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"International Extradition and Parental Child Abduction

Bond Law Review Volume 5 | Issue 2 Article 1 12-1-1993 International Extradition and Parental Child Abduction David A. Chaikin This Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in Bond Law Review by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Recommended Citation Chaikin, David A. (1993) "International Extradition and Parental Child Abduction," Bond Law Review: Vol. 5: Iss. 2, Article 1. Available at: http://epublications.bond.edu.au/blr/vol5/iss2/1 International Extradition and Parental Child Abduction Abstract Child snatching by parents or parental child abduction is a frequent occurrence in today’s world. The high rate of divorce, coupled with the conflict in social values as to custody and access rights of parents, has fuelled an increase in child kidnapping. More and more persons from different nationalities and different countries are marrying. When these marriages break down and custody rights are given to one parent, the ’losing parent’ may be tempted to abduct the children and flee the jurisdiction. Such cases are now notorious. In Australia the alleged abduction by a Malaysian prince of his Australian children has caused national consternation and a call for increased government intervention. One solution to this problem is to use the Hague Convention on Civil Aspects of Child Abduction to recover and return the child to his/her custodial parent. But what happens if a country is not a party to the Convention? To what extent is it possible to prosecute and extradite a ’defaulting’ parent for child abduction and to use this as a tool to recover the child? Keywords extradition, abduction, international law This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol5/iss2/1 Articles INTERNATIONAL EXTRADITION AND PARENTAL CHILD ABDUCTION ¸By David A Chaikin Barrister-at-Law Sydney Child snatching by parents or parental child abduction is a frequent occurrence in today’s worldo The high rate of divorce, coupled with the conflict in social values as to custody and access rights of parents, has fuelled an increase in child kidnapping° More and more persons from different nationalities and different countries are marrying. When these marriages break down and custody rights are given to one parent, the ’los~mg parent’ may be tempted to abduct the children and flee the j~ction. Such cases are now notorious. In Australia the alleged abduction by a Malaysian prince of his Australian children has caused national consternation and a call for increased government intervention. One solution to this problem is to use the Hague Convention on Civil Aspects of Child Abduction1 to recover and return the child to his/her custodial parent. But what happens if a 2 country is not a party to the Convention? To what extent is it possible to prosecute and extradite a ’defaulting’ parent for child abduction and to use this as a tool to recover the child? 1 2 Dr David A Chaikin Barrister (NSW) B Com/LLB(NSW), LLM ~’Ne), Ph D ~ ~ws (Cambridge) Fo~erly Senior Assis~nt Secretaw~ Australian Federal AttorneyGene~ls’ De~ent, ~~, ~d S~5or F~ud Offi~r, C~weN~ ~c~fiat~ ~ndon. See ~so ~he E~opean Co~ventio~ on Recogni¢i~ a~ Enferce~n~ of Dec~io~s Concerning C~y of C~en, R may Nso ~ possible to e~or~ a fo~ign cust~y order at ~on Nw or m ~e coua acfi~ N ~e jufsdic~ whe~ Ne abducted c~d is l~ated and ~ a cust~y order ~here: See Ma~, ’Abduction of CbNdren - Some NationN ~qd N~mational Asp~ts’ (t986) 1 129 1 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (1993) 5 BOND L R The crimina~ ~iabi~ity of parents for child abduction Common law offence of kidnapping The origin of the word ’kidnapping’ shows that it has always had a strong connection with the abuse of children’ s rights; for ’kidnapping’ is a ’composite word made up of two colloquial expressions (kid/napping) which together denote child snatching.’3 The hideous practice of seizing and stealing children in order to provide servants or labourers for the American colonies was a manifestation of the wider di~e of slavery. The misery and suffering inflicted on children by the traders in human flesh was widely condemned. The English judges responded by creating the common law criminal offence of kidnapping. The offence consisted of ’the stealing and carrying away, or secreting of any person against that person’s w£tl’.* It is a crime involving force or fraud against the victim’s will. As such it is an aggravated species of false imprisonment. Parental child-snatching or kidnapping of children by parents is nothin~ new. It was not until 1984 that the House of Lords in the case of Regina vD held that the offence of kidnapping may be committed by the parent of the child. In that case D, a father, enlisted the assistance of two armed men to take his v~vo year old daughter, who was a ward of the state and in the care and custody of the mother, from England to New Zealand. The court held that the offence of kidnapping may be committed by tbe parent,of the child who takes that child without iks consent or without lawful excuse. The court acknowledged that in the nineteenth century the father’s paramount authority in the family would have provided a lawful excuse in respect of kidnapping of an uw, narried child under the age of majority, but that defence was no longer available in the changed social and legal conditions in the present since the paramountcy of the father’s position in the family had disappeared. To constitute kidnapping, the ’steaLing or taking away’ must be without D7 the victim’s consenL In Regina v it was held that a young child of two years could not have given consent because he would not have the unders~qding or intelligence to give consent. Where a child is older, it is a 3 4 5 t30 2 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 question of fact for the jury whether a child has the understanding or intelligence to give his/her consent. For example, in People v Edges the Irish Supreme Court held ~at ~e ~g away of a fo~n y~ old ~y ag~st ~e will of his lawful gu~ ~d not ~o~t to ~pp~g s~ce ~e ~y had reach~ ~ age where he co~d, ~d ~d, g~ve con~nt. The offence of lddnapping ~ an attack on, and inf~gement of, the personal liberty of the individual, whereas contempt of a court order ~n relation to custody is an attack on the autho~ty of the cot~’t. It ~s not clear how the nature of the interest protected by the law affects the question of prosecution. In Regina v D Lord Bl~ndon of Oakbrook considered fl~ the conduct of parents who abducted their children in defiance of court orders can and generally should, be dealt with as a contempt of cou.~ He went on to say that: L~ exceptional cases, where the conduct of the pa~ent c~mcerned ~ ~o bad ~at ~ or~ fight-~ug ~n would ~m~a~ly ~d w~out hes~don reg~d ~t ~ cr~ ~ na~e, that conduct should be dent with by way of criminal prosecution. Australia In Australia both federal law and s~ate law is potentially relevant to a criminal prosecution in a parental child kidnapping case. Relevant offences under state law include the offences of ’child stealing’~ and ’abducting a child under the age of slxteeno’ In New South Wales there is an offence of ’abducting a child under the age of fourteen by force or fraud with in~ent to deprive possession’, which attracts a potential prison sentence of ten years. None of these state offences were specifica~y designed to deal with parental child abduction. None have been comprehensively tested in a comet of law to see whether and in what circums~nces they may apply to the abduction of children by one of their parents. Indeed, some offences would seem to apply 14 to a parent only in rare circumstances. This explains in part why in practice 8 9 10 11 t2 13 14 3 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (t993) 5 BOND L R the states of Australia have been reluctant to use their own criminal provisions against parents, preferring that where a child is taken by the unsuccessful party in a child custody case, the matter be left to be dealt with under tbe federal Family Law Act 1975. The Family Law Act 1975 creates a number of offences which are relevant to child abduction, including the offence of interfering with a person’s right to custody,15 and the offence of i11~egally removing a child from a person who is entitled to custody or access. These offences apply to parental child abduction in purely domestic and also in international cases. There is also the power of the Family Court to punish persons for contempt of that court, for example, in relation to breaches of custody or access orderso17 Australian law has gone further by creating specific offences of internatior~ parental child abduction. In 1983 two offences were added to the Family Law Act 1975 so as to deal with an aggravated form of contempt, namely the removal of a child (iea person under 18 years) from Australia to an overseas country in contravention of a court order or while custody/guardianship/access proceedings were pendingo~8 Section 70 A of the Family Law Act 1975 provides inter alia" Where there is in force an order (including ar~ Nt~ order) rome by a co~t ~ Aus~a wi~ reset m ~e c~mdy or ~di~ oL or ac~ss m, a cbNd (includNg ~n ex-nuptiN chad), a ~mn who w~ a p~ m the Wo~Ngs N wNch &e order w~ made, or a ~rson who ~ ac~g on ~h~ og or at ~e r~ues~ og such a ~rso~ sh~ not ~e or send, or ~mp~ m ~e or s~< ~e cNld ~om Aus~a m a place ou~i~ Aus~Nia ex~pt- (® with the consent in writing (authenticated as prescribed) of each person who, under the order is entitled (whet,her alone or together with another persor~o or other persons) to the custody or guardiar~,ship of, or access to, the child; or (b) in accordance wi& an order of a court made under ~ Act or under a law of a State or Territory at the tkme or, or after, the making of the fixstmentioned order. Penalty: $10,0~ or imprisorument for 3 years, or both. (2) Where proceedings have been L~titated in a court in Australia for an 15 16 17 18 132 Family Law Ac¢ 1975 ~ 70(6). Ibid s 63. Ibid s 108(1) ~-~d ~ 70((;.) Prior to November 1983, ~e removal of ~ child out of AusLralia contrary ~o a cour~ order was covered by s 62 of t.he MigraZion Act 1958 which provided a maximum penahy of $2,000 or 12 monff~’s imprisonment. 4 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 ~ntemationN Extradition and ParentN Child Abduction order with respect to the custody or guardianship of, or access to, a child (including an ex-nuptial child), and those proceedings are pending, a person who is a party to the proceedings, or a person who is acting on behalf of, or at the request of, such a person shall not take or send, or attempt to take or send, the child from Australia to a place outside Austraha except: (a) with the consent in writing (authenticated as prescribed) of each paw to the proceedings; or (b) in accordance with an order of a court made under this Act or under a taw of a State or Territory after the institution of the proceedings, Penalty: $10,000 or in-,prisonment for 3 yeas, or both. Sub-sections (1) and (2) make it an offence to remove children from jurisdiction and an offence to attempt to achieve that. The burden of establishing the elements of the offences in sub-sections (1) and (2) is on the prosecution, but the defence bears the burden of proof of the alternative exceptions in paragraphs (a) of each sub-section. In most cases the proseaaution should be a rehatively straightforward task. Evidence that there were proceedings of a s~ified kind in a court in Australia or specified orders in force in Australia and of the pa~ies thereto may be available from the fugitive’s spouse or former spouse mad from the Registrar of the Family Com~ of Austrahao Evidence that the fugitive took the child from Austraha may be av~able from a travel agent or employee of an airhne or shipping company. There may also be corroborating documentary evidence of the depa.rture of the fugitive and the child from Aust,mliao The Australian courts have treated offences under section 70 A as very serious, In R v Constantine1~ Lee AoJ of the NSW Court of Crh-ninal ANneal observed thae Remova! of a child from the jurisdiction by a party who does not have custody resulting in an offence under s 70A(1) wilt ahnost invariably place the child in a situation where its total well-being and care are taken out of the hands of the party entitled to custody, who may well be helpless to take measures to recover the childo Not orJy is the paW)’ deprived of the enjoyment of the custody, bur~ more important, the child’s welfare can be seriously jeopardised because of the loss of care a~ad guidance of the person chosen by the law to attend its welfare o 19 The court in proceedi-~gs under s 70A(1) is in a real sense protecting the rights of the child to remain fin AustraLia in the custody of the party to whom (1991) 25 NSWLR 431 at 438-9. The Comn of Cr~ardnal Appesd held that a custodial sentence of 9 months with release on recognisance afmr 4 months was not too severe. 133 5 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 BOND L R the court has gr~ cus~Sy until that person decides, or the cou~ decides, tha~ it shall be otherwise. That state of affaks ~ not one to be viewed as open to variation at the whim or the pleasure of the oth~ pa.n-y. It is quite wrong to view an offence under s 70A(1) or s 70A(2) as merely the result of a disagreement between husband and wife and to deal wi~ the matter by reference to cor~ideratior~ referably to the reasonableness or oth~’wise of ~e conduct of the partie~ in regard to the removal of the child~ although such matters may well necessarily, to a degree, come under consideration in regard to offences ~r~der s 70(A). The wrongful disturbance of the rights of the child and of the custodian are fandamental considerations and the question of penalty should be approached in every case under s 70A(1) with them promLuently in r~And. Where the evidence leaves no doub~ as here, that the husband has deliberately flouted the custody orders oNained by his wife and acraally removed the children out of jurisdiction, not merely without her consent but in defiance of her wishes, an offence of the nature tahat may reqaixe a gaot sentence has been showm by those facts alone for objectively those facts demonstrate unlawfuhues~ of a very high order. United Kingdom Under section 1 of the Child Abduction Act 1984a° it is an offence for a person who is °cormected with a child (.eg parent including a puhative father) to take or send a child ~nder the age of sixteen out of the United Kingdom without the ’appropriate consent’, for example, without the consent of the other parent or a guardian or without the leave of the court. It is a defence ff the removal is done in the belief that the other person consented or would have done had he/she been aware of all the circumstances, or that having taken a~ reasonable steps to communicate, he/she had failed to communicate with the other person or (providing there is no court order) the other person has urtreasonably refused m consent. Where there is sufficient evidence to raise such a defence0,it is for the prosecution to rebut it. Prosecution under section 1 of the Child Abduction Act requires the consent of the Director of PaNic Prosecutions. T_r~e maximum penalty for a conviction on indicm~ent are: 7 year’s imprisomnaent and on summary conviction 5 month’s imprisopmaent or a sum not exceeding the staratory maxim~am of 2,0C© pounds or b~uh~ t34 6 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 United States In the United States there is no distinct offence of international child abduction. This does not mean that parents who run away with their children thereby depriving another parent of custodial or guardianship privileges can not be prosecuted. Various offences renting to child abduction are found in statutory provisions enacted under state-law, For instance, cb~apter 4 of the Penal Code of California is headed ’Child Abduction’ and contains a number of offences. Section 277 of the Californian Pee~ Code provides: In the absence of a court order determining rights of custody or visitation to a minor child0 every person having a right of custody of the child who maliciously takes, detains, conceals or entices away that child within or without the state, without good cause, m~d with the intent m deprive the custody right of another person or a punic agency also having a custody right to that child, shatl be punished by h~prisovanent in the comity ga~l for a period no more than one year, a free of one thousand d~lla~ ($1,0C~3), or hoth, or be krnprisovmaent in the state prison for a periqd of one year and one day, a fine of five thonsand dollars(S5,000), or both. Section 278 of the Penal Code provides: Every person not having a right of custody, who maliciously takes, detains, conceals, or entices away any minor child with intent to detains or concea! that cbXld from a person, guardia~ or punic agency having tawfal charge of the child shall be pmnished by imprisom,aent in the state prison for two, three or four years, a fine of not more than ten thousand dollars ($10000,) or both, or imprisov~ment in a county gaol for a period of not more than one year, a fine of not more than one thousand dotlars ($1,C~0), or both. Section 278°5 of the Penag Code provides: (a) Every person who in violation of the physicat custody or visitation provisions of a custody order, judgment, or decree takes, detains conceals, or retains the chitd with the intent to deprive another person of his or her righis to physicat custody or visitation shall be punished by imprisonment in the state prison for 15 months, or two or three years, a free of not more than ten thousand dollars ($10,000), or both; or by imprisonment in a county gaol for a period of not more than one year, a ~me of not more than one thousand dollars ($1,000), or both. Every person who has a right to physical c~astody of or visitation with a child Farsuant to ~ or~r, ~dgemen~ or d~ of ~y com~ wbJch gr~ ~other ~rsov. gu~di~ or punic agency right m physicN custo@ of or visi~fion wi~ the cbN~ ~d who wi~ or wi~out ~e t35 7 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (1993) 5 E~ND L R state detains, conceals, takes, or entices away that child with the intent of depriving the other person of that right to custody or visitation shall be punished by Lmprisonment in the state prison for 16 months, or two or three years, a free of not more than ten thousand dollars ($10,000), or both; or by imprisonment in a county gaol for a period of not more than one year, a fine of not more than one thousand dollars ($1,000), or both. These offences variously require the taker of the child to have or not to have a ’right of custody’. For example, section 277 and section 278.5(a) and (b) of the Penal Code apply only in respect of persons who have a right of custody of the child, while the offence in section 278 is only available in respect of a person who has no right of custody of the child. Section 277 creates an offence akin to ’child abduction’ in circums~nces where there is no comet order determining the rights of custody or visitation. The essence of section 277 is that it is a wrong committed by a person who has a right of custody against the lawful joint custody rights of another person etc. Section 278.5(a) and (b) are also versions of a ’child abduction’ offence in that they are offences committed with the intent of depriving another person of the right to physical custody or visitation. On the other hand, section 278 is simihar to the offence of ’child stealing’ in that the essence of the charge is that it is a wrong committed against the right of possession, which the person etc. having lawful charge had of ~ahe child° An offence under s 278 can not be committed by a parent who has a right of custody of the childo Canada The Criminal Code of Canada~ creates two distinct offences of child abduction, namely abduction in contravention of a custody order and abduction where there is no custody order. It is an offence under section 250.1 of the Code for a parent, guard~n or person having the hawful charge of a person under the age of fourteen to take, entice away, conceal, detain, receive or harbour that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada with intent to deprive a parent etc of the possession of that person. Under section 250.2(1) of the Code it is an offence for a parent, guardian or person having the lawful charge of a person under the age of fourteen to take, entice away, conceal, detain, receive or harbour that person, in relation to whom no custody order has been made by a court anywhere in Canada, with intent to deprive a parent etc of the possession of that person. It is a defence if an abducting parent can establish that the taking of the child was done with the consent of the other parent having lawful possession, care or charge of the child (s 250.3), or that it ’was necessary" to protect the young person from danger or imminent harm’: section 250o4o It is expressly stated that it is no defence to show that the young person ’consented to or 21 See generally Wilson a~d TomLinsono Wilson: Children and gb~ Law Butterwor~hs, (1986) at 454. 8 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 ~ntemat~onN Extradition and ParentN Child Abduction suggested any conduct of the accused’ (s 250.5). No proceedings under section 250.2(1) may be commenced without the consent of the AttorneyGeneral or counsel instructed by him/her for that purpose. Penalties for contravening sections 250.1 or 250.2(1) are in either case a maximum imprisonment of ten years on conviction on indictment. Malaysia In the case of countries which apply Islamic or Shari’ah law to family law,~ it is difficult to determine with any degree of precision the scope of criro~nal offences in cases of parental child abduction. Although criminal law and procedure in many Middle Eastern countries, northern African states, as well as tbe south east Asian states of Indonesia, Brunei and Malaysia, is almost completely westemised, family law as applied to Muslims is determined by the Shari’aho The relationship between constitutional, private and punic taws is complex o For example, in the case of Malaysia there are eleven States with Syariah com~ directly answerable to the taler of the state. There are various criminal offences under Islamic law (eg gambling) which can only be committed by Muslims and are prosecuted by the Religious Affairs Depamnento There are also general criminal offences under the national Penal Code of Malaysia such as kidnapping offences which appear to be similar to offences found in western states. It is, for example, an offence under section 360 of the Penal Code of Malaysia to ’convey any person beyond the limits of Malaysia without the consent of that person, or of some person legally authorised to consent on behalf of that person’. It is an offence under section 361 of the Penal Code to ~ke or entice any minor (iea male under fourteen or a female under sixteen out of the keeping of the lawful guardian of such minor, without the consent of such guardiano~ An offence under sections 360 or 361 is punishable by seven years imprisonment and a fine. Miscellaneous Offences It is not unusual that where a parent abducts his/her child, the parent commits other criminal offences, including assault and false imprisoranent, as wet1 as offences relating to passport and immigration laws. For example, sections 9A, 9B and 9C of the Aus~alian Passports Act 1938 create a series of offences relating to the improper use or possession of passports, offences relating to the forgery etc of passports, and offences relating to the issue of 22 23 24 9 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (1993) 5 EK2ND L R passports. It is also an offence trader section 10 of the Passports Act 1938 to knowingly make any false or misleading statement in Support of an application by another person for an Australian passport. policy Unlike many civil law jurisdictions, it is not the law in most common law jurisdictions, including Australia, that all suspected crimir~al offences must automatically be thesubject of prosecution. The decision whether or not to prosecute federal offences in Australia is subject to policy guide-lines set out in a statement issued by the Directcrr of Public Prosecutions in 1986.’~ The GNdeAines state that it is necessary to consider whether, in the light of the available evidence and the circumstances of the case, the public interest requires prosecution of the alleged offender. In the case of the prosecution of a parent for an offence under section 70 A of the Family Lorry Act 1975 there are a number of factors that may be taken into consideration, including the seriousness of the offence, any mitiga~’~g or aggravating circumstances, the alleged offender’s antez~ents, and the need for deterrence, both personal and general.~ In an o’bjective sense an offence under this provision is serious because of the penalty which may be imposed ($10,000 or 3 years imprisopanent)o An offence may be considered serious in a subjective sense where, for instance, a young child is taken out of Australia in a covert way, and t.he parent does not inform his/her spouse that he/she has taken the child with him!hero Another aggravating circumstance exists where the fugitive refuses to return the child to Australia thereby continuing his!her contemptuous conduct. On the other hand a mitigating circumstance would exist if the parent accompanied by the abducted child voluntarily returned to Australia and surrendered himself/herself to the authorities. The need for general deterrence is also an important factor militating in favour of a prosecution. It is notorious that orders made by the Family Court are frequently flouted and that the Family Court does not enjoy a high degree of punic confidence particularly among disappointed litigants° The willingness of the ’victim’ to give evidence in the matter is also a critical factor in deciding whether or not there is a prima facie case against the parent and in assessing the public interest in favour of prosecution. Finally, the availability and efficacy of any alternatives to prosecution may be taken into account. Extradition taw and Practice Extradition is the process whereby one state surrenders to another state a person who is accused or convicted of a crime committed within the jurisdiction of the requesting state. It is an act of sovereignty for a state to surrender a person within its borders to a foreign state. In the absence of a 25 26 Prosecugion Policy of the Commonwealth: Guide.lines for the making of d~cision in ¢he Prosecution Process, Office of the Director of PuNic Pr~ecutior~, January 1986. See R v Cons amine (1991) 25 NSWLR 431 ~t 438-9 for a discussi~ of these factors in sentencing, 138 10 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 treaty obligation, there is no international legal obligation imposed on states to extradite any per~n. States frequently use their ~migrafion laws to deport or expel a non-national wanted by another state where there ~s no extradition arrangement and!or as an alternative t~ formal extradition. Location of the Fugitive and Child The location of a fugitive and the snatched child raises many practical problems. In many respects it may be just l~ke l~oking for a neeAle in a haystack. Unless the parent is charged w~th a criminal offence, the police are unlLkely to take any interest in searchLqg for a snatched child. Contrary t~ popular belief, the international pofice organ~on, ICPO-Interpol, does not have a team of worldwide investigators searching for fugitives. In effect, Interpol provides a valuable communications system between police forces. Intelligence gathering by Australian law enforcement agencies and the Australian Federal Police Lial~n officers l~cated in foreign countries may play an important role in locating fugitives. Luck, determination, an understandh~g of the l~kely movements of the fugitive, and the use of private detectives are equally important. Is there an applicable exgradition treaty or arrangement? The first consideration is whether there is an extradition treaty or arrangement between the requesting state and the requested state. Suffice to say that there is a wide range of arrangements between countries facilitating extradition. There are also significant gaps in the coverage of extradition arrangements, resul~’~g in the creation of havens for fugitives. A person may only be extradited from Australia to a foreign cotmtry if that country is an ’extradition country’ to which the Exgrc~ition Act 1988 has been applied. Extradiuon from Austraha may be effected when the other country concerned: (i) is a member of the Cormnonwealth of Nations so that the Extradition (Commonwealth) Regu~agions 1988 has listed that country; (ii) is a party to a bilateral extradition treaty with Australia, either °inherited’ or ’waly bitat~rN’; (iii) is one to wbJch Australia has applied the Extradition Act 1988 on the basis of a guarante~ of reciprocity; or (iv) is a party to a multilaterN convention to which Australia is a party which contains an obligation to tD" or extradite for offences specified There is no prerogative power to grant extradition from Aus~, but there i~ such power to request extradition froro another country to Australia: Barton Commonwealth (1974) 131 CLR 477; Riley ~ Commonwealth (1985) 159 CLR 1o 11 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (1993) 5 EKbND L R ha the conventior~ These various sources of Australia’s extradition obligations are not expressly spelt out in the Extradition Ac~ 1988, but they represent the principal ways in which Australia has applied i~s extradition law to foreign coun~es. Unlike the laws applicable in many states, the existence of a binding international treaty is not a prerequisite to extradition from Australia. Australian law is very flexible since it allows the Exgrad#ion Act 1988 to be applied to another state on the basis of reciprocity. The Extradition Act 1988 may be modified in its application to a particular country by regulations giving effect to a bilateral extradition treaty or by regulations which specify limitations, conditions, e~xceptions and qualifications not arising out of a bilateral extradition treaty. Since the establishment of a Task Force in 1985, Australia has taken a leading role in modernising and expanding its extradition arrangements° The strategy has been to conclude modern extradition treaties or arrangements with as many appropriate countries as possibleo Indeed, between 1985 and 1993 Australia negotiated more new extradition treaties and arrangemen~ than any other country in the world. Today, Australia has bilateral extradition treaties and arrangements with 29 counmes, inherited treaties with 22 counmes, and extradition arrangement with 65 jurisdictions of the 33 Commonwealth of NaUons. Given that there are approximately 170 28 29 30 31 32 33 140 @&er e×amples of flexibility are s 15 of the Ex~ad#ion Acg 1989 (UK) which permits the raakhag of ’special extradition arrangements’ so that the Act raay be applied ad hoc and ad ka:~min~m ha a particular case by certificate of the Secretary of State, and s 3 of the Exgrad#ion Act 1992(Mahysia) where the Mipister of Home Affairs raay by special direction apply the Aa to a country which has requested extradition ha relation to the extradition of a particular fugitive c~&r&naL Exfradifioa Act 1988 s11(i). The Task Force, consisting of r~resentafives frora the Federal AttorneyoGenera1’s Depamnenq Deparunent of Foreign Affairs and Trade and the Office of the AttorneyGeneral, has developed a raodel Extradition Treaty whicln played a critical role ha the negotiations. Argentina, Austria, Belgium, Brazil, Denmark, Ecuador, Firfland, France, Federal Republic of Germany, Fiji0 France, Greece, Iceland, L~eland, Israel, Italy0 Japan, Korea, [a~erabourg, Marshall Islands, Mexico, Monaco, Netherlands,. Norway, Philippines, Portugal, South Mrica, Spain, Sweden, Switzerland, United States of America. Albania, Bolivia, Cbkle, Colombia, Cuba, Czechoslovakia0 El Salvador, Guatemaia, Haiti, Hungary, Iraq0 Liberia, Nicaragua, Panaraa0 Paraguay, Peru, Poland, Rumania, San Marino, Thailand, Uruguay, Yugoslavia. Angui~a0 Antigua & Barbuda, Bahamas, Bangladesh, Barbados, Betize, Bermuda, Botswana, B~aish Antarctic Territory, British Lndian Ocean Territory, British ¥irgha Islands, Brunei, Canada, C~yman 1stands, Cook Islands, Cypraa, D~minica, Falkland Islands, Gambia, Ghana, GibrNtar, Grenada, Guyana, Hong Kong, India~ Jamaica, Kenya, Kifibati, Lesoto0 Malawi, Malaysia, Maldives, Matta, Mauritius, Montserrat, Narnibia, Name, Niger/, P~kistan, Papua New Guinea, Piw~im, Henderson, Ducie and Oeno htands, St Christopher and Ne~, St Helena, St Helena Dependencies, St Lucia, St Vincent and Grenadines, Seycheges, Sierra Leone, Shagapore, Solomon Islands, South Georgia and South Sandwich Islands, Sri Lank, a, Swaziland, Tanzania, Sovereign Base areas of P&roti~i and Dhekeha ha Cypraa, Tonga, Trinidad and Tobago, Turks & Caicos, Tuvalu0 Uganda, United Kingdom, Vanua~u0 Western Samoa, Zambia, Zimbabwe. 12 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 coun~es in the world, there are significant gaps in the exWadifion coverage. For example, in the Asia-Pacific rim, Australia has exWadifion arrangements with Singapore, Brunei, Malaysi_a and many Pacific countries, based on the London Scheme for Extradiraon and treaties w~th P~ppmes and South Korea. There is also an arrangement with Japan and a treat)’ with Indonesia which is signed but not yet in force. The countries of Indo-China, Taiwan and the Peoples Republic of China are the notable omissions. Is there an extradition offence? The next question is whether the crime of parental child abduction is an extradition offence within the scope of the relevant extradition treaty and/or the natiop~ extradition lawo In the case of Auswalia an extradition offence is defined in section 5 of the Extradition Act 1988 as an offence against the law of Australia and of the requesting country punishable by death or imprisonment or other deprivation of liberty for a period of not less than twelve months. This definition may be modified by a regulation applying the Extradigon Act 1988 to a particular country. For example, in the case of extradition to countries of the Commonwealth of Nations, an extradition offence is defined by reference to a period of not less than two years° Where under a bilateral treaty an extradition offence is determined by reference to a list of offences, eg ’kidnapping’, ’abduction’ or ’child stealing’, there is a question as to whether parental child abduction is covered by the treaty. TbJs is became parental child abduction is a special kind of offence that the contracting sta~, depending on their respective laws at the time, did not necessarily have in contemplation° As late as 1983 the firm policy of the Umted States Government was to reject automatically any international request for extradition for an alleged child custody offende.~" The legal justification for the international policy was that none of the United States treaties contemplated extradition for any criminal offence of a child custodial nature. However, by 1987 (following pressure by Congress and an internal review by the State Department and the Depa,-~ment of Justice) the United States took a different view as to the scope of its treaties. It began accepting exWadifion requests in child custodial cases and making extradition requests of countries such as the United Kingdom and Australia especially where custodial offences related to the children of United States citizens° 34 35 T,~e London Scheme on Extradition is a set of guidelines which form the basis of domestic legislation in Commonwealth countries to regulate extradition to Comraonweal~h countries. The London Scheme is not binding but relies on mutual trust and g~dwill between Cegnmonwealth countries for implementation. The major drawback to the Scheme is that some countries have not applied theL" exh-~dition laws to Australia thereby creztkng a ~ti~! have~o Australia ha~ ~L~r~y a~cd the Extradition Ac~ 1988 to ~1 Cc~anonweglth ec~mwies withc~t requiring any reci~ry. e~orc~eat agencies should not beer,no involved in any child custc~dizl case. ~4~ 13 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 There is nevertheless still room for argument as to the scope of treaties which rely on the list approach to defining extraditable offences. But in cases where the bilateral treaty contains an open-ended clause,~ parental child-abduction can frequently be regarded as e×traditable on that basis. Moreover, in the more modern bilateral extradition treaties to which Auswalia is a party, an extradition offence is defined not by reference to a list of offences but to include any offence which is punishable for a minimum period of time, usually one year. the do~ble criminality principle satisfied? A formidable obstacle to extradition is the double criminality principle which provides that an act is not extraditable unless it constitutes a crime under the laws of both the state requesting extradition and the state from which extradition is sought. The principle ensures that a person’s liberty is not restricted where his/her conduct is not recognised as criminal in the sta~ receiving an extradition requesL That is, it woald seem contrary to fairness and justice, for instance, to detain a person in Australia for conduct that would be legal ff it had occurred in Australia.~’ In most states, unless the double criminality principle is satisfied, extradition is not permitted. Both national laws and treaties must be carefully scrutinised. Under section 19(2)(c) of the Extradition Act 1988 the magistrate is required to be satisfied that the conduct constituting the offence in relation to the extradition country or ’equivalent conduct’ would have constituted an extradition offence in relation to the relevant part of Aus~a. The first task is to determine what local or corresponding offence in the requested country the fugitive would have committed if he/she had committed the crkne there. It is not necessary, under the law of Australia, that the corresponding offence be described by the same name as the alleged offence. For example, a parent may be charged with child abduction in California, but the corresponding offence in Australia might be custodial interference. The selection of the local offence(s) will depend on the facts of the case and what exactly is alleged. The prosecution in Australia may select any number of corresponding federal offence(s) or any state offence{s) where the extradition proceedings are conducted. 36 37 38 142 For exampte, ardcle I11.2 of the Treaty between A~stralia and tk~ State of Israel Concerning Extradition 1975 provides ~hat ’E~tradition shall also be granted for any other ac~ or owdssion c~stituting ~r~ offence ff the offence i~, according to the laws of bc~h Cz~traclLug Parties, ene for which extradiden can be graraed’o Shearer ~ Extradition in International Law Manchester UpAversity Press, (1971) at 13%8. Section 10(3) (b) of the Extradition Act 1988; Ritey v Commonwealth (1985) 62 ALR 497; 159 C%aR 1 at 1%18, per Deane L The law i~ similar in Canadz ( See L~ Fore, t, Forest’s Extradition to and From Canada Canada Law Book, (199!) and the authorities cited at 70-1) and in England (see Re Bellencomre [1891] 2 QB 122; Re Nielsen [19841 AC 606). 14 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 It is also not necessary that the crime concerned be conceptually similar in both countries. Under Australian extr~tion law"~ the legal ingredients of the alleged offence in the requesting country and the corresponding offence in the requested country need not be identical. However, while not all the ingredients of the offence charged in the requesting State need exist before there is a local offence, ff the local offence requires more ingredients that those alleged, there is no extradition offence. The application of the double criminality pN,~ciple may require a uanslation or substitution of certain factors, such as locality, institutions, officials and procedures. This entails complex legal questions particularly where the alleged c6~rninal conduct is committed in relation to an institution, ~ch as a Family Court, which is established under a law having a purely parochial charactero~ For example, if Australia sought the extradition of a parent for an offence under section 70A(1) of the Family Law Ac¢ 1988 should, and m what extent should, the court of the requested country in applying the double crimi~ality principle transplant ~ local institution of the requesting conntry (ie the Family Court) and the law affec~ng custody, ~ip or access? Does it make any difference that there is no specialist court devoted m family law in the requested country? If religions courts have exclusive jurisdiction in family law matters in a state, are such coarts °equivalent ir~stitutions’ for t~ purpose of applying the double crh’ninality principle? Is it relevant that a court of the requested country would never have reached the same decision on custody as the court of the requesting country? What is the position if the courts of both the requested and reques~-~g countries have given contradictory custody orders? If a Malaysian Is~mic court has given custody to the fair and subsequently the AusU~ian Family Court gives custody to the mother, wN a l~laysian court consider the double criminality prZ~iple satisfied where the offence is N~sed on abducting a cNld conuapy to the Australian custody order? The answers to these quesdons are by no means sUaighfforward either under Australian law or foreign laWo That double criminality has been an obstacle is illustrated by an Australian decision° In 1984 a request by the United States for the extradition of a ~arent from Australia in a child custodial matter was rejected by a magistrate in Brisbane on the ground that the offence for which the fugitive was charged was not an extradition crime within the meaning of section 4(1A) of the now repealed Exgradi~ion (Foreign S~ates )Act 1966o~ 39 4O 41 42 Linhar¢ ~ F_Jms (1988) 81 ALR 557 at 573. The position is ~ ~ C~a~ ~d ~g~d, s~ a~ve n 38~ See ibid at 571; ~e~l~r ~ F~dera~ R~p~blic ofG~rm~ny (19~) 91 A~ 341; Re A~rs~ (1861) 11 UCC~ ~ R A Hic~ v Da~M ~rd Bfis~e) 4 ~m~r 198& S~fi~ ~) of ~ ~r~ion (F~ign S~¢es) Ac¢ 1~ pin.des ~at ~ off~ fo~ ~sfim~ ~ ~en~ ~st ~e law ~ f~ ~ U~t ~ of A~U~. 15 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (’1993) 5 BOND L P, In this case the father had been charged with custodial interference in the first degree in violation of section 11.41.320 of the Alaskan statute. The Alaskan offence required that the offender be a relative of the child, who with knowledge that he had no legal right to do so, took, enticed, or kept the child from his/her legal custodian. The magistrate said that it was his duty to determine whether the Alaskan offence of custodial interference would be ’subs~ntially similar° to the Queensland offence of child s~ealing. Section 363 of the Queensland Criminal Code provides as follows: CEild StealLng: Any person who with Ln~ent to deprive ,my parent, guardian or od~er person who has lawfully care or charge of a child under the age of fourteen years or the possession of s~ach cNld o.. (1) forcibly or fraudulently

  • ~es or entices away or detains the child or (2) receives or harbours the clfild

knowing it to Nave been taken ~r enticed away or detained is guilty ef a crime and is Liable for iml:rris~n’anent with hard labour for seven years. It is a defence to a charge of cl~d gealing that ~ ace-used person claimed in go<~d faith a right to ~e possession of the childo The magistrate held that both offences can not be regarded as ’substantially similar’’~ in that an essential element of the Alaskan offence was that the victim be removed from the state and that this was not an element of the Queenslmnd offence. He also said that a fur’&er difference was that the Queensland law required the use of force or fraud and that this formed no part of the Alaskan charge. The ratio of the decision appears to be that the Queensland offence can not be committed by a parent. The relevant Queensland offence spe~ks of removing a child from the lawful care and custody of a parent and the magisirate concluded that such an offence could not be committed by a parent. Alt,~ugh this view may now be open to question, at the time it was expressed, there was no direct anthority to the contr ~. o Moreover, the test in determining dual criminality is not the same 44 today and the eqmvalent Alaskan offence is now section 70 A of the Family Law Act 1975. Wh~ documents are required in extradition cases? In an extradition proceeding there is generally no requirement that a requesting country sends its wimesses to the foreign country. Indeed, it is virtually u,~mown for witnesses to participate in extradition cases, except for very limited purposes, such as ~e giving of expert evidence. That is, extradition cases are largely based on the production of authenticated 43 44 t44 16 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 documents suppfied by the requesting country. Under the Extradition Ac~ 1988 there is no requirement that foreign countries produce prima facie evidence in an extradition hearing. However, in a case to which the provisi(ms of ~ection 11 of ~e g~r~it~n Ac~ apply, a regulation wMch ~mplements an extradition treaty or ~angement may m~y ~e Act by ~uMng ~e p~cfion of e~dence. A request for extradition by Australia is accompanied by such documents as are necessary to support the case for stu~rendero The requirements are those laid down in the treaties relating to that country or the extradition legislation of the foreign country. In the case of extradition to AusWalia from Commonwealth countries such as Canada or the United Kingdom, it is necessary to preduce prima facie evidence of the crime, For this puq~ose, the Attorney-General will authorise a magistrate to take evidence in AustrNia for the use in the foreign extradition proceeding." In contrast, Australia’s modern exwadition treaties with most European countries, such as Germany and Italy, do not generally require prima facie evidence, removal of the p6maa facie case requirement in reslx~t of particular countries has reduced the cost and eased the burden for prosecutorial authodtes in extradition cases Limits on extradition Political offences exception By far the most important exception in extradition law is the ’political offences exception’. It is a general vale in all states that extradition of a person is barred if the request for extradition is for an offence is of a political cb~aractero’7 Political offences include not only crimes such as ~n and sedition but also crimes committed in a political context or for a political purpose. Although the precise meaning of political offences is not clear, there is one highly persuasive authority which would suggest that parental child abduction can not amount to a political offence. Over 30 years ago in the celebrated Sch~raks "~ extradition case the British House of Lords held that the abduction by an uncle of his nephew for the purpose of bring2~g him up in the Orthodox Jewish faith was not a political offence. In that case Israel had sought the extradition of Schtraks who bad refused to comply with a court decision ordering the rettu~ of the child to its parents. Schtraks refused to return the child because he felt that the parents would not bring up the child in a strict Orthodox education. The case provoked a heated and 45 46 47 48 Exgradi~ion Ace 1988 s 19. 1bid g 45° See Wijngae~ Th~ Pdigical Offence Excep¢ion go Excradi¢ion K~uwer (!980). See also Extradition Acg 1988 s 5, ~ 7(a) and (b)o ScMraks v Governmem oflsrae~ [1964] AC 556. This case has been followed in A~stralia: See Re Wibon, ¢x parge Witness T (1976) 135 CLR 179 and Preva¢o v Governor Mecropdican Remar.~ Cemre (1986) 8 FCR 357; 64 ALR 37. 17 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 public controversy between liberal and orthodox Jews in Israel and was even the subject of a debate in the Israeli Knesset (Parliament). The Hou~ of Lords took the view that the fugitive was involved in a family quarrel and that he had simply acted out of personal conviction and not as a member of a political party. The fact that the fugitive’s conduct had become a matter of political controversy in Israel did not render the conduct an offence of a political character. Under the constitution and the laws of many states with civil law systems there are mandatory ~ discretionary grounds for refusing exwadition on the basis of the nationality of the fugitive. Indeed, most civil law countries refuse to extradite their nationals, although usually they are prepared to prosecute t.he fugitive instead. Prosecution is only possible if adequate evidence is provided by the requesting country. In conwast, common law countries do not generally refuse extracfiUon on the basis of natior, ality of t.he fugitive. Australia’s extradition tre~es reflect the varying practices. For example, the treaty with Monaco absolutely excludes the surrender by Monaco of its nationals, wNle Australia merely ha~ a discretion to decline to surrender Austrafian nationals. One of the most endtt6.ng and h~pcz~qt safeguards h~ extr",~fition law ~ong coun~es of ~e Co~onw~ of N~ons is ~e hum~i~an principle. ~e ~ndon Sch~e for ex~fion p~vid~ ~m the ex~ufive have a ~fion ~ re~ ex~fion L~ ~y c~ wbe~ it would M ~just, opp~sive or ~ ~v~ a pun~hment. In ~ ~ of ~me of ~fies w~ non~ommonw~ co~es there ~s a ~screfion~" b~ ex~ad~fion where ~e r~uest~ state cons~der~ ~at ~t would be unjust, oppressive or incompatible wi~ humani~fian considerations to grant ex~fion. In exercising ~ ~fion ~e Attomey-Gene~ is gene~ly r~u~ ~ consider ~e ~t~ of the offend, the ~res~ of ~e state ~d the ~~ c~cums~c~ of the fugitive, ~cul~ly his age ~qd heM~. 0~ ~fi~, such ~ tho~ wi~ I~y, Po~g~ ~d Swi~rl~d, pro~de ~t a ~ues~ sm~ ~y ~ommend ~ the r~u~fing r~uest f~ ex~fion M wi~~ wbe~ it ~nside~, ~g ~ a~ount ~e age, h~th or o~er ~~ c~mms~s of ~e ~rson ~ught, ex~fion shoed not ~ 49 5O There is much jurisp~adence on the meaning of this provision. Although Cf s45 of the Ex~radiHon Ace 1988 which provideg a mechanism for Australia to pr~te nadonal~ for e~tr~territofial efi_rnes L’~ eircmmstance~ where Australia ~des m ~ to e~e ~r ~fi~ m ~L~es wN~ ~ n~ or ~ ~ exilic ~e~ ~e ~¢ wa~ ~ ~ 1983 ~ r~ove ~he ~ for ~e~ m ~ ~ addi~ m 18 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 in the case of e×tradition from Ausiralia to foreign coun~es (except New Zealand),~’ the com’~ now have no function ~ considering ~s safeguard - that is it is a matter solely for the Attorney-General - nevertheless, previous court decisions provide some guidance on the possible apph’cafion of this safeguard. The circumstances which may be considered to justify a finding that it would be unjust or.oppressive to surrender an acc~ include: (a) the deterioration of the person’s health; (b) the advanced age of a person; (c) the disruption of business and family life, especially in so far as dimapdon affects the possibility of rehabilita6on; (d) the degree of rehabih~ion of the person since the Nleged offence by the establishment of social b~siness and famihal ties; (e) the nature and circumstances of the offence; (f) any inexplicable delay in the commencement or conduct of the extradition proceedings, which is not a~tributable to the acc~ed; evidence of any i11ness or absence of a witness material to the defence wbJch mafairly imperLls the fugitive’s ability m conduct a defence; ~) where evidence has been destroyed or is otherwise unavailable to the accused because of the passage of time; (i) where a charge is misconceived or lackh-g in foandation, or could not possibly be right as a matter of facl; and the nature and incidents of the jusdce system to which the fugitive is to be returned and to the circumstances or mode of ~reatment pending The humanitarian safeguard was relied on by the then Australian Attorney-General, Senator Gareth Evans, in 1984 as a basis for decided against extraditing a parent to Canada to face a criminal charge of child abductmno At the time of the Nleged offence, the fugitive had separ~ded from his wife in Canada who had been granted interim custody of their only chil& The fugitive, who was an Australian citizen, allegedly abducted his two year old child during an access visit and returned to Australia on a forged passport. The case became a ’cause celebre’ with intense political 51 52 53 See Extradition Act 1988 s 34(2). See the Law Reform CommAssion, Service a~d Execution of Process, (1987) Report No 40, AGPS a~ 170. Press Release by t~he Attorney-General, Garry Maxwell Cant - Decision Not to Extradite to Canada, (17 Sepmmber, 1984). ~47 19 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 BOND L F~ pressure emanagng from the political authorities ~ ~o ~d a news~ c~p~gn in ~th C~a~ ~d A~~ for ~d aghast ex~fion. ~e fugitive was provisionally ~rested in Australia for the purpose of ex~fion, nNe monks g~r ~e Nleg~ aMucfion. ~e magis~ held ~t ~e fugitive w~ ~le m s~end~, but ~e Atmmey-Ge~ ref~ m s~ender him m ~. ~ Atmmey-G~e~ ~nsid~ N~ d~i~ ~e seriousness of the offence Nere were exceptional circums~nces in the i~ ~, in p~cul~ there w~ a ~ib~ity ~t ~e N~five might fa~ a subs~ ~n~nce in C~, which w~ ~r ~ Ne ~n~e he might face ff he hN commit~ ~e offen~ in Aus~.~ ~ Atmmey-Ge~ had log hN cNN (w~ ~d ~n ~ov~ by the mo~er N pr~~gs in the Australian Family Coup), incu~ed substantial legal costs of over $50,~ N ~e Aus~ cushy prongs, ~d h~ ~nt two w~ in p~on in the ~ of ~e ex~fion ma~. h r~fing h~ d~igon Ne Atmmey-Ge~ sNd ~at he ~d not ~en Nm ~unt ~ny comp~i~a~ ~gumea~ sin~ ~ were no more ~lev~t m ~ ex~fion r~st ~ ~y ~mi~ ma~ where a cus~ ~n~nce is a ~ssibig~. Cogtaterag Purpose The requested state may deny extradition if the request of a fugitive is sought not for the triN or execution of a conviction but for a collateral purpose. The puq?ose of an extradition request should not be to achieve the return of a child, although that might be the incidentN practical consequence of the arrest of the abducting parent° It is the executive authorities, rather than the courts, that may deny extradition on this gronnd_~, for cou~s d~ not generally question the bova tides of an extradition request. In some of the early extradition requests involving custodial matters, the United States Government sought assurances from the requesting country that extradition of the parent was being sought exclusively for the purpose of prosecution. The United States Government was concerned that extradition proceedings shotfld not be used as a lever to achieve custocly of the child itselfo This was in accordance with the traditional view that custody is essentially a matter of private law. The author understands that no country was prepared to accede to the UniwA States Government’s request. Indeed, it is interesting to observe that many exu~dition cases for parentN child abduction are initiated but not pursued, once the °defaulting’ parent has given up or been forced to return 54 55 56 t48 20 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 child to the custodial parent. This indicates that extradition may very wetl be a lever to obtain the remm of the child. The Hague Convention and e×tradition The Hague Convention on Civil Aspects of International Child Abduction, which came into force in Australia on 1 January 1987~ has been ratified~ by and acceded~ to by less that twenty per cent of the countries of the world. The Convention, despite its international character, has not been ratified by significant groups of countries, including any Islamic state and any Asian country. Under the Hag~ Convention courts of contracting states are requL-ed to return a child to its place of habitual residence if it was removed or retained in breach of the rights of custody of a party requesting the child’s return. There are limited defences under the Convention, such as the return may cause serious harm to the child, that a mature child objects to the retmn~ or that the child has become sevJed in its new environment. The Conv~ention is silent on the question of extradition. However, the policy underlying the Convention may be considered. The ’family’ policy approach of the Convention is that there should be a conciliatory approach to custody matters (’to secure the voluntary return of the child or to bring about an amicable resolution of the issues’) and that the interests of the child should be paramount. Implicit in this poLicy is the notion that custody should be safeguarded without resort to the criminal process. That policy may be given some weight in the context of the Convention but not such weight as to preclude extraditing a person for child abduction° The policy arguments pan both ways. Where the proper custody of the child has been secured in circumstances where great distress has been caused to the child and both parties to the marriage, it is arguable that it is undesirable to prolong the ma~er through the criminal process. On the other hand, it has been argued that the crimL,~al law provides the most rational and sensible response to the sudden u~heaval of one person from the Life he/she has been living by ~other person. 57 58 59 60 61 See s 111B of the Family Law Act 1975 and ~he Family Law (Child Abd~cgion Con~afion) R~g~g~ 1986. ~e fo~o~mg ~ ~es have ~ ~e ~v~: Arg~; Canada; Denmark; France; Ge~any; Greece, Ireland; Israel; Luxembourg; Ne~hefl~&; Noway; PodgY; S~; Sw~; S~fl~d; U~J~ ~gd~; Urd~ S~ of ~e6~; ~nd ~e fo~o~g 10 ~t6es have a~ m ~e ~ven~: ~; Bu~a Faso; ~ua~g H~g~’; Me~; ~uffi~; M~am; New ~nd; P~nd; ~d R~. A~ssion Ns~d of radiation ig made by ~Mes ~at are not m~ of uhe ~ig s~tem~t must ~ quailed N ~e case of Israel where Istamic c~as have ~a6sdicfi~ ov~ Mus~s Ln f~Ny t49 21 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993 (’~993) 5 BOND L F~ The existence of criminal punishments together with civil remedies complicate the enforcement process and custody and access rights of the ’absconding parent.’ If the child is returned to his/q~er place of habitual residence pursuant to the Hague Convention, the abductor who wishes to return to that place to visit the child may face serious criminal penalties. That is even if no attempt is made to extradite the abductor, the criminal consequences of his/her wrongful conduct remain. Safegt~arding the Rights If a parent who is for all practical pur~ses in charge of the welfare of a child is arrested on an extradition warrant for child abduction and remanded in custody, the question arises as to how can the fights of a child be pro~:~cted. The child’s immigration status and living arrangements must be dealt with. It is not desirable that a young child be detained in custedy or at a detention centre where be/she is an illegal immigxanto It is also not desirable to leave a child with the spouse/de facto of the fugitive, on the basis t.hat heisbe may attempt to remove the child from jurisdiction° In these circumstances, the practice m countries such as Australia and the United States is for the federal authorities (who are responsible for international extradition) to coordinate with state or local child welfare agencies who will assume temporary custody of an unprotected child where no other appropriate family member was able to do r~o In sere cases the extradition warrant is issued but not executed until the arrival of the legal custodian in the requested state. There is no doubt that t.he most effective method of securing the return of an abducted child is to use the machinery of international coo operation, such as the Hague Convengon on Civil Aspects of Child Abduction. It is important that as many cotmtries as possible sign and implement that Convention. (~) Extradition for parental child abduction can raise difficult and sensitive matters of policy and international relations° What is required is a measured political response and due attention to the punic interest in the enforcement of criminal law. The problem is especially acute where the requested state has very different social, cultural and religious views on children’s custody to the requesting state. It must be reaLised that prosecution and extradition of a parent f~r the abduction of his/her child is a blunt instrument to compel the return of the child. However, in cases where the fugitive is located in a state which is not a party to the Hague Convention, extradition 62 Cf Under the Australiaa St~te-Comm~weMth arrangements made ~arguant m ~e Hag~ Convention of the Civil Aspects of Inter~¢io~ Child, Abd~¢ion ~e ~s~sibte for~ r~v~ ~d ~ g ~e 150 22 Bond Law Review, Vol. 5 [1993], Iss. 2, Art. 1 http://epublications.bond.edu.au/blr/vol5/iss2/1 (~i) (iv) (v) (vi) The coverage of extradition treaties and arrangements should be broadened. There are many counties, including Aus~alia, which have inadequate or non-existent treaty relationships with coun~es or satellites of the former Soviet Union and key Asian countries. Unless there is a concerted effor~ m reduce the number of extradition havens, international law will be undermined. Extradition is slow, cumbersome and often handicapped by bureaucratic and over legalistic hurdles. It can take many months not years to mount an extradition ca~. It can take even longer successfully ex~r~d~ite a fugitive from a foreign country. States shoNd update and simplify their extradition haws and be more vigorous and imaginative in utihsing the extradition process. Certain obstacles m extradition may be countered by strengthening national criminal laws. For example, ff more states created specific offences of internafior~al child abduction akin to those under the law of Australia or the United Kingdom, the obstacle of double criminality might °~e reduced. National governments should give a higher priority ~ combating international paren~l child abduction. There is a strong tendency for both police agencies and prosecutors to treat parent~l child abduction as a garely private matter. Despite changes in laws, there is still a residual reluctance of prosecutors to charge parents with child abduction and an even greater disinterest in pursuing extradition requests for international child abduction° International child abduction is, however, now a ma~ter of international concern which can no longer be ignored. 15t 23 Chaikin: International Extradition and Parental Child Abduction Produced by The Berkeley Electronic Press, 1993