International Social Service (ISS) Australia has undertaken research into the 1996 Hague Convention[1], in particular its potential application to the inter-country casework of ISS Australia involving children. This research report is part of a project funded by the Ian Potter Foundation, "Boosting Outcomes for Australian Children Using International Laws." [2]

The 1996 Hague Convention is a multi-lateral treaty developed by the Hague Conference on Private International Law to improve the protection of children in international situations.  It does this by building a structure for effective international co-operation in child protection matters through a network of Central Authorities at the State and Commonwealth level.

The Convention determines which country's authorities have jurisdiction to take measures to protect children across international borders, clarifies which are the applicable laws, and enables recognition and enforcement of protection measures in all Contracting States.

Currently only 15 countries, including Australia, have ratified the Convention and to date there have been no Australian cases under the Convention.  However, once more countries ratify the Convention, it is expected that the Convention will start operating, with significant changes in the way international cases involving child protection and parental responsibility are dealt with. 

This project has enabled ISS Australia to deepen its own understanding of the 1996 Hague Convention, positioning us as the leading non-government organisation in Australia with expertise on the Convention. We have also developed more effective service delivery systems for responding to inter-country cases involving children and have identified key aspects of the Convention that could be applied to improve outcomes for children.

[2] For full details of the project, Click here.

In January, 2008 ISS Australia commenced work on our Victorian Kinship Care Project, funded by the Fred P Archer Charitable Trust. The project was aimed at achieving better outcomes for Victorian children who are placed in alternative care by exploring the capacity of family members overseas to be potential carers for these children.

The first phase of the project, which has now been completed, was to liaise with the Victorian Department of Human Services (DHS) about the project and to identify the children in the ‘child protection’ system who may benefit from overseas kinship care.  During this phase a submission was made to the Victorian Government’s Review on Kinship Care, which was an opportunity for ISS to contribute to the development of future policy in Victoria around Kinship Care.  The submission is available for download, click here .

The Kinship Care Project has enabled ISS Australia to engage more effectively with DHS in order to promote inter-country kinship care as an option with the potential to improve outcomes for Victorian children. As a result of our work, referrals to ISS from DHS for overseas kinship care have now increased. 

Background

There are approximately 170 reported cases of child abduction both into and out of Australia per year. This critical issue is however, not widely known or publicised throughout the general community. The ISS network comes into contact with an increasing number of cases, due predominantly to more family breakdown and the ease of international travel. The Federal Attorney-General’s Department has recently provided seed funding to enable ISS to undertake a short term research project into International Child Abduction with a central aim of identifying appropriate support models.

The Hague Convention on the Civil Aspects of International Child Abduction, of which Australia is a signatory, has as two central aims. Firstly, the restoration of the pre-abduction status quo, and secondly, to deter parents from crossing borders in search of a more sympathetic court. While these aims have significant merit, there is a perception that the Convention, operating within its legal framework, does not always focus on the welfare of the child as the paramount consideration. A key aim of the project is to identify mechanisms, apart from legal ones, which will provide the most effective support and alleviate the trauma, anxiety and powerlessness experienced by the parties.

Currently, families affected by child abduction are directed to the International Family Law Section of the Federal Attorney-General’s Department. The focus of assistance therefore tends to be on the legal and practical aspects of recovering and returning children. Unlike some other countries, Australia does not have a specialised service which is able to provide holistic support to the parties. A key component of the ISS Project is to develop a support service model which would meet the needs of, in the first instance, the left behind parent, but also the child/children and other parent. There are instances where the child has been abducted to Australia and there is a need to support the foreign left-behind parent when visiting Australia for court proceedings, to attempt resolution and to have contact with the child.

The common thread in all these cases is the sense of powerlessness experienced by the left behind parent whose right to access to the child/children often becomes impossible. In these instances, the temptation to resort to drastic steps may become overwhelming.

The overriding concern in any of these cases is to protect the child from harm. Children who have been abducted are often physically and almost always, psychologically harmed by the experience. The children are firstly dealing with the trauma of the breakdown of their parent’s relationship. They are then removed from all or much that is familiar to them. However resilient the child, the experience is confusing, frightening and in the long term, damaging.

ISS Australia is aware from experience that it can be extremely difficult attempting to negotiate the return of a child from a country with law and order issues and political unrest. Even where the courts in these countries vote in favour of the left behind parent, the local authorities do not always cooperate for fear of reprisal.

For further information about child abduction in Australia, including the Convention, state/territory legislation, general information and useful links can be found at the Attorney-General’s website, child abduction section - http://www.ag.gov.au/agd/www/childabduction.nsf.