International Child Custody: How To Protect Your Children

TGB’s Georgia Pitsadiotis discusses the legalities of international child custody in relation to the recent events in Lebanon, involving an Australian mother and the action taken to retrieve her child.

Most people would now be familiar with the recent media attention regarding the failed child recovery operation that took place in Lebanon.

By way of background, an Australian mother of two was certain that her ex-husband would not return their two children from a holiday in Lebanon and ultimately, turned to the media for help.

The media agreed to assist her in recovering her children from Lebanon, however, their plan was unsuccessful and has had enormous repercussions.

The attention this situation has received has left the public with many unanswered questions, a few of which we will address from a Family Law perspective.

Why couldn’t the children be returned to Australia legally?

In this particular case there were no Australian Court Orders in place, so when the father informed the mother that he would not be returning the children to Australia after their holiday to Lebanon, the mother could not rely on the legal system to assist her as she did not have Court Orders in place and therefore the father was not breaching any law by not returning the children to Australia.

Therefore is it important to understand that in Australia the Court has jurisdiction to make an Order preventing a person from removing a child from the Commonwealth of Australia. This is done by a parent of a child, who fears they may be removed from the country, requesting that an Order be made by the Family Court that prevents a parent removing the child and also that a child be placed on the “Family Law Watch List”.

The children in the case referred to were not the subject of Orders which had them placed on the Family Law Watch List. Therefore, the Australian Federal Police were not alerted to their removal at their Australian departure city.

When no Court Orders are in place that prevent overseas travel and a removal has occurred, parties may turn to “The Hague Convention” for protection.

However, Lebanon is not a signatory to The Hague Convention.

What is The Hague Convention?

The rationale behind The Hague Convention is to return children to their “habitual place of residence” so that the living arrangements for the children can be made in that country. The Hague Convention puts lawful procedures in place for those seeking the return of abducted children to their home country.

Put simply, The Hague Convention creates an onus on the countries which are signatory to it to cooperate and work together in returning children to their habitual place of residence.

However, if the children have been removed from their place of residence to a country that is not a signatory to The Hague Convention (such as in this present case), difficulties can arise.

The importance of having Orders in place

If a child has a valid passport and there are no Court Orders in place restricting that child from travel (i.e. an Order which places that child on the “Family Law Watch List” discussed above), there is nothing which restricts a parent from travelling overseas (including to countries which are not signatories to The Hague Convention), with that child.

It is therefore important to seek legal advice if you believe that there is a risk that your child may be removed from the Commonwealth of Australia.

There are a number of significant challenges to address for families dealing with the restrictions attached to international child custody issues, seeking advice and making sure that Orders are in place is a critical step in ensuring child custody does not become an international incident and serious concern for parents.

For further information or assistance contact your nearest TGB location.