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Hague Convention - urgent

(18 Posts)
desperatemum74 Mon 27-Jun-11 22:41:04

PLEASE can somebody help me. I have returned form Australia with my 19 month old son in February. He was born in Australia. I have suffered domestic abuse and I have discovered my ex - partner is an Injecting drug user and alcoholic. He is also on the brink of insolvency. He continues to send me threatening emails and text messsages. I have been served with hague Convention papers and I am attending the high court in London on Thursday. I do not qualify for legal aid as my dad left me some money when he died. I know there is a chance I will be sent back. I am hoping that the fact that he cannot support us on my return will help me. Does anybody have any advice? he has told me he will apply for custody of my son and has already set these motions in place.

He is angry I will not consider reconcilliation and never asks about our son and refuses to pay child support. I am very affected by all this and spend all my time in constant turmoil. I am desperate. I am worried that all my money will be used in the case here and will not have anything if I am deported. If I sign everything over to my son will I be able to get legal aid? In Australia the legal aid system is different and to get good representation I need a good lawyer. PLEASE can anybody help me??

STIDW Mon 27-Jun-11 23:54:01

The last thing you need is for your integrity to be question and you can't just take the law into your own hands. Legal aid is intended for people who don't have the means to pay a solicitor and transferring assets to become eligible for legal aid is dishonest and a risky strategy.

Thistledew Tue 28-Jun-11 00:15:40

The Hague convention deals with cases of child abduction. It is not something that would cause you to be deported. You only need worry about being removed/deported from the UK if you are not a British National and have no leave to remain here.

I don't know much about the convention but I believe that to have a requirement that your child be returned to Australia there has to be a court order in place that your ex-p has custody or residence. I believe that the UK court will have jurisdiction to make a decision as to whether ordering the return of the child to Australia would be in his/her best interests, and they are not going to make such an order if your ex-p is a drug addict.

I do strongly advise you to get a reputable solicitor to advise you. Not having the stress and worry of trying to deal with it yourself will surely be worth the money.

It is not worth transferring money into your child's name in an attempt to male yourself eligible for legal aid- you have to disclose not only what assets you have but also whether you have disposed of any assets in the past year.

STIDW Tue 28-Jun-11 01:19:52

Agree definitely see a solicitor with experience in Hague Convention proceedings if you haven't already. I'm not solicitor but I believe allegations of DV won't necessarily prevent children being returned to the jurisdiction where they habitually live when protective orders or undertakings are recognised and enforceable in the requesting state.

There is a recent case about this point when the children where returned to Norway despite allegations that the father had laid about them and tormented and killed family pets as a form of intimidation.

STIDW Tue 28-Jun-11 01:22:17

See;

http://www.familylawweek.co.uk/site.aspx?i=ed83890

STIDW Tue 28-Jun-11 01:45:44

BTW although you won't be deported extradition is a possibility. Sorry to sound so negative but international child abduction is a very serious matter and you really do need good legal advice and representation.

Collaborate Tue 28-Jun-11 08:48:53

OP - you are entitled to non-means and non-merits tested Legal Aid. Doesn't amtter whether you're a millionaire or not.

Look at the www.reunite.org website for details of specialists in your area.

Just to clarify what Thistledew says - there doesn't have to be a court order in Australia. The Hague Convention is about breaching rights of custody, which stem from the inherent rights given to a parent in the country they've been taken from. For example a father in this country who doesn't have parental responsibility will not have rights of custody, but a father with parental responsibility will.

There are defences to these applications, but they are very narrowly interpreted by the courts here. You must contact a specialist though. It's a very technical area of the law and easy to get wrong. There are very few cases of these every year, and the same few people seem to do them time and time again.

Collaborate Tue 28-Jun-11 08:50:42

Another thing. Extradition I think referes to the way that someone who's been arrested can be sent to another country for trial. You don't have to worry about that. The court can only order the return of the child, although it goes without saying that if the child has to return then you will go too.

LizaTarbucksAuntie Tue 28-Jun-11 09:09:02

Ok, as someone who has spent the last 4 years fighting something similar.

1) If you have any actual proof of what you are saying about your ex you need to use it. You me and the the world might know something about someone but honestly if there is no proof in Court it will be your word against his - that's not a great place to be trust me. People will lie through their teeth in a Court.

Unfortunately Courts don't react well to accusations without any proof (very hard to prove domestic violence isnt' it, particularly when was carried out by one of those charismatic men....)

It is likely that at any hearing a CAFCASS report will be ordered. When you are discussing anything with anyone, make sure you are focused solely on the wellbeing of your child and don't talk about maintenence or non payment of it - in the UK it's kept very separate.

Keep and use every single shred of evidence you have emails, texts etc etc.

Consider what you WILL do to support contact (if you will do anything) you might want to talk about using SKYPE etc - this could be a really safe situation for your child.
However if you've fled in fear of yours and DC's life.. you need to say it.

Sorry if too much shorthand. Just from a perspective of someone who has been shafted by being too reasonable.

babybarrister Tue 28-Jun-11 10:51:41

Collaborate - I had always understood that only the left behind parent qualified for non-means tested legal aid on hague convention cases ....that has certainly been my experience.

you need to produce as much evidence as possible but please be aware it is very hard to succeed with an Article 13 defence. please also realise that the fact that you may have to return to Oz [ie that there is an order for the child to return] does not mean that the courts in Oz would not then allow you to relocate back to UK. the purpose of the Hague convention is to govern which court should make the decisions about a child ....

I would second the list suggested by Collaborate held by Reunite as to true specialists in this area - their website also has a lot of useful info on it

Collaborate Tue 28-Jun-11 12:31:58

oops babyb I think you might be right.

babybarrister Tue 28-Jun-11 13:58:44

sadly I think I am right - it can have very bizarre consequences such as where children of 13 and 14 effectively decide to stay with one parent after a holiday abroad because the other parent is an alcoholic. the alcoholic [resident] parent got legal aid as the "victim" but the parent with whom the children opted to stay did not as they were the "abductor" .... hmm

Collaborate Tue 28-Jun-11 14:07:32

Though they are able to qualify for legal aid on financial grounds if their income is low enough. The government haven't yet said that they will stop funding for this.

I'm trying to whip up opinion in the profession about a strike by family lawyers that would see us, for a week, not doing any work at all for those cases that qualify for legal aid at the moment but won't if the new law is brought in. Then the country can see for a short while how much chaos will reign.

I got interim residence for a client yesterday which involved a child being saved from serious emotional abuse that was only uncovered because he had legal aid to apply to court. He wouldn't have bothered otherwise. How many children will have to suffer if people like this are denied proper advice and representation?

desperatemum74 Tue 28-Jun-11 20:32:26

Thank you all so much. I have been told that if he is unable to support me and my son financially on our return then that could be a way around this??? I believe there are also conditions to our return such as: My son remains in my custody, my ex will have to support us for a period of time etc?? My ex has telephoned and said that he already has the 'wheels in motion for the family court when I return" This is a total nightmare

Gonzo33 Thu 30-Jun-11 19:29:41

DM74,

I cannot add anything to this thread but wanted to wish you good luck. Your ex sounds like mine, and I know how stressful this must be for you (((HUGS)))

G

wishitwaseasy Tue 05-Jul-11 00:08:42

Hi, Im going through a similar thing. Well, almost similar. My husband has children who normally reside in Oz but are with us on holiday (for the first time as his ex has always denied contact) we also have her 15 year old daughter too. (not my husbands child although he is the only father she has eVer known). We have just been advised by her last thursday that her mother is a drug addict.
(We thought she had depression. W e have always been in contact with her mother and my husbands mother who goes out annually and have always supported her financially).
In the past we have tried contacting social services several times as well as the kids school headmaster but to no avail.
We have also told them the mother is drug dealing, as well as injecting in front of them (confirmed by all children).
But social services in Oz will not even email/call us back.They actually dimissed her from thei care last year stating everything was ok, despite the fact the children admitted they had witnessed their mother trying to hang herself!!!
I am not trying to hijack your post but honestly believe social services are totally rubbish over in Oz and that you need not worry because unless your ex wins the lottery he wont have the means to fight (we were told that it would have to go to the high court) , let alone find someone there who actually cares about his case. Stand up to him and tell him to give it all he has...he will run a mile!! You are doing the right thing and its about time society represented the rights of the victim rather than the criminal!! Your child is the victim! LOL and take care xxx

Collaborate Tue 05-Jul-11 06:30:45

Wishitwaseasy have you not read this thread properly? The other parent would get free legal representation to get the children back. They don't need the means to fight.

wishitwaseasy Thu 07-Jul-11 09:12:52

I muat have missed that part.... sorry.Its so unfair.

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