What is Parental Child Abduction?
When a parent and a child seek to move away from the other parent to a new town, state or country, they must obtain permission from the other parent before doing so. If permission cannot be obtained form the other parent they will need to seek permission from the Family Court to do so. This is called interstate or overseas relocation. See our family law blogs Relocation of Children and Interim Relocation of Children for more information in relation to this topic. If a parent fails to seek consent before relocating your children interstate or overseas, this is sometimes known as parental child abduction.
What can I do to prevent Parental Child Abduction from occurring?
If you are concerned about parental child abduction, i.e. that the other parent may attempt to remove your children from Brisbane or Queensland without your consent, you should seek urgent advice from our experienced Brisbane Family & Divorce Lawyers about your individual circumstances. Prevention is always better than cure.
We can put in place swift measures in order to prevent the removal of your child from the state or from Australia, for example by:
- Seeking an urgent Order for a pace alert in order to prevent the children from leaving Australia;
- Seeking an urgent Order to restrain the parent from relocating the children interstate;
- Seeking further orders for the children’s Passports to be held by the Family Court;
- Liaising with the Federal Police to prevent the children from leaving Australia;
- Apply for notifications of any Passport applications.
You should also seek to retain the child’s passport.
Check out our article on Airport Watchlist orders, which describes some of the preventative measures you can take in order to stop your child from being removed from Australia in the first place.
What if the other parent has already taken my child interstate/overseas?
If the other parent has already taken your children to another state or country unilaterally, without your consent, you should equally seek urgent legal advice from our Brisbane Family & Divorce Lawyers about your individual circumstances. We can take urgent action with respect to the parental child abduction to increase the prospects of you being able to successfully seek the return of the children to their prior location by:
- Seeking urgent orders that the children be returned by the other parent;
- Seeking an urgent order for a Pace Alert to prevent the other parent travelling interstate/internationally with the children in the future;
- Filing an urgent application pursuant to the Hague Convention seeking the return of your children to Australia if your children have been taken to a Hague Convention Country.
Unfortunately, parental child abduction for separated couples is increasingly common.
Parental Child Abduction – Hague Convention
If your children are abducted by the other parent and taken outside of Australia to another country without your permission or the court’s permission, it will be more or less difficult for you to have your children returned back to Australia, depending on whether the country they are in is a signatory to the Hague Convention.
The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement between some countries that covers international parental child abduction.
The Attorney General website lists the countries which are a party to the Hague Convention and are therefore ‘Hague Convention Countries.
Australia is a signatory to the Hague Convention along with more than 70 other countries and has been since 1980.
The Family Law (Child Abduction Convention) Regulations 1986 enact into Australian law the matters covered by the Convention.
The Hague Convention itself is of no force and affect in Australia. The Australian Courts are only bound by the Regulations and case law when determining Hague Convention Applications.
Notably, Hague Convention Applications brought under the Regulations are not subject to the paramountcy principle that the best interests of the child is the primary consideration.
The object of the Convention and the Regulations is to secure the prompt return of abducted children who have been wrongly removed from or retained in a convention country.
The Convention also has the affect of securing recognition in other convention countries of parental rights over a child under the law of the child’s home country. In other words, signatory countries to the Hague Convention accept that disputes in relation to children are best determined by the courts in the country with which the child has the most obvious and substantial connection, following the child’s return to that country.
International Parental Child Abduction to a Hague Convention Country
The Hague Convention makes it easier to recover your child from a Hague Convention country and have them returned to Australia.
If your child has been either abducted or retained overseas by the other party for a period longer than agreed, the Hague Convention permits you to make an application to that country through the State Central Authority to seek the return of your children returned to Australia.
The Regulations which have ratified the Hague Convention in Australia compel Australia to order the return of a child to their home country unless specific exceptional circumstances apply. Discretion to refuse to order the return of a child to his or her home country is very limited.
What is the criteria to be satisfied before the Court will make a return order?
An application under the Hague convention is brought under Reg 14 of the Regulations for the return of a child who has been wrongfully removed from or retained in a Hague Convention Country.
The four criteria under Reg 16 of the CA Regulations for an application under the Hague Convention pursuant to Reg 14, which must be satisfied to fall within the scope of the Regulations, for return of a child to another country or to Australia from another country, are:
- There must be an eligible applicant – Usually the Central Authority makes the application on your behalf or otherwise, the application must be made by a person with rights of custody in relation to a child;
- There must be a relevant child (a child under 16);
- The child must have either:
- Wrongfully removed to, or retained in, Australia from another convention country;
- Wrongfully removed to, or retained in, another convention country from Australia; and
- The application is made within one year of the date of removal / retention (except if the child has not settled into their new environment).
Wrongful Removal / Retention
The removal/retention is wrongful under Reg 16(1A) when:
- The Child is under 16;
- The Child habitually resided in a convention country immediately before the removal to/retention in Australia
- The applicant had rights of custody under the law of the country in which the child habitually resided immediately prior to the removal/retention in Australia (reg 4(2) says a person/body has rights of custody if the child was habitually resident in Australia or in a convention country immediately before his/her removal/retention)
- The child’s removal/retention was in breach of those rights of custody;
- Those rights were actually being exercised at the time of the child’s removal or would have been exercised but for the removal.
The child’s country of habitual residence immediately before the child’s removal/retention is central to determining whether a person has rights of custody in relation to a child: Reg 4(1) CA Regs.
Notably, it is the habitual residence of the child not the parent.
Habitual resident is not defined in Regulation 4 but pursuant to the case law, it comprises 2 elements:
- Actual residence in a particular country for an appreciable (not necessarily long) period; &
- A voluntary, settled intention (i.e. an intention that is unlikely to change in the short term) to reside in that country habitually: Re B (Minors) (No 2) .
A person does not cease to be habitually resident in a country just because they are out of the country temporarily (e.g. an employee working overseas even for a year). There must be an intention that the country be their ordinary place of residence.
For the purpose of the Regulations, a person can only have one place or habitual residence at any given time but it is possible for a person who lives for part of each year in one country and part of each year in another country to have different places of habitual residence at different times of year: Re A .
Rights of Custody
Under Regulation 4(1), a person, institution/other body has rights of custody re a child if:
- The child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
- Rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
For the purposes of Regulation 4(1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child: Reg 4(2).
Section 111B(4) of FLA specifies when a person has custody of or rights of custody in relation to a child for purposes of the Hague Convention and says that each of the parents of a child has rights of custody unless they have no parental responsibility for a child because of a court order, and a person who has a court order for PR and with whom child is to live has rights of custody.
If the above elements are satisfied this does not mean that the court must make a return order. There are exceptions under sub regulation 16(3) wherein the court can still exercise discretion to refuse to make a return order if one of those exceptions is satisfied.
Grounds for declining to order the return of a child
There are 6 grounds under Regulation 16(3) where a court has discretion to i.e. can refuse to order the return of a child to its home country even though the child has been wrongly removed to/retained in Australia including if there is a grave risk that the return of the child would expose the child to physical/psychological harm or place the child in an intolerable situation. There is a further exception if the child objects to being returned where the child has a strength of feeling about the view and the child is of an age/degree of maturity that it is appropriate to take account of the child’s views.
The onus of establishing one of the discretionary grounds for declining to order the return of the child lies on the person opposing the child’s return: DP v Cth Central Authority; JLM v Director-general, NSW DOCS (2001).
Importantly, if a person opposing the child’s return establishes one of these ground it does not mean that the court must then refuse to make an order for the child’s return, it just means the court has a discretion whether to order return of the child.
A summary of each of the discretionary grounds under Regulation 16(2) and (3), where the court CAN refuse to order the return of the child, are as follows:
- The person/institution/body applying for the return of the child was not exercising rights of custody when the child was removed to/first retained in Australia and would not have exercised those rights had the child not been so removed/retained: 16(3)(a)(i);
- Where the person/institution/body applying for return of the child had consented to or subsequently acquiesced in the child being removed to/retained in Australia: 16(3)(a)(ii);
- Where there is a grave risk that return of the child under the Convention would expose the child to physical or psychological harm or place the child in an intolerable situation: 16(3)(b);
- The child objects to being returned, with a strength of feeling beyond the mere expression of a preference or of ordinary wishes and has attained an age and a degree of maturity at which it is appropriate to take into account of his/her views: 16(3)(c);
- The return of the child would not be permitted by the fundamental principles of Australia relating to protection of human rights & fundamental freedoms: 16(3)(d);
- The application for return of the child was filed over one year after the day on which the child was removed to/first retained in Australia and the court is satisfied that the child is settled in its new environment: 16(2).
Unless one of the narrow exceptions under 16(3) apply, the court must make the return order.
What is the process to make an application for return of my child under the Hague Convention
The process involved where a child has been abducted from Australia to a Hague Convention Country is set out on the Attorney General website.
Hague Convention applications are highly complex.
We strongly recommend you obtain legal advice if you are considering making an application for return of your child under the Hague Convention Regulations.
International Parental Child Abduction to a non-Hague Convention Country
If your child is taken by the other parent to a non-Hague Convention country, it will be more difficult to recover your child to Australia. You may have to engage a lawyer in the country where the child is located to issue legal proceedings for the recovery of your child, at the same time as you also issue proceedings in the Family Court of Australia.
Check out our page on your Rights to return of your child if taken to a Non-Hague Convention Country for more information on this topic.
Seek urgent legal advice to prevent parental child abduction
It is very important for you to be proactive and seek urgent legal advice from an experienced Brisbane Family & Divorce lawyer if you become aware that your former partner has or is going to abduct your children and relocate unilaterally to another state or country.
If you take proactive action to prevent the relocation/abduction of your children from occurring in the first place, you will be in a strategically much better position than you would be if you seek legal advice after the other parent has already taken the children to another state/country without your consent. If the other parent has already relocated with the children, it is increasingly difficult to successfully seek an order from the Court for the return of the children to where they were prior to a Trial, twelve to eighteen months down the track.
Whether you are seeking advice in relation to relocation or child abduction, our experienced Brisbane Family & Divorce Law team can help put your mind at ease by putting in place urgent measures to restrain the other parent from abducting your children. Alternatively, we can seek urgent orders for the return of your children to you.
For more information or if you have any questions or concerns in relation to your children being unilaterally relocated/abducted without your consent, contact us to book a reduced rate clean slate consultation and you will receive tailored advice from our experienced Brisbane Family & Divorce Lawyers about your individual circumstances.