Hague Convention: Overseas Child Abduction in Singapore Divorce

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, such as by making a Hague Convention application, to bring the child back.

If you face a similar situation, you may be confronted with some challengingla questions. Under what circumstances would a court order a child to be returned to the other parent? Which jurisdiction gets to decide on the issue of child custody? 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 who has been wrongfully removed from Singapore; or
• Make arrangements for securing the effective exercise of rights of access to the child.

The Hague Convention also governs the determination of the appropriate court which would make custody orders relating to the child.

However, the Hague Convention only applies 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

How to Make a Hague Convention Application in Singapore

If the child has been removed from Singapore, the complaining parent must bring a court action to invoke the Hague Convention either in Singapore or the country to which the child had been taken to. The Hague Convention application must be done within 1 year of the child’s removal.

To start the application, the complaining parent must file an Originating Summons in Form 213 of Appendix A of the Family Justice Courts Practice Directions (FJCPD). The Originating Summons must be accompanied by a supporting affidavit in Form 215 of Appendix A of the FJCPD, which will state the complaining parent’s personal knowledge of the matter.

These documents are to be filed through the e-Litigation system. If the complaining parent has not engaged a lawyer, they can file the documents at either of the two Lawnet & CrimsonLogic Bureaus in Singapore.

The filing fees for these documents are as follows:

* A litigant-in-person is a party in legal proceedings who is representing themselves instead of engaging a lawyer.

Hearing of the Hague Convention Application

After the Originating Summons has been accepted by the Family Justice Courts (FJC) Registry for filing, a court hearing date will be given immediately.

The complaining parent will also need to serve the application, together with any supporting documents, on the other parent in the proceeding. The application can be served on the other parent personally through using a court process server, or on the other parent’s lawyer if the lawyer is accepting service on the other parent’s behalf.

Within 7 days of the filing of the application, the complaining parent also needs to send a copy of the application to the Central Authority of Singapore and to any court where there might be pending proceedings relating to the custody, care and control or access to the child. If the parent fails to do so, the Singapore court might not hear the application.

On the first day at court, an Assistant Registrar will give directions on what to do next. This could include the filing of further affidavits if the information given at first is not comprehensive enough or further details are required.

When all the required affidavits have been filed and the application is ready for hearing, the court will fix a date for the application to be heard before a District Judge.

If the parents may be able to resolve their dispute on their own, the District Judge may direct them to either attend mediation or counselling at the Family Relations Chambers.

If the parents resolve their dispute before the hearing, they can attend before the District Judge in chambers to record a consent order. This will end the court proceedings. A consent order is an Order of Court confirming the terms the parties have agreed to in resolving their dispute.

Otherwise, if the dispute is not resolved, the District Judge will hear the application and decide on the matter on the parents’ behalf.

In Which Country is the Child a “Habitual Resident”?

To successfully invoke the Hague Convention, it must be proved that the child was a “habitual resident” in Singapore prior to his/her “wrongful removal” to another signatory nation, in breach of a parent’s custody rights. 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:

1. The shared intentions of both parents
2. The background of the child’s residences prior to the removal (i.e. location of the child’s school, home, caregivers)
3. The extent of the settled nature of the family prior to the removal

After the Hague Convention Application is Heard: Applying for Custody of the Child

If the Hague Convention application is granted

If the court determines that the child’s habitual residence is Singapore and grants the Hague Convention application for the child to be returned to Singapore, the complaining parent must forward a copy of the court order to the Central Authority of Singapore within 7 days of the order being made.

As for the returning of the child itself, the complaining parent will have to enforce the order for the child to be returned to Singapore. It is likely that a divorce lawyer in Singapore will have to be engaged for this.

After that, both parents will have to file for custody orders in Singapore to determine who should have custody over the child. This is because making a Hague Convention application does not resolve custody and access issues. Instead, it merely decides whether the court of Singapore, or of the country that the child had been wrongfully removed to, should make the custody order.

If the Hague Convention application is dismissed

If the Singapore court dismisses the Hague Convention application on the basis that the child’s country of habitual residence is not Singapore, then the complaining parent will have to file for a custody order in the country determined to be the child’s habitual residence.

However, the complaining parent may still stand a good chance of obtaining favourable custody orders in that other country. 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.

Defences to a Hague Convention Application

If you have filed a case against your spouse for international child abduction, there are some defences they could rely on against the claim of wrongful removal, if applicable. Some of these include:

1. Article 12: That more than one year has passed since the removal of the child
2. Article 13: hat the complaining parent had consented or subsequently acquiesced in the removal/retention of the child
3. 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
4. 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
5. Article 20: That the child’s return would subject him/her to violations of human rights and fundamental freedoms

For more information, read a case study on international child custody by matrimonial lawyer June Lim.

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A parent looking to make a Hague Convention application should seek help from a divorce lawyer who is best suited to give advice on this issue. The entire legal proceedings for international child abduction cases can be complex, depending on the particular circumstances of the case.

Hence if you are facing 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.