In most cases, International child abduction occurs where one parent or guardian from a country other than Australia, following the breakdown of a relationship, forcefully takes their children to their country of origin in breach of a Court order or the consent of the other party. International child abduction carries significant consequences for the abductor and the children.
Child abduction is where a is wrongfully removed from their country of residence or if they are wrongfully retained in another country by one party in breach of a Court Order and without the consent of another party.
Parties who know that the other party is considering taking their child overseas and not returning should apply to the Federal Circuit and Family Court of Australia. The Court will then make an order for the child’s name to be placed on the Family Law Watchlist. The order will also action a PACE alert or airport stop.The Family Law Watchlist is maintained by the Australian Federal Police (AFP) and can be accessed by all international departure points that are located within Australia. If a child whose name is on that list attempts to leave Australia, the Australian Federal Police will be notified.
In order to obtain a Court Order, the party applying needs to demonstrate why there is a substantial abduction risk. The Court will assess the risk and also the potential safeguards in place should the abduction occur. The Court will consider the particular country the child may be taken to and whether that country has signed ‘The Hague Convention.’
The Hague Convention
Australia has signed to the Convention on the Civil Aspects of International Child Abduction, more commonly known as The Hague Convention. The Hague Convention sets out a process for requesting the return of an abducted child.
Return of the Child
The Australian Central Authority (ACA) is the body in Australia that makes applications in relation to The Hague Convention. This government body ensures all organisations with binding legal force in Australia comply with the Convention. An application for return must be made within twelve months of the date of abduction. The Court will order that the child be returned immediately so that the Child’s habitual country laws can be applied. However, should the child be at risk of harm if they returned to their country of habitual residence, the Court will not make an order for return.
Where the Country is not a signatory to the Hague Convention
In the absence of another binding legal agreement, little legal recourse is available to parents whose child has been taken to a country that is not a signatory to the Hague Convention. In these cases, it is recommended that the party contacts the Department of Foreign Affairs and Trade (DFAT) Consular Office to obtain a list of family lawyers in those particular countries
Where the location of the child is unknown
Where a party does not know where their child is, they should nonetheless apply to the ACA for assistance.