With the 60 Minutes child abduction case in Lebanon receiving significant media attention and more recent reports suggesting that this wasn’t the first time the program has been involved in a child recovery operation, the question that is often asked is: why isn’t more being done to assist Australian parents whose children have been abducted? The answer is not so simple.
It is unfortunate that the involvement of media entities and personalities was needed to bring this issue to the forefront of the public’s attention; however despite increased awareness, the solution remains murky.
International parental child abduction occurs in Australia when a child is taken out of Australia by a parent without permission of the other parent. As a result of a child being removed from one country and taken to another, the child is often completely removed from one half of their family which can cause a loss of their former name, language, religion, culture, nationality and general identity. Often this can lead to both the child and the family left behind suffering from significant psychological and emotional trauma and symptoms of parental alienation as a result of the abduction.
Australia is party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, which came into force in Australia on 1 August 2003 (the Hague Convention). The Hague Convention is a multilateral international treaty between numerous countries which establishes a framework for responding to international parental child abduction. It also provides a lawful procedure for seeking the return of abducted children to their home country. The Secretary of the Attorney-General’s Department is the designated Australian Central Authority under the Hague Convention.
Application of the Hague Convention, however, is limited to abductions where both the country from which the child is taken, and the country to which the child is removed, have ratified or acceded to the Hague Convention; and this is where matters become more difficult for the parent left behind.
Non-Convention abductions are governed by two sources of law, namely, general principles of private international law or, where relevant, bilateral agreements.
Put simply, if an Australian child is abducted to a country which is not a party to the Hague Convention or there is not a bilateral agreement on the issue of international parental child abduction in place between the two countries (which relevantly there is between Australia and Lebanon) the matter is then governed by general principles of private international law. Countries which are not a party to the Hague Convention include Afghanistan, Pakistan and the United Arab Emirates.
Because parental international child abduction is not a criminal offence in Australia (with the exception of matters where there is already an order of the Family Court of Australia in place restricting the travel of the child), parents left behind are often forced to consider unpalatable or extreme options.
While child recovery missions undertaken by somewhat rogue agencies are one option available, the other option for the left-behind parent seeking the return of their child is to initiate proceedings in the overseas jurisdiction to which the child was abducted. In this scenario, the central authorities of that country have no obligation to intervene in the proceedings. Furthermore, it is a considerable financial burden for the left behind parent to fly to the relevant country and maintain a residence while participating in potentially costly and prolonged legal proceedings.
Statistically, Australia has the highest per capita rate of parental child abduction in the world and one of the lowest rates of recovery of abducted children. According to the Commonwealth Attorney-General’s Department, for the 2014-2015 financial year, of the 114 Hague Convention abduction applications made to another country, only 56 of those children were returned to Australia. What is more concerning is that these types of situations are bound to become more even more prevalent in the future, due to the rapidly changing ethnic fabric of Australia.
What can I do to protect myself if I am concerned my child may be abducted by their parent?
There are various protective measures you can put in place if you believe your child is at risk of being abducted from Australia, including:
- placing them on the Australian Federal Police Family Law watch list;
- retaining their passport;
- filing a child alert request in relation to the issue of any new passports for children; and
- seeking further legal advice.