Moving to Australia: What You Must Know About Bringing the Children.

What crosses your mind when you think about the Hague Convention? Is it…

  • a) the sequel to the Geneva Convention?
  • b) a collection of men in grey suits meeting to talk about legal stuff in a place called The Hague?
  • c) an international law you should seriously consider before moving to Australia with your children?

So, as this is a blog about moving to Australia, I would imagine most of you will probably have plumped for c). And it is the right answer. But why?

Let me explain.

Without going into too much depth, the Hague Convention deals with international child abductions and applies to all countries that have signed up to the agreement, which includes all of North America and most of South America, Europe and Australia.

This lot…….

Hague Convention Members Map
Hague Convention Members Map

And what the Hague Convention rules is that no child under the age of 16 can be removed from their country of “habitual residence” without the consent of BOTH parents.

Why is this so important for parents moving to Australia?

Because sometimes, this happens. Husband and wife move to Australia with their kids. They split up for whatever reason. The wife wants to go back to the UK to be with her mother and, of course, she wants to take the kids with her.

To do that, she needs the permission of the father. No permission means she can’t take them. How many fathers would agree to their children living 11,000 miles away? Not many.

Result: The separated wife must stay in Australia if she wants to be with her kids. She is now living in a country she no longer wants to stay in, she is without the support of her pre-marital family and friends and there’s not much she can do about it.

Obviously this story can be told many ways. The husband may want to return to be with his mum, or go back to be with his old friends, or perhaps he yearns for his old local pub. Well, he can’t force his wife and/or his children to follow him without the children’s mothers permission.

You don’t even have to be splitting up. Perhaps just one of you hates Australia, husband or wife, and insists on going back to whichever country you emigrated from. Well, without the permission of your other half, you’ll be going back by yourself. Without your kids. Alone.

“But I’m their mother, I’m a British citizen, I was born in Britain, my kids were born in Britain, surely I can take them back home?’

No, you can’t. Not without the fathers permission. Otherwise it’s abduction and the courts will order your children be returned to their country of habitual residence.

What is their country of habitual residence? It is purposefully undefined by the Convention. But basically, it’s the country you have chosen to live in. My daughters “habitual residence” is now Australia. She is not an Australian National, she was not born in Australia, she does not have Australian citizenship.

But we live here, so Australia is Elizabeth’s habitual residence.

Nobody mentions this, not the Australian Government, not the MARA migration agents and none of the application forms. I never knew about this when I moved, but luckily, it isn’t an issue for us and hopefully it won’t be an issue for you. But for a small yet significant minority, it will be.

So I thought I’d mention it. Because it is important.

Kids shadowsOf course, I am not a lawyer and I am only expressing the Hague Convention as I understand it. Always seek legal advice from a qualified professional.

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{ 141 comments… add one }
  • Emma February 13, 2017, 5:11 am | Link

    I was born in Australia to US parents, have an AU birth certificate, but defaulted to US citizenship at 18. I am currently in the process of reapplying for citizenship for myself and my kids. I have an AU birth certificate and 65+ on your points scale and I feel pretty secure in my own. The application includes my kids and I have a notarized letter allowing them to become citizens and reside there. I’m wondering if you have an insight on what snags I may run into?

    • emma February 13, 2017, 5:13 am | Link

      to clarify, an notarized letter from their dad, who I am divorced from and we all currently reside in the United States.

      • BobinOz February 13, 2017, 8:49 pm | Link

        Hi Emma

        Unfortunately you are asking questions I am not allowed to answer, only MARA registered migration agents are legally allowed to advise on these matters. I also think you need to choose a MARA agent who also has some experience as a lawyer, plenty of them do here.

        They will be able to make sure you do this properly. To find a MARA agent, see my page about Migration agents.

        Good luck, Bob

  • Maria February 1, 2017, 10:18 pm | Link

    Hi there!i am a 24 year old nz citizen looking to move back to Perth, after living and getting my high school education in WA from 2004-2008. I now have a 3 year old daughter and would love any advice, tips, do’s and dont’s and recommendations anyone can give of how life could be for us in Perth, and what i should look into before even thinking about a migration. Where do i stand with childcare subsidies? And visas and residency? To job seeking agencies/websites that offer the opportunity for someone like me-living overseas- the chance to express interest online and not have to show up to an interview for a job that i may not even get anyway! I admire and very much miss the lifestyle Australia offers to anyone who wants to give it a good go! The idea of raising my daughter in the land of opportunity and setting up a lifestyle we can only dream of over here is one i will pursue with much passion, but dont even know where to start?? Any advice is greatly appreciated!! Thanks!!

  • Emma January 10, 2017, 4:50 pm | Link

    What if the father isn’t on the birth certificate and doesn’t have contact with her out of his own choice?

    • BobinOz January 12, 2017, 12:48 am | Link

      I have heard, a long time ago, like 25 or 30 years ago, that if the father’s name was not on the birth certificate, I’m talking UK, then he had no rights. Whether that’s true today or not, I really don’t know, so this is something you really should speak to a solicitor about just to make sure. Don’t just assume it’s okay, it’s always best to make sure.

      Good luck, Bob

    • Mark January 20, 2017, 9:00 pm | Link

      If the father isn’t on the Birth certificate and no paternal contact takes place then, and I assume you are looking at applying for a Visa then go ahead apply, move to Australia. its unlikely the absent parent is going to come running creating. However for your own sake and more importantly your child’s in years to come try and be in a position to answer who was dad and where he might be found …So much sadness takes place on Long Lost Families (tv show) because of things like this…I for my own part know how true that is leaving UK for USA when I was merely one. Good luck to you . .

  • carole July 11, 2016, 11:13 am | Link

    Our family has been involved in this situation. My daughter in law decided she wanted to return to the UK and abducted our two grandchildren aged 10 and 13, by telling them they were going to visit their very sick grandmother (not true). My son invoked The Hague Convention and after a very stressful and costly few months he got them back (they were frantic to get back to Australia and their father). To invoke the procedure you have to make an application which goes in front of a court. If they agree that the children have been removed from the country without the other parent’s permission, the process is put in to motion. The process can take between three to six months depending on the workload they have as Australia has the most child abductions in the world. My son travelled to the UK and put his application in with the UK branch of The HC which proved to be quicker. The parent left behind does not have to pay for legal representation, but the abducting parent find themselves faced with a very very big legal bill. In all this, the children are traumatised as there may be court appearances and they usually have to undergo interviews with court appointed child psychologists (not if the children are very young). My advice is, do not attempt to remove your child/ren without your partner’s permission. To the parent who does not want to go back to their homeland, if you suspect there may be an attempt to abduct, keep the children’s passports safe and see a lawyer about putting your children’s names on a list at all airports and ferries so your partner cannot remove them from the country. Beware, as soon your children start to live in another country, that is their habitual residence. However, when your children are older, they are asked where they wish to live and if there is any domestic violence or physical/sexual abuse to the children, that is taken in to account. As a family we are now just about getting our lives back. The children are very happy, have a wonderful social network of friends and both are doing extremely well at school and they have an awesome dad. Their mother however, decided she still wished to live back in the UK and left her children behind with their dad. The Hague Convention can only operate in countries that have signed up for this. In some middle Eastern countries it does not apply and if your partner abducts your child/ren, they could be lost to you forever.

    • BobinOz July 11, 2016, 9:27 pm | Link

      Very sound advice Carole, thanks for taking the time. I always feel that whenever couples are struggling, no matter how difficult it might be, they must always put their children’s happiness first.

      Abducting a child in contravention of the Hague Convention is not the best plan. I think parents should consider discussing a way forward that would be in the best interest of the children and then agreeing to that plan like adults.

  • Boo July 7, 2016, 9:45 pm | Link

    Hi 🙂

    I was under the impression the hauge convention only applies if there is a court/ parenting order in place also they need to produce birth Certs is this correct?

    • BobinOz July 9, 2016, 12:27 am | Link

      That’s not my impression, but if there is anything you’re uncertain about, I would be inclined to check with a lawyer just to be sure.

      • carole July 11, 2016, 9:20 pm | Link

        In reply to your question Boo, The Hague Convention can be invoked when a child is removed from the habitual country of residence and it has nothing to do with court/parenting orders. If you take your children “home” for a holiday and then decide to stay, that is an abduction in the eyes of the law. My son and his wife were living together, he knew she had felt homesick initially but seemed to have got through it. The bottom line is, if you attempt to return with your children to a country that is signed up for The Hague Convention and your partner invokes the process, you will have a very stressful and costly legal fight on your hands. If there is any domestic violence/abuse involved, be sure to go through the legal processes here so that it is registered and then try legally to take your children back to your original homeland. It will save everyone a lot of heartache, including the children who are the innocents in all of this.

  • Rob July 6, 2016, 4:27 pm | Link

    What is the time frame for the Habitual residence to change from original to the new habitual residence. My issue is my wife is sick of AUS & wants & has tried to take my son away from me to go to Indonesia.

    • BobinOz July 7, 2016, 12:45 am | Link

      I think it’s immediate, but I’m not sure. You really should check with a solicitor if you have concerns.

      • Mark July 11, 2016, 5:21 pm | Link

        Just been reading some of these Rob if you and your wife are struggling here I do hope things get better for you both, Indonesia though will not help as they do not recognise the Hague Convention. Court and parenting orders are relevant in certain circumstances but yiu certainly dont need one to go down the HC path. If you are at a loss with missing children then generally speaking if you travel to the country the child is in and start proceedings under the HC many of the countries will stay any internal proceedings until the HC is defined/decided but please do not assume it’s a magic button to start HC and children returned it’s not. The main reason arguably that no country of habitual residence is time framed or anything is likely because it will be the court that will decide the country of habitual residence. As an example M&D emigrate hoping it will solve some problems including marital between them, seven months later M returns with children D accepts they are going back for a week or two or so was said but they did not return, after little discussion D tried the Hague route but the receiving country appealed the matter successfully saying that 7 months does not constitute habitual. What I am trying to say is don’t take any of this as a given, yes it grants rights but each set of circumstances can throw up a variable. As to litigation costs both applicant and respondent can face costs again it’s not a generalist comment to make For example USA will not cover costs if you need to make a Hague Convention application, in Australia the Attorney-General’s Department has a fund for a financial assistance scheme called the ‘Overseas Custody (Child Removal) Scheme’. Information on this scheme can be found on the Attorney-General’s website at http://www.ag.gov.au/childabduction. Whatever you do seek advice and the best advice you will hopefully first get is try and sort things out, talk, discuss. After all there is perhaps nothing worse than leaving a country you could not stand to then have its authorities try and suggest they can take your children back from you. A recipe for disaster on many fronts for years to come. So if you have been put in this situation talk if you can and anyone lawyer related that does not explore that path with you first is in my opinion not a good lawyer. Well they would be good by their accounts receivables but not good morally Its difficult enough emigrating, try and stick together as a family unit for the sake of the children bear in mind one may have had an easy path emigrating the other spouse may not, Ask why the other wants to return and try and help them find what’s missing to help them stay. As much as mom and dad’s parents are a pull in the other country and they want their child and grandchild nearer. They always need to not put pressure either way, the good ones will not interfere at all. In all of this the court will always put the children first and if that means refusing a request under the HC they will. Australia sadly has the highest rate of these cases in the world and it also has a very low success rate for their return. There is a reason its high as most people come from another country so it’s likely to be higher. Finally for those with children wanting to emigrate with or rather without a separated spouse. Generally speaking get their permission if that’s a non-start option then in the UK you must apply for a relocation order in the Family Court. The order will be granted if relocation is in the best interests of your children so have all your information ready and a plan, a comprehensive plan.

        • BobinOz July 11, 2016, 9:35 pm | Link

          Thanks for clearing that up Mark, I was under the impression the habitual country of residence was quite immediate after making a move. Sounds as though you are saying it can be decided on a case-by-case basis by the courts. Glad I said I wasn’t sure now 🙂

          As you have rightly said though, the best plan anyone can have would be to try and sort it out as a family unit and do whatever it takes to stick together. That is always the best for the long-term outcome for the children.

  • Junior M Phiri May 5, 2016, 12:22 am | Link

    Hi Bob

    I have my two children whose father died when they were below 5 years and now they are big. My son did Aircraft Maintenance and Engineering but not working but just volunteering at the church and my daughter will be completing Broadcasting and Media in October 2016. They are not at any allowance because they are treated as foreigners though they were born in this country. I want them to join me in Australia. Am the only family they know and have welcomed their step dad who is so loving and he meet my daughter not my son. But with my son they are always on whatsapp and sometime on phone. What should i do to apply for the visas for i miss my husband.

    J

    • BobinOz May 5, 2016, 11:46 pm | Link

      To find out what you need to do, you should speak to a MARA registered migration agent. See my page Migration agents for more information.

      If your children are over 18 years of age and independent, they would need to apply in their own right and be successful in their visa applications before they could move here. Good luck, Bob

  • Tracy February 6, 2016, 6:03 am | Link

    Does this hauge convention include father’s who have never been involved I their Childs life… My daughter is 15 years old and I’m thinking of starting a new life.. I do have a aunt who lives in Australia.. What do you think.
    Your page is very informative and a great read. ?

    • BobinOz February 8, 2016, 3:12 pm | Link

      I believe it does, I would strongly recommend that you speak to a lawyer to find out how you can cover yourself. Good luck, Bob

  • Steph January 16, 2016, 5:34 am | Link

    Hi me and my partner are considering emigrating to Australia, I have a 4 year old son from a previous relationship, he has had no contact from his birth father in the last two years, he is on birth certificate, and has recently started paying maintenance. I was able to change my sons surname by depoll without the fathers consent due to exceptional circumstances (domestic abuse) can we get visa for him without breaking the law??????

    • BobinOz January 18, 2016, 2:53 am | Link

      I’m afraid that something I really can’t help with, you will have to speak to a MARA migration agent about that, preferably one who is also an Australian lawyer. Good luck though, Bob

      • frank May 21, 2016, 10:13 pm | Link

        My ex notified me mid week that she required me to write a permission to emigrate as well as provide my photo driving licence. He will be 18 yoa in 2 days and she reports it is cheaper to get a visa if she gets the application in with the requested documentation.. I researched if she needs this permission and apparently you have PR automatically in Scotland if the child was born 2006 onwards. Alternatively prior to this year if your named on the birth certificate and have a court access rights. I have no rights as I don’t have a court order with access rights.. I advised her we were never married therefore, she does not require my permission under law and Hague commission guidelines.

        • BobinOz May 23, 2016, 6:48 pm | Link

          Crikey, that was cutting it a bit fine though, two days before his 18th birthday. When she says it is cheaper, I think that’s just the difference in cost of the visa for a child compared with an adult. Cheers

  • Liz January 11, 2016, 5:54 pm | Link

    Hi Bob,
    what happens when you were never married with the father of your children,and would like to immigrate to oz as a single mom? will you be allowed to take the kids with you?

  • michele January 2, 2016, 8:47 pm | Link

    I would like to know if the same applies to stopping the Father leaving Australia to go back to NZ to live and leave his children behind.
    Ok I understand that the father can stop the mother leaving Australia to reside back in NZ with the kids, but why can’t the mother stop the father leaving the country on his own so the kids can have contact with him in Australia??

    • BobinOz January 3, 2016, 8:44 pm | Link

      It’s an interesting question Michele, but as far as I’m aware it would not stop a father or a mother leaving their kids behind to live elsewhere. I’m sure there are very good reasons for that, but as I’m not a lawyer, I don’t know what they are.

      I suppose the simple reason is probably that it’s impossible to stop a father or a mother abandoning their children if that’s what they want to do.

    • Jon January 16, 2016, 4:17 pm | Link

      Michele,

      As the Hague Convention’s purpose is to prevent the *abduction* of children, and the children as you described are apparently not in the slightest danger of being abducted by either parent in this instance, it would not apply.

  • Sarah November 29, 2015, 12:43 am | Link
    • BobinOz December 1, 2015, 8:47 pm | Link

      Interesting link, thanks Sarah.

  • Sarah October 18, 2015, 4:12 pm | Link

    Hi, im in perth wa for the last 4 years permanent resident with two kids who were born in Ireland. My relationship is falling apart. Can anyone tell me if u decide to take the kids home to Ireland and my other half doesn’t dispute it will i face no problems? Am I right in thinking you only have a problem if they dispute or do you have to ask for permission to leave regardless
    Thanks
    Sarah

    • BobinOz October 19, 2015, 5:21 pm | Link

      Hi Sarah

      I am not a lawyer, but I would strongly suggest that you get some kind of legally binding document signed by your other half before you take your children out of this country. A verbal agreement could lead to problems in the future. I strongly suggest you speak to a lawyer about this as you don’t want any problems further down the line.

      Good luck, Bob

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