International Child Abduction & The Hague Convention
Parental Child Abduction is a term which typically refers to when one parent detains, conceals or takes a child from the other parent without their consent.
It is a serious and urgent issue that some parents face, more commonly during or after a separation when parents are in dispute over parenting arrangements.
The process of trying to recover the child can be incredibly traumatic when this occurs within their home country, but it becomes even more fraught with risk and uncertainty when the child is taken or withheld abroad.
Here are some things you need to know about International Child Abduction, the avenues for protection and recovery, and the many considerations for separated parents when it comes to allowing their child to travel overseas.
What Does the Law Say In Australia About International Child Abduction?
In 2018, amendments were made to the Family Law Act 1975 making international child abduction a criminal offence in Australia, attracting three years’ imprisonment.
Parents are presumed to have equal responsibility for their children, even if the parents separate.
Generally speaking, they will be responsible for the significant decisions in the child’s life, such as where the child will live.
A child’s home is considered to be the place that they habitually reside with their primary caregiver - whether that be their mum, their dad, or another guardian. In addition, if a parent wishes to take a child overseas on a holiday, they must seek permission from the other parent.
When a parent does not seek permission and proceeds to leave the country with the child, or takes the child overseas with the other parent’s consent but does not bring them home by the agreed date, this may become a case of international parental child abduction.
How Can You Protect Your Child From International Child Abduction?
Parents going on a holiday with their child is common practice. When a parent does not inform their ex-spouse about planned travel arrangements and proceeds to leave the country with the child or children, this may become a case of international parental child abduction.
You can apply to the Family Court to make an order, and have the child’s name placed on the Family Law Watchlist, preventing a parent from taking a child overseas if you know they are planning to do so.
This watchlist is maintained by the AFP, and can be accessed at all international departure points in Australia.
In order to obtain this, you will need to demonstrate to the Court why you consider international child abduction to be a risk, potential safeguards that need to be in place, and whether the country the parent intends to take the child is part of ‘The Hague Convention’.
The Hague Convention - What is It & How Does It Protect Children?
Australia is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (commonly referred to as “The Hague Convention”), along with more than 80 other countries.
The Hague Convention is a multilateral treaty established in 1980, which seeks to protect and provide remedies and protocols for the prompt return of children who have been victims of international child abduction to their home country. All countries who are signatory to The Hague Convention have implemented their own legislation to give effect to the protocols set out in the Convention. In addition, there are some countries who have acceded to the Hague Convention, but where it is not yet in force between them and Australia.
If your child has been abducted a country that is signatory to the convention, you can seek a return to Australia under the Hague Convention.
If your child has been abducted to a country that is not a signatory, and you are not able to seek their return through the Hague Convention, we suggest you seek legal advice as soon as is possible. At Pullos Lawyers, we can assist. Please get in touch with us at your earliest convenience to find out what steps to take to ensure the safe retrieval of your child.
While Egypt and Lebanon have not signed The Hague Convention, Australia does have bilateral agreements on child welfare with both countries. These agreements are the Australia-Egypt Agreement and the Australia-Lebanon Agreement.
The full list of Hague Convention countries can be found here.
Making An Application Under The Hague Convention
The Australian Central Authority (ACA) is the body in Australia that will make an application in relation to The Hague Convention on behalf of parents.
An application must be made within 12 months of the child being abducted. In addition, the following requirements must be met for the application to be valid:
• The child involved is aged under 16;
• The parent making the application has custody rights (i.e. is the primary carer);
• This parent was exercising the custody rights at the time of the child’s wrongful removal from the country;
• The child’s country of habitual residence before their removal was Australia;
• The child is currently in a country covered by the Hague Convention;
• The child was taken overseas without the parent’s consent or without authorisation via a court order
Some Considerations Regarding The Hague Convention and its Limitations
It is a common assumption among parents that allowing a child to travel to a country that is a signatory to the Hague Convention is safe, and in the instance the child is not returned to Australia as promised, an immediate return is guaranteed. This is not the case.
There is a lot of variation in the application of the convention by the various countries. Each application is reviewed on its own merits by the foreign country, applying its own processes, procedures and timeframes. This may mean a ‘prompt’ action in returning a child is 3 months in some countries, and up to 2 years in others. Family Law in the US for example, is regulated at state level rather than federal level, and the immediacy of a response will be dependent on the laws in that particular state.
In any case, any delay in recovery of a child can be traumatic - for the child, the other parent, their friends, their family and school. The retrieval process itself can also be traumatic for the child, whereby the law enforcement officers will usually turn up, remove the child from their abducted location, and then accompany them to the parent - who is either back home in Australia, or who has flown to the country to aid in the retrieval.
Need To Speak To Someone About International Child Abduction?
International child abduction matters need to be dealt with urgently. At Pullos Lawyers, we are experts in international law issues and we have dealt with and been successful in the protection and safe recovery of many children who have been abducted, or at risk of being abducted and taken overseas, both to countries who are signatories of The Hague Convention, and to countries who are not. We also possess strong connections with many overseas family lawyers. Get in touch with our lawyers today to find out more about your specific circumstances via email, or call us in our Gold Coast office on (07) 5526 3646 or Brisbane on (07) 3144 1641.