Commencing Court Proceedings Against An Ex-spouse Who Has Abducted Your Child
Under the Women’s Charter (Cap 353), your ex-spouse is required to seek your consent or obtain the permission of court before removing your child from Singapore. If your ex-spouse has brought the child out of Singapore without your consent, that amounts to child abduction. We empathize with your fear in such a situation. Hence, we will share with you the process of applying to Court for the return of your child.
1. Making a Hague Convention Application in Singapore
The first way to get your child back is to bring a court action to invoke the Hague Convention (“HC”) within one (1) year of your child’s removal, either in Singapore or the country to which your child has been taken to. HC is an international treaty that protects children from international abduction. It provides a legal avenue for you to:
- Seek the return of your child who has been wrongfully removed from Singapore; and/or
- Make arrangements for securing the effective exercise of rights of access to the child.
However, only some signatory nations have adopted the HC. Some of the signatory countries include Singapore, United States of America, Australia, Germany, United Kingdom, Japan, South Korea etc. Hence, you are only able to invoke the HC if your child has been taken to these signatory countries. If you cannot locate the country where your child has been taken to, speak to our International Divorce Lawyers to check.
Step 1: File an Originating Summons in Form 213 and a Supporting Affidavit in Form 215 of Appendix A of the Family Justice Courts Practice Directions (“FJCPD”) through the e-Litigation system.
Step 2: Serve on the other parent the HC application and other supporting documents.
Step 3: Send a copy of the application to the Central Authority of Singapore and to any court where there might be pending proceedings to the custody, care and control or access of your child. Failure to do so would result in that court not hearing your application.
Step 4: Once the required affidavits are filed and application is ready for hearing, your case would be heard before a District Judge.
Step 5: To successfully invoke the HC, you must prove that your child was a “habitual resident” in Singapore before being wrongfully removed to another signatory nation. While the term “habitual resident” is not defined, the court will take these factors into consideration to determine your child’s habitual residence:
- Whether your child’s ordinary residence or home is in Singapore?
- Whether you and your ex-spouse intended for your child to be a habitual resident in Singapore?
- Whether your child attended school in Singapore?
- Whether your child had caregivers who are based in Singapore?
These factors turn on the extent of how settled your child is in Singapore prior to the removal and are by no means exhaustive. Speak to our Lawyers who can assist you in making this complicated process a seamless and expedient one.
Step 6: Once your HC application is approved, you will have to forward a copy of the court order to the Central Authority of Singapore within seven (7) days and enforce the order for your child to be returned.
Step 7: Following which, you will need to file for custody orders in Singapore to determine who should have custody over your child. If the HC application did not succeed, you may have to commence separate proceedings domestically in the signatory nation.
Alternative strategy if the Hague Convention is not applicable
If your ex-spouse has taken your child to a non-signatory country to circumvent the HC, having your child returned would be more challenging. Although it seems like a possibly unfamiliar and tumultuous process, many non-signatory countries still prioritize the welfare the child and have measures or laws in place to tackle international abduction. One example of such a country is India. For example, although India is not a signatory, under Art 226 of the Indian Constitution, you will be able to petition to India’s High Court to issue a Writ summoning your ex-spouse and your child in Court.
Even though it is extremely distressing to learn that your child has been forcefully relocated to a non-signatory state, there are still ways to get your child back to Singapore if it is in his/her best interests to return. Speak to our divorce lawyers to find out more about how we can assist you in the safe and proper return of your child.