Sep­a­ra­tion, divorce, chil­dren & over­seas trav­el — Pre­vent­ing inter­na­tion­al parental child abduction

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, with 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 for 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 93 coun­tries (includ­ing Aus­tralia ), to act in a spe­cif­ic man­ner 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 sig­na­to­ry coun­try, not all chil­dren that are tak­en from Aus­tralia to a sig­na­to­ry coun­try dur­ing cus­tody dis­putes 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 and facts that exist­ed before the trav­el or abduc­tion took place is cru­cial, and can often make or break a case for the chil­dren to be returned. Act­ing quick­ly is imper­a­tive. 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 return 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 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 Hague Con­ven­tion, there is noth­ing oblig­ing the coun­try to enforce the order of the Aus­tralia court in that oth­er coun­try or to retrieve the chil­dren. 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.

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 abduct­ed or 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.

There are many pre­ven­ta­tive strate­gies that can be set up. 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, which can pre­vent chil­dren from being removed from Aus­tralia by the Aus­tralia Fed­er­al Police. Orders pre­vent­ing the chil­dren from trav­el­ing 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 then estab­lish res­i­dence in that oth­er country.

If par­ties want to avoid the issue of over­seas trav­el becom­ing a dis­pute, they should 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.

If you want to know more about pre­vent­ing inter­na­tion­al child abduc­tion or you need assis­tance and infor­ma­tion about the steps you need to take to recov­er chil­dren who have not been returned to Aus­tralia, please get in touch.