Has Your Spouse Taken Your Child Overseas Without Your Permission?
In short, a Hague Convention Application is an application that may be made when a child is taken and/or retained across an international border, away from his or her habitual place of residence, and without the consent of one parent who has rights of custody under the law of the habitual place of residence (i.e. Singapore). The two countries must be parties to the Hague Convention before such an application under the said convention is made. In succeeding in a Hague Convention Application, the child must be immediately returned to the habitual residence, unless such return of the child shall inflict a grave risk of harm to the child, or there are other limited exceptions established.
It is pertinent that a lawyer who is experienced and has a good knowledge of international family or divorce laws is engaged, so as to understand the issues within your matter and the laws of the countries in question. The lawyer also has to be able to act promptly as the Hague Convention Application has to be filed on extremely short notice.
Typically, it is recommended for such Hague Convention Applications to be completely concluded within six weeks. In theory, a Hague Convention case can occur for more than a year. However, this long timeframe may give rise to the argument that a child may have settled into the new environment at the new place of residence. In practice, this means that a court shall be less willing to return a child to his or her habitual place of residence, if a child spends a long time and is adjusted to the new place.
This means that time is of the essence, and the applicant ought to be speedy in obtaining relevant documents and evidence to file an initial application for the Hague Convention Application. It is also crucial for the parent left-behind to act urgently so as to prevent any claim from the other parent that the parent left-behind has accepted the child’s relocation to the new country or place of residence, and that the parent left-behind has consented to the relocation or taking of the child in the first place.
It shall be helpful to your case if you can prepare and assist your lawyer in ascertaining the evidence and a detailed family history, to better prepare for your case and the application. For lawyers, steps considered would be whether to inform the abducting parent by way of immediate written and formal notice of the civil, criminal and financial liabilities that the abducting parent shall be exposed to (and the possible inclusion of anyone conspiring with the said parent). At the same time, the lawyer may wish to put the abducting parent on extremely short notice to return the child. However, the lawyer should consider whether it would be counter-productive and put the abducting parent on alert if there is a suspicion that the said parent may put the child in hiding.
As the nature of Hague Convention Applications are extremely reliant on facts – it is crucial for the applicant party to provide as many details and evidence as possible to support the applicant’s position. Further, the court shall scrunitise factors such as:
- Whether a parent had consented to the child’s new residency in the new country;
- Whether such consent was conditional;
- Whether the child has adjusted to the new residence;
- The custody rights of the parent left-behind under foreign laws;
- The extent custody rights were exercised by a parent;
- Whether the child was abused in any way, physically or psychologically;
- Whether the abducting parent had been abused in any way and that it impacts the child in question;
- Whether the child and the abducting parent were provided with sufficient protection by the authorities of the foreign country at any point of time;
- The age and maturity of the child in question; and
- Whether the child objects to being returned to the habitual residence and if so, why.
As such, it is pertinent for the parent left-behind to work closely with a lawyer and provide as many details and evidence as possible (regardless of the form), to support his or her position. Often, applicants face situations whereby their cases, although thought to be indisputable, turned out to be otherwise and requires them to produce more convincing and clear evidence. It should be noted that as such cases often consists of verbal accusations against each parent, the court may not be convinced by just the verbal accounts of the parents.
Further, as it is typical for Hague cases to be heard quickly, this means that there are little chances to present the case. The one chance available to present the case ought to be optimised and executed well in order to further the applicant parent’s position, whilst expecting the abducting parent to distort facts or lie as a desperate attempt to avoid losing the case and having to return the child.
At B Rao & K S Rajah we have lawyers who are experienced in handling matters in relation to Hague cases in Singapore. Contact us at +65 6226 0439 or email us at email@example.com so that we can schedule a free consultation for you in order to advise you on your matter.
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