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Frank Walker
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Stacks/The Law Firm - News Room



It seems logical to assume that a parent who takes their child to another country, unbeknownst to the other parent, and without their consent, is committing a crime.

Indeed, sometimes it is considered a crime, but not always.

At the moment, if a parent violates a Court Order by taking their child out of the country, it’s an offence that can carry a hefty fine or jail time. But if there are no Parenting Orders in existence, and parenting matters are not currently before the Family Court, then Australian law does not consider this an offence.

Many parenting groups are demanding that new laws be considered to make the removal of a child without the other parent’s consent a crime, regardless of the circumstances.

While the ‘abducting’ parent may not face charges, there is at least an avenue for the parent left behind to have their child returned. Australia is party to the Hague Convention, an international treaty which aims to return children who have been wrongfully removed. Countries that have signed the treaty, currently over 80, have a Central Authority that deals with requests for the return of children.

The parent left behind can apply to the Central Authority in the country the child has been taken to, which will pursue their request. The case will be heard there, and assuming that the parent and child can be located, will often result in the child’s return.

But not always. The abducting parent may be able to object to the child’s return. For example, if a child has been away from their home country for over 12 months and is settled, it might be argued that moving them again would be harmful. For parents pursuing their return, the message here seems clear; act fast.

If the child has been taken to a non-Hague Convention country, getting them back becomes a great deal harder.

Some believe the lack of a criminal offence effectively says to parents considering abducting their children, “give it a go”. At worst, you’ll be forced to return.

But there may be consequences. Decisions about parenting orders are generally dealt with after the child has been returned, in their home country. The impact on the child will always be the focus, and the Family Court may not look kindly on parents who have wrongfully removed their children. Surely a child who fears they could be removed from their parent, friends and home at any moment, will not feel secure?

Some argue that making international child abduction a crime would achieve little, perhaps forcing abducting parents underground. Others believe that when emotions run high, such as during a relationship breakdown, people will behave unpredictably, criminal offence or not.

The debate continues.


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