What To Do If Your Child Is Taken Out of Australia
The Hague Child Abduction Convention, a parent may apply for the return of an abducted child to Australia. The application may be filed with the Attorney General or directly to the country where the child was taken.
In Australia, the parents indicated in the child’s birth certificate have automatic child custody rights. Other persons who may have rights over the custody of a child are those with whom the child lives with or given parental responsibility under parenting orders.
These are the persons who must consent to the travel of a child outside of Australia. When these same people do not give their consent, the person who removes the child out of the country can be liable for international child abduction.
Take the case of a woman who was arrested for bringing her child to Europe and went missing for three years. She took the child without permission but believed that she did nothing wrong. She took off with her three year old son because she feared that the child was being sexually abused by his father.
However, before the woman and her son disappeared, a child psychiatrist said that there was no conclusive evidence to show that the father was sexually abusing the child.
It is clear that the woman did not have sole parental responsibility or custody of the boy that is why she was arrested for taking him out of Australia. The woman could have avoided liability for international child abduction if she got the father or the court’s consent for the child to travel to Europe with her.
Australia entered into The Hague Child Abduction Convention with many countries. Under The Hague Convention, Australia can rely on specific countries to assist in bringing an abducted child back. For Australia, it is the Office of the Attorney General that will be coordinating with the other country for the return of the child.
Parents must understand that The Hague Convention is applicable only to cases where the child was taken to a country with which Australia has a reciprocating jurisdiction. If the child was taken to a country that is not a signatory to the said treaty, the concerned party will have to seek legal advice from legal practitioners in the country where the child was abducted.
Getting back a child under The Hague Convention is initiated by filing an application with the Office of the Attorney General that will look into the merits of the application. The applicant will be informed whether the application can be enforced under The Hague Convention.
If the application is found meritorious, it will be forwarded to the government of the country where the child was abducted. From there, the applicant will have to wait and abide by the processes of the other country.
Another way of getting back a child under The Hague Convention is found in Section 29 thereof which provides that a parent may directly apply to the government or court of the country where the child was abducted. Usually, direct applications are filed by wealthy parents who can afford to hire lawyers and travel to another country. Direct application will save time but definitely not on costs.
While the remedies provided under The Hague Convention are incredibly helpful, still the cheapest and fastest way to get a child back is through voluntary surrender of the child. It is encouraged for a parent to constantly negotiate with the abductor even as the application under The Hague Convention is already in progress.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.