Rights Beyond Borders

Considering possible preemptive legal steps to prevent your scumbag of an ex-spouse from leaving the country with your child.

A border-less world

The world has over the last century become border-less as a result of technological advancements. With the advent of media tools like electronic mail and affordable air transportation, distance is no longer a barrier for people to communicate and stay in touch. Of course, as with every other aspect of people’s lives, romance and marriage between people across horizons have also becoming increasingly common.

Most of the foreigners who marry in Malaysia hold citizenship or permanent residence status in their home country even though they may reside here or have their families living in Malaysia.

The complexities arising in a breakdown of a marriage with a foreigner is invariably involving the children. In this article, we try to explore some of the relevant legal issues.

STOP

The Hague Convention

In general, most countries have diplomatic relationships with other countries via internationally established regulations where they seek to recognise the laws and more often than not, render assistance in the effective enforcement of such laws of their respective counterpart countries in their homeland. The Hague Convention is one such example.

The 1980 Hague Convention on the Civil Aspects of the International Child Abduction is an essential piece of instrument where in the event a parent takes his or her own child out of a country to another and if both countries are participating countries in the Convention, the relevant government authorities in such countries will provide full co-operation to each other to track the child and the parent.

In theory, one would expect swift action and successful and safe recovery of an abducted child if he or she were in a participant country of the Hague Convention.

But reality is, again, another story all together. This is well explained in the Findings of the Report No.004 of the International Child Abduction to Non-Hague Countries Canadian Responses to Child Abduction Current and Proposed wherein upon survey, even if the country is a participant to the Convention, the obstacles of a parent seeking the return of the child are daunting and the plight of the parent is of extreme frustration and all too often ends in despair.

Malaysia is unfortunately not a participating country of the Hague Convention and this has invariably made the legal custody issues of children in marriages with foreigners more convoluted. Strictly speaking so long as a foreign parent and a child have passports, they could very well slip out of the country and that could be the last time the parent can see his or her own child. Many of such cases have happened and the ending is more often than not, tragic. Any Court Custody Order obtained in Malaysia may be of little use in the other country.

A classic case of Mohsen v Mohsen 715 F Supp at 1065 highlights such dilemma. The Court in that case ruled as follows:

In light of the fact the Petitioner’s daughter was last habitually resident in Bahrain, a non-contracting state, the court concludes that the petitioner has no rights under the Convention and is therefore not entitled to seek redress under its remedial provisions. As a non-signatory to the Convention, Bahrain has no obligation to reciprocate by affording similar rights to the Respondent in the event she found herself in a Bahrain Court trying to secure the return of Sarah from that country.

Preemptive legal steps

There are no hard and fast rules in curbing an abduction of a child because in theory, a parent has legal right to his or her own child and strictly speaking, they cannot be construed as “abducting” their own child and as such, they can travel freely without much interference by any authority.

In circumstances where there is a breakdown in a marriage and where the travel documents of a child is in the possession of the foreign parent, there will always be a fear that the parent would take the child out of Malaysia. The first and immediate step is to notify the Immigration Department of the possibility of the parent taking the child out of Malaysia. This is the fastest method of putting the government to notice of such intention and to enable them to at least stall any such move.

The parent should also make an application to the Court for an Injunction or Restraining Order to prevent the parent from taking a child out of the Country. The law is clearly spelt in the Law Reform (Marriage and Divorce) Act 1976. Any such Injunction Order must then be served on the Immigration Offices and the said parent so that if he or she attempts to disobey it, such parent can be held in contempt and may be sent to prison and/or slapped with a hefty fine. Contempt laws apply with full force to foreigners in Malaysia.

Of course the drastic (and I am not in any way encouraging this) option is to ensure physical custody of the child remains at all time with the local parent pending any such custody issue and that the foreign parent ought to be denied access or maybe have supervised access until the disputes are resolved.

The aim is always to prevent the child from being taken out of Malaysia. It is not to enforce any order after that.

However putting the above to practice may not be as effective without the following steps because if a marriage has indeed broken down and the parent wishes to return home, it would also be quite impractical or “cruel” to deny him or her access to their own children.

In any negotiation of custody issues, it would be imperative to compel the foreign parent to apply for a parallel order (basically an identical order mirroring the “custody order in Malaysia”) in his or her own country where in the event the parent does indeed takes the child out of Malaysia to that country, the parent here can seek to enforce the parallel order against the foreign parent in his or her own country. Armed with this order, the local parent will at least be assured that that errant parent will face the full wrath of the Court and the justice system in his or her own country.

In seeking the parallel order, the parent must also ensure that the foreign parent provide fully updated particulars of his or her home address, addresses of the family members and any other relevant information which allows the parent to track the said child where necessary. It is not possible to define exhaustively what needs to be in the said Order here but suffice to say, it must be sufficient to allow effective enforcement with maximum deterrence when the circumstances justify it.

The foreign parent can also be compelled to deposit or pay a bond or “security sum” with the local parent where in the event the foreign parent does take the child away, the local parent will at least have some financial resources to track the child down. As for adequacy of the amount, a very prominent lawyer in United States of America puts a conservative figure of USD100,000-00 to enable a parent to track an abducted child in United States of America. This alone is more than enough to break the spirit of an emotionally distressed parent who is already barely coping with the loss of a child.

Facts do not always tell the story

No amount of safeguard can cover every conceivable plan pertaining to a child abduction by his or her own parent. If the child is truly desirous of wanting to be with the foreign parent, are the Courts or the government in the position to deny the child’s wishes? Can the Justice system be said to show blind justice if it separates the child and parent because of the nationality and based on the facts presented to them?

I hope Courts dealing with family law issues will sieve through the disputes of the adults and determine for itself, if the disputes are all about “between” the embattled spouses or it is about the welfare of the child. The Law Reform Act clearly states that in dealing with custody, the paramount consideration is the welfare of the child.

However, for a Judge to be able to act with justice, there must be a sense of fair play by the lawyers. Facts do not always tell the whole story and a story may not consist of whole facts and when our court system is adversarial in nature, the better, not necessarily a lawyer with the facts wins.

Lastly it is hoped that in dealing with this sensitive issue, both parents are able to set aside their differences, rationalise in the most mature and civilized manner and then determine what is in the best interests of the child, not them.


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Posts by Dexter Mah

Posted on 27 May 2010. You can follow any responses to this entry through the RSS 2.0.

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