Protecting children from unlawful removal from Australia
A recently reported case of a mother who attempted to fraudulently obtain passports for her two children, aged 14 and 11, in order to abduct them from Australia to New Zealand following an unfavourable Family Court outcome highlights a number of the difficulties surrounding the overseas movement of children in separated families. Whilst thankfully the safeguards in place to control children’s overseas travel worked on that occasion, with the woman and her children being stopped at Sydney airport and the children thereafter presumably being returned to their father, the series of events leading up to the attempted abduction provides a useful case study on the strengths (and weaknesses) of the systems available to separated parents[1] to control their children’s overseas travel.
Travel Documents
The Australian Passports Act 2005 provides that, subject to a number of specific exceptions (such as where the child’s welfare requires the travel to occur or an urgent family crisis exists and the other parent is not contactable), an Australian passport must not be issued to a child unless each person who has parental responsibility for the child has consented to the child travelling internationally or there is an order from an Australian Court permitting such travel.
Under the Family Law Act 1975 (‘the FLA’) each of the parents of a child has parental responsibility for a child unless this has been displaced by Court orders or a parenting plan. This means that upon a separation both parents continue to share parental responsibility for a child, regardless of who the child is living with, until that responsibility is somehow displaced.
These two pieces of legislation operate in conjunction so that an Australian passport should not be issued to a child unless both parents have consented to that child travelling internationally, save for where:
- One parent has been given sole parental responsibility in relation to the child travelling internationally by a Court order or parenting plan;
- The Court has made an order providing that the child is permitted to travel internationally and that one parent is entitled to obtain a passport for the child without the consent of the other parent; or
- One of the specific exceptions referred to above applies.
As in our case study, it is still possible for a parent (or other person) to attempt to fraudulently obtain a passport on behalf of a child, for example by forging the details of the other parent on the passport application to misrepresent that parent’s consent to the child’s overseas travel. Where there is a likelihood of such fraudulent activity occurring parents are able to file a Child Alert Request Form with the Department of Foreign Affairs and Trade (‘DFAT’). Whilst a Child Alert Request will not prevent an Australian passport from being issued, its lodgement alerts DFAT of circumstances which may need to be taken into account when issuing a passport and will lead to greater scrutiny of any application which is made. It is important to note that a Child Alert Request only relates to the issuing of a new passport – it has no effect on an existing valid passport.
Parents who have concerns regarding their children’s overseas travel should also take careful consideration as to whether or not the child is eligible to obtain a passport from another jurisdiction. Some foreign jurisdictions do not require both parents’ consent for the issue of a passport, or otherwise have systems which are more open to abuse, and where this is the case the restrictions around the issue of Australian passports are likely to provide little protection.
Travel restrictions under the Hague Convention and the Family Law Act
The Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’) is an international convention which primarily operates to return children who have been wrongfully removed from a jurisdiction which is a member of the Convention.
The key concepts of the Hague Convention operate where there is a child (being a person under 16 years of age) who:
- Is habitually resident in a member jurisdiction (that is, they usually live in that jurisdiction); and
- Has been wrongfully removed from that jurisdiction or, having lawfully been removed, has been unlawfully retained (for example, where the other parent agreed to a short overseas holiday but the child is not returned at the conclusion of the holiday and is retained in the foreign jurisdiction).
An application for the return of a child under the Hague Convention may be made by a person who has rights of custody or access to the child which have been breached by the removal. In the context of the Australian FLA, custody or access rights will be found to exist where a parent has parental responsibility for the child or there are Court orders providing for the child to live with or spend time with that parent.
The determination as to whether or not the child should be returned to the alleged home jurisdiction will be determined by the applicable Court in the jurisdiction which the child has been removed to.
In our case study, had the mother been successful in her attempt to remove the children to New Zealand, the father would very likely have been able to secure their return by the New Zealand Courts operating under the terms of the Hague Convention. It is important to note, however, that not all countries are members of the Hague Convention. Recovery of an abducted child from those jurisdictions can be difficult or even impossible.
In addition to the Hague Convention, the Australian Courts have tools available for both the prevention of wrongful removal and the punishment for same.
Where a concerned parent is able to demonstrate to the Court that there is a material risk of a child being abducted from Australia to a foreign jurisdiction (or being unlawfully retained in that jurisdiction should the child be permitted to depart Australia) the Court may make an order placing the child on the Airport Watchlist by the Australian Federal Police (‘AFP’). A child who is on the Airport Watchlist will be prevented from passing through Australian customs upon presentation of their passport, which has been ‘flagged’ as being on the Watchlist.
An Airport Watchlist order does not discriminate and will prevent the child from being removed from Australia by either parent; a child can only be removed from the Airport Watchlist by a subsequent Court order.
Whilst having a child on the Airport Watchlist is a valuable tool, and would likely have assisted in the circumstances of the case study, it cannot prevent a child being removed from Australia who is traveling under an alias, either using a fraudulent passport or a passport which identifies the child in a different manner to that in the Watchlist order (for example, a differently represented name on a foreign passport).
Finally, in circumstances where there are either Court proceedings on foot or parenting orders in force, the FLA makes it a criminal offence for a parent (or a person acting on behalf of or at the request of a parent) to remove a child from Australia without the written consent of the other parent, subject of course to Court orders permitting overseas travel. The maximum penalty is imprisonment for 3 years. Whilst these provisions may have a deterrent effect on those considering unlawfully removing children, the criminal prosecution of the other parent may provide only cold comfort to a parent whose children have been unlawfully removed overseas and cannot be returned.
Returning again to our case study, had the mother in question been successful in removing the children from Australia she would have been in contravention of these provisions and subject to prosecution under them. Whilst it appears that she was in fact only charged with (and convicted of) providing false and misleading information in seeking to obtain the children’s passports, it is likely that she could have also faced charges for making an attempt to unlawfully remove the children from Australia.
The tools and systems discussed above work together in an attempt to prevent, rectify and punish the unlawful removal of children from Australia. None of them is failsafe, however, and where there is a risk of children being abducted to a foreign jurisdiction it is of the utmost importance for parents to remain vigilant and bring into force any measures required to protect their children from wrongful removal.
Should you have any questions regarding the wrongful removal of children from Australia or any other aspect of family law please contact our Family Law team by email family@mst.com.au or by telephone +61 3 8540 0200.
[1] Whilst the term parent will be used throughout this article, in some circumstances other persons (such as grandparents) will similarly be able to exercise the rights being discussed.
