Henry Brookman discusses the issues surrounding the rising number of international child abduction cases. Published in Solicitors Journal.
The issue of child abduction was again under the spotlight when six-year-old Nadia Fawzi was recently returned to her mother after being abducted by her father and taken to Libya in 2007. There has been a steady increase in similar cases over recent years – a likely reflection of the greater number of trans-national marriages and for the EU in particular, the freedom to work and move across the continent. But in these distressing situations, what rights does a parent have?
The Hague Convention
The underlying principle of the Hague Convention is that the courts of the country where the child was last habitually resident should decide on any custody issues. If a mother takes her child from England to Australia (Australia being a convention country) then court proceedings will be brought to require the mother to explain why she should not automatically return to England.
There are few arguments against a Hague Convention claim other than, for instance, the defending parent being able to demonstrate that their spouse consented to the child leaving the country. It is also the parent that was ‘left behind’ that has the financial advantage because they have automatic legal aid. The defending parent will need to cover their legal fees privately.
Limitations of The Hague Convention
A large number of countries entered into the Hague Convention to agree a consistent procedure for dealing with international abduction. However, much of the Islamic world and many of the countries in Asia and Africa do not accept the Convention’s principles, often due to cultural and religious reasons. Therefore, if a child is abducted into one of the non-convention countries, the parent must rely upon the legislation of the country in which the child is held.
If, for instance, the mother takes her child to the Middle East, leaving the father in England, the father will need to apply for custody in the country where the mother and child reside. If the child is below a certain age, many Middle Eastern countries prefer the child to stay with the mother. This would make a custody application very difficult for the father. This situation is made more complex for the father if he does not speak the language of the foreign country and is having to communicate with his lawyers from a distance.
There has also been some concern that the Hague Convention is being used to prevent a parent – often the mother – from leaving an unhappy marriage and returning to their home country with their child. The compromise for gaining consent to take their child abroad can then often be to forfeit any monetary claim.
If international abduction is potentially an issue for you, you should contact Brookman Solicitors for more advice.