Tough kid-snatcher laws could backfire

PARENTAL child abduction should not be treated as a general criminal offence despite the demands of a "vocal lobby" for tough new sanctions when children are kidnapped by parents who then flee overseas, says Community Services, the NSW government agency responsible.

While some groups have demanded jail and fines, the department says imposing new criminal sanctions could force abducting parents "to take more extreme actions to remain undetected", hindering the return of children.

In a submission to a Senate inquiry into child abductions to and from Australia, community services says it is now mostly mothers who abduct the children -- a dramatic turnaround from 30 years ago when the Hague Convention for bringing children home was signed and the abductors were fathers.

"Incarcerating the person who has primary care of a child will never be in that child's best interest and has the potential to destroy the future relationship between the child and the parent who requested their return," the submission says. "Parental child abduction is a matter for the family law system and should not attract criminal sanctions."

The agency has also warned that Australia needs to make a bigger commitment to prevent children from being wrongly taken out of the country, including by requiring adults travelling to and from Australia to provide evidence of a court order or consent to allow them to leave the country with their child. "Alerts should be placed in strategic points around the airport," the submission says.

Compounding the problem, some countries from which Australia accepts migrants -- including China, Vietnam, The Philippines and Lebanon -- have not signed the Hague Convention.

While Lebanon and Egypt have both signed bi-lateral agreements with Australia, the best these offer are "tools of dialogue'' but no legal remedies.

Groups such as the Family Law Reform Commission have called for Australia to impose tougher sanctions against international child abduction.

Under the Family Law Act, international parental child abduction carries a maximum three-year jail sentence.

But these offences apply where residence, contact or specific issues orders in relation to a child are in force or are pending before the family courts.

Federal Attorney-General Robert McClelland recently referred Australia's international child abduction laws to the Family Law Council to see if they were adequate.

That review found one gap in the law. If a child is taken overseas by one parent with the consent of the other parent but fails to return despite a court order, there is no penalty. "That is certainly an issue that we are looking at," Mr McClelland said.

But he agreed with community services that a general criminal offence for international child abduction was likely to be counter-productive.

"The advice of the Family Law Council also raised the point that introducing a specific crime in the Criminal Code in respect to child abduction could actually make securing returns more difficult," he said.

"In other words, driving the party who has taken the child or abducted the child further underground and making conciliation and resolution of the matters more difficult."

Mr McClelland said the Hague Convention -- to which Australia is a signatory -- provides the best available mechanism to lawfully seek the return of wrongfully removed or retained children.