CHAPTER 3
Criminal law responses to international parental child abduction
3.1
The regulatory frameworks outlined in chapter 2 operate under the civil
law. Although international parental child abduction is currently recognised to
some extent in Australian criminal laws, there is no specific, stand-alone
offence relating to international parental child abduction. During the course
of the inquiry, the committee received evidence which was both supportive of, and
opposed to, enactment of a targeted international parental child abduction
criminal offence.
Recognition under current criminal laws
3.2
There are limited circumstances in which the wrongful removal of a child
(or children) from Australia is recognised as a criminal offence. The primary
means of recognition occurs under sections 65Y and 65Z of the Family Law Act,
where the removal is committed in breach of parenting orders, or in the course
of proceedings for such orders.
3.3
In some circumstances, incidents of international parental child
abduction may fall within the scope of certain state and territory criminal
offences in the nature of kidnapping or abduction.[1]
The committee notes, however, that many state and territory offences appear to be
directed to the forcible, fraudulent or otherwise non-consensual removal of a
child from a jurisdiction by persons other than his or her parent.[2]
Family Law Act—sections 65Y and 65Z
3.4
Sections 65Y and 65Z of the Family Law Act (Family Law Act offences)
provide, respectively, for the offences of removal of a child (or children)
from Australia while parenting orders in relation to a child are in force, or
while proceedings for the making of a parenting order are pending. The offences
have a maximum penalty of three years imprisonment. The wrongdoing to which the
Family Law Act offences are directed is contempt of court, rather than removal per
se, as they do not apply to non-consensual removals by one parent where no
parenting orders have been sought or granted by the court.[3]
3.5
The committee received evidence about the limited scope of the Family Law Act
offences. In its submission, the AFP noted that the Family Law Act offences may
not capture the overseas departure of an unaccompanied, unassisted child—for
example, where he or she leaves Australia on his or her own, possibly at the
instigation of one parent who is located overseas. The AFP further stated that,
in its view, the offences would not capture the departure of a child who is
assisted by persons other than parents—for example, his or her relatives or
siblings. In these circumstances, the AFP may not have clear legal authority to
prevent a child from leaving the jurisdiction.[4]
3.6
The Family Law Council also examined the scope of the Family Law Act
offences in advice it provided to the Australian Government in March 2011. It observed
that the provisions in sections 65Y and 65Z do not apply to wrongful
retentions—that is, 'where a parent takes a child overseas with the other
parent's consent (or in accordance with a court order), but subsequently
retains the child overseas beyond the agreed or authorised period'.[5]
The Family Law Council considered that there are no principled reasons for such
limited coverage, and recommended the extension of the Family Law Act offences
to wrongful retentions.[6]
3.7
The Family Law Council also recommended the extension of the wrongful
removal offences in sections 65Y and 65Z to circumstances where an invitation
to participate in family dispute resolution has been issued. As participation
in family dispute resolution is generally a prerequisite to commencing
parenting proceedings,[7]
parties ought to be aware of their obligations under the Family Law Act at that
time.[8]
3.8
The Family Law Council also commented on the absence of safeguards in
the Family Law Act offences, and recommended:
- the enactment of specific defences for persons who are fleeing
from violence, who are protecting their child from danger of imminent harm, or
who have a reasonable excuse for failing to return the child to Australia (such
as flight cancellations or ill-health);[9]
and
- the enactment of prosecutorial safeguards, including a requirement
that the Attorney-General give consent before a prosecution for international parental
child abduction is commenced (which would then enable the Attorney-General to
give a non-prosecution guarantee to overseas courts in appropriate cases) and a
specific prosecution policy for Family Law Act offences.[10]
Proposed amendments to the Family Law
Act offences
3.9
The Australian Government has accepted some of the Family Law Council's
recommendations concerning the Family Law Act offences.[11]
On 19 September 2011, the Attorney-General and the Minister for Families,
Housing, Community Services and Indigenous Affairs announced the government's
intention to introduce reforms, including:
- proposed new Family Law Act offences in respect of wrongful
retentions, which mirror the existing provisions in sections 65Y and 65Z
dealing with wrongful removals;
-
extension of the existing wrongful removal offences to cover the
removal of a child overseas where an invitation to participate in family
dispute resolution has been issued;
- proposed new defences under the Family Law Act, including fleeing
from violence and protecting children from imminent harm, which are additional
to the general defences available under the Commonwealth Criminal Code; and
- proposed discretion for the Commonwealth Director of Public
Prosecutions (CDPP) (and not the Attorney-General as recommended by the Family Law
Council) to give non‑prosecution undertakings in appropriate cases—for
example, in cases where exposure to criminal liability may trigger an Article
13(b) exception in Hague Convention proceedings.[12]
3.10
The Ministers indicated that draft legislation will be completed by late
2011, for introduction into the Parliament in the first half of 2012.[13]
Officers from the Attorney-General's Department (Department) advised the
committee that the government has commenced the policy development process, and
will consult with stakeholders on the detail of the proposed legislation.[14]
3.11
Departmental officers specifically advised that the government will
consult stakeholders about the proposed extension of the Family Law Act
offences to situations where parties have been invited to participate in family
dispute resolution, in light of opposition expressed by Women's Legal Services
Australia in its submission to the committee's inquiry.[15]
Women's Legal Services Australia argued that extending the Family Law Act
offences in these situations could be open to abuse, or may be of limited use,
since it may be difficult to prove to the requisite standard that a party has
received an invitation to participate in family dispute resolution.[16]
Possible stand-alone criminal offence
3.12
The committee also received evidence regarding the enactment of a stand‑alone
international parental child abduction offence (which would not depend on the
existence of family law orders or applications for such orders). Some submitters
noted that international parental child abduction is a criminal offence in
other countries, citing the United Kingdom and the United States as examples.[17]
3.13
There was a divergence of views among submitters and witnesses about the
desirability of a stand-alone criminal offence. Proponents of a new offence
were generally those with personal experiences of international parental child
abduction—particularly parents whose children have been abducted overseas, or
other persons related to such children.[18]
3.14
Most submitters and witnesses who opposed a new offence were
representatives of the legal profession, social support service providers and
women's advocacy groups.[19]
As noted above, officers from the Attorney-General's Department advised the
committee in September 2011 that the Australian Government has decided to
extend the Family Law Act offences to wrongful retentions, rather than enact a specific
stand-alone offence.[20]
Arguments in support of a
stand-alone offence
3.15
In its advice to the Australian Government in March 2011, the Family Law Council
set out the arguments in support of a discrete criminal offence for international
parental child abduction. In particular, the Family Law Council noted that
criminalisation would ensure that international parental child abduction
matters are afforded priority in the allocation of policing resources, and
would ensure that additional investigation and enforcement mechanisms are made
available to assist in locating a child. Such mechanisms could include the use
of telephone interceptions and listening devices; the ability to request the
assistance of Interpol and overseas police forces to locate abducted children;
and the availability of extradition and mutual assistance procedures to return
abducting-parents to Australia.[21]
3.16
In evidence at the committee's first public hearing, Mr Ken Thompson
argued that the primary objective of criminalisation should not be to impose
punitive measures on the abducting-parent; however, it would enable agencies
'to provide the advice, support, assistance and investigation to the
[left-behind] parents that needs to be carried out'.[22]
Mr Thompson's view was that the risk of inappropriately penalising an abducting
parent could be managed through measures such as the careful framing of any
offence provision, the availability of defences, investing the court with
sentencing discretion, and enacting certain procedural protections (such as a
prosecutorial consent requirement and non-prosecution guarantees).[23]
3.17
Several submitters drew an analogy with the circumstances of abduction
of a child by a person other than his or her parent or guardian, which is an
offence under Australian criminal laws. As such, they argued that criminal law
responses to child abduction should not discriminate on the basis of a parental
relationship between the abductor and the child, or on the existence or
otherwise of family law orders. Rather, criminal offences should focus
uniformly on the wrongful nature of the removal or retention, in the context of
the rights of the child and other persons with parental responsibility.[24]
Arguments against a stand-alone
offence
3.18
Other evidence did not support a stand-alone criminal offence for the
following reasons:
- such an offence would deter abducting parents from voluntarily
returning children or participating in negotiations, and cause them to further
evade law enforcement authorities for fear of prosecution;[25]
- the prospect of the taking-parent being subject to criminal
proceedings on their return would undermine the effectiveness of the Convention
because the existence of a criminal offence may trigger an Article 13(b)
exception;[26]
- even if an Article 13(b) exception cannot be established, there
is the potential that the child's best interests would be damaged if a parent
is convicted of an offence which may result in his or her imprisonment (thus
denying the child the opportunity to have a meaningful relationship with, and
be cared for by, that parent);[27]
-
the threat of criminal prosecution would have a negative impact
on disadvantaged parents such as those who have committed international
parental child abduction to escape family violence or child abuse committed by
the other parent.[28]
3.19
In particular, the committee notes that the Chief Justice of the Family
Court, the Hon Diana Bryant, does not support a stand-alone
criminal offence:
I have to say that I am not in favour of it, for this reason.
What you would say in favour of it is that it is my understanding that it does
assist the police and Interpol to look for children overseas, but one would
have hoped there might be some other way of doing that. Surely the AFP here can
have arrangements in relation to abduction of children short of necessarily
having to have criminal offences created. The second reason for doing it, I
suppose, is a community perception, particularly from the left-behind parent,
that there should be some punishment, but the problem is that in the cases that
we see regularly where the children are sought to be returned to a country
where there are laws whereby criminality is created by removing a
child—typically that is some of the states in the United States, where it is
regarded as kidnapping—you often end up having to try to get some kind of
undertaking from the other parent not to prosecute so the child can be
returned, and that is not always possible if the prosecution is by a district
attorney or something. One of the defences that might then arise would be if
the father, for example, is not able on the face of it to care for the children
and the mother is going to be jailed upon return and there is no-one to look
after the child. Then the 'intolerable situation' defence would arise. So this
problem arises all the time, and it is not uncommon to be seeking for other
jurisdictions to forgo prosecution so that the children can be returned. So it
is a real issue.[29]
3.20
The Family Law Council also recommended against the introduction of a
new stand-alone criminal offence in its advice to the Attorney-General in March 2011.[30]
Alternative reforms to a stand-alone criminal offence
3.21
Some submitters to the inquiry proposed alternative reforms to a
stand-alone offence for international parental child abduction. They argued
that these alternatives could improve the return rate of Australian children
who are abducted overseas, deter future abductions and improve procedural
safeguards in the existing Family Law Act offences. Suggestions included:
- greater public education and awareness-raising initiatives about
the existence and operation of the Family Law Act offences, which may serve as
a deterrent to international parental child abduction;[31]
and
- more significant government and third-sector investment in international
parental child abduction prevention, with a view to decreasing its incidence
and removing the perceived need for additional criminal sanctions.[32]
3.22
In this context, officers from the Department advised the committee that
the government has partially accepted other recommendations of the Family Law Council
in its March 2011 advice, including the recommendation for further
legislative and non-legislative measures to assist in international parental
child abduction cases (such as information-gathering powers, mediation and
publicity about the Hague Convention).[33]
The committee was advised that the detail of these reforms is under
development, and will be the subject of consultations in the future.[34]
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