It's a nightmarish situation.
A partner leaves with the children, and resettles with them in a foreign country - often in spite of existing custody arrangements.
So what should you do?
The police should be your first port of call, if you're concerned about the safety of your children. They can give advice on getting the children placed on the Family Law Watchlist, which could help prevent them leaving the country. You'll also need to get legal advice, as a court order is needed to place children on the watchlist.
If they've already left the country, there's good news and bad news.
If that country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, you're in luck: there are options to apply for the child(ren) to be returned to Australia and for local courts to rule on where they should live, and who with.
The Convention, which came into force in 1983, sets out guidelines for the return of children wrongfully taken from their country of residence:
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.
Many countries, however, are not party to the Convention or do not have similar bilateral agreements with Australia. In these cases, it can be difficult to have the children returned. More on that later.
Where have they gone? Has the country signed the Hague Convention?
This is important to establish early. The Attorney-General's Department has a list of signatory countries on their website, where the agreement is in force with Australia, and this interactive map sets out where the Convention is in force:
Australia also has bilateral agreements with Egypt and Lebanon that cover this issue.
If the children have been taken to a country where the Convention is in force, you may qualify for government assistance to have them returned. In order to apply, you must also meet the following requirements:
- The child(ren) must be under 16 years of age
- You must have 'rights of custody' for the children, and have been exercising them when they were taken outside Australia.
- The children must have been living in Australia before being removed, and were taken overseas without consent or a court order.
It is strongly recommended that you do not take part in legal or court proceedings in the country the children have been abducted to (unless undertaken later, under the Hague Convention). Doing this could be interpreted as your "acquiescence", or "submission to the jurisdiction" of that country, and with it, that the children should remain there.
The application process
If you meet all the requirements, you can begin an application to the Australian Central Authority - a section of the Attorney General's Office - which oversees these issues and acts on your behalf when liaising with the foreign country.
You will need to provide a supporting affidavit of fact - a written statement signed by witnesses - where you have the opportunity to explain your story and how the children have come to be removed and kept overseas. You'll need to mention whether there are any existing Australian court orders in relation to the children.
You will also need to supply birth certificates for the children, photographs of the children and abducting person, and if relevant, documents such as marriage / divorce certificates, court orders re: the child, correspondence between yourself and abducting person etc.
Once the application is submitted, the Australian Central Authority will review it - and accept, or deny it.
This infographic sets out the application process:
(Source: Attorney-General's Department)
There are some associated costs, but they are assessed on a case-by-case basis. Some countries will cover the cost of the Hague application, but others will not. Financial assistance schemes are available from the Attorney-General’s Department.
And if the child is in a country that hasn't signed the Hague Convention?
Unfortunately, there is little assistance the Government can provide - you will need to seek private legal representation in the country where your child has been taken. The Department of Foreign Affairs and Trade Consular Office has a list of family lawyers overseas that can be provided if needed.
It's important to remember that an accepted application, and even the return of your children to Australia, does not mean you'll have immediate custody of them.
As the Attorney-General's office notes:
A successful application under the Convention does not necessarily return children directly to left behind parents in Australia. The Hague Convention aims to return a child to their home country so that the courts in that country can determine issues of residence and care for the child.
Insight looks at what happens to the children in cases of international parental abduction in After the Abduction | Catch up online now: