In 2022, Japan and Australia's diplomatic relations were under threat because of Japan's custody policies, and the prevalence of child abduction in Japan.
According to reports, nearly 68 Australian-Japanese children had found themselves in the midst of child custody disputes, and child abductions.
Many of them had reportedly been "snatched" while at school, or been taken away from their family homes. Moreover, some children were sent on holidays from Australia to Japan only to never be seen again by their parent in Australia.
This issue of parental child abduction is not only legally wrong, but also morally so. This article aims to explore key points related to parental child abduction, both in a national and international context.
- Parental child abduction can happen within the same country, that is the country where the child is residing; or
- The child may be taken overseas, and is taken out of the country where the child is a resident.
Child abduction within an international context is also known as international child abduction, international parental child abduction or IPCA.
Parental Child Abduction in Australia
To begin with, let's understand the basic definition of "parental child abduction."
"Child abduction, or parental child abduction, happens when one parent or guardian takes, conceals, or detains a child from the other parent or guardian without their consent, or authorisation of courts."
Parental child abduction occurs in cases of custody disputes when parents are unable to reach an agreement about parenting arrangements and child custody. This often happens during separation or divorce proceedings when emotions run high, and agreements on parenting arrangements and child custody are hard to reach.
When this happens, in many cases it is found that the family members of the abducting parent are often involved and help the parent to abduct the child, and to keep the child away from the other parent.
You must be wondering why the abducting parent takes such an illogical step? The most obvious reason behind child abduction, as we would argue, is that the overwhelming nature of child custody battles affects the decision-making abilities of the parent. In acting so, the abducting parent truly believes that he/she is acting in the best interests of the child.
Under the Family Law Act 1975, parental child abduction is a criminal offence. After 2018, the legislation also states that this offence will apply to any person who is acting on behalf of the people to whom the provisions apply (parents or guardians of the child).
It also states that international parental abduction of children will attract a penalty of three years' imprisonment.
Child abduction laws emphasize that even parents can be criminally liable for violating court orders regarding child custody, leading to serious consequences.
International Parental Child Abduction (IPCA)
The Hague Convention is a treaty which consists of countries that are 'signatories' to it – wherein they agree to assist each other.
Among all the countries, Australia, the UK, and many countries in Asia are signatories to the Hague Convention. If the child has been abducted and taken to a country that is a member of the Hague Convention, then the Australian Central Authority will intervene and assist with the matter.
On the other hand, if the child is taken to a country which is not a signatory to the Convention, then the process will be different. In this case, the following things can happen: –
- Firstly, the Australian Court will decide if they have the power and jurisdiction to make decisions on this issue – which can include the question of who the child is to live with.
- Alternatively, a foreign court can make a court order before the Federal Circuit and Family Court of Australia – to decide with whom and where the child is to live.
- Lastly, the parent in Australia can get a court order within Australia preventing the abducting parent (who is overseas) from pursuing a court case in the foreign nation.
What are the Legal Implications of This?
It is important to understand the legal implications of taking a child overseas without the other parent's consent, as it can lead to serious legal consequences.
In some cases, when the parent realises that their child has been abducted by the other parent, they can immediately contact the Australian Federal Police (AFP) who can place the child's name under the Family Law Watchlist. The AFP is also a member of the Global Missing Children's Network (GMCN).
This can be helpful in case the abducting parent has not already left Australia. If this step is applicable to you, it is also recommended to speak with a family lawyer who can assist you with filing a police report, and with other legal processes.
To check if a country is a member of the Hague Convention, you can visit the Hague Convention on the Civil Aspects of International Child Abduction website, which consists of the list of countries that are signatories to it.
Prevention and Risk Management
Parents who are in the midst of a difficult divorce or separation can take proactive measures to prevent parental child abduction from either party. While neither party may intend to cause any harm to their child, difficult circumstances like divorce or separation often clouds their judgement. To be proactive, consider the following steps:
- Keep a Record: Maintain up-to-date records of your child's personal documents, including their passport, birth certificate, and recent photos. This can be crucial in identifying and locating your child if an abduction occurs.
- Monitor Contacts: Note the contact details of family and friends who may be involved in the abduction. Being aware of who your child is in contact with can help you identify potential risks.
- Child Alert Request: Consider seeking a Child Alert Request to prevent the issuance of a passport to your child without your consent. This can be a vital step in preventing international abduction.
- Travel Consent: If you're planning to travel overseas with your child, ensure you have the other parent's consent or a court order permitting the travel. This legal safeguard can prevent disputes.
By taking these steps, you can reduce the risk of parental child abduction and ensure the safety of your child.
Applying For A Recovery Order
The other parent can apply for a recovery order in case of child abduction. Under Section 67Q of the Family Law Act 1975, a recovery order is used to: –
- Direct a police officer to take action to find, recover and return the child to the designated parent/guardian;
- Prohibit the other parent/person from taking the child – to prevent parental child abduction.
The Department of Foreign Affairs and Trade plays a crucial role in procedures to prevent children's travel without parental consent, ensuring child welfare in international situations.
The recovery order will require a child to be returned to a:
- parent of the child;
- any person who has a parenting order that states that the child lives with, and communicates with that person; or
- any person who has parental responsibility for the child.
Our article on Section 67Q of the Family Law Act includes detailed information on recovery orders: https://jbsolicitors.com.au/section-67q-family-law-act/
The Case Of Japan Vs Australia
Japan's legal system allows the parent with sole custody to completely block the other parent, thereby denying access to the child. Child abduction laws emphasise that even parents can be criminally liable for violating court orders regarding child custody, leading to serious legal consequences.
As Japan is also a member of the Hague Convention, all international parental child abduction cases need to be dealt with according to the provisions of the Convention.
As of 2022, Japan's family courts and international system (that follows Hague Convention) were not working in tandem. It is believed that Japan's family courts facilitate sole custody, and does not give the child's best interests great consideration.
Recent Family Law Case Study
In the case of Nicoli & Jeryn (2022), the father of a child wrongfully retained the child in Russia. Pursuant to the Hague Convention, courts in Russia ordered that the child be returned to Australia. The mother sought to enforce the court approved Australian parenting orders, and the return of the child to Australia. The father opposed the application, claiming that the child became a habitual resident of Russia in 2021. The Federal Circuit and Family Court of Australia found that the child was habitually resident in Australia at the time of the father's wrongful retention of the child in Russia. The court ordered that the child be returned to Australia, and the father has appealed the return order, and the appeal is yet to be heard.
Recap: Legal Consequences of Child Abduction
Parental child abduction is a criminal offence under the Family Law Act 1975 (Cth). If convicted, the abducting parent may face imprisonment for up to three years. Additionally, the court may suspend child support payments to the abducting parent, adding a financial deterrent to the legal consequences.
As explored above, in cases of international parental child abduction, the Hague Convention on the Civil Aspects of International Child Abduction provides a framework for the return of children to their habitual residence.
Seek Legal Advice For Family Law Cases
When family law cases involve parental child abduction, the stress that parents face becomes twofold. Already these matters are highly complicated. Child abduction makes the legal procedures more lengthy, and takes a greater mental toll on the parties involved, including the children themselves.
When considering relocation or travel involving children, especially in cases of taking a child overseas, it is crucial to seek legal advice to understand the legal implications and avoid wrongful removals or retainments.
The expert family lawyers at JB Solicitors have the legal prowess, and the experience of dealing with all such complicated matters.
Contact us today to gain market-leading legal advice in a friendly atmosphere.
Seeking Other Help and Support for Parental Child Abduction
If you're a victim of parental child abduction or concerned about the risk of abduction, it's essential to seek help and support. Here are some resources:
Australian Federal Police (AFP) | Contact the AFP to report the abduction and request assistance. They can place your child's name on the Family Law Watchlist to prevent them from being taken out of the country. |
Australian Central Authority | Reach out to the Australian Central Authority for guidance on the Hague Convention and international child abduction. They can assist with the legal processes involved in seeking the return of your child. |
Family Lawyers | Seek urgent legal advice from a family lawyer experienced in child abduction cases. Reach out to JB Solicitors – they can help you with all complex family law matters. |
Support Groups | Consider joining a support group for parents affected by child abduction, this is for gaining valuable emotional support in such a stressful time of your life |
Remember, parental child abduction is a serious issue that requires prompt action and professional guidance. Don't hesitate to seek help if you're concerned about the safety and well-being of your child.
Our dedicated lawyers will strive to reach desired outcomes, ensuring that your matter is solved efficiently.
Contact us today to gain market-leading legal advice in a friendly atmosphere.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.