September 17, 2020

International Parenting Disputes involving Non-Hague Countries: tips for the left behind parent

Publications |Resources

By Deborah Wilson, Senior Associate

Families who separate across international borders present with unique challenges.

This article will outline legal and practical tips for parents who are confronted with the unauthorised removal of a child across international borders with a non-Hague Convention country.

What is a non-hague convention country?

Australia is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), also “the convention”, or “child abduction convention”. There are 101 contracting State parties to the Hague Convention. The Hague Convention sets out protocols for the return of children wrongfully removed across international borders. Participating countries incorporate the Hague Convention provisions into their domestic laws and regulations which apply upon application by the left behind parent via a Central Authority. That process does not apply when the removal involves a country that is not a signatory to the Hague convention (“non-Hague Convention country”).

Some countries have acceded to the Hague Convention but do not yet have agreements with Australia for the return of children. Such countries are considered ‘non-Hague Convention countries’ for the purposes of this article.

A list of non-Hague Convention countries and Hague Convention countries that do not have agreements with Australia is set out below.

Further, it should be noted that just because a country is a signatory to the Hague convention (and has an agreement with Australia) does not necessarily mean it will effectively enforce its treaty obligations. Countries such as Mexico, Turkey, Romania, Japan and Austria have a reputation for poor compliance or non-compliance with the Hague Convention.

Non-Hague Convention Countries
Afghanistan Central African Republic Guinea-Bissau Madagascar North Korea South Sudan
Algeria Chad Haiti Malawi Oman Sudan
Angola China (except Hong Hong and Macau) Holy See Malaysia Palestine State Suriname
Antigua & Bermuda Comoros India Maldives Palau Syria
Azerbaijan Congo (Brazzaville) Indonesia Mali Papua New Guinea Tanzania
Bahrain Democratic Republic of Congo Iran Marshall Islands Qatar Timor-Leste
Bangladesh Djibouti Jordan Mauritania Rwanda Togo
Benin Dominica Kenya Micronesia Saint Lucia Tonga
Bhutan Egypt Kiribati Mongolia Saint Vincent and the Grenadines Tuvalu
Botswana Equatorial Guinea Kuwait Mozambique Samoa Uganda
Brunei Eritrea Kyrgyzstan Myanmar (formerly Burma) Sao Tome and Principe United Arab Emirates
Burundi Eswatini (fmr. “Swaziland”) Laos Nambia Saudi Arabia Vanuatu
Côte d’Ivoire (Ivory Coast) Ethiopia Lebanon Nauru Senegal Vietnam
Cabo Verde Gambia Liberia Nepal Sierra Leone Yemen
Cambodia Ghana Libya Niger Solomon Islands
Cameroon Grenada Liechtenstein Nigeria Somalia

 

Hague Convention Countries that do not have an agreement with Australia to return children
Andora Gabon Guinea Iraq Seychelles
Kazakhstan Lesotho Morrocco Russia Zambia

 

When a child is taken from a non-Hague Convention country to Australia

While international child abduction is a major social problem which the Hague Convention seeks to prevent and deal with, there can be very good reasons why a parent may wish to relocate a child from a non-Hague Convention country to Australia and does not obtain the consent of the left behind parent. For example, there may be issues of family violence that cannot be adequately addressed in the non-Hague Convention country due to corruption, discrimination, inadequate protective laws and enforcement and problems with residence rights if the parent is no longer in a relationship. Another possible reason is that there may be concerns about the capacity of the left behind parent to look after a child or protect them from harm.

If you are a parent who wishes to relocate a child from a non-Hague Convention country to Australia, seek early advice from your lawyer regarding your options.

My child might be taken from or has been taken from a non-Hague Convention country to Australia without my consent. Help! What should I do?

Child is still in non-Hague Convention country:

The adage ‘prevention is better than a cure’ is apt in these circumstances:

For intact families:

-Consider carefully a partner’s request to travel alone with a child from the non-Hague Convention country to Australia if you consider there is a risk the child may not be returned, for example, if the relationship is deteriorating. You may wish to travel with the child to ensure his/her safe return.

-Maintain a digital copy of the child’s passport and other travel and health documents such as proof of vaccinations.

For separated families:

-Keep control of the child’s passport or leave with a mutually trusted person for safekeeping.

-Consult your lawyer in the non-Hague Convention country regarding options for travel alerts, restraints and the possible benefit of commencing parenting proceedings and/or obtaining parenting orders in your home country.

The Child is in Australia

-seek legal advice from an Australian family lawyer immediately. Delay can drastically reduce your prospects of recovering the child.

-As much as possible, maintain respectful communication with the travelling parent. It will not assist you to threaten or abuse the travelling parent and, in fact, it could damage your prospects of your child being returned. Further, if the travelling parent will permit you, maintain frequent communication with your child. Try not to worry or upset the child about their circumstances. Reassure them that you love them and will see them as soon as you are able.

Can the return of the child be negotiated directly with the removing parent or their legal representative, such as via private dispute resolution?

International Social Services may be able to assist in some cases by providing international mediation services.

-Low cost Family Dispute Resolution services are available via Relationships Australia or consult a private dispute resolution practitioner proximate to the location of the child (if known), or

-Your lawyer may be able to persuade the travelling parent to return the child.

-Do you know the location of the child? In most cases, the travelling parent will have ties here. They may be an Australian citizen, be employed, own property or have family members here. Property and company searches, social media and other online research may reveal clues as to their location. If not, you may be able to apply for a location order which directs certain Australian government agencies to report the parent’s registered address to the Court.

-Consult your lawyer about the benefits of making an application in the Family Court Australia for parenting orders including an order for summary return ( that is, immediate return) of the child to the non-Hague Convention country.

-Do you have a foreign parenting order? Foreign parenting orders from non-Hague Convention countries (save for Papua New Guinea (“PNG”) cannot be registered or enforced in AustraliaAustralian Courts must always consider the best interests of the child as the paramount consideration and will undertake its own enquiries as to the best interests of the child. However, the existence of a foreign parenting order conferring parental responsibility or lives with/spends time rights on the left behind parent may be given weight, particularly where it is a recent order and there have been minimal changes to the circumstances of the child’s care.

-In almost all cases, evidence of communication between the parties prior to, and after, the unauthorised removal (as well as at other times of key significance) will be critically important. Assist your lawyer by compiling copies of all communication with the travelling parent including emails, text messages and WhatsApp messages. Records of communication with other people may also be relevant.

-Evidence may be required from various sources in the country of origin. For example, it may be relevant to obtain copies of the child’s medical or school records. Further, it may be helpful to obtain evidence from certain people regarding care of the child, parenting style and capacity.

-It may be necessary to obtain expert evidence from a lawyer in your non- Hague Convention country about the laws of the country such as advice regarding family law, immigration law, or possibly, criminal law as it is sometimes a criminal offence to remove a child from a jurisdiction without parents’ consent.

-Occasionally it maybe relevant to obtain expert evidence regarding discrete issues such as religious matters, state corruption, health and/or travel advice and restrictions (for example during the COVID-19 pandemic or regarding heightened risk of terrorist activity).

When a child is taken from Australia to a Non-Hague Convention country

Many readers may recall the story of Sally Fawkner, whose children were abducted to Lebanon by their father and Ms Fawkner’s ill-fated attempt to abduct the children back to Australia. Kennedy Partners Lawyers does not condone the engagement of ‘child recovery teams’ to restore children to the left behind parent in Australia. Such activities are illegal and, as Ms Fawkner’s case illustrates, can result in criminal penalties and imprisonment as well as damage prospects of success via legitimate processes.

If you are a parent who wishes to relocate from Australia to a non-Hague Convention country with a child, seek advice from your lawyer regarding your options.

My child might be taken or has been taken from Australia to a non-Hague Convention country without my consent. Help! What should I do?

For intact families:

-Review the preventative advice above for children at risk of being taken to Australia from a non-Hague country.

For separated families:

-Hold the child’s passport or leave with a mutually trusted person for safekeeping,

-Seek advice from a family lawyer about the possible benefit of obtaining Australian parenting orders prior to the child’s international travel.

-If you suspect that the child is at risk of being taken outside Australia without your consent:

-Contact DFAT to place a Child Passport Alert. This alert will ensure applications for passport or travel documents undergo greater scrutiny but will not stop travel of a child.

-Contact your lawyer to apply for an Airport Watch List Notification which will detain the child at customs at all ports of departure from Australia.

-Consider commencing urgent family law proceedings seeking orders restraining the removal of the child from Australia. It is a Commonwealth offence to remove a child from Australia contrary to orders or where there are pending proceedings or a pending appeal (and no written consent of the other parent). The offence, if proven, is punishable by up to three years’ imprisonment. It may also amount to contempt of court.

The child is no longer in Australia:

-If you child is taken to a non-Hague Convention country without your consent, seek legal advice from your Australian family lawyer immediately. Delay can drastically reduce your prospects of recovering the child.

-As much as possible, maintain respectful communication with the travelling parent. It will not assist you to threaten or abuse the travelling parent and, in fact, it could damage your prospects of your child being returned. Further, if the travelling parent will permit you, maintain frequent communication with your child. Try not to worry or upset the child about their circumstances. Reassure them that you love them and will see them as soon as you are able.

-Do you know the location of the child? Family members, bank statements, public records searches, social media and other online research may reveal clues as to their location. Older children maybe be able to contact or respond to you via their device to let you know where they are. In some circumstances, it may be appropriate to engage a private investigator to locate the child.

-Has the child been taken to a country with a bi-lateral agreement or a prescribed jurisdiction?

-Australia has bi-lateral agreements with Lebanon and with Egypt which may assist in achieving the child’s return. However, there are limitations to the bilateral agreements. They essentially provide for private dispute resolution and exchange of documents and are not agreements to register and enforce parenting orders made in the other country.

-Papua New Guinea is the only non-Hague Convention country that is prescribed jurisdiction in which Australian parenting orders may be registered and enforced (if you have orders).

-Can the return of the child be negotiated directly with the removing parent or their legal representative such as via private dispute resolution? International Social Services may be able to assist in some cases by providing international mediation services. Likewise, your family lawyer may persuade the travelling parent to return the child without further action.

-Consult a family lawyer in the non-Hague Convention country. The International Academy of Family Lawyers (“IAFL”) is a good starting point to find a family lawyer in most jurisdictions. Kennedy Partners Lawyers are fortunate to have three IAFL fellows within its team and have relationships with IAFL fellows across the globe. In many cases, it is preferable to engage a family lawyer in both jurisdictions. We have also experienced family law cases ongoing in up to three separate jurisdictions, including both Hague and non-Hague Convention countries. It is important in those situations that your legal counsel consult and have a clear strategy across those jurisdictions.

-Do you have Australian parenting orders which confer on you parental responsibility or lives with/spend time rights? If so, it may be possible to seek enforcement of those orders under the laws of the non-Hague Convention country. Where Australian parenting orders are not recognised or enforceable in the foreign jurisdiction, they may be considered as one of the relevant factors determining parenting disputes under the domestic laws of the country.

-Consult your lawyers regarding the merits of commencing parenting proceedings in that country for the urgent return of the child. You will need to obtain advice about the timing and cost of parenting proceedings in that country and your prospects of success.

-In almost all cases, evidence of communication between the parties immediately prior to, and after, the unauthorised removal (as well at other times of key significance) will be critically important. Assist your lawyer by compiling copies of all communication with the travelling parent including emails, text messages and WhatsApp messages. Records of communication with other people may also be relevant.

-It may assist to obtain expert evidence from a lawyer in Australia regarding family law or immigration law and/or evidence from an appropriate expert regarding discrete issues such as religious matters, health and/or travel advice and restrictions (for example during the COVID-19 pandemic).

-Other evidence that may assist includes child’s medical or school records and statements from friends or family members who know the family well.

Kennedy Partners Lawyers specialise in international family law. We can advise and guide you through your international dispute involving a non-Hague Convention country.

¹PNG parenting orders can be registered and enforced in Australia. Where a PNG parenting order is registered, our Courts usually will not make another order unless there are substantial grounds for believing that the child’s welfare requires the Court to exercise their discretion in the best interests of the child.