Ex trying to get us sent back to UK

If a child is removed from one country to another without permission it is “child abduction” under the Hague Convention if the following applies

 

 

1. The child has to be habitually resident in the country from where it is taken. Therefore returning from holiday to the country of habitual residence is not abduction. You may well be able to argue now that your child is habitually resident in Australia as he has settled into the country, he is in school etc.

2. The move has to be in breach of the other parents rights. This is debatable given that he appears to have given permission.

 

 

If you are in breach of the hague convention then the court will order child to be returned HOWEVER

Even if dad could satisfy these then you have defences to any application and the Court would not order a return of the child.

 

1. A year has passed.

2. If the dad agreed to the removal or retention either beforehand or afterwards. You have an argument here to say that he gave permission, keep your texts, emails anything at all that you have. Screen print and keep safe.

3. If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This risk must arise out of the proposed return to the other country.

4. If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” If child is only 9 you may have a problem with this, depends on individual child.

 

I would write to him formally, set out the conversations you had - in detail and times and dates etc and confirm that he gave his permission. IF he is now changing mind you will seek to defend his application. Ask for details of his Solicitors.

 

Hope that helps

I'm not sure how true this is in all cases. It's not that long ago that the Australian courts ruled in favour of a father and returned his children to Italy even though they had been in Australia for years and didn't want to return.

But in this case only a month has passed. Essentially they have failed to return from holiday. The texts about the school could be crucial as they are the only evidence that the father knew and condoned plans to remain in Australia.

The dad could also use those texts to say that this was the first he knew that the move was going to be permanent and that is why they've acted now