A new generation of Hague Convention practice is taking shape in Australia

Most family lawyers can recall the moment a client says: “My ex has taken the children overseas — or they’re refusing to send them back — what can I do?”

In that moment, ordinary family law falls away. What steps forward in its place is one of the most powerful — and least forgiving — instruments in international private law: the Hague Convention on the Civil Aspects of International Child Abduction.

The Convention occupies a singular and often misunderstood place in Australian family law. It is profoundly humane in aspiration, yet austere in operation. It seeks to protect children from unilateral international relocation — but it does so not by deciding what might now be best for the child, but by insisting that the right court, in the right country, must decide.

That choice — to privilege jurisdiction over outcome — is the Convention’s defining feature. It reflects a hard-won conclusion of international law: that children are better protected by a system that deters abduction than one that rewards it.

The Convention proceeds from a simple premise. Custody disputes should be resolved by the courts of the place with which the child is most closely connected. When a child is removed from that place without lawful authority, the law’s task is not to decide where the child should live now, but to restore the legal position so that the proper court may determine it.

Habitual residence

At the heart of every Hague case lies one deceptively simple question: where does this child really live? The Convention calls this habitual residence. It is deliberately undefined. Courts must derive it from the reality of the child’s life — schooling, housing, duration of stay, family relationships and social integration.

Australian courts, following international authority, treat habitual residence as a factual inquiry rather than a technical status. It turns on where the child is actually embedded, not on passports or parental labels.

Yet this inquiry is rarely straightforward. Families move for work, safety, illness and financial necessity. Children may live across borders for months or years. Parents often disagree about whether a move was temporary or permanent. Once habitual residence is fixed, however, everything else follows. It determines which country’s courts will decide the child’s future — and which will not.

Cultural context further complicates this analysis. In many legal systems, children are understood as members of extended kinship groups rather than nuclear families. What it means for a child to be “settled” or “at home” may therefore differ sharply between jurisdictions. These differences shape how parental authority, consent and custody are understood, and they often sit uneasily with the Convention’s assumption of legal equivalence between states.

Wrongful removal and limited defences

The Convention’s second pillar is wrongful removal or retention. A child is wrongfully removed if the move breaches rights of custody under the law of the child’s habitual residence, whether arising from court orders or by operation of law.

If wrongful removal is established, the Convention requires return unless a narrow exception is proven. These include grave risk of harm, mature child objection, and consent or acquiescence. They are not designed to allow courts to decide which parent is better, or where the child would be happier. They exist to prevent serious injustice, not to reopen the parenting dispute.

For many parents, this is confronting. They come to court seeking a merits-based hearing and find instead a jurisdictional one. The emotional dissonance is enormous — and it is why Hague litigation requires careful, experienced handling.

The Australian setting

In Australia, Hague matters are governed by the Family Law (Child Abduction Convention) Regulations and heard in the Federal Circuit and Family Court, with the Australian Central Authority coordinating incoming and outgoing applications.

These cases move quickly. Evidence is often gathered across borders. Parallel proceedings may exist overseas and precision and strategy is key.

It is also critical to remember that the Convention applies only between signatory states (ratified in Australia) – some of Australia’s biggest migrant groups and consequently cross border families come from non-signatory states or those that are signatories but not ratified.

Experience and institutional memory

Lawyers who see these cases only occasionally may have difficulty switching modes to deal with the nuances of these matters. By contrast, practices that have sat with families on both sides of these disputes develop a different kind of knowledge — what evidence courts accept, how Convention defences are truly made out, and which questions must be asked early on.

In Australia, that depth of experience has increasingly taken organisational form. One example is www.hagueconventionlawyers.com.au (powered by Hope Earle Lawyers), which brings together practitioners who regularly act in Hague matters as part of a broader family law practice providing expert guidance and a dedicated 24 hour line 1300 0HAGUE (1300 042 483).

“Few areas of family law demand the blend of experience, care and precision that Hague Convention cases require — and that is exactly what our team brings to every matter” says David de Alwis, Managing Principal of Hope Earle Lawyers.