Preventing International Child Abduction
Separated/Divorced? What Should You Know About Children & Overseas Travel
Did you know that Australia has one of the highest per capita rate of international parental child abduction in the world with more than 250 cases every year?
In a multicultural country such as Australia, and an increase in the movement of families leaving Australia for work, parents and children having dual nationalities, inter-country relationships, and the modern day ease of international travel, the number of parents who are taking their children out of the country without the permission of the other parent is ever increasing.
The level of difficulty in recovering children back to Australia depends on whether the country the children have been taken to is a signatory to the Hague Convention. The Hague Convention is an international agreement between 97 countries (including Australia) to cooperate with each other and do specific things when dealing with international parental child abductions, or a parent not returning children to their resident country in accordance with prior agreements.
Although the Hague Convention makes it easier to recover children from a country that is part of the Convention (a signatory country), not all children that are taken from Australia to a signatory country without the other parent’s permission are actually returned to Australia. There are very specific conditions that need to be proved before children can be returned to Australia under the Convention. The circumstances that existed before the travel/abduction took place is crucial and can often make or break a case for the children to be returned. Acting quickly is important. The longer children reside in another country, the less likely that an application for their return to Australia will be successful.
Countries that are not signatories to the Hague Convention have no obligation to assist and cooperate with returning children to their country of origin. Australian courts can issue an order which allows the Australian Federal Police to speak to customs and border control authorities in another country and find out where the children are, and order that the children be recovered and returned to Australia. However, if the children are in a country that is not a signatory to the Convention, that county has no obligation to enforce the order of an Australian court, or to assist with retrieving and returning children to Australia. Parents are often advised to go through the court process in the country their children have been taken to in a bid to recover them. This can be time consuming, stressful, complex and costly.
Many parents do not realise the risk that if they agree to the other parent taking the children on an overseas holiday, one parent can simply book a flight for their children to another non-signatory country under the guise of a holiday, or similar, and never return to Australia, with little to no legal repercussions. About 50% of the cases where children are not returned to Australia occur this way.
The best way to handle international child abduction, or the non-return of children to Australia, is to prevent it before it occurs. Understanding what can go wrong before agreeing to that overseas holiday with the children and the other parent can assist to put the right strategies in place to prevent these situations from occurring. It can also make it easier to recover children if they are not returned to Australia.
Whilst not trusting another parent to do the right thing is a cynical view of life, the statistical records, and our experience, demonstrate that the risk for parents going through separation is real. Not seeking legal advice and not putting the appropriate strategies in place can lead to a parent spending tens of thousands of dollars in legal fees attempting to recover their children from another country, and more importantly, significant time with no contact with their children. I recently worked on a case where my client took the children overseas with her partner and whilst there, her partner separated from our client and obtained a court order in that country preventing her from removing the children from that country to return them to Australia, and subsequently she had to return to Australia to start Hague Convention proceedings and in doing so, the other parent successfully prevented her from communicating or seeing her children for more than a year. The Hague Convention proceedings were very slow, conducted in a foreign court and still ongoing.
There are many preventative strategies that can be put in place to prevent as much as possible an abduction from happening in the first place. A Child Alert can be issued for children that have not yet been issued with any passports. Children’s names can be registered on the Family Law Watchlist (also known as an Airport Watchlist) preventing them from being removed from Australia at all, or without authenticated consent of the other parent. Orders preventing the children from travelling with a parent to another country can be made by a Court. Parents can even enter into Consent Orders regarding the agreed parenting arrangements, and as part of those Orders they can factor in the ability for both parties to travel overseas with their children on various specific conditions.
If the worst case scenario does happen to you, then acting and getting legal advice quickly is imperative. It is important that children are not left to live in the other country long enough to establish residence in that other country. To avoid the issue of overseas travel becoming a future dispute, speak to a lawyer specialising in family law as soon as possible. Being informed about the risks and the options regarding children and international travel and acting early can make all the difference.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice
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