The Bar Council's International Malaysia Law Conference 2016 ("IMLC 2016") was held at The Royale Chulan Kuala Lumpur from 21 to 23 Sept 2016.
By Goh Siu Lin
The distinguished speakers at the session on the Hague Convention on the civil aspects of international child abduction — The Right Honourable Justice Dato’ Dr Hj Mohd Na’im Hj Mokhtar, Chief Syarie Judge of Selangor; Anselmo Reyes, Professor of Legal Practice at Hong Kong University; Malathi Das from Joyce A Tan & Partners LLC, Singapore; and Kiran Dhaliwal of Y N Foo & Partners — shed light on the fraught area of international child abduction. The session was moderated by Goh Siu Lin of Shook Lin & Bok.
Mr Reyes provided a global overview of the experiences of Hague and non–Hague Convention signatory countries. He spoke about the longterm effects and child trauma caused by parental child abduction, and the urgent need to have a cross–border mechanism to speedily return children. Some countries have held back from becoming signatories on the misunderstanding that changes in domestic law are involved. Hague laws operate to return the child to the jurisdiction of habitual residence. The issues of custody, access and maintenance are to be decided by the courts of the home country.
Mr Reyes explained that the Convention has been working well and is constantly being fine–tuned. The Central Authority acts to smoothen the process of child recovery to assist the left–behind parent who may lack the resources and finances.
Ms Kiran spoke from the civil practitioner’s perspective, illustrated by two case studies. First, the Gillespie case which posed the legal quandary caused by Malaysia’s dual system. The mother was non–Muslim, and the children, Muslims. The issue arose as to which court was to have jurisdiction over the custodial dispute.
The second case involved a 10–year–old Malaysian child who was removed to Singapore in defiance of a Malaysian custody order obtained by the father. The matter was resolved amicably through the cooperation of lawyers. If Malaysia had been a Hague signatory country, an administrative application could have been filed for the child’s immediate return. This would prevent forum shopping.
Finally, she spoke about the practical problems when a parent seeks the return of an abducted child. Regrettably, as a non–Hague signatory country, Malaysia is viewed with suspicion, resulting in reluctance to order a return, which is exacerbated by the issue of unilateral conversions to Islam.
Justice Dato’ Dr Mohd Na’im said there have only been two reported cases of international child abduction handled by the Syariah Courts: the Gillespie case and Ismail Arifin (Lepat). The Judge opined that the court represents the ruler and the civil/Syariah court is to show obedience to an order for custody. If the return of the child cannot be materialised without using certain instruments, then the Hague Convention can be used as a basis of returning the child to the custodial parent. The Judge acknowledged that existing domestic laws are insufficient, and felt it was timely for Malaysia to consider acceding to the Convention.
Ms Malathi spoke on the Singapore experience as a new Hague signatory party in 2010, and the application of the Convention in the first local case, which was litigated up to the Court of Appeal.
She also looked into the principles adopted by the Singapore courts in cases involving non–Convention countries and concluded with how the Hague laws in Singapore apply uniformly to Muslims and non–Muslims. She said that the success of the Convention would ultimately depend on the re–education of the government, judiciary and child welfare authorities to abandon the practice of using the child’s interests to justify retaining the child in the country of abduction.
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