Wednesday, 24 April 2013

Going underground – When parents defy the court process

A few weeks ago, I wrote about a US international custody dispute.  That case involved a Virginian Amish-Mennonite pastor, who was sent to gaol for his part in abetting a parental child abduction.

The phenomenon is not unique to the US.  According to an article in Australia’s Courier-Mail on Tuesday, Church and domestic violence support groups there are actively helping parents breach court orders and go on the run with their children.  Those groups, the article reported, helped
recalcitrant parents operate under the radar and evade detection by the authorities.

One parent claimed a domestic violence group and others had helped a former spouse hide two children from the courts and police.  When six officers finally found the children - who had been missing for a month - they had been given new SIM cards for their phones and access to a number of different computers.  The parent who had illegally taken the children had limited funds at the time, so the implication was others were underwriting her financially.

The problems identified resonate with those we face here, too.  I’ve had a number of cases over the years which have required steps to be taken to find children taken by a parent in defiance of court orders.  For the most part, those steps have been successful.  Our courts are extremely sympathetic to requests for the disclosure of information to help locate missing children.  Any lawyer experienced in managing child abduction cases will know the classes of information that best pinpoint where and how parents seeking to evade detection are operating.

But I have had a small cohort of cases where even the most intensive efforts to find a missing child have not been successful.  Each of those has had the fingerprints on it of a network of supporters conspiring to help the abducting parent defy the court process.  Often family members are implicated, and in some instances punished, for their support – however well-intentioned – in helping a parent avoid detection.  This third party support is virtually inevitable:  it is neither easy nor cheap to run one’s life without leaving an information footprint of some description that can be used in the detection process.  These have been some of the most difficult and sad cases of my career.
Family law experts in Australia claim the problem there is compounded by the justice system being under-resourced.  The Courier-Mail article features comment from several sources to the effect that the issue is partly on account of courts not properly managing, and taking into account in their decisions, factors such as domestic violence or abuse.  Thus, it is claimed, parents have to take the law into their own hands. 

If those working in the Australian Family Justice System need an illustration of how underfunding fails children and families, they should have a word with me.  With the decimation of our Family Justice budget (with further swingeing cuts promised), and the all-but-in-name extinction of Legal Aid, most lawyers here agree that the service we are able to offer some of the most vulnerable is no longer fit for purpose. 

Rather pessimistically, I suspect we’ll see more and more cases of the type described above.  With parents increasingly denied effective access the court system, of course there will be the temptation to take the law into their own hands and go underground.  Some will do so with good reason, others will do so out of malice or spite.  If in the latter categories, under-resourcing represents a total failure of the left-behind parent. 
On either side of the equation, the individuals who will be most let-down will be the children affected. 

But we’re all in this together…

I’d like to hear what others think.  Can a parent ever be justified in going on the run with a child in defiance of court orders?  If yes, in what circumstances?  Likewise, is it ever justified for family members, churches, support groups and others to help parents in these situations evade detection and due process?  I’d also love to hear from parents who, having been through the court process and obtained an order, have nevertheless been denied a relationship with their child because the other parent has gone underground. 

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