In a time of easy international travel, increasing cross-cultural marriages and rising divorce rates, the problem of international child abductions is growing. Many Thai women go to live abroad as a spouse, some with little education or skills, especially in the language. Marriages fail.
Differences in background and the current economic climate in Europe can put further strain on shaky marriages.
In these circumstances, Thai women in Europe often have no network of friends and family, no jobs to support themselves and their children, coupled with the inability to tolerate their former spouses. Many have been in court to fight over the children and relationships have become fraught. Some are keen to return to live in Thailand, while many just want to take their children to visit Thai relatives.
A British father may object to his child leaving the country, however, fearing that the mother will not return with the child. Sometimes the fears are well founded because the mother has made threats to take the child away or told the child that they will go and live abroad.
In this situation, the father can apply to the court for a "prohibited steps order", meaning the mother will be prohibited from taking the child out of the court's jurisdiction without the agreement of the father or permission of the court. The child's passport will be surrendered and no application can be made for a new one.
On the basis that the welfare of the child is of paramount importance, the court is, in principle, in favour of the child maintaining contact with grandparents and other relatives, and learning the language and culture in the country of his or her heritage. However, this has to be balanced with the benefit to the child of being able to continue seeing both of his or her parents even if they are not living together.
This balancing exercise occurs when divorcing parents are from different countries, even countries whose ways of life are more similar to the UK than Thailand. But countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction 1980 have laws and procedures to follow when a child is abducted from one country and taken to another, or wrongfully detained following a visit to another country. The parent whose child has been abducted can go to the central authority in his or her own country. That authority will request that the central authority in the destination country locate the child and expedite the child's return.
All expenses, including court and lawyers' fees but excepting return transport costs, are paid for by the central authority in each country. So if a parent wants to take a child to a country that is a signatory to the Hague convention, a British court usually has no difficulty in agreeing because of the ease in obtaining the child's return.
When a parent, however, wants to take the child to a country that is not a signatory to the convention, such as Thailand, the British court is more reluctant. If the child were to be detained wrongfully, the British parent would have to pay all the expenses, of travelling to Thailand, locating the child and taking up proceedings in a Thai court. The Thai court would consider the matter purely under Thai law, starting with the issue of whether the child is legitimate or illegitimate.
In a circumstance where the mother is able to convince the British court that she will return the child, the court will often impose a financial bond for an amount believed to be sufficient, if necessary, for the father to travel to Thailand, locate the child and take up proceedings to get the child back. Until July of this year, Thai mothers often had the assistance of public funds to pay for legal fees in obtaining the court's permission to take children to Thailand. Without that, and since a mother is unlikely to get the father's agreement, she will have to wait until the child reaches the age of majority. Since July, legal aid for family proceedings has been drastically curtailed and a parent no longer gets financial help to go to court for private family law matters.
Thailand signed the Hague convention in 2002 but has not enacted domestic laws or established regulations and procedures to implement it. The relevant draft bill has not passed both houses of parliament. (See sidebar, Page 7).
In the meantime, the situation is sad for Thai parents and half-Thai children. If Thai parents living in Britain do not have the means to take up proceedings in a British court, they are likely to take the children to Thailand wrongfully and spend the rest of their lives hiding from the other parent. In the same way, Thai parents living in Thailand who suffer the devastating loss of having their children abducted will be unable to do anything because they do not have the wherewithal to pursue the matter in a British court.
The Thai government can alleviate these heartaches by implementing the Hague convention as soon as possible.
Saisampan Suvarnapradip Hilton is the only Thai barrister practising in England. She is a legal consultant for Thai organisations, including the embassy, temples, and other charities. She gives legal advice and has written a handbook about how to live in England, available at http://www.thaiwomensorganisation.com.