Hague Convention on the Civil Aspects of International Child Abduction: The consideration of habitual residence in Australian courts

This article takes as its starting point the Hague Convention on the Civil Aspects of International Child Abduction, an international instrument providing a procedure for pursuing the return of abducted children in domestic courts. The Convention applies to children habitually resident in a Contracting State immediately before their alleged wrongful removal or retention, or to any breach of custody or access rights. Despite the importance that is clearly attached to the “habitual residence” construct, the drafters of the Convention did not clearly define the concept, leaving it to national courts to interpret based on their own understanding. The article presents the resulting conceptual and practical challenges with respect to the judicial application of the habitual residence test. More specifically, it presents analysis of the relevant Australian jurisprudence to clarify the reasoning applied in Australian courts. The article shows how weighting of shared parental intentions or broader, and especially more child-centred facts, may lead to different outcomes. It concludes that uncertainty underpins Hague Convention applications in the domestic legal context and suggests a couple of ways forward.