Australia is resisting criminal penalties for parental child abduction even as experts call it child abuse. Read about it here (The Australian, 7/25/11).
It seems there’s a movement afoot in Australia to make child abduction by parents a specific criminal offense instead of letting family courts decide whether and how to punish them. But Community Services of New South Wales opposes the move and for some very telling reasons.
“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.”
“Never be in the child’s best interest.” Really? That statement seems to miss some important facts about child abduction. For starters, child abduction by anyone, including parents, is a form of child abuse. Responsible research into the issue by psychologists is clear that parental abductors tend to have serious emotional/psychological issues of their own that make their parenting abilities suspect at best.
As important is the fact that the child is taken away from his/her support system including the other parent, other relatives, friends, schools and teachers, neighbors, etc. The child therefore comes to rely solely on the abducting parent for all his/her needs. Into the bargain, the pair are often on the run from authorities which entails changing residences often and sometimes identities.
We jail parents for child abuse and neglect every day, but for some reason, when it comes to parental child abduction, Community Services thinks that incarceration should not be an option.
I found that strange until Community Services’ own submission explained it to me.
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.
I think I understand. Now that I think of it, the objection to jail for parents (mostly mothers) who abduct their children sounds very much like Australia’s objection to enforcing visitation against custodial parents (mostly mothers). According to Australian historian John Hirst, family law in that country long ago decided to enforce visitation differently from the way it enforces child support.
Child support obligors (mostly fathers) are hounded relentlessly, just as they are in the United States. Family courts use their power of contempt to jail fathers who don’t pay. But when it comes to using their power of contempt to enforce visitation orders, those same courts demur.
Hirst:
When the Court came to consider breaches of orders by custodial parents (chiefly mothers), it returned to soft-headedness. The typical case was where a mother contrived to deny a father access to his children even though he had court orders allowing access… In considering its response to such breaches, the Court declared that the paramount interests of this particular childmust prevail. Since the Court could scarcely fine or imprison a custodial mother without having some effect on the child, these options were effectively abandoned.
Indeed, Hirst goes on to quote one family court judge as saying “I am very slow to attach any sanctions at all to breaches of access orders.”
You get the picture. Australian family courts are happy to levy the most draconian sanctions against non-custodial parents (about 90% of whom happen to be fathers) who fail to pay, but wrongdoing by custodial parents (about 90% of whom are mothers), gets a pass.
And that of course is essentially the same as what Community Services is saying about parental child abductors (who turn out to be mostly mothers). When it comes to punishing them for their abuse of their children, all of a sudden it can’t possibly be in the child’s best interest to imprison the mother.
All but identically to what Hirst said before, the focus is not on the principle of the court’s ability to enforce its dictates, it’s not on the child’s interest in seeing both parents. The paramount importance becomes “this particular child’s interest” in a relationship with his/her abductor.
And just to make sure the point isn’t lost, consider this: the original rulings by family courts in Australia weren’t about fathers who didn’t pay child support; they were about fathers who abducted their children. In those cases, the courts considered very carefully and specifically the idea that the child needed his/her father – and rejected it!
The original case involved a court faced with a father who had abducted his child for four years, depriving the mother of all contact. Finally apprehended, he was brought before the court whose custodial orders he had flouted. What to do? Clearly he had violated the court’s orders; clearly the court had the power to punish his contempt. But there was a problem with incarcerating the man.
[W]as the Court now going to damage the boy further by depriving him of his father with whom he got on well?
After all, sending the man to prison would surely be a blow to the boy. But the court stood firm; it’s orders had to be obeyed. It reasoned that,
If no punishment is imposed, or if lenience is shown, the court’s power to protect not only the individual child concerned, but also many other children, may be diminished.
Notice that in that case the emphasis was not on the individual child’s best interest which clearly weren’t served by jailing his father. The court rightly ruled that to do anything but punish the man would open the door to every parent similarly inclined.
So it’s interesting that, with the submission by Community Services, Australian law seeks to come full circle – from treating parental child abductors harshly so as to make them an example to others, to treating them leniently because the child needs a continuing relationship with them.
What’s the difference? Abductors used to be fathers; now they’re mothers.
Community Services makes the same argument today that was made back in the mid-70s – that courts should be lenient with abducting parents because harsh penalties would only make matters worse by driving them further underground.
But John Hirst reports that leniency on mothers who ignore visitation orders had the opposite (and entirely predictable) effect. It only encouraged them to violate the orders. After all, if there are no consequences, why not?
Hirst again:
Just as the Court had there imagined, leniency had disastrous consequences for children. Since access orders were defied with impunity, thousands of children were kept from their fathers, though the Court had ruled that their best interests required that they see them.
So what is Community Services arguing for now? That leniency actually promotes compliance with the law even though that contradicts known facts and common sense.
The more things change, the more they stay the same.