International Parental Child Abduction

Under Australian law, parents are considered to have equal parental responsibility for their children. This means that both parents are considered to have equal responsibility for long term decisions about their children, including where they live. You should have the other parent’s permission before you take your child overseas.

If the other parent will not consent to your proposed relocation, you will require a parenting order from the Family Court of Australia permitting you to relocate. You will need to seek legal advice from a family lawyer in relation to the process for seeking relocation orders.

International parental child abduction occurs when a parent takes a child to another country without the other parent’s consent or order of a court or refuses to return a child from overseas after an agreed period of time.

Under Australian law, parents are considered to have equal parental responsibility for their children. This means that both parents are considered to have equal responsibility for long term decisions about their children, including where they live. This means that apparent should have the other parent’s permission or an order of the court to remove their child from their place of “habitual residence.”

“Habitual residence” is a complex legal term but usually a child is habitually resident in their country of residence. If a parent removes their child from their place of habitual residence without the permission of the other parent or a court order, this is considered wrongful removal. If a parent travels overseas with their child with permission but then refuses to return the child to their place of habitual residence, this is a wrongful retention.

For more information, you can download our factsheet about the 1980 Hague (Child Abduction) Convention.

In situations where international parental child abduction has occurred, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention) is a piece of international law that can be used by parents to seek the return of their children to Australia. For parents whose children live overseas, the 1980 Hague Convention can also be used to seek contact with children.

The 1980 Hague Convention is available when the child is located overseas in another country who is also a signatory to the 1980 Hague Convention and the 1980 Hague Convention is in force between those two countries (Hague countries).

The 1980 Hague Convention is prefaced on the notion that decisions regarding the child after separation are best made in that child’s place of habitual residence. The 1980 Hague Convention provides a path for decisions to be made about whether the child should be returned to their place of habitual residence. It does not make an order that the child should return into the care of the left behind parent and does not resolve future parenting arrangements in relation to the child.

If your child's whereabouts are unknown, you can apply to the FamCA for a location order, which enlists the assistance of Commonwealth agencies in locating your child if they are within Australia.

If you think that your child has been taken overseas, then you obtain a record of your child's international movement by initiating parenting proceedings in the FamCA and subpoenaing that information from the Department of Home Affairs (Immigration and Citizenship).

If you believe that is very likely that the other parent has removed your child from Australia to a Hague Convention country, you might be able to lodge a return application under the 1980 Hague Convention. Once your application is lodged, the Australian government can review your child’s international movements into and out of Australia.

If the other parent has removed your child from Australia without your prior knowledge or consent, this is a wrongful removal. If you would like to seek your child’s return to Australia, your options will depend on which country your child has been taken to.

If your child has been taken to a country that is a signatory to the 1980 Hague Convention, you may be able to make an application for their return to Australia using this Convention. The 1980 Hague Convention is in force between Australia and all other countries that have signed the Convention. A list of 1980 Hague Convention countries is here.

You will need to be able to establish that your child is under 16 years old, that you have rights of custody for your child, and that your child was habitually resident in Australia at the time that they were removed without your permission. Our Legal Service can provide you with legal advice specific to your circumstances. For more information, you can download our factsheet about how to seek a child's return from a Hague Convention country.

If your child has been taken to a country that is not a signatory to the 1980 Hague Convention, you may have other legal avenues available to you. ISS Legal Service can provide you with legal advice specific to your circumstances, including advice about financial assistance that may be available. For more information, you can download our factsheet about seeking a child's return from a non-Hague Convention country.

Our Social Work Service can also provide you with emotional and practical support as you go through this difficult time. Lawyers and social workers can work together to ensure that you receive the appropriate support.

The Social Work Service may be able to provide services to children and parents overseas using our International network in around 140 different countries. This can be especially useful for parents whose children have been taken to non-Hague countries.

Many parents may be concerned about how COVID-19 will impact their return application. Parents who are concerned about this can read more about COVID-19 in the following article "Covid-19 and return applications under the 1980 Hague Convention".

If you gave your consent for your children to travel overseas for a holiday and they have not returned, this is considered a wrongful retention. If you would like to seek your child’s return to Australia, your options will depend on which country your child has been taken to.

If your child has been retained by a country that is a signatory to the 1980 Hague Convention, you may be able to make an application for their return to Australia using this Convention. You will need to be able to establish that your child is under 16 years old, that you have rights of custody for your child, and that your child was habitually resident in Australia at the time that they were removed without your permission. The Legal Service can provide you with legal advice specific to your circumstances. For more information, you can download our factsheet about how to seek a child's return from a Hague Convention country.

If your child has been retained in a country that is not a signatory to the 1980 Hague Convention, you may have other legal avenues available to you. ISS Legal Service can provide you with legal advice specific to your circumstances, including advice about financial assistance that may be available to you. For more information, you can download our factsheet about seeking a child's return from a non-Hague Convention country.

Our Social Work Service can also provide you with emotional and practical support as you go through this difficult time. Lawyers and social workers can work together to ensure that you receive the appropriate support.

The Social Work Service may be able to link parents with local partners or contacts who can assist with finding supports near to children in these countries. This can be especially useful for parents whose children have been taken to non-Hague countries.

Many parents may be concerned about how COVID-19 will impact their return application. Parents who are concerned about this can read more about COVID-19 in the following article "Covid-19 and return applications under the 1980 Hague Convention".

Australia has Bilateral Agreements in place between Egypt and Lebanon. It may be possible for you to make an application pursuant to these Bilateral Agreements with respect to your children. Such an application would have a greater focus on seeking diplomatic involvement to negotiate with the other parent about return and access. There may also be other legal avenues that you can pursue for the return of your child.

The Legal Service can provide you with legal advice specific to your circumstances, including advice about all your legal options and which may be the most appropriate in your case. The Legal Service can also assist you to complete an application using the relevant Bilateral Agreement. For more information, you can download our factsheet about seeking a child's return from a non-Hague Convention country.

The Social Work Service can first and foremost provide emotional support during this very stressful time.

If your child is in Lebanon, your social worker can make contact with our international network partner in Lebanon for local support and assistance.

If the other parent and your child are both overseas

It is possible to apply for parenting orders in the FamCa for the return of or ‘recovery’ of your child by seeking a ‘recovery order’, but there is a risk that any final parenting orders made will not be enforceable in the overseas country.

A recovery order demands that the child in question be returned to the care of one particular person and/or part of Australia where they were previously living. This will usually only be effective if the child is in Australia because the court order will only be enforceable in Australia. It cannot be enforced in the overseas country. It is therefore not an effective way to have your child returned to Australia if your child and the other parent are both overseas.

You should be aware that if the other parent and your child are overseas, the FamCA may not agree to hear your application for parenting orders until the child and other parent return to Australia. This is a decision made by the FamCA depending on the circumstances of your case. If you are in the process of making a return application under the 1980 Hague Convention, the FamCA might allow you to file an application for parenting in orders in Australia, but adjourn your application pending the outcome of the Hague Application.

Even if the FamCA makes parenting orders in Australia, it is important to remember that the Australian court orders will not automatically be enforceable in the overseas country and the overseas parent cannot be made to comply with them.

It is important that you do not delay making a return application under the 1980 Hague Convention or pursuing your legal avenues in the non-Hague Convention country if your children are being kept overseas without your permission.

If your child is overseas but the other parent has returned to Australia

If the other parent has left your child overseas with friends or family and has returned to Australia, then there may be some benefit in applying for parenting orders in Australia. You may be able to seek an order from the court that the other parent do all things necessary to bring about the return of your child to Australia. You may also seek an order that the other parent be prevented from leaving Australia themselves. Given the other parent is in Australia, they will be required to comply with that court order. If you wish to pursue this option, you will need advice from a family lawyer.

Even so, it is important it is important that you do not delay making a return application under the 1980 Hague Convention or pursuing your legal avenues in the non-Hague Convention country. This should be done simultaneously with the Australian court proceedings.

Although our lawyers cannot communicate with the other parent on your behalf, our social workers may be able to use our international network to liaise with the other parent. ISS Australia has an International Family Mediation Service that may be able to assist you to negotiate with the other parent if the other parent is overseas. Please visit our International Family Mediation Service page for more information about this service.

Travelling to the overseas country with the intention of recovering your child yourself may have significant legal and psychological implications for you and your child. We would encourage you to contact our Legal Service and Social Work Support Service to talk about your situation.

Applications go through three stages: preparation of your return application, administrative review by the Central Authorities, and court proceedings in the overseas country. The time taken from when you start preparing your return application to the completion of the court proceedings will vary from country to country.

Where possible, your lawyer will be able to give you an estimate depending upon what country your child is in.  

The Legal Service and Social Work Service are both fully funded by the Commonwealth Attorney-General’s Department for Australia-wide services on international parental child abduction.
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Our International Family Mediation Service does have costs associated with it. ISS Australia is a not-for-profit service dedicated to supporting families separated across borders. We provide many other services, such as international kinship care assessments, family tracing and international family mediation. We would like to be able to continue to offer our full range of services to people in your position.

You can donate to our service here.  

International parental child abduction is not a crime in Australia, although it is a crime in some overseas countries. It can be a crime, however, if a person takes, sends or retains their child outside of Australia in breach of a court order or while or while parenting proceedings are pending in court.

This depends on which country your child lives in.

If your child lives in a country that is a signatory to the 1980 Hague Convention you might be able to make an access application with respect to your child. Different countries respond to access applications in different ways; for example, some will attempt to facilitate contact using mediation processes and other countries may hear the application before a court.

There might also be other legal avenues available to you in the overseas country. The Legal Service will be able to provide you with legal advice regarding your legal options and the best course of action.

If your child lives in a non-Hague Convention country, you might have legal avenues available to you in the overseas country. The Legal Service can provide you with information regarding your options.

The International Family Mediation Service run by ISS Australia may be very useful in such instances. If you are interested in this service, our trained mediators will assess your individual circumstances and if appropriate, will contact the other parent to organise a mediation. Successful mediation can result in better contact arrangements for both the parents and, of course, for the children.

Our Social Work Service can also get in touch with our network partners and request that they reach out to the other parent with cultural understanding and in a language that may be more familiar to them. This may alleviate the need for formal mediation and/or legal options.

For more information, you can download our factsheet about making an access application under the 1980 Hague Convention.

Our Social Work Service can provide different forms of assistance depending on your individual circumstances, i.e. how and why you have come to be in Australia with your child. If there are safety issues for you and your child, your social worker can link you in with appropriate support services in your local area.

Your social worker can also make referrals to organisations that assist with housing and other practical support. Please bear in mind that the Social Work Service does not offer financial assistance. Lastly, your social worker can provide emotional support as you work through the reasons why you have come to Australia and face difficult conversations or decisions with the other parent.

ISS Australia’s Legal Service cannot provide you with legal advice in these circumstances but might be able to assist you with a referral to another legal practitioner.

If you would like to speak to the Legal Service and/or Social Work Service, please don’t hesitate to contact us on 1300 657 843.

ISS Australia’s Social Work Service may be able to speak to you if you wish to remain anonymous.

ISS Australia’s Legal Service will need to collect certain personal details in order to provide you with legal advice. This information will remain confidential.

ISS Australia’s Legal Service can assist you if you are located overseas, so long as you are calling about an international parental child abduction from Australia. ISS Australia’s Social Work Service can link you with in country support either directly or through our overseas network partners.

Separately, Australia has Bilateral Agreements with Lebanon and Egypt.