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 daughter’s “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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{ 167 comments… add one }
  • Ms G December 7, 2017, 9:28 pm | Link

    Hi.. my son and i are son eligible to apply for citizenship. We are currently living in Australia for 4 years now. How likely it is for the immigration to ask for sole custody proof when my childs father is no in his birth certificate. The immigration has not ask anything like this when we apply for our visa . My son is living with me here in Australia now as a permanent resident. Thanks

    • BobinOz December 8, 2017, 5:28 pm | Link

      Sorry, but I have no idea what they might ask, but I would have thought, as you seem to also imply, that the time to ask would have been when you applied for the original visa.

      As I say though, I don’t know, so if you have any concerns, maybe you should have a word with a solicitor or a MARA agent. Good luck, Bob

  • Nohan June 6, 2017, 8:04 am | Link

    Hi,
    I am Canadian and I have one biological son who now lives in Perth. I adopted 3 sisters and one is now a hard core drug addict and I am raising her 2 daughters, an 11 year old whom I have recently adopted and a 4 year old who was placed with me 2 1/2 years ago and I will pursue adoption of her at age 6 when when she is established in the school system, but in the meantime, I have sole Guardianship of her until she is 18 which gives me the right to include her in my will leaving both girls for my son to raise in Perth….. .

    He has looked into it in and it sounds like Australia wants “proof: that there is no father in the picture, which there’s never been and is has been a total non-issue in her first 4 years.

    There is no fathers name on her Birth Certificate and Passport Canada recognizes that the father is Unknown, so what more could Australia need?

    I would appreciate any help or clarity you could give me on this as I certainly don’t want to leave them in a legal mess.

    Thanks,
    Nohan

    • Mark June 6, 2017, 11:00 am | Link

      You really need a lawyer on this. You have two children here who whilst siblings they each have a different legal status to you…Is there any particular reason you are waiting till #2 starts school before officially adopting..At least then they would both be the same status .. There is an element of default into the same status but it might be so much easier… Much of your concerns are going to be irrelevant when each turn 18 but I am suspicious (dont want an answer) you are figuring you may not be around by then… Its may be worth finding an Australian immigration lawyer but even then things can change whatever they say now may not be valid in 4 years…
      To answer your question the only real way to find out what Australia will ask for is when it comes to it but even if they ask for things that do not exist like father details then they cant have them but this comes back round to my original point if they are both adopted by you then an element of just a copy of limited view adoption paperwork may be needed.

      • Nohan June 6, 2017, 2:14 pm | Link

        Hi, Thanks for the quick reply.
        I had legal custody of the first girl and inquired about adopting her after 2 years, I was told that it is best to wait until it was evident that she was doing well in school and had established relationships with friends, etc then the legal system tends to leave them in that environment, plus the father was known, so even though Child Protection wouldn’t let them have her, they still had “rights.”

        Even though the mother exists in a haze of drugs, she’s incredibly street smart, a compulsive liar and would get legal aid and fight like hell as she knows the endgame is that my backup plan includes the girls living in Australia….and in court, that little story is likely to have more impact now than in will in a year or two…

        And beyond the cost of the lawyer is the fact that any way you spin it, the process is going to inflict pain on everyone involved and for that reason alone, I want it to be a slam dunk and I believe that we need more time.

        I presently have the right in Canada to leave the girls to my son and all he has to do for the little one is show that “it is in the best interest of the child” to move to Australia, which can be easily accomplished….and apparently because he would be the “next of kin” and financially capable of raising them, there doesn’t seem to be a problem in Australia except for the piece about somehow having to prove that the father is Unknown…even though he has remained unknown for 4 years, a fact that the B.C. Court, the Provincial and Federal Governments including Passport Canada have all accepted.

        I understand that this law is likely in place to protect against scams, but considering the above and documents to prove it, what else could a person do.

        Thanks
        Nohan

        • BobinOz June 6, 2017, 7:18 pm | Link

          This sounds like an extremely complex and unusual situation to me, I can’t help but think you will have your work cut out to get everything to go as you would want it to. It’s not really a case of what else could a person do, but a case of what does the Australian government need from you in order to satisfy itself that there will not be problems further down the line.

          And that’s what you have to do, satisfy the Australian government that everything is in order. To do that, as Mark has suggested, you are undoubtably going to need a good immigration lawyer who fully understands Australian processes and maybe even the Hague Convention to get you through this.

          I don’t think this is something you can do without legal representation, but if you don’t want to go that route, then I suppose all you can do is ask immigration what proof they need and see how it goes. I’d go with a lawyer though if I were you.

          Good luck, Bob

          • Nohan June 6, 2017, 11:35 pm | Link

            Ya, you’re right, I’ll ask the question and get the specifics and in Feb, I’ll start adoption as we will have had her 2/3 of her life and rather than waiting for school, we’ll go with daycare, family and friends support as the courts should be able to see that the pattern of the mother is worse than it was with the first child, the drugs and the lifestyle are far more dangerous.

            Thanks for the direction
            N

            • BobinOz June 7, 2017, 11:46 pm | Link

              I do hope it all works out well for you, and of course, for the children. Good luck, Bob

  • Mrs L May 8, 2017, 6:19 pm | Link

    Hi, my spouse and I recently moved to Australia (3 mos ago). We have 3 children and have been married 14yrs. He wants to divorce, but wants me to stay here and he will help support us. He is on a 457 visa, but if we split we can’t stay on it, unless we wait 8 more months and apply for Permanent residency…..but I really want to go back to Canada where my family is, and I know I will have support. I know it’s not ideal for the kids, they will suffer either way. But can I legally do this? Do I have to file divorce and for custody in Australia? Can I just take them if we get booted out because of the temporary visa? I don’t want to get PR in a year and then be stuck here the rest of my life!
    Thanks for any advice you can offer.

    • Emma May 8, 2017, 9:37 pm | Link

      Get out now and go back. Happy mum, happy life. Pay half for kids to visit if he decides to stay here. I’m in similar situation with children’s father that lives abroad. We split airfares and they fly back twice a year. Expensive but I get to live where I have support.

      • Mrs L May 9, 2017, 4:22 am | Link

        Emma, are they ok with not having dad in their lives? We haven’t had a very stable life, constantly moving and job changes and all I want is for them to be happy and near grandparents and cousins…he feels I put to much emphasis on extended family. But if I don’t do this and I stay he is my only support and he has never been helpful to me before, and then if we get PR he will always get to decide what we do. I think leaving would actually be cheaper and easier, he can fly over by himself for way less than all of us flying home. My kids are still too young to fly that far by themselves 10,8, 3….but someday.
        I appreciate your comment. I am desperate for answers!

        • Mark May 9, 2017, 9:58 am | Link

          Mrs L Please do not do as Emma suggestion infers get out now, in what can be emotional times …This is not because I am a man its because you may find yourself in more difficulty. It would be hard pressed of a court to perhaps do this after only 3 months of living here but it depends on where roots are for them not you and many other circumstances . It could be argued the children live in Australia despite only 3 months and in certain circumstances may be ordered to be returned.. I have no idea whether your husband wants custody or whether either of you will get PR in the future. What should be the focus as sad as it is for children is the separation now and under what agreed terms including the custody and perhaps negotiating their return with you to Canada. It may be you can get agreement the children do not have PR and as such like you, will need to vacate the country. At least this way its an agreed return not a flight of will, that may end in tears. Best of Luck to you. I cant imagine what difficult situation you face.

          • BobinOz May 9, 2017, 8:12 pm | Link

            As Mark has said, you do have to be very careful what you do here. You can’t just go back to Canada and take your kids with you, not without the father signing the necessary consent forms which would probably need to be witnessed by a lawyer or JP.

            If you just up and leave with them without that, there is a big possibility it will end very badly for you.

            A friend of mine is a divorce lawyer, she always feels the best option is gentle negotiation between husband and wife, reasoning, give-and-take, and working it all through in the best interests of the children and in a way that’s agreeable to both adults.

            If that can’t be done and it turns acrimonious, then you really do need to appoint a lawyer, probably an Australian lawyer with knowledge of migration law, to act on your behalf. Given that you’ve only been here three months and ‘all of a sudden’ your husband is looking for a divorce, I think a good lawyer would be able to exploit that in your favour, perhaps.

            But of course, I’m not a lawyer, what do I know?

            What I think I do know though is that your kids will need both of you in their lives, so ideally, for their sake, you all need to be living in the same country. Your fight is clearly to try and ensure that country is Canada.

            I hope you succeed in that because all of you are more Canadian than you are Australian.

            Good luck, I hope you sort it out, Bob

            • Mrs L May 10, 2017, 6:31 am | Link

              Thanks you for your insight, I really am just looking for clarity!
              I would never consider just “up and leaving”. I do want to make this as amicable as possible. He is a good dad to them and they love him. But they are out of their element and unhappy having to have moved and I think a strong support system would be in the children’s favor.
              Financially we are drained from this move and he couldn’t move back now if he wanted to. He is also a US citizen and not Canadian, so there would be a difference in countries we lived in anyways. It is a mess.
              My fear is that if we stay living separated but in the same house for at least another 8 months until there is possibility of us getting PR, that I will be trapped in a country where I have no one, never with the option to return home because of custody issues, rather than leaving now. Because we can’t legally stay under his temporary 457 visa if we are seperated or divorced.
              I’ve been in touch with a migration lawyer who says legally we can’t stay, but we can figure out something if necessary. I’m just not sure That is the right answer.

              • BobinOz May 11, 2017, 12:38 am | Link

                Sounds like it is quite a messy situation but it also sounds as though you will be doing the right thing as best you can to sort it out. I do hope you find a solution that is good for everyone and that you get through this with as little pain as possible.

                Good luck, Bob

                • Mrs L May 11, 2017, 5:06 am | Link

                  Thanks for all the advice. This forum has been insightful.

                  • Mark May 11, 2017, 6:41 am | Link

                    In the interim try and find something here, The childrens school will have some form of PTA you could help out at or join. Not sure if your religious but a church (which is pretty laid back here) will make you welcome. Both of these may find you a couple of friends just to give that bit of family support and people to talk to. (not necessarily about this) . Best of luck with it all. Heck even this forum is here if its getting you down in any way.

                    • Mrs L May 11, 2017, 10:47 am | Link

                      Those are good ideas, I do go to church with my kids, that helps a little and I belong to a gym and a boot camp group, I try to stay busy to keep my mind off of my troubles!

  • Mike April 11, 2017, 7:38 pm | Link

    Hi,
    I’m an Australian citizen living in Australia, I met (currently dating) someone in Mauritius Aug 2016 which whom she has a 4yro daughter. She is currently proceeding with divorce in court over there which will be finalised in Aug 2017. The ex-husband has agreed for the mother to have full custody of the child. At the same he’s also facing domestic violence charges against the mother & her father. Her lawyer said she is free to visit Australia after May 2017. My questions are, what consent or form is required for the child to come to Australia with her mother? What does the ex-husband need to sign for his 4yro daughter to come? What if he doesn’t give consent? What happens if he is in prison?
    Thanks

    • Mark April 11, 2017, 9:24 pm | Link

      Whether he is in prison or not he will still remain the child’s father. No charges it seems are proven so a little bit premature on that front. Its wiser her divorce lawyer deal with this. Whilst her dad may have said the mother can have custody and that may include holidays, It may or may more likely not include taking her to Australia permanently which maybe on the horizon I always try to be positive on these pages and I hope this all works out well for you all but particularly the little girl . If her dad is happy for her to visit then its likely no more than a visa is required. perhaps for safety a letter of notarised authority, if its a more permanent move or certainly more than a holiday planned in the future let the lawyer sort it out…You don’t want to be in 10 years down the line a horrible step dad who took her away from her real dad. I know that’s probably not the case you intend but it can easily happen. You need to be clear its a holiday and she will return in perhaps the first instance,,,Its not worth jumping the gun to anything more permanent than need at this stage I would aver until any plans the adults have come to fruition. Hope it all works out

      • Mike April 13, 2017, 4:35 pm | Link

        Thanks for the reply Mark, this is a step forward.
        So she should to mention this her divorce lawyer asap. Will it be part of the current divorce case or will it have to be a separate case? As for notarised authority, will section (4A) (4B) in the child’s Mauritius passport application http://www.maurinet.com/allform/pportnew.pdf be enough permission/consent to visit Australia?

        • Mark April 13, 2017, 7:28 pm | Link

          My idea was a letter of authority notarised by some one in authority eg a lawyer witnessing the signature of her husband I have no idea on the specifics of Mauritian law, however her lawyer will…try not to over complicate the matter with using terms like another case, Its perhaps just a matter of asking for a letter authorising her to visit with the child negotiated as part of teh divorce…This is only my personal view …If laws are in place in Mauritius then Mom needs to comply with these but again her lawyer should be able to advise on this. If she hides the fact she is planning on leaving without permission then the Hague convention can apply here…

  • stephanie louise bamber March 17, 2017, 11:12 pm | Link

    hi i am steph i am 35 years old i have 3 children 12 years 1 dad,second child 6 years dad doesn’t want to know him that i think by listening to what u say il be safe.then theirs my 3rd child my daughter 2 years old her dad might have a problem hoping not.now i want a better life for my kids for all of us.my kids have passports,well just waiting on youngest once passport.now i’v moved houses before moved towns before,but never moved out of the country only for holidays.my kids need a good school, high school, primary school,and nursery.i am on child tax, child benefits and disability allowance.now renting a house might be the easy part,getting money to move their just a matter of saving up,but how do i do the rest,move what items only need to take.my job is in the uk down as a full time mum and also i am down as working as i’m a carer for my son.now i don’t know what the rules are over their or if i’l get the same,i can’t by a house in the uk credit checks. renting in the uk depends were u live i pay £115 a week for rent iv noticed in australia its more like £400 or £500 or more a week.i need your help or find me someone who could help me, i want out this town out this city out this country. i want a better life and better future for my kids.what do i need to do were do i go for help.how do i get sorted out for moving to australia but will i loose everything as in all my benefits as i cant work because of my son.please help me

    • BobinOz March 19, 2017, 8:09 pm | Link

      You have many obstacles to overcome Stephanie to move to Australia, probably too many. The biggest problem I would think for you is actually qualifying for a visa to live here, they are simply not easy to get.

      Please see my page about Visas and in particular watch the video, it will help you to look into the various visa types.

      Moving to Australia is very expensive, and you have asked me for my help, I’m not legally allowed to give it. Only MARA registered migration agents can advise on these matters, and they cost money as well. If you want to pursue this idea, you should speak to one to find out where you stand, but I feel it would be very difficult if not impossible for you to qualify for a visa given your situation.

      As I’ve said, I can’t explain it further than that, but if you read some the information available on my Migration Advice section, you may get a better understanding of how this process works.

      Good luck, Bob

      • stephanie bamber March 19, 2017, 11:38 pm | Link

        iv spoken to marah and they asked for my cv first off all.my parents are going to move abroad and don’t get me wrong i want to move were me and my kids can start a new life.
        it doesn’t have to be australia,my parents want o move to greece,u says its expensive,well i don’t like living in a country were they lets asians in or porlish into this country.we live in a world were its not safe for your kids to go out,
        scared u might get stabbed or shot,or robbed.we have a lot of drug addicts here homeless people.this country isn’t safe not for kids like mine.if AUSTRALIA won’t let us in which the agent from marah hasn’t said no yet.i aint racist but us english us british citizens are betting kicked out of job well the decent people kicked out of our own homes street towns.im a good honest decent person who want my kids to be safe healthy and happy.if u say they wont let us in thats fine surely to goodness i can get into another country.can i ask why would they say no to me what have i done wrong.

        • BobinOz March 20, 2017, 7:25 pm | Link

          Well, Australia isn’t for you then, we have lots of Asians here as well as many other nationalities. Australia is a very multicultural country.

  • 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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