VJ has abducted baby Luc to frustrate his birth father Mick obtaining any visiting rights – what if it were real?
Baby Luc was conceived when his mother Billie was raped by Mick. Billie then married VJ, but very sadly Billie passed away of cancer.
After Billie’s death VJ took on parenthood as a single father – he found this challenging and so Ash, baby Luc’s biological uncle, took over caring for Luc with his partner Kat.
Kat was not ready to become a mother and wished to focus on her career. She and Ash eventually broke up. Meanwhile, baby Luc’s biological father Mick returned, seeking custody of his son Luc.
VJ decided, to protect his step-son from his biological father’s attempts to get custody, he would leave the Bay with Baby Luc.
Is VJ allowed to remove baby Luc?
We do not know whether either VJ or Mick have Parental Responsibility for baby Luc under Australian domestic law. It is therefore not clear in this case whether VJ could remove baby Luc from Australia.
In a case where more than one individual has Parental Responsibility for a child, for example a mother and a father, it would be an unlawful removal for either parent to remove the child from Australia without the consent of the other parent under the 1980 Hague Convention on Child Abduction. In such circumstances, if, for example, the mother moved with the child to England, the father could instruct a solicitor in England to issue an application to the English court to obtain an Order for the child’s return to Australia – the ‘left behind’ father would not necessarily need to attend court in England for this sort of application. There are very limited defences available to the mother, but she should also see a solicitor to take advice on whether there is any defence that may apply, which could allow her to remain in England.
Can VJ adopt baby Luc, as his Step-Father?
If all the parties were in England, it would be open to VJ to make an application to adopt baby Luc.
To do so he would need to:-
- Give the Local Authority where he and Luc live 3 months’ Notice of his intention to adopt Luc.
- Demonstrate to the court that making an adoption order will be in Luc’s best interests throughout his life.
- Demonstrate to the court that it is in Luc’s interests for the court to dispense with his biological father’s consent*
It would likely be difficult for VJ to succeed in this scenario, as the aim of his application is to prevent Mick having contact with Luc. It may be, however, VJ could succeed in an adoption application when Luc is older, if Luc’s wish is for his step-father to adopt him.
Could Mick still see Luc/have access or contact if he were adopted?
No – the Adoption Order will extinguish the Parental Responsibility of all other holders of Parental Responsibility. Mick will therefore lose his PR. In England and Wales it is not possible to have an “open adoption.”
* Although if he does not have Parental Responsibility, Mick will not be an automatic respondent to the adoption application, it is likely the court will require him to be served with the application and deal with any objections he has, taking the view this is in Luc’s best interests.
For more information on the issues raised in this blog please do not hesitate to contact us.
