With a greater number of expatriates in Singapore these days, cross-border marriages are now more common. However, this also leads to a greater number of cross-border divorces when marriages go sour.
Cross-border divorces have more complex elements. For example:
- Who should have custody of the child?
- Which country should the child be staying in?
One parent may also be tempted to abduct the child back to his/her own country. International child abduction refers to the act of one parent taking the child out of the country without the consent of the other parent. In such cases, the other parent is likely to take legal action to bring the child back.
If you face a similar situation, you may be confronted with some challenging questions. Which jurisdiction gets to decide on the issue of child custody? Under what circumstances would a court order a child to be returned to the other parent? This article seeks to address some of these questions.
The Treaty for International Child Abduction in Divorce
In most cases of international child abduction, the Hague Convention on the Civil Aspects of International Child Abduction, also known as the Hague Convention, can be invoked.
The Hague Convention is an international treaty which seeks to protect children from the harmful effects of international abduction. It provides a legal avenue for a parent to seek the prompt return of his/her child, or alternatively, to make arrangements for securing the effective exercise of rights of access to the child. The Hague Convention governs the determination of the appropriate court which would make custody orders relating to the child.
However, the Hague Convention applies only in signatory nations where it has been adopted. Hence, the potential remedies under the Hague Convention are accessible only where the child has been wrongfully removed from one signatory country, and brought to another signatory country.
Some of the signatory countries include:
- Singapore
- The United States of America
- Australia
- Germany
- The United Kingdom
- Japan
- South Korea
International Child Abduction under the Hague Convention: In Which Country is the Child a “Habitual Resident”?
If the countries in question are both signatory countries, the complaining parent must bring a court action to invoke the Hague Convention either in the country which the child had been living in, or the country to which the child had been taken to. This must be done within one year of the child’s removal from the country.
It must then be proved that the child was a “habitual resident” in the country prior to his/her “wrongful removal” to another signatory nation. Generally speaking, the retention of the child by one parent without the consent of the other would constitute “wrongful removal”.
As for the term ‘”habitual resident”, its definition is not given in the Hague Convention, and hence is often the most contested issue in such cases.
The habitual residence of a child is often held in prior cases to be synonymous with the ordinary residence of the child. A child’s citizenship is not determinative of his/her habitual residence. Some factors used by courts to determine if the country in question is the child’s habitual residence include:
- The shared intentions of both parents
- The background of the child’s residences prior to the removal (i.e. location of the child’s school, home, caregivers)
- The extent of the settled nature of the family prior to the removal
The entire legal proceedings for international child abduction cases can be complex, depending on the particular circumstances of the case. Hence if you face with such an issue, it is best to seek legal advice from a divorce lawyer, especially those with experience in international divorce. At SingaporeLegalAdvice.com, we have a list of experienced divorce lawyers whom you can approach.
What Happens after the Hague Convention is Invoked?
Under the Hague Convention, signatory countries, their courts and administrative bodies should act quickly in all proceedings to ensure the return of the child to the country in which he/she is habitually resident. It is likely that a lawyer has to be engaged in the country of the child’s habitual residence to enforce the order for the child to be returned.
Even after judgment is passed by the court where the Hague Convention was invoked regarding the child’s habitual residence, this does not resolve custody and access issues. The Hague Convention merely determines which Court should make the custody orders.
Hence, following the ruling on the child’s country of habitual residence, both parties have to file for custody orders in that country. Even if you have lost the case for the return of your child under the Hague Convention, you may still stand a good chance of obtaining favourable custody orders. In fact, judges would likely take into account the act of abduction by a parent in making custody decisions in favour of the other party.
You can read our other article for more information on child custody in Singapore.
Defences to the Hague Convention
If you have a case filed against you for international child abduction, there are some defences you could rely on against the claim of wrongful removal, if applicable. Some of these include:
- That more than one year has passed since the removal of the child (Article 12)
- That the complaining parent had consented or subsequently acquiesced in the removal/retention of the child (Article 13)
- That there is a grave risk that the child’s return would expose him/her to physical or psychological harm, or otherwise place the child in an intolerable situation (Article 13)
- That the child is old enough and of sufficient degree of maturity to object to being returned to the country of the complaining party, and it would be appropriate for the court to respect the child’s wishes (Article 13)
- That the child’s return would subject him/her to violations of human rights and fundamental freedoms (Article 20)
The information provided above does not constitute legal advice. You should obtain specific legal advice from a lawyer before taking any legal action. Although we try our best to ensure the accuracy of the information on this website, you rely on it at your own risk.
