with the cost of engaging a lawyer overseas for family law matters. For more information refer to 'Is financial assistance available?'
My application has been refused. Can I appeal the decision?
If the Australian Central Authority has refused to accept your application for the return of your child to Australia, there are steps you can take to have the decision reviewed.
Statement of reasons
The Australian Central Authority will provide you with a statement of reasons if your request has been refused. If you have not received this statement, you may request them in writing under subsection 13(1) of the Administrative Decisions (Judicial Review) Act 1977.
Under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), you are also entitled to apply to the Federal Court of Australia or to the Federal Circuit Court for a review of the decision to refuse your application. The grounds on which you can apply for a review are listed in sections 5 and 6 of the ADJR Act.
Direct application to the other country
Article 29 of the Hague Convention allows parents to send applications directly to the central authority in the country where the child is located, or directly to the courts in that country, without going through the Australian Central Authority.
You can find contact details for all the central authorities by following the 'Child Abduction (1980)' link on the Hague Conference on Private International Law website.
If you apply directly to the court in the other country, you may want to get some legal advice in that country about court processes. The Department of Foreign Affairs and Trade can provide limited consular help to parents whose children are located overseas. Depending on the legal and social services framework of the foreign jurisdiction, this may include providing a list of local lawyers, and facilitating liaison with local authorities and child welfare agencies to ensure the welfare of the child involved.
What if my child has been abducted to Australia?
If you live in another country and your child has been abducted to Australia, you may be able to apply for the return of your child to the central authority of the country you are in, if that country is a Hague Convention signatory. If accepted, that authority will then pass your application to us for action.
You can find contact details for the central authority in your country by following the 'Child Abduction (1980)' link on the Hague Conference on Private International Law website.
If you are not located in a Hague Convention country, you may wish to seek legal advice in Australia about your options for seeking the return of your child.