Culture clash

The issue of international child abduction has led to many heartbreaking cases, demonstrated recently in the widely-publicised case of Nadia Fawzi, a six-year-old girl who was abducted by her father and taken to Libya in 2007, and only returned to her mother earlier this month. There has been a steady increase in similar cases over the years reflecting the rising number of transnational marriages, the new global mobility of the workforce, and, within the European Union, the freedom to work across the continent.

A large number of countries entered into the Hague Convention on the International Aspects of Child Abduction to establish an agreed procedure to deal with the problem. However, the principles of the Hague Convention are not accepted in much of the Islamic world, where potentially the result may clash with religion-based law. For similar cultural or traditional reasons, many Asian and African countries are not parties. Therefore, if a child is abducted into one of those non-convention countries, proceedings have to be taken in the courts of that country to get the child back.

For example: a mother from the Middle East meets an English man when he is working in her country, and, in due course and after having a child out there, the man is posted back to England, taking the mother and child with him. The couple separate when the child is small and while still in the UK. The mother feels isolated and bereft of family support. She arranges to take a holiday back with her family and then decides to stay. She takes the baby and returns back to her family in the Middle East. If her family home is in a non-convention country, then the 'left behind' parent has to apply for custody in the courts of that country and the subsequent law applied will be the law of that country. In this example, many Middle Eastern countries have an assumption that below a certain age the child will live with the mother (unless there are special circumstances why not). Here, the father 'left behind' would have a very difficult task in securing the child's return.

Even where general welfare principles are applied by the courts of the country to which the child has been abducted, the deck is obviously stacked against the 'left behind' foreign parent. Such a parent probably is not very conversant with the language in the country the child has been taken to. The court system is different. He or she is not on the scene, and has to communicate with their lawyers at a distance. Almost certainly they will be privately paying for lengthy and expensive proceedings.

Different rules

However, if the child is taken to a convention country, a wholly different set of rules apply. The underlying principle of the convention is that the courts of the country where the child was last habitually resident is the proper forum to determine issues as to the child's residence and welfare. Unilateral removal by one parent cannot change the habitual residence. Therefore, if we change the example above to an Australian mother and an English father, the convention will say that the child's last habitual residence, England, is the place where the issue of residence should be determined. The father's claim will be notified through the Child Abduction Unit, transmitted to the Child Abduction Unit in Australia, and court proceedings will be brought to require the mother to show cause why she should not face an automatic return of the child to England.

There is only a limited range of defences available to a Hague Convention claim. If the 'left behind' parent has consented to the child leaving, that defeats a convention claim. If the child will be at risk should there be a return that can also constitute a defence. However, the risk has to be systemic. A defence such as that the 'left behind' parent is habitually violent will not normally be enough, because it is likely that there are domestic laws in the country of the child's habitual residence which can protect the child. Hence it is a very hard defence to establish.

In the Hague Convention cases, the 'left behind' parent actually is the one with the financial advantage, because they have automatic legal aid. A defending parent will find that they often have to pay privately which can mean they often face an expensive and lengthy process.

There is some disquiet that the Hague Convention is really being used as an instrument of marital oppression, to put pressure on partners, particularly mothers, to stay in relationships against their will by preventing them from going back to the support of family and their home environment. In a distressing number of cases, the price of consent for a mother moving back home is to forfeit any monetary claim.