Author

Alan Weiss

31st March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Research has shown that an average of 2 to 3 children is abducted by their own parents 

This report has caused many parents to be warned against possible child abductions which commonly occur in divorced families. Child abduction refers to the removal of a child from his habitual place or country of residence and brought to another without the consent of the other parent.

In international cases of child abduction, the applicable international law is the Hague Convention. However, it is worthy to note that not all countries are signatories to the Hague Convention which limits the application of its provisions. Only countries who signed the convention can invoke its protection and take steps, in accordance with the convention’s provision in giving ample protection and safe return to abducted children.

The following factors have to be considered first to know if the Hague Convention’s protection must be invoked by an aggrieved parent:

Habitual Residence of the Child

The child abducted must have been taken or removed from his actual place or country of residence. Aside from knowing the real and habitual domicile of the child, studies must also be conducted as to the school, community and family relations of the child. The court is obliged to take a look at all the personal circumstances surrounding each case of an abducted child which definitely includes the intent of the parent who removed the child and custody arrangements.

Countries which are Signatories to the Hague Convention

Signatory countries are referred to as “convention countries” which means that they were parties to the Hague Convention. Only signatory countries can invoke the protection provided by the Hague Convention which also includes arrangements for the safe return of the child to his country of domicile. The goal is to return the child to his country of domicile and to allow the local courts to determine family disputes and custody cases in relation to the child’s welfare.

Custodial Rights

Not all persons are allowed to invoke the provisions of the Hague Convention. Only parents awarded with the right of custody over their children can seek for the return of the abducted child.

Consent and Acquiescence

There are cases wherein the other parent has given his or her consent to the removal of the child from his country of domicile. In such a case, there was actually no removal to speak of. Consent may not be in writing, but it is preferable if the parent removing the child possess a court order where the consent was clearly and unequivocally laid down. However, there were instances when the child was not returned after a consented removal was made. This acquiescence is unlawful and must be dealt with by law.

Conversely, there are cases that the courts allow the removing parent not to return the child to his country of residence if said child will be exposed to great danger or harm which has to be substantial and not merely superficial.

If your child has been unlawfully abducted, take the following steps to seek for the safe return of your child:

  • 1. Call your solicitor and ask for the procedure in requesting the return of your child;
  • 2. Report the child as missing;
  • 3. Request for information on airport departures;
  • 4. If you know where the child was taken, determine if it was a signatory or convention country;
  • 5. If yes, immediately contact the Central Authority of said country;
  • 6. Prepare the petition for the safe return of your child.
     

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