INTERNATIONAL CHILD ABDUCTION
This article concerns international child abduction, the avenues parents could use to return the child including by filing an application with the Federal Circuit and Family Court of Australia. We will talk about how a family lawyer could assist you in a situation of an parental child abduction.
Child abduction is the unauthorized removal of a minor (a child under the age of legal adulthood) from the custody of the child’s parents or legally appointed carers. Child abduction includes two legal and social categories: domestic cases, where members within the same household commit these acts (more often than not parental abduction); or stranger abductions (or kidnapping).
Parental child abduction may result in the child being removed within the same state or country. Sometimes, the children are taken to a different country.
International child abduction occurs when a parent, relative or acquaintance of a child leaves the country with the child or children in breach of a parenting order, without the authorisation of a court or without the permission of the other parent or guardian. Another related situation is unlawful retention of children. It may occur when the children go overseas for a holiday or another purpose legally, but are not returned.
International child abduction is not new. However, the incidence of international child abduction continues to increase due to the ease of international travel, increase in bi-cultural marriages and a high divorce rate. International child abduction is a worldwide problem and is not new. In fact, the incidence of children being taken away from their home countries continues to increase due in large part to the rise of international mobility of people, the ease of international travel, and the rise of the multijurisdictional marriages.
Another contributor to the international parental abduction is domestic violence. If fact, 2/3 cases involve mothers who say they were subject to domestic violence at home.
Even when the Hague Convention operates between Australia and the respective country, the court of that other state may be slow to return the child. This can take place if the return could result in the permanent separation of the child from their primary caregiver, cases of domestic violence, potential prosecution of the parent at the child’s home country and other situations.
The Australian Federal Police estimate that 20 thousand children go missing each year in Australia.
Parental abduction is characterized as child abuse.
THE FAMILY COURT SYSTEM
International child abduction is a complex and sensitive issue that affects families all over the world. In order to address this issue, it is important to understand the family court system and the international Hague Convention.
One key aspect of international child abduction is navigating the Federal Circuit and Family Court system. This involves understanding your rights as a parent, and working with family law solicitors. A parent may remove or retain the child from the other seeking to gain an advantage in expected or pending child-custody proceedings or because that parent fears losing the child in those expected or pending child-custody proceedings; a parent may refuse to return a child at the end of an access visit or may flee with the child to prevent an access visit or fear of domestic violence.
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980
The Hague Convention on the Civil Aspects of International Child Abduction 1980 is an international human rights treaty and legal mechanism to recover children abducted to another country. Another important international instrument is the Hague Convention on Parental Responsibility and Protection of Children 1996. Australia is a signatory to both conventions. However, the country where the child is abducted to or unlawfully retained at may not have adopted the Hague Convention or it does not operate between Australia and that country for a different reason.
For a list of member countries, visit the Hague Convention on the Civil Aspects of International Child Abduction page.
ABDUCTION TO EGYPT AND LEBANON. BILATERAL AGREEMENTS
Egypt and Lebanon are not the parties to the Hague Convention. However, Australia has signed bilateral agreements on international parental child abduction with Egypt and Lebanon. These are known as the Australia-Egypt Agreement and the Australia-Lebanon Agreement.
MY CHILD HAS BEEN ABDUCTED FROM AUSTRALIA. WHAT SHOULD I DO?
If you found yourself in a situation when your child has been unlawfully removed from Australia or retained in another country, you should contact your local police immediately.
GET IN TOUCH WITH THE AUSTRALIAN FEDERAL POLICE
Your child may not have yet left Australia and it may be possible to prevent them being taken out of the country. This is done by placing your child’s name on the Family Law Watchlist.
You will need to apply for a court order to place your child’s name onto the Family Law Watchlist. Our family lawyers assisted dozens of parents in preventing international child abductions and we can help you, if needed. You can try and do it without legal assistance.
Once you filed an application with the Federal Circuit and Family Court of Australia, email it to the Australian Federal Police at NOSSC-Alerts@afp.gov.au. The AFP may request that you re-send them the application when it gets sealed by the Federal Circuit and Family Court of Australia. Do as advised. However, your request to place the child on the Family Law Watch list will be processed immediately.
IF YOUR CHILD IS AT RISK OF ABDUCTION
If you are concerned that your child may be abducted overseas by a parent or another person, you need to act promptly.
AFP FAMILY LAW WATCH LIST
The Australian Federal Police (AFP) can place your child’s name on the Family Law Watchlist, which is a system designed to prevent children whose parents are involved in family law proceedings being removed from Australia without the consent of the court.
How to place your child’s name on this list is discussed above in this article.
THE CHILD’S PASSPORT
Make sure you have your child’s documents, such as their passport or passports (if they have several) and birth certificate securely stored in a safe place.
HOW TO STOP THE ISSUING OF A PASSPORT TO YOUR CHILD
You can request a child passport alert with the Department of Foreign Affairs and Trade (DFAT). In order to do so, you must have parental responsibility for the child.
A child alert does not guarantee that DFAT will refuse a passport to the child. However, the Passport Office will apply additional scrutiny to any passport application for the child.
If the child already has an Australian or foreign passport, a child alert will not cancel the passport or stop travel.
A child alert will not stop your child from travelling if they already hold an Australian passport or travel document issued by another country.
You will need to contact the embassy, high commission, or consulate of that country in Australia to find out if you can apply to stop a foreign passport being issued for your child.
SEEK FAMILY LAW ADVICE
Your family lawyer may advise to obtain recovery orders for your child or suggest alternative avenues.
If your child has been taken to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction, the Australian Central Authority may be able to assist you.
If your child has been taken to a country that is not a member of the Hague Convention, you may be able to get assistance from the Consular Branch of the Department of Foreign Affairs and Trade. The service operates 24 hours a day and can be contacted on 1300 555 135.
APPLICATION FOR THE RETURN OF A CHILD TO AUSTRALIA
If you believe your child has been wrongfully removed from Australia or wrongfully retained overseas in a Hague Convention country without your consent, you can apply for the return of your child.
Application form—Return of a child under the Hague Convention
There are a number of requirements your application must satisfy in order to meet the terms of the convention.
We can assist you during this application process by providing support with the preparation of the application and legal advice.
Completed applications can be sent to the Australian Central Authority at:
International Family Law Section
Attorney-General’s Department
3–5 National Circuit
BARTON ACT 2600
AUSTRALIA
You can contact the Australian Central Authority by:
Telephone: 1800 100 480 (or +61 2 6141 3100 from outside Australia)
Or email: australiancentralauthority@ag.gov.au
IF YOU ARE THE PARENT WHO WANTS TO REMOVE THE CHILD OVERSEAS
If you are a parent thinking of removing a child from Australia without the other parent’s agreement you should carefully consider your legal rights and duties.
In general, crossing Australian border, you do not have to show a written permission from another parent. However, as a matter of good practice, you should not take your child or children out of Australia without the other parent’s consent. In certain circumstances you may be committing an offence of the wrongful child removal.
If there is a parenting order in place or there are parenting proceedings in the Federal Circuit and Family Court of Australia between you and another parent, it is a criminal offence to remove your child or children from Australia unless you have the written permission of the other parent or a court order (ss.65Y and 65Z of the Family Law Act). The penalty for unauthorised removal of a child from Australia is punishable by up to three years in prison.
If you want to relocate overseas with your child, or be at liberty to travel overseas with your children, you should seek the other parent’s agreement in writing. If you cannot obtain their consent, you can or seek relocation orders or orders permitting you to travel through the Australian Family Law Courts.
