International child abduction refers to the act of taking a child out of Singapore without the consent of the other parent or the Court. When will the Court order a child to be returned to Singapore to the other parent? Which country’s Court will decide on the custody issues?
The Hague Convention
The Hague Convention is an international treaty that protects children who are victims of international child abduction. The Hague Convention helps parents who are seeking the return of their child who has been wrongfully removed from Singapore. However, the Hague Convention only applies to signatory countries, including:
2. United States of America
5. United Kingdom
7. South Korea
Application Under the Hague Convention
An application under the Hague Convention must be made within a year of the international child abduction. An application will be made to the Family Justice Courts by way of an originating summons supported by an Affidavit sworn/ affirmed by the complainant parent. The complainant parent will state his/ her personal knowledge of the matter.
Subsequently, a hearing date will be fixed. The application will need to be served on the other parent or his/ her lawyer. Within 7 days of making the application, the complainant parent will need to make an application to the Central Authority of Singapore.
At the first hearing, the Assistant Registrar will give directions to parties on what to do next, including the filing of further affidavits for more information. After all information is tendered to the Court, the Court will fix a hearing date for the matter to be heard before a District Judge who will decide on the matter. The parents also have the option of attending mediation to resolve the matter amicably.
Habitual Residence of the Child
To succeed in an application under the Hague Convention and secure the return of the child to Singapore, it must be proved that the child is a habitual resident of Singapore. The citizenship of the child does not determine the habitual residence of the child. To help the Court make a decision on the habitual residence of the child, the Court will consider:
1. The common intentions of both parties.
2. The background of the child’s residences and living arrangements prior to the removal (e.g. the location of the child’s school, home and caregivers).
3. How settled the family is in Singapore prior to the child’s removal.
After the Hearing of the Application
If the Court were to decide that the child’s habitual residence is in Singapore and that the child should be returned to Singapore, the complainant parent must forward a copy of the Court order to the Central Authority of Singapore within 7 days of the order. The complainant parent will have to enforce the order for the child to be returned.
After the return of the child, parties will have to apply for custody orders in Singapore.
If the Hague convention application is dismissed, the complainant parent would have to make an application for custody orders in the country deemed to be the child’s habitual residence.
The following are defences to the Hague Convention:
1. That more than a year has passed since the international child abduction.
2. That the complainant parent had consented to the removal of the child or subsequently agreed after the removal of the child.
3. That there is a serious risk of harm to the child if the child were to return to Singapore.
4. That the child is old enough to object to returning to Singapore and that it would be appropriate for the child’s wishes to be respected.
5. That the child’s return would subject him/ her to human rights violations.
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