Custody battles across the seas

AN English woman who fled to the UK from Australia with her 18-month-old daughter has been ordered by the High Court to return the child to Australia where her father is a resident.

The recent case has highlighted the increasing number of such custody battles reaching the High Court.

The order to return the daughter to Australia was obtained on the application of the child's father under the provisions of the Hague Convention. These favour that children with parents of different nationalities who have parted should remain in the country where they have been brought up pending a custody ruling in that country's courts.

The father's successful application was conducted by solicitor David Clark, an acknowledged UK expert in Hague Convention cases.

Clark, formerly with Batchelors and now a consultant with Croydon-based firm White & Sherwin, was instructed in the first Hague Convention case to reach the High Court in September 1986. The rules were introduced earlier that year.

Since then he estimates that he has been involved in at least another 50 convention cases.

He has little doubt that when it comes to making such orders, our High Court sticks to the letter of the Hague rules and is more consistent than some other countries which are bound by those rules.

This recent case has brought calls from MPs such as Labour's Bill Olner, who chairs an all-party group of MPs on abduction, for the Government to re-examine the convention and to establish a more level playing field between countries when dealing with such cases.

It is clear the number of such cases is on the increase. Official statistics from the Lord Chancellor's Child Abduction Unit indicate that in the first year the provisions became effective there were five applications. In the last statistical year, 1993, there were 128.

Clark, a specialist in family and children's sector and abduction matters, predicts the increase will continue and identifies Australia and the US as two of the principal countries involved.

He also notes the variations in approach adopted by different countries. In the UK all such cases have to go before a full High Court judge and, while there have been one or two where the child has not been returned, possibly because the child has objected, he says most applications for return have been granted.

However, he admits other countries do not have the same cohesive judicial policy and courts in some jurisdictions are less likely to make orders for the return of children than ours.

One common problem with these cases, he says, is that the applicant will be directed straight to the panel of solicitors who are experts in the subject. But invariably the parent who has taken the child from its country of origin will be living in the country with their family and will consult a local solicitor who has never dealt with such a case.

He also draws attention to the dangers of inexperienced solicitors in this field of law, who find themselves instructed to act in such a case and attempt to go it alone.

He says the best thing such a solicitor can do in the interests of the client is to bring in agents who are fully conversant with this area of the law or ensure that counsel fully understand it.

If they don't he warned: "They can do more harm than good by mounting a spurious defence because that could undermine the trust of the foreign courts when the case ultimately goes back to them."

Since the above case was heard two other UK mothers who were initially ordered to return their children to the countries they were born in, one the US and one Spain, have been given permission by the foreign courts to return to the UK with their children.