Child Abduction and the Holiday Season

Article 06 February 2019

Child Abduction and the Holiday Season

For many separated parents, the fear of their ex-partner removing a child from the country or even relocating somewhere within Australia and 'going into hiding' is very real. This is especially problematic during the holiday season. 

If a parent relocates, or moves overseas, without the permission of the other parent or the Court, and makes contact between the child and the remaining parent difficult, it is known as 'child abduction', which is a criminal offence.

What can you do to prevent child abduction?

It is very important to seek legal advice as soon as possible if your former partner is endeavouring to relocate your child without your permission, either temporarily or permanently, and it affects your child custody arrangements. 

There are steps that you can take to inhibit the risk of abduction, which may include seeking an order for the child/children to be placed on the Airport Watch List or a Child Alert Request to the Passport Office.

The Family Law Courts can intervene when a parent relocates with a child, as this can affect the child having a substantial relationship with one parent. Both parents must sign a passport application for the children, or give consent for a child to travel overseas if the child already has a passport.  

The Family Court can issue an injunction to stop someone taking the children when they relocate or travel, where the children are being taken overseas without the consent of either parents or a Court order. 

You can apply for an injunction even if there are no parenting orders in place. Some of the things that a Court will take into consideration in issuing an injunction and determining that it is not just a normal holiday include the following: 

1. The travelling party's destination is an overseas country  that is not a signatory to the Hague Convention on the Abduction of Children, which will make it harder to have the children brought back to Australia without the other party's help;

2. Where was no discussion of the travel arrangements and plans between the parties;

3. Where the travelling party purchases a one way ticket;

4. There is evidence of the travelling party's family and friends at the proposed destination who have assisted to set up a new life for them;

5. The travelling party refuse to share the details about the duration of the trip or place of residence;

6. The traveling party prior to going away, makes decisions to suggest that they will not be coming back i.e. selling their furniture and personal possessions, notification to the children's school that the children are changing school, quitting their job etc. 

If you are concerned about your child being taken overseas without your permission, you should seek legal advice immediately. 

What if my child is taken overseas?

Along with many other countries, Australia is signatory to two important international conventions which relate to children.  The Hague Convention on the Civil Aspects of International Child Abduction and The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the Child Protection Convention).

These conventions are of assistance if a child is taken (without permission from the other parent) to a country that is also a signatory to the conventions because they provide for applications for the return of the child, or orders to be made for contact with the child. 

Not all countries are signatories to the above conventions, however putting measures in place to reduce the risk of the child being relocated or removed from Australia in the first place may be your best option.

In cases where there Court orders are in place, and one parent takes the child overseas or interstate  without the other party's consent, the remaining party can seek a recovery order from the Court. 

You can apply for a recovery order if you are one of the following:

• A grandparent of the child, or

• You live and spend time with the child  or communicate with the child as stated in a parenting order; 

• If you have a parental responsibility for the child in a parenting order; and 

• If you are concerned about the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.

If you have any concerns regarding potential child abduction speak to the experienced family law team at CDQ. We can advise you as to the best course of action and set in place measures to protect child's rights.