Article | Fabulous Women

When the Haque Convention Cannot Help!

Posted on 06/04/2017

There are countries which are not members of The Hague Convention, some parents face the difficult fight to have children returned. In 2010, Sean Felton made headlines across the world when he launched a daring and clever plot to rescue his three-year-old son, who had been taken to Thailand without his consent, by his ex-wife, a Thai national who he had met while on holiday.

Succeeding where the police, courts and foreign officers and Interpol failed, Mr. Felton tricked his ex-wife into revealing their son’s whereabouts by posing as a millionaire playboy on Facebook.  He travelled 6,000 miles and found the pair in a squalid village in the Chiang Rai province, close to the Burmese border.  His ex-wife gave their son back in exchange for £1,000, ownership of a parcel of land in Thailand that Sean had purchased for more than £6,000, a laptop and an agreement by the British Embassy she wouldn’t face prosecution in the UK country.

However,  he was informed by authorities that under Thai law, his ex-wife had not committed a crime and his son was only being returned to him because she had agreed to hand him over.

Mr. Felton has gone on to found ‘Abducted Angels’, a charity specifically designed to help other parents separated from their children.

 

Most people have heard of the Hague Convention on the Civil Aspects of International Child Abduction (The Hague Convention).  Parents who are left-behind in cases of child abduction, who are from countries that are signatories to The Hague Convention, can make an application seeking a return of the abducted child back to the child’s place of habitual residence.  If the abduction is from an EU country (except for Denmark), Brussels II bis also applies and prevails over The Hague Convention and provides that European child abduction cases must be decided within six weeks of the application being lodged.

The applicant must show that there has been a wrongful removal or retention of the child from the child’s country of habitual residence, in breach of their rights of custody.  Rights of custody are essentially rights under law for the applicant to veto a removal of the child from the child’s country of habitual residence. In this jurisdiction, parental responsibility amounts to rights of custody.

The Hague Convention only applies to children under the age of 16.

Currently, 96 states are signatories to the convention.  Pakistan signed up to the Convention late last year and will formally come under the jurisdiction of the treaty on 1st March 2017.

But what happens when a child is taken to a country that is not a signatory to The Hague Convention?  In these cases, it is up to the left-behind parent and their legal team to use every aspect of resourcefulness, international connections, and sheer street-smarts to get the child returned.

 

If your child has been taken to a state that has not ratified by The Hague Convention, your legal team will have to work with in-country laws to try and have your child returned.

 

Below is a brief example of some of the laws, which apply if a child has been taken to a non-signatory country.

China

Parental child abduction is not a criminal offence under Chinese law and there are no legal provisions in Chinese legislation specifically addressing parental child abduction.  Furthermore, China seldom recognises foreign-court orders.  The Chinese government exerts strict exit controls on its citizens and reportedly, dual-national children are barred from leaving China without the consent of both parents.  Therefore, if a parent reaches China with a child, they can refuse to give permission for the child to leave the country.  It is therefore imperative that UK courts should consider very carefully whether or not to allow a Chinese national parent to take their child to China without the other parent’s consent if there is a strong possibility the child will not be returned.

Iran

Since the 1979 Islamic Revolution, Sharia Law is the main legal jurisdiction in Iran.  Child abduction is considered the equivalent of kidnapping in Iran and is punishable by up to fifteen years’ imprisonment.

If a child is abducted to Iran in violation of a foreign custody order and that foreign order has been registered at the Iranian Consulate, the enforcement process and investigations can begin immediately.  Your legal team in the UK can file a petition to the Family Court or Public Court of the first instance through the Iranian Consulate.

Iran accepts foreign judgments as long as no alternative decision from an Iranian court exits and the judgment is in compliance with the public order of the country, its treaties, and bilateral agreements, and is final and valid.

India

Despite coming under intense pressure from the UK and US governments, India has declined to ratify The Hague Convention.  According to a press release on the matter by the Library of Congress, a WCD Ministry official stated that signing it would be to the disadvantage of Indian women in that there were far more cases of Indian women escaping bad marriages abroad and returning “to the safety of their homes” in India than non-Indian women who are married to Indian men leaving India with their children, and that the majority of such cases involved women fleeing, not men.

Although child abduction is a criminal offence in India, neither the British courts or the British High Commission in India can force the Indian government to return a child.  A foreign court order may be recognised but on an ad-hoc basis and will be dismissed if it conflicts with Indian law.

 

If you believe your partner may try and take your child to another country and not return them, it is crucial to seek legal advice before they leave the country.  For example, India does not recognise dual nationality; a child needs permission from both parents to get any passport, as well as an Indian visa (which are required by British Citizens before they can travel to India).  If you suspect your child may be abducted by their other parent, you may be able to obtain a Prohibited Steps Order to prevent your child from leaving the country and/or have the child’s passport surrendered.

Having a child retuned from a country that is not a signatory to The Hague Convention can be a long and difficult battle, but not an impossible one.  Seeking legal advice if and when you suspect an abduction may be on the mind of your former partner, could save you an enormous amount of money, stress, and heartache.

Saracens Solicitors is a multi-service law firm based in London’s West End.  We have dedicated and highly experienced family law solicitors who can advise and represent you if your child has been abducted or you suspect an abduction is imminent.  For more information, please call our office on 020 3588 3500.

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Back Author : Farzana Naz

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