CHAPTER 1

Introduction

Referral of the inquiry

1.1 On 11 May 2011, the Senate referred the following matter to the Legal and Constitutional Affairs References Committee (committee) for inquiry and report by 31 October 2011:

The incidence of international child abduction to and from Australia, including:

(a) the costs, terms and conditions of legal and departmental assistance for parents whose child has been abducted overseas;

(b) the effectiveness of the Hague Convention in returning children who were wrongly removed or retained, to their country of habitual residence;

(c) the roles of various Commonwealth departments involved in returning children who were wrongly removed or retained, to their country of habitual residence;

(d) policies, practices and strategies that could be introduced to streamline the return of abducted children; and

(e) any other related matters.[1]

Scope of the inquiry

1.2 The committee's terms of reference are not confined expressly to international parental child abduction—that is, abductions committed by parents or persons with parental responsibility in respect of a child or children.

1.3 While acknowledging the seriousness of non-parental child abductions,[2] the committee has focused its inquiry on international parental child abduction for the following reasons:

it appears to be implied in the terms of reference, which adopt the language of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention);[3] and
the vast majority of evidence received by the committee during the inquiry has focused on international parental child abduction.

Definition of 'international parental child abduction'

1.4 For the purposes of its inquiry, the committee has interpreted international parental child abduction to mean abductions committed by:

persons exercising parental responsibility in relation to an abducted child or children;[4] and
parents who have no parental responsibility in relation to an abducted child or children—for example, pursuant to orders made under the Family Law Act 1975 (Cth) (Family Law Act)[5] or under the family laws of an overseas jurisdiction.

1.5 In the context of international parental child abduction, the term 'abduction' refers to the wrongful removal or retention of a child from his or her country of habitual residence, which is committed:

by a parent or a person exercising parental responsibility in relation to the child; and
in breach of the rights of:
- another person with parental responsibility in respect of the child; and
- the child, in respect of maintaining direct contact with both parents on a regular basis.[6]

Context of the inquiry

1.6 International parental child abduction is a significant legal and social issue for those families which it affects. The overall increase in the breakdown of marital relationships, together with the increasing frequency of intercultural marriages and the accessibility of international travel, have been identified as factors contributing to increasing rates of international parental child abduction.[7] The high rate of intercountry marriages in Australia suggests that 'where children eventuate, following relationship conflict, separation or divorce, one partner may consider returning to his or her homeland, or make the return to Australia'.[8]

1.7 Statistical data about international parental child abduction to and from Australia indicates that, in 2008:

there was a 74% increase in the number of applications for the return of children under the Hague Convention since 2003;
the largest number of applications concerned abductions to or from New Zealand, the United States and the United Kingdom;
there was an overall judicially ordered return rate of 51% (higher than the global average of 46%); and
the main reason for refusals by Australian courts to order the return of children allegedly abducted to Australia was that the Convention was not applicable (primarily because habitual residence or rights of custody were not established).[9]

1.8 Although official data is not collected on the motivating factors for international parental child abduction to and from Australia,[10] the following factors have been identified anecdotally:

a wish to control the cultural upbringing of the child—often due to differences in approaches to child-rearing, discipline, religious or cultural beliefs;
a fear of loss of relationship with the child, following parental separation;
frustration or a sense of unfairness in relation to parenting arrangements, including those ordered by the courts;
the 'proprietorial' nature of some parents' relationships with their children;
a desire to prevent the other parent from having access to the child; and
a desire to escape family violence or child abuse.[11]

Conduct of the inquiry

1.9 The committee advertised the inquiry on its website and in The Australian on 25 May, 8 June, 22 June, 6 July and 20 July 2011, inviting submissions by 29 July 2011. Submissions continued to be accepted after the official closing date. The committee also wrote to 120 persons and organisations, including federal, state and territory government agencies, courts, legal professional bodies, community legal and social support services, academics, and numerous interest, support and advocacy groups representing families, parents and children.

1.10 The committee received 42 submissions from individuals and organisations, along with other additional information. All submissions and additional information are listed at Appendix 1. Public submissions are available on the committee's website at https://www.aph.gov.au/senate/committee/legcon_ctte/index.htm.

1.11 The committee held public hearings in Canberra on 26 August and 22 September 2011. The committee heard from a range of witnesses, including Australian Government agencies, the Chief Justice of the Family Court of Australia, members of the legal profession, social service providers, and individuals affected by international parental child abduction. A list of the witnesses who appeared at the hearings is at Appendix 2. The Hansard transcripts are available at https://www.aph.gov.au/hansard.

1.12 During the course of the inquiry, the Australian Government announced its intention to introduce legislative amendments to strengthen the legal response to international parental child abduction. The proposed amendments, which the committee understands are intended to be introduced into the Parliament in mid-2012, include:

extending the coverage of certain criminal offences in the Family Law Act, which are relevant to international parental child abduction;
reforms to child support and maintenance obligations in the event of international parental child abduction; and
enhancing the information-gathering powers of certain Commonwealth agencies to assist in the location of abducted children.[12]

Structure of the report

1.13 The committee's report is structured in the following way:

chapter 2 outlines the domestic and international regulatory, governance and operational frameworks relevant to international parental child abduction under civil laws;
chapter 3 sets out the current criminal offences which apply to international parental child abduction, and discusses the arguments in support of, and opposing, the enactment of a stand-alone criminal offence for international parental child abduction;
chapters 4 and 5 address select issues arising in the course of the committee's inquiry, in relation to both Hague Convention and non-Convention abductions. These are:
- the roles of key Australian Government agencies involved in responding to and preventing incidents of international parental child abduction—in particular, the Commonwealth Central Authority within the Attorney-General's Department, and supporting agencies including the Australian Federal Police, the Department of Foreign Affairs and Trade, and agencies within the Human Services portfolio; and
- the role of complementary support and alternative dispute resolution services, and Australia's role in international engagement with respect to international parental child abduction; and
chapter 6 sets out the committee view and recommendations.

Acknowledgement

1.14 The committee thanks those individuals and organisations who made submissions and gave evidence at the public hearings. In particular, the committee acknowledges the individuals who shared their personal experiences of international parental child abduction.

Note on references

1.15 Submission references in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard dated 26 August 2011 are to the official Hansard, and references to the committee Hansard dated 22 September 2011 are to the proof Hansard.

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