Parental Abduction: Stopping your child from travelling overseas

Recent media stories have raised awareness of an issue that faces more families in Australia than you might think - international parental child abduction.

With a combined increase in migration to Australia, inter-country relationships, and the number of marriages ending in divorce, we are also seeing an increase in the number of parents who are taking their children out of the country without the permission of the other parent.

While very few parents would object to their children being taken on a legitimate holiday, for some, there is a real or perceived risk of the children not being returned.   This means that a growing number of separated parents are being faced with the difficult issue of whether or not to allow their former spouse to take the children out of the country.

So, if you think that your ex-spouse is planning to take your child, or children, overseas without your permission what can you do?

The passport process

If this is the first time that your child has travelled, or it has been a while since they travelled overseas, you can prevent the other parent from obtaining or renewing a passport.

In order for a passport to be issued, the Passport Office must receive the consent of each person who has parental responsibility for the child.  If the consent of both parents is not given, then the only way in which a passport can be issued is through a Court Order.

If you think that your former spouse or partner is trying to obtain a passport for your child without your consent, you may lodge an alert with the Passport Office to prevent the issue of the passport, or you can make an application to the Court to prevent the issue of the passport.

How does the Court deal with disputes over international travel?

When the Court becomes involved in a matter concerning overseas travel with children, it will always consider:

        1.   What is in the best interests of the child/children?

        2.   How can the interests of any person who has 'parental responsibility' for the child in question be protected?

The Court does have the ability to make Orders that either allow or prevent a person from taking a child overseas.  If asked to make such Orders, the Court will look at a number of factors involved, including, but not limited to:

• the welfare of the child, where the child is going and whether the destination is considered to be "safe"
• how long the child will be away from Australia and whether it means that the child will be deprived of seeing the parent left here
• whether the length of time away will have implications on the child's education and schooling
• the reasons why the child is being taken overseas, for example, is it to see relatives overseas or is there another specific connection to the destination?
• the likelihood of the child returning to Australia and whether the destination country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (The Hague Convention is an international treaty that says that in the event of a child under 16 being abducted from their home by one parent, the destination country has an obligation to return that child to their home country)
• what the child wants and their views and opinions - particularly if the child is old enough to have a say in what they would like to happen

Once the Court has decided whether to allow the child to travel overseas, it will issue an Order accordingly.

Most importantly, if the Court decides not to allow the child to travel but feels that the parent will contravene these orders and try to remove the child from Australia anyway, then the Court can also order that the child's passport be surrendered and delivered to the Court.

Other steps you can take

For some families, the need to prevent a child or children from being taken overseas can be quite urgent.  In these cases, it is recommended that Court Orders be sought preventing the travel as quickly as possible.  As soon as these proceedings are commenced you can also place your child on the Airport Watch List.  This means that the child will be prevented from boarding a plane or leaving the country pending the outcome of the proceedings.  In some circumstances, a child can remain on the Watch List indefinitely.

If you, or someone you know, is concerned about a former partner or spouse taking children overseas, speak to one of our experienced family lawyers.  Early advice and action is critical - intervention before the child leaves the country is much easier than a legal battle to bring the child home!  For more information on international parental child abduction or The Hague Convention, contact Lamrocks on ph:02 4731 5688.