When will children be returned to parents overseas?

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By Watkins Tapsell.

There has been a lot of media attention lately regarding the return of children from Australia to overseas parents.

Everyone is aware of the infamous case involving the four Italian sisters who had expressed a strong wish to stay with their mother in Australia, and another recent media report about brothers who were split, with one being returned to his father in Australia and the other remaining with his mother in Canada.

So what does it all mean?

Australia has agreed to abide by the Hague Convention. This international law provides a mechanism for parents to secure the prompt return of children who are abducted from their home country by one of their parents, enabling the Courts in that home country to determine where they should live.

In the case of the Italian sisters, the Australian Court has ordered that the sisters return to Italy so that the Italian Court could hear the dispute between the girls’ parents.

Not all countries have agreed to be bound by this system.

In Australia, when an application is made for the return of a child to another country, if the Court finds that the removal of the child from its home country is ‘wrongful’, then the Court must make an Order for return of that child.

The removal of the child will be ‘wrongful’ if the child is under 16, lived in the home country before they were removed and the parent making the application had custody rights in that home country.

Once the child is returned to their home country, the parents can then apply to the Court in that country for Orders about who the child will live with and where the child will live (including which country the child will live in).

The future of the four Italian sisters, under this law, will have to be decided by the family courts in Italy.

For further information contact the Family Law Team.

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