Is it ever okay to kidnap your own children?

On 6 April this year, Brisbane mum Sally Faulkner, Channel 9 reporter Tara Brown and her television crew, together with a four-man abduction team were arrested in Beirut, Lebanon following a botched attempt to snatch Sally’s two young children in order to return them to Australia. The children, Lahela (aged 6) and Noah (aged 4) had been wrongfully retained in Lebanon by their father Ali Elamine. Mr Elamine failed to return the children to Sally in Australia after an agreed holiday visit.

Sally and the Channel 9 news crew were jailed before being released on bail on 22 April 2016 after a deal was struck with Mr Elamine. As a result of the agreement Mr Elamine was granted full custody of the children and paid a large sum of money by Channel 9 in exchange for dropping his personal charges against them.

The prosecuting judge is currently considering criminal child abduction charges against all those involved. Under Lebanese law, child abduction is punishable by a minimum of three years’ and up to twenty years’ imprisonment.

At the time Mr Elamine refused to return the children to Australia, Sally Faulkner had a custody order in her favour from the Australian Courts. Her legal recourse was to pursue abduction charges in the Lebanese Courts. Whilst she would have had to deal with a foreign legal system and incur legal expenses, by taking matters into her own hands she has had to legally sign over full custody of her young children in exchange for her freedom and Mr Elamine dropping his civil claims against her.

The international law relating to child abduction and wrongful retention of children abroad is covered by The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). The Convention provides that disputes involving children are best determined by the Court in the country with which the child has the most obvious and substantial connection. This is usually the country in which the child resided prior to the abduction or retention. Under the Convention the determining Court has very limited discretion to refuse to order the return of the child. Provided that the Court is of the view that the removal or retention is wrongful, the Court must order that child be returned. Provided that the parent making the return request can prove that the children were removed or retained wrongfully, then the costs of prosecuting the case are met by the country to which the children were taken.

If Lebanon was a party to the Convention, Sally Faulkner would have had a very straightforward case as she has orders in her favour from the Australian Courts granting her custody of her children. Unfortunately, as Lebanon is not a signatory to the Convention, she would have had to instruct local Beirut lawyers to file the necessary application on her behalf and to pursue her claim for the return of her children. This would have been costly and would have entailed dealing with an unknown foreign legal system

If you have concerns about consenting to your child/children being taken abroad for a holiday, then a sensible precaution would be to see whether the destination country is a signatory to the Convention. There is a list of signatory countries on the Attorney General’s Department website which you can access through the following link:
www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw

If you are planning on taking your children abroad for a holiday post separation, or if you would like advice on how best to safeguard your children’s return to Australia following an overseas holiday with their other parent, then don’t hesitate to make an appointment with one of our experienced and attentive lawyers. If you mention this article the first half hour of the appointment is free of charge.

By HBR Family Lawyers at www.hbrfamilylaw.com.au or 0412 252 464