effect of stopover in dubai to parenting orders and child abduction
With the Qantas – Emirates agreement, stopovers are now in Dubai which is not a signatory to the Hague Convention on International Child Abduction.
Australia is a signatory to the Convention on the Civil Aspects of International Child Abduction (Hague Convention). The Hague Convention is a multilateral treaty that provides a procedure for the return of a child who has been abducted from a signatory country to another country that is also a signatory to the Hague Convention. Countries who are signatories to the Hague Convention have reciprocating jurisdiction such that they can order for the return of the child to his habitual residence or the country where he was abducted from.
The Hague Convention considers it wrongful to remove a child from the country against the custody rights of a party whether custody be exercised alone or jointly with the person responsible for the removal of the child. In Australia, before a child can travel out of the country the written consent of the person who has parental responsibility over the child must first be obtained.
A parenting order will specify who has the parental responsibility over the child and it is this person’s consent that the travelling parent must obtain. Thus, parents interested in travelling with their child must go through with the proper procedure so as not to be charged with international child abduction. The development in the corporate world of air transportation has just further limited the travel options of Australian parents. The co-operative agreement between Qantas and Emirates Airline facilitated for many stopovers to be in Dubai instead of the usual Singapore.
Dubai is an emirate of the United Arab Emirates which is not a signatory to the Hague Convention. The Qantas – Emirates cooperation agreement created a ripple effect on parenting orders that prohibits taking a child to a country with which Australia does not have a reciprocating jurisdiction.
At the same time, a stopover in a non-reciprocating jurisdiction creates the danger that a child could be removed from Australia and taken to that stopover country.
Parents who are interested in travelling may apply to the court to vary the existing parenting order in view of the Qantas – Emirates new arrangements for stopover. A parent may not have the intention to abduct the child but the act of bringing a child to a country which is not a reciprocating jurisdiction can be considered as international child abduction. It is better to be safe than sorry. So, before travelling it is best to go to court first to have the parenting orders varied or changed.
The Hague Convention does not go into the merits of a custody dispute. It is not meant to decide who has the better right to the child. Rather, the Hague Convention’s purpose is to return the child to the country of his habitual residence. The Hague Convention applies where the child’s habitual residence is in a country which is a signatory to the Hague Convention, the child is 16 years old and below who was wrongfully removed or retained in violation of the custody rights granted under the laws of the child’s habitual residence.
Under the Hague Convention there are two ways by which a party may seek for the return of a child to Australia. One way is to file an application with the Office of the Attorney General that is the designated central authority in Australia that will discuss and facilitate with the reciprocating jurisdiction for the return of the child. The second way is to file proceedings in the court of the reciprocating jurisdiction for the return of the child as provided in the Hague Convention.
This article was contributed by Ian Field from AYLWARD GAME Solicitors, Brisbane.
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.