Planning on taking your child on a permanent “holiday” overseas? Think again!
Assisted by Carli Heald
The Hague Convention on the Civil Aspects of International Child Abduction is the primary international agreement which deals with the taking of a child overseas by one parent, without the consent of the other parent (or with authorisation of a Court). The Convention is a multilateral agreement to agreement to which Australia, and a number of other countries, are a signatory of.
In effect, the Convention is intended to facilitate the return of a child to their habitual residence through a prescribed procedure with the assistance of the Australian Central Authority in the Attorney-General’s Department, who is responsible in ensuring the regulation and administering of the convention.
Each year there are approximately 141 applications made under the Convention to have abducted children returned to Australia - one of these applications was made by Michael Macintosh who has not seen his son, Mathieu-Pierre, since 2013.
Mathieu-Pierre’s mother took the then nine-year old on what was supposed to be a six week “holiday” to France back in September 2013. Under The Hague Convention the French court has ordered for the child, believed to be living in France or Belgium, to be returned to Australia. Despite this order Mathieu-Pierre, who would be around 13 years of age, has not been returned.
Another case concerning an application under the Convention was that involving the four Vincenti sisters. The girls’ Italian-born-and-raised father made an application under the Convention in 2012 for his daughters, then aged between nine and 15, to be returned to his care in Italy. This followed a bitter custody battle in Italy, after the divorce of the parents in Italy in 2007 and an Order for shared custody (or shared parental responsibility as it’s known in Australia) being made by the Italian Family Court.
The mother took the girls on a “holiday” in Queensland, where they were to remain for a month however, she had no intention of returning them to Italy and they remained in Queensland.
After the father’s application under the Convention, an Order was made and granted in 2012, and the sisters’ were forcibly removed by the Australian Federal Police from their mother in Queensland and returned to Italy to live with their father.
Distressing images in the media of the sisters being dragged kicking and screaming as they were taken from their mother and forced out of the country, brought the issue of child abduction to the forefront of Australian society. Allegations were also made by the mother that the reason she brought the girls to Australia and held them here, despite Court Orders, was because the father was violent and abusive towards them. Similar allegations were made by the children - allegations that were ultimately refuted after it was found that the mother had made up the allegations and coached the girls into making them against their father. The sisters have remained in the care of their father in Italy since 2012.
The case of the Vincenti sisters demonstrates the success of the measures contained in the Convention. However, there are cases where the Convention has been unsuccessful or otherwise ineffective in securing the return of children taken overseas by a parent without consent. This generally occurs in the context of abductions of children to “non-Hague Convention” countries and is one of the shortcomings of the Convention.
In some instances, even when Orders have been made under the Convention, some parents still take matters into their own hands. Ex-Australian Defence Force soldier, Adam Whittington, who runs Child Abduction Recovery International, argues that the Convention is limited in its enforceability. Following his success in retrieving a child in Poland, Wittington suggested that it would be more effective if the Convention (or the Courts) had a self-enforcing mechanism in place.
Evidently, the countries that separated parents are at liberty to take a child to on holidays is an important consideration in Family Law matters when Orders are sought from the Court or when parties are negotiating Consent Orders.
If you would like to discuss more about international child abduction under the Hague Convention, please contact: