Abduction overseas
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There are laws about moving, finding children and the recovery (return) of children. Some of these laws are very complicated and you may need to take quick action. Get legal advice immediately.
Can children be removed from Australia?
If there is a parenting order, it is an offence, which can be punishable by jail, to move the children away from Australia without the written agreement of everyone covered by the order, or a further court order. There are rules about what kind of written agreements the court will accept. Get legal advice.
Is overseas holiday travel affected?
If you want to take the children overseas and the other parent disagrees, you have to apply to the court.
A Family Relationship Centre, Legal Aid Queensland or other family dispute resolution service may be able to help you and your partner reach an agreement with each other about overseas holidays.
If you think the other parent is being unreasonable and will not sign the passport application, you can apply to the court for the passport to be issued without the other parent's consent.
The court may allow the children to travel if it believes it to be in the children's best interests. The court also looks at the risk of the children not returning to Australia. It may make conditions, such as payment of a security, to make sure that they are returned.
Can I prevent my children from being taken overseas?
What you do depends on the particular circumstances and how much time you have.
If your children do not have passports, you can refuse to sign the children's passport application: the signature of both parents is needed, unless there are extraordinary circumstances.
If you think there will be a passport application without your agreement, you can ask the Passports Office (located in the Department of Foreign Affairs and Trade) for advice on putting the children's names on a child alert list, which is valid for a maximum of 12 months.
An alert means there is special attention given to an application, but it does not guarantee stopping the passport being made, and it will not stop the making of a foreign passport if the children are eligible. If the other parent puts in an application for passports for the children, you will be contacted by the Passports Office to discuss the application.
Other countries have different requirements for making passports. If you are concerned about the children travelling on a passport from another country, you should contact the embassy of that country.
What if someone is trying to take my children out of Australia?
If your children have passports, you can apply to the court for an urgent injunction (restraining order) to prevent your children being taken overseas and/or to have the children's passports handed in to the court.
In urgent circumstances, you can also ask the Australian Federal Police to put the children's names on an airport watch list, which will prevent the children from being taken through any air or sea port, but they will usually only do so if you have a court order in place or are currently applying for an order.
Contact the Australian Federal Police and the Family Court - there is quick access to court services and police in emergencies.
What if someone has already taken my children out of Australia?
Australia has an agreement with more than 70 other countries to prevent the wrongful removal or abduction of children from the country they usually live in.
The agreement is called the Convention on the civil aspects of international child abduction, but is usually referred to as the Hague Convention.
The convention allows a parent to ask for the return of children to Australia if the children are taken to another convention country longer than agreed. It does not apply to children over the age of 16.
The Commonwealth Attorney-General's Department has a list of countries that participate in the convention. Contact the department for information on how to apply to have your children returned to Australia or, if you are eligible, to get help. Act quickly. Get legal advice and representation.
Will the court order the return of my children?
The general rule is that if children are wrongfully removed from, or kept in, a convention country, they must be returned. However, if you are the applicant for the children's return, you must show that:
- the children are aged 16 or younger
- you have rights of custody over the children. Both parents of a child are usually regarded as having rights of custody unless a parent has no parental responsibility because of a court order
- you are using those rights (or you would be using them if the children were not removed)
- the children were usually living in Australia
- you did not agree to the children being taken or kept overseas.
The other person may be able to keep the children overseas by arguing that:
- more than a year has passed since you made the application for the return of the children, and they have settled in their new place and country
- you did not have rights of custody or did not use those rights
- to return the children to where they used to live with you would mean they were at serious risk of physical or psychological harm, or would put them in an intolerable (extremely unacceptable) situation
- the children do not want to be returned and have reached an age and level of maturity which requires the court to consider their views
- returning the children would be to deny them their fundamental human rights.
What happens if children are abducted elsewhere and brought back to Australia?
If the country where the children are taken to is a convention country, the procedures are similar to when a child is abducted from Australia. However the central authority in the country where the children have been taken will start your application. Your application will then be heard in Australia.
If your children are removed, act quickly and get legal advice.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.