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Event Report: FRC Training Webinar – International Parental Child Abduction

Updated: May 26

Date: 24 November 2021 Time: 10:00 AM – 11:30 AM AEDT Venue: YouTube Live via ZOOM Speaker: Kay Hardefeldt & Jenny Tam


 

About the Presenters:

Kay Hardefeldt is the Manager of International Parental Child Abduction (IPCA) Social Work service and the International Family Mediation (IFM) team. She has worked for ISS Australia since 2010 and is committed to reducing barriers associated with cross border social work and family mediation services

Jenny Tam is the Principal Lawyer of ISS Australia’s Victorian office. Since 2014, she has worked as a family lawyer within the community legal sector to support parents through difficult legal processes.

Summary:

On 24 November 2021, the Family Law Pathways Network, in collaboration with International Social Services (ISS) Australia, presented a webinar detailing the work that ISS Australia does and, more specifically, International parental child abduction, including how to recognise it, remedies under the 1980 Hague Convention and legal and social work offered to families experiencing it.

ISS Australia has partners overseas across an international network called the global ISS network. ISS Australia provides intercountry social work and legal services for children and families separated by international borders. Apart from International Parental Child Abduction (IPCA) and International Family Mediation (IFM), ISS offers other services, such as International Child Welfare, International Kinship Care, International Post Adoption Tracing Service (IPATS) and Special Search Service (SSS). With regard to Welfare and Kinship, some countries may not have a functioning child protection service like in Australia. An example of where the International Post Adoption Tracing Service is use is where someone born and adopted in UK and immigrated to Australia with adopting parents and wants to trace their biological parents overseas.

Jenny spoke about the legal aspects of IPCA and that it entails a parent taking or keeping a child overseas without the other parent’s permission, or permission from a court. 'Removal' is where a child is taken out of the country without the other parent’s consent or knowledge or both (and there was no court order permitting this). For example, a 'left behind' parent may receive a text message saying that the other parent has kids and they are not returning to Australia. This is different from 'Retention', where there is a child travelling overseas, sometimes as a family or with one parent. The ‘taking parent’ unilaterally decides not to return the child to Australia. Common characteristics of situations where IPCA occurs is where:

  • one or both parents has dual nationality,

  • there are young children involved,

  • taking a parent – mother or primary caregiver,

  • the family has few supports in Australia,

  • they have extended family overseas in country of origin,

  • there were previous threats of abduction, and

  • abduction at the point of separation or soon after separation.

Jenny also provided some reasons as to why parents abduct, including where there has been a relationship breakdown and/or family violence. After a relationship breakdown, a parent who has migrated to Australia for the purposes of marriage and starting a family often do not have financial or community support in Australia, and therefore feel the need to return to their home country. Where there is family violence, parents may abduct to protect themselves and their child, and to avoid the lengthy process through the Australian court system. The 1980 Hague Convention is a treaty that governs return of children who have been wrongfully removed or retained from their country of habitual residence. It has been ratified by Australia. It is important to ask where the Hague Convention is enforced between Australia and the other countries, and where it is not, as this greatly influences the course of action taken.

ISS legal service runs national telephone advice line and case work. The advice line provides advice to people affected by IPCA for Hague and non-Hague countries and ISS does not charge for advice and there are no eligibility requirements. The Hague criteria is as follows:

  • Children under 16

  • Rights of custody in Australia (parental responsibility – only would not have if court has removed it)

  • Child is habitually a resident in Australia at time of abduction, which begs the question of how integrated they are in Australian life (e.g. connections to school, communities, etc.).

An order for return is forthwith unless an exception applies, that is, that the respondent successfully raises one of the following defences:

  • Grave risk of physical or psychological harm or otherwise places them in an intolerable situation (family violence).

  • Child objects to returning to Australia and is of an age and maturity where their views can be taken into account.

  • Consent and/or subsequent acquiescence.

The 12-month filing period is crucial, as a failure to file or settle within that period gives rise to the defence that the child has settled overseas. Jenny then stepped the audience through the application process.

In cases where children are taken to non-Hague countries, the process is vastly different. The first step is that Kay (from IPCA) will speak to IFM to try to get parents to negotiate parenting arrangements. The client may be advised to engage lawyer overseas to start proceedings in that country, which may be refundable through Australia's tax deduction scheme.

On a final note, parents who return to Australia without the child (where both parents in Australia and the child is overseas), may be able to speak to a family lawyer. They may seek an access application, which is some sort of contact order.

Kay commenced her presentation by looking at the increased risk of international child abduction in Australia because it is a multicultural country. IPCA social work support is a free service (funded by the Attorney General's Department, can assist with both Hague and non-Hague countries, children of any age, any family members, as well as both 'taking' and 'left behind' parents. The scope of assistance offered is much broader that the ISS's legal support service.

The ISS network spans across 14 countries. ISS professionals working in a country have knowledge of the language, community support/services, child protection and legal system, local geography and sociocultural practices.

International Family Mediation Service usually deals with very high conflict cases. They take place online using video conferencing. The co-mediation mode, facilitated by accredited FDRPs and social workers encouraging a child focused approach. Mediation can occur in parallel with and without delay to the Hague process (incoming or outgoing Hague matters).

It can be challenging for parents to think about returns. Mediation can make returns or non-returns more child focused and safe by giving parents the opportunity to deescalate conflict, focus on the child's needs rather than dispute, consider their child's perspective, find a permanent solution, agree on individual and tailored solutions, consider and prepare court outcomes and scenario plan and make parenting arrangements for stability in the weeks after the return or non-return decision.

Questions

Are there fines for parents who abduct children?

The Family Law Act says there is a penalty of imprisonment but not common. Can look up Australia federal police family law kit for a clear penalty.

What are your thoughts on the shift to majority mother abductors?

Some theories are the increase in family violence/recognition of family violence. Hard to say without research. Travel is also more accessible.

How is the mediated agreement enforced?

If Hague application, agreement made was that both parties sougth advice from lawyers and then submitted through central authority through courts and then submitted in child's country. Recommend that both parties get legal advice in both jurisdictions. It is not commonly known that a lot of overseas parents are eligible for legal aid in Australia.

How successful are applications through the Convention?

It depends on how compliant the country is to the Hague Convention. There also may be problems if the client gets a return order, and the parent refuses to return child, it largely depends on how that country enforces return orders.

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