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.
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.